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Cheryl Mackey v. Frazier Park Public Utility District

October 25, 2012

CHERYL MACKEY,
PLAINTIFF,
v.
FRAZIER PARK PUBLIC UTILITY DISTRICT, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ON MOTION FOR RECONSIDERATION (Doc. 33)

INTRODUCTION

Defendants Frazier Park Public Utility District and Greg Keenberg seek reconsideration of the Order (Doc. 31) denying Defendants' motion to compel a Fed. R. Civ. P. 35 medical examination of plaintiff Cheryl Mackey on the grounds that the Order is "clearly erroneous or contrary to law." Ms. Mackey did not file a timely opposition. For the reasons discussed below, this Court DENIES the Request for Reconsideration.

BACKGROUND

A. Facts

In this action, Ms. Mackey brings California state law claims against her former employer, the Frazier Park Public Utility District ("FPPUD") and federal claims against her former supervisor Greg Keenberg ("Mr. Keenberg"). The complaint alleges six causes of action: four against FPPUD under California's Fair Employment and Housing Act for hostile work environment, constructive termination, retaliatory constructive termination and retaliatory hostile work environment, and two against Mr. Keenberg under 42 U.S.C. § 1983 for hostile work environment and constructive termination. Five of Ms. Mackey's six causes of action allege that she has suffered damages including "emotional distress and mental anguish." (Doc. 1 ¶¶ 19, 24, 29, 40, 45). She seeks judgment against Defendants for "emotional distress and mental anguish damages to be determined at trial." (Doc. 1 at 8).

Ms. Mackey was employed with FPPUD's field crew for approximately four years. In April 2010, Ms. Mackey's daughter was murdered. (Doc. 28-3 at 4). Around that same time, her father was imprisoned for possession a weapon. (Doc. 28-3 at 23). Shortly after these events, FPPUD suggested that Ms. Mackey attend counseling to help cope with the events that had occurred in her personal life.

In May 2010, FPPUD contacted Sarah Edwards, LCSW, Ph.D., to discuss setting up an appointment with Ms. Mackey "in the face of the tragic death of [Ms. Mackey's] daughter." (Doc. 29-3 at 2). Ms. Mackey 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 Ms. Mackey to return to work and Ms. Mackey did so. (Doc. 29-3).

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

Defendants sought to have Ms. Mackey undergo a psychiatric examination by Dr. John Hochman, M.D., a psychiatrist certified by the Board of Psychiatry and Neurology. The examination would be limited to Ms. Mackey's alleged emotional and mental injuries and the extent and cause of such injuries, Ms. Mackey's mental state at the time of the alleged mistreatment by Defendants, and the evaluation process used by Dr. Hochman. (Doc. 28-3 at 36-37).

B. Procedural History

Defendants filed a motion to compel a Fed. R. Civ. P. 35 mental examination of Ms. Mackey on September 24, 2012, and Ms. Mackey filed a timely opposition on October 1, 2012. (Doc. 28, 29). Oral arguments on the motion were held October 5, 2012 before Magistrate Judge Jennifer L. Thurston. (Doc. 34). Magistrate Judge Thurston entered an Order denying Defendants' motion on October 5, 2012, and Defendants filed this motion for reconsideration on October 15, 2012 (Doc. 31, 33). Ms. Mackey did not file a timely opposition. Having considered the parties' arguments and the relevant law, this Court issues this order.

DISCUSSION Motion for ...


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