United States District Court

for the Western District of Michigan

Southern Division

Patricia Denhof et al.,

Plaintiff,

vs.

Harry Dolan, et al.,

Defendants.

Case No. 1:02-cv-275

2003 U.S. Dist. Lexis 23125

December 12, 2003, Decided

Wendell A. Miles, Senior U.S. District Judge.

Opinion and Order on Defendant Glen Petersons Motion for Partial Summary Judgment and Dismissal

Plaintiffs filed a complaint asserting a section 1983 claim for violation of Plaintiffs First Amendment Right to Free Speech (Count One); a section 1983 claim for violation of Plaintiffs First Amendment Right to Petition (Count Two); Intentional Infliction of Emotional Distress (Count Three); violation of Title VII/ Sex Discrimination and Retaliation for Same (Count Four); violation of Elliot-Larsen/sex-discrimination and retaliation for same (Count Five); and Tortious Interference with Contractual Relations (Count Six). This matter is before the court on Defendant Dr. Glen Petersons motion for partial summary judgment and dismissal (dkt # 138) under FED. R. CIV. P. 56 and FED. R. CIV. P. 12(b)(6). Dr. Peterson seeks dismissal or summary judgment on Plaintiffs claims for sex discrimination/retaliation under Title VII of the Civil Rights Act of 1964 (Count Four), violation of Michigans Elliott- Larsen Civil Rights Act (CRA)(Count Five), MICH. COMP. LAWS 37.2101 et seq., and Intentional Infliction of Emotional Distress (Court Three).

After Dr. Petersons motion was filed, Plaintiffs stipulated to dismissal of the Title VII claim (Count Four), and on June 5, 2003, the court dismissed that count as to all defendants except the City of Grand Rapids. The questions remaining are whether Plaintiffs CRA claim and Intentional Infliction of Emotional Distress claim should be dismissed, and if not, whether Dr. Peterson is entitled to summary judgment on either of these claims.

For the reasons to follow, the court grants Dr. Petersons motion as to Plaintiffs CRA claim and denies the motion as to the Intentional Infliction of Emotional Distress claim.

I.

Plaintiffs Patricia Denhof and Renee LeClear were employed by the City of Grand Rapids Police Department (GRPD), respectively beginning employment in 1984 and 1995. Dr. Peterson is a licensed psychologist who owned and operated Michigan Law Enforcement Consultants (MLEC).

In January 2001, plaintiffs Denhof and LeClear, along with several other female police officers employed by the GRPD, filed a lawsuit in the Kent County Circuit Court alleging gender based discrimination and harassment by their command staff and coworkers. Plaintiffs both testified in the state court regarding not only gender-based discrimination but allegedly corrupt and illegal activities by the GRPD.

Shortly after plaintiffs state court testimony, the GRPD retained MLEC and Dr. Peterson to conduct fitness for duty evaluations of Denhof and LeClear. On January 18, 2002, plaintiff Denhof was placed on paid leave, and on April 18, 2002, she was evaluated by Dr. Peterson. Dr. Peterson found that plaintiff Denhof mismanages her emotions and was not fit for duty.

Plaintiff LeClear was also removed from duty on January 18, 2002. Dr. Peterson interviewed plaintiff LeClear four times before submitting his March 14, 2002 report, in which he found her unfit for duty because of a personality disorder.

Plaintiffs claim that the GRPD has a history of referring female police officers who complain of gender based discrimination or sexual harassment to Dr. Peterson for fitness of duty evaluations, and that Dr. Peterson consistently finds these female police officers unfit for duty.

II.

Dismissal of a complaint is proper under FED. R. CIV. P. 12(b)(6) only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). The court must construe the complaint in the light most favorable to the plaintiff, accept all of the complaints factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief. Id. at 512. The court, however, need not accept as true legal conclusions or unwarranted factual inferences. Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987) (citations omitted).

Summary judgment under Rule 56 is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In evaluating a motion for summary judgment, the court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In such a situation, there can be no genuine issue of material fact, since a complete failure of proof concerning an essential element of the nonmoving partys case necessarily renders all other facts immaterial. Id. Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are material. Anderson, 477 U.S. at 248.

III.

Michigans CRA prohibits gender based discrimination by an employer. MICH. COMP. LAWS 37.2201(a). The Act defines employer as a person who has 1 or more employees, and includes an agent of that person. MICH. COMP. LAWS 37.2201(a). Dr. Peterson argues that he cannot be held liable under the CRA because he was never the employer of either plaintiff, and he cannot be held liable as an agent for the GRPD. Plaintiffs contend that the question of whether or not an agent of an employer can be held personally liable is in flux. Plaintiffs suggest a stipulation to dismiss without prejudice the CRA claim pending a resolution of the question by the Michigan Supreme Court.

Michigans CRA is modeled after Title VII of the federal Civil Rights Act, which also prohibits discrimination and which defines employer as a person ... who has fifteen or more employees ... and any agent of such a person. 42 U.S.C. 2000e(b). Although federal precedent is not binding on state courts, Northville Pub. Sch. v. Michigan Civil Rights Com., 325 N.W.2d 497, 118 Mich.App. 573, 576 (1982), when addressing claims under the CRA, Michigan courts have considered the reasoning of federal courts in interpreting the scope of liability under Title VII. In Jenkins v. American Red Cross, 141 Mich. App. 785, 369 NW 2d 223 (1985), the court held that under Michigans CRA, the agent of an employer could be held personally liable. The Jenkins court followed the reasoning of Munford v. James T. Barnes & Co., 441 F. Supp. 459 (ED Mich. 1977), which involved violations of Title VII. The holding in Jenkins was the prevailing law in Michigan until the court revisited the question in Jager v. Nationwide Truck Brokers, 252 Mich. App. 464, 652 NW 2d 503 (2002).

The Jager court rejected the holding in Jenkins for several reasons, including that the federal case Jenkins had relied upon was later overruled by Wathen v. General Electric Co., 115 F.3d 400 (CA 6, 1997). Wathen held that an agent who does not otherwise qualify as an employer may not be held personally liable under Title VII. The Jager court did a lengthy analysis of the language and purpose of Michigans CRA, see id. at 483-486, and determined that it provides solely for employer liability, and the employers agent who engaged in the prohibited activity may not be held individually liable for violating a plaintiffs civil rights. Id. at 485. Under Jager, plaintiffs may not maintain a CRA claim against Dr. Peterson, individually.

According to Plaintiffs, supported by an affidavit of Plaintiffs counsel, they have not had sufficient time to complete discovery. They argue that with further discovery, they could establish the exact nature of Dr. Petersons relationship with the City of Grand Rapids. However, there is no reason to refrain from deciding this motion in order to give Plaintiffs additional time to conduct discovery because even if Dr. Peterson was not acting as an independent contractor but as an agent of the City of Grand Rapids, Plaintiffs will not be able to hold Dr. Peterson personally liable.

Plaintiffs point out that the Jager plaintiff filed for leave to appeal the decision of the Court of Appeals. Although the Michigan Supreme Court denied the request on April 8, 2003, the plaintiff filed a motion to reconsider on April 28, 2003. When Plaintiffs filed their response to Dr. Petersons motion, the motion for reconsideration was pending before the Michigan Supreme Court. However, on July 28, 2003, the Michigan Supreme Court denied the motion for reconsideration. Jager v. Nationwide Truck Brokers, 666 NW 2d 668 (Mich 2003) (Table). Thus, the Michigan Court of Appeals decision in Jager is the governing law and, as discussed, precludes Plaintiffs CRA claim against Dr. Peterson individually. Accordingly, the court must grant Dr. Petersons motion to dismiss the CRA claim under FED. R. CIV. P. 12(b)(6).

