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Nuskey v. Lambright

June 10, 2008


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me by Judge Paul F. Friedman for resolution of discovery disputes. Currently pending before me are Defendant's Motion (1) for Order of Mental Examination and (2) to Compel Production of Medical Records and Supporting Memorandum [#27] ("Def. Mot."), and Plaintiff's Motion to Compel Defendant's Discovery Responses and Two Depositions in this Case [#28] ("Pl. Mot."). For the reasons stated herein, both motions will be granted in part and denied in part.

I. Background

Ms. Nuskey was hired by the Export-Import Bank of the United States ("Bank") on August 9, 2004, with a "Superior Qualifications" appointment to serve in the position of Business Development Specialist in the International Business Development Division ("IBD") of the Export Group. Complaint [#1] at ¶ 15. According to Ms. Nuskey, three "less experienced, younger males" (together, the "comparators") were also hired at that time as Business Development Specialists. Id. at ¶ 16. All four new employees were required to complete a one-year probationary period. Id.

Ms. Nuskey was assigned professional duties and responsibilities for Southeast and Central Europe, and was responsible for "attending various internal and external meetings with Bank management and other staff and Bank clients, as well for [sic] attending domestic and international trade shows and seminars." Id. at ¶ 17. She received a positive performance review on April 5, 2005. Id. at ¶ 18.

Craig O'Connor became her supervisor in February or March of 2005, and Ms. Nuskey alleges that she "began to be excluded from important meetings that her younger male colleagues and supervisors were invited to attend." Id. at ¶ 19. She alleges that this disparate treatment continued and included, for example, not being assigned international travel, being shielded from the Bank's Directors, and being denied career advancement -- all slights to which the comparators were not subjected. Id.

She met with a supervisor, Michael Forgione, to report these and other incidents. Id. at ¶ 20. She claims that he agreed with her assessment that she was not being treated equally, id., but that he later spoke to her in an abusive manner and prevented her from attending an international conference. Id. at ¶ 27-29. She was terminated by Mr. Forgione only hours after she had initiated Equal Employment Opportunity ("EEO") counseling in response to these incidents. Id. at ¶ 33-34.

Ms. Nuskey brings claims of discrimination and harassment based on her age and sex, and reprisal for having engaged in protected EEO activity. The parties bring cross motions to compel, which are addressed in turn below.

II. The Bank's Motion

The Bank moves this Court for an order compelling Ms. Nuskey to submit to an independent mental examination ("IME") and to sign a waiver permitting it to obtain her medical records.

A. Independent Medical Examination

The Bank argues that it is entitled to submit Ms. Nuskey to an IME because she "has put her mental and physical condition in controversy." Def. Mot. at 2. Specifically, the Bank points to her claim for "compensatory damages up to $300,000," and her allegation that she "suffered humiliation, pain and embarrassment" as a result of the Bank's discrimination. Complaint at 18-19. Also cited by the Bank are claims by Ms. Nuskey that she "has been clinically depressed and has suffered loss of enjoyment of life as a result of her EEO complaint and her termination," and that she seeks compensation for the cost of "her therapy [for sessions in the past and the next two years] for the matters related to her EEO Complaint." Def. Mot. at 2-3 (internal citations omitted). The Bank seeks to challenge the "existence, extent, and cause of such alleged damages." Id. at 3.

Ms. Nuskey strenuously opposes the Bank's motion and argues that the requirements of Rule 35(a) of the Federal Rules of Civil Procedure are not present because she has not put her mental condition "in controversy," and that the Bank has not established "good cause" for issuance of such an order. Plaintiff's Opposition to Defendant's Motion to Compel an Independent Medical Examination and to Compel Production of Medical Records [#32] ("Pl. Opp.") at 5. More specifically, she argues:

(1) Plaintiff has and continues to manage her depression through therapy and medication; (2) Plaintiff has not and will not present an expert witness with respect to her claims for non-pecuniary damages; (3) Plaintiff at no time asserted any claim of intentional infliction of emotional distress; (4) and Plaintiff has not conceded that her mental condition is in controversy because she is not claiming more than "garden variety" compensatory damages. Further, no good cause exists for ordering the IME as Defendant will have the full opportunity to depose Plaintiff as well as her treating physicians regarding her claims.

Id. These arguments track the five-factor test set forth in Turner v. Imperial Stores, 161 F.R.D. 89, 98 (S.D. Cal. 1995) (indicating that an IME should not be ordered where the following factors are not present: (1) a claim for intentional or negligent infliction of emotional distress; (2) an allegation of specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff's concession that his or her mental condition is "in controversy.").

As Ms. Nuskey notes, I have addressed this issue on numerous occasions, and have taken an approach different from that in Turner. See, e.g., Roberson v. Bair, 242 F.R.D. 130 (D.D.C 2007); Kalantar v. Lufthansa German Airlines, No. 01-644 (HHKJMF), 2007 WL 1098708 (D.D.C. April 11, 2007); Benham v. Rice, 238 F.R.D. 15 (D.D.C. 2006); Doe v. District of Columbia, 229 F.R.D. 24 (D.D.C. 2005); Smith v. Koplan, 215 F.R.D. 11 (D.D.C. 2003); Chiperas v. Rubin, No. CIV.A. 96-130 TPJ/JMF, 1998 WL 765126 (D.D.C. November 3, 1998). In short, it has been my view that "an employee who seeks compensatory damages for emotional pain suffered as a result of employer's action has placed the existence and extent of their alleged mental injury in controversy, giving the employer good cause to seek examination." Smith, 215 F.R.D. at 13 (internal citations omitted).

In Benham, I conceded that the approach taken in Turner is the majority view, but nevertheless persisted in my approach ...

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