Employment Law Daily Psych, medical records privileged, but involuntary commitment might be after-acquired evidence limiting damages
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Friday, May 25, 2018

Psych, medical records privileged, but involuntary commitment might be after-acquired evidence limiting damages

By Lorene D. Park, J.D.

Denying in part an employer’s motion to compel an employee to produce psychiatric and medical records or to dismiss his emotional distress damages claim, a federal district court in Washington found that purely medical records were not relevant because he did not claim the workplace harassment he experienced caused physical injury. And though records related to his alleged emotional distress were relevant, they were shielded by the psychotherapist-patient privilege because he asserted only garden-variety emotional distress and would not be relying on a medical provider’s testimony to support his claim. That said, the court granted the motion with respect to records concerning the employee’s involuntary commitment to a psychiatric facility in 2012 because that might have disqualified him from employment and the employer was entitled to determine whether it could rely on the after-acquired evidence doctrine to limit any recovery for lost wages (EEOC v. Big Five Corp., May 22, 2018 Martinez, R.).

Racial harassment. A retail employee, who intervened in the EEOC’s discrimination suit, complained that managers and coworkers made frequent offensive remarks, including calling him “boy,” “Shadow,” “King Kong,” and “Spook.” There was also harassing conduct, including assistant managers holding box cutters in a threatening way, saying “we will hang you” or asking if he was ready to commit suicide and offering assistance. At one point, a management trainee allegedly told him that his “kind” wasn’t allowed in the stock room and he would die at Big 5 and end up in a river. He complained but things only got worse.

Claims for damages. Asserting claims for discrimination and a hostile work environment under Title VII, Section 1981, and state law, the employee sought $60,311 in back pay, plus lost benefits, $74,620 in front pay, and $1 million in compensatory damages for emotional distress. As for the latter claim, the employee alleged that the racial harassment he experienced at work caused him “garden-variety” emotional distress, including anxiety, nausea, diarrhea, sleep loss, depression, low self-esteem, withdrawal, discouragement, and irritability.

Dispute over medical and psychiatric records. Declining to produce medical or psychiatric records in discovery, the employee asserted that he was not suffering from a specific psychiatric disorder or severe emotional distress and would not rely on any medical or mental health expert to support his claim for emotional distress damages at trial. In response, the employer moved to strike the employee’s claim for emotional distress damages.

Relevance. With respect to any “pure” medical records, the court agreed with the employee that these were irrelevant, because he did not request any damages for any physical injury, and the physical symptoms he noted were those manifested from his emotional distress. That said, the employee’s health records documenting symptoms of emotional distress were relevant to, among other things, the cause underlying the emotional distress and the magnitude of distress.

Psychotherapist-patient privilege. That did not end the analysis, though, and the court had to determine whether relevant records were protected from discovery by the psychotherapist-patient privilege and whether that privilege had been waived. Based on the employee’s representation that he did not seek psychiatric treatment for the emotional distress allegedly resulting from workplace harassment and would not rely on a medical provider’s testimony but was seeking damages only for “garden-variety” emotional distress, the court found that he had not waived the privilege with respect to the records addressed so far. That said, the employer could cross-examine him about other stressors and contributing factors that could explain the symptoms of emotional distress that he had described.

After-acquired evidence of involuntary commitment. The analysis was different, however, as to records from the employee’s 2012 involuntary admission to a psychiatric facility. He was “placed under the care of mental health professionals and involuntarily detained” after his mother called 911 out of fear for his mental health. Arguing that the employee should be compelled to disclose these records under the after-acquired evidence rule, the employer argued that if the employee was involuntarily committed for psychiatric treatment, he would have been disqualified from selling firearms under federal and state law, and either would not have been hired or not allowed to remain employed there. Finding this argument persuasive, the court held that the employer was entitled to review the employee’s medical records concerning the 2012 hospitalization to determine whether it could use the after-acquired evidence doctrine to limit recover of his alleged wage damages.

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