IV

Plaintiffs also asserted a claim of intentional infliction of emotional distress against Dr. Peterson. Plaintiff Denhof was evaluated by Dr. Peterson on April 18, 2002. Allegedly, Dr. Peterson made no specific diagnosis, but reported that Plaintiff Denhof mismanages her emotions and was unfit for duty. Plaintiff Denhof claims his report is filled with falsehoods and outright misrepresentation of the facts, and is being used by the City to prevent her from working as a police officer for GRPD or any other police department. She also alleges that the GRPD generally refers female officers who complain of sexual harassment/discrimination to Dr. Peterson for evaluation, and Dr. Peterson inevitably finds them unfit for duty.

Plaintiff LeClear was also evaluated by Dr. Peterson. The doctor concluded that she had a personality disorder, although he allegedly had not done any testing. Moreover, Dr. Peterson did not find a personality disorder during his evaluation of Plaintiff LeClear seven years earlier.

Plaintiffs submitted reports from doctors Andrew M. Barclay, Mark S. Kane, and Lawrence M. Probes regarding Plaintiffs fitness for duty. Each of the doctors evaluated Denhof and LeClear and found them fit for duty. Dr. Barclay opined that Dr. Petersons report concerning LeClear raises questions as to

(1)  unethical treatment of Officer LeClear,

(2)  failure to utilize accepted standards of testing in evaluation, and

(3)  unscientific and improper use of psychology. Dr. Kane discussed the several tests he had administered to LeClear and his review of Dr. Petersons data, and found no scientific evidence of a diagnosable mental illness.

In Dr. Barclays opinion, Dr. Petersons report regarding Denhof revealed examples of bias and instances where he denigrated Denhof and supported the position of the GRPD. Dr. Kane reported the testing he had done on Denhof and his review of Dr. Petersons data, and concluded that nothing revealed a personality disorder.

Dr. Peterson argues that Plaintiffs claim of intentional infliction of emotional distress must be dismissed as his alleged conduct does not rise to the level of extreme and outrageous. Plaintiffs contend that it is for a jury to decide whether falsifying psychological evaluations and thereby ending Plaintiffs law enforcement careers amounts to extreme and outrageous behavior.

Both parties recognize that the Michigan Supreme Court has never specifically adopted the tort of intentional infliction of emotional distress. Smith v. Calvary Christian Church, 462 Mich. 679, 686 n 7, 614 NW2d 590, 593 (2000); Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 597, 374 NW 2d 905, 906 (1985) (holding we are constrained from reaching the issue of whether [intentional infliction of emotional distress] should be formally adopted into our jurisprudence ....). Dr. Peterson would have the court dismiss the claim on this basis, while Plaintiffs contend that even though the tort has never been officially adopted, it has never been disclaimed.

The Michigan Court of Appeals has consistently addressed intentional infliction of emotional distress as a valid cause of action under Michigan law. See, e.g., Lewis v. Legrow, 258 Mich. App. 175, 670 N.W.2d 675 (2003); Mino v. Clio School Dist., 255 Mich. App. 60, 661 NW 2d 586 (2003); Bernhardt v. Ingham Regional Medical Center, 249 Mich. App. 274, 278, 641 NW 2d 868 (2002); Linebaugh v. Sheraton Michigan Corp., 198 Mich. App. 335, 497 NW 2d 585, 588-89 (1993); Auto Club Ins. Assn v. Hardiman, 228 Mich. App. 470, 475-477, 579 NW 2d 115 (1998); Dickerson v. Nichols, 161 Mich. App. 103, 409 NW 2d 741 (1987). The Sixth Circuit Court of Appeals has likewise recognized this tort under Michigan law. See, e.g., Sperle v. Mich. Dept of Corr., 297 F.3d 483, 496 (6th Cir. 2002); Ruffin-Steinback v. dePasse, 267 F.3d 457, 464 (6th Cir. 2001); Pratt v. Brown Mach. Co., 855 F.2d 1225, 1238-39 (6th Cir. 1988); Coogan v. City of Wixom, 820 F.2d 170, 173-74 (6th Cir. 1987).

[A] federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court ... Where an intermediate appellate court rests its considered judgment upon the rule of law which it announces, that is datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. West v. American Tel. & Tel. Co