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Cheryl Mackey v. Razier Park Public Utility District

October 5, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


The parties appeared before this Court on Defendants' motion to compel the mental examination of the Plaintiff, Cheryl Mackey, pursuant to Federal Rules of Civil Procedure, Rule 35(a). Randy Rumph appeared on behalf of Plaintiff. Jeremy M. Dwork appeared for Defendants.

Defendants contend that given the allegations in Plaintiff's complaint, Plaintiff's on-going complaints of emotional distress, and the personal tragedies which occurred prior to Plaintiff's allegations of mistreatment in her workplace, Plaintiff has placed her mental status at issue and good cause for the exam exists. Plaintiff contends that the exam is not necessary, as the expert designated by Plaintiff was mandated and chosen by Defendants and Defendants have not shown why the medical records and discovery obtained thus far are insufficient. For the reasons set forth below, Defendants' motion is DENIED.

I.Factual Background

In this action, Plaintiff is suing her former employer, the Frazier Park Public Utility District (referred to herein as "the District"). Plaintiff's Complaint alleges six causes of action: four under 4 the Fair Employment and Housing Act for hostile work environment, constructive termination, 5 retaliatory constructive termination and retaliatory hostile work environment and two against 6 Defendant Keenberg for hostile work environment and constructive termination under 42 U.S.C. § 7 1983. Plaintiff's Third and Fifth causes of action allege she has suffered damages including 8 "emotional distress, and mental anguish." (Doc. 1 at 6 and 7). Plaintiff prays for relief including 9 damages for "emotional distress and mental anguish." (Doc. 28-4 at 9).

Plaintiff was employed with the District's field crew for approximately four years. In April 2010, Plaintiff's daughter was murdered. (Doc. 28-4 at 4). Around that same time, her father was imprisoned for possession a weapon. (Doc. 28-4 at 23). Shortly after these events, the District suggested that Plaintiff attend counseling to help cope with the events that had occurred in her personal life.

In May 2010, the District contacted Sarah Edwards, LCSW, Ph.D., to discuss setting up an appointment with Plaintiff "in the face of the tragic death of [Plaintiff's] daughter." (Doc. 29-3 at 2). Plaintiff agreed to attend the counseling and that a brief leave of absence from work was appropriate. (Doc. 29-11). In July 2010, Dr. Edwards cleared Plaintiff to return to work. (Doc. 29-3).

Plaintiff alleges that when she returned to work after her two-month leave of absence, the workplace harassment and discrimination worsened. In November 2010, Plaintiff resigned from her employment with the District. According to Dr. Edwards, Plaintiff continued to see her to "deal with [the] stress [at work]." (Doc. 29-3 at 2). After Plaintiff left the District, she also saw other mental health professionals including: Dr. Charles Allen, Ph.D. (QME) and Greg Hirokawa, Ph.D.*fn1 Defendants have obtained the medical records from each of these providers and have deposed Dr. Edwards. Plaintiff has designated Dr. Edwards as her expert.

Defendants seek to have Plaintiff undergo a psychiatric examination by Dr. Hochman, a 2 psychiatrist certified by the Board of Psychiatry and Neurology, at his office located at 9911 West 3 Pico Boulevard, Suite 660, Los Angeles, CA. The examination will take approximately 4-6 hours. 4 Defendants have requested that Plaintiff appear for the mental examination prior to October 20, 5 2012. The examination would be limited to Plaintiff's alleged emotional and mental injuries and 6 the extent and cause of such injuries, Plaintiff's mental state at the time of the alleged mistreatment 7 by Defendants and the evaluation process described by Dr. Hochman. (Doc. 28-3 at 36-37). 8

II.Legal Standard

Rule 35(a) sets forth the requirements needed to obtain an order compelling a mental examination. It states the following:

1. The court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

2. The order:

(A) may be made only on motion for good cause and on notice to all parties and the ...

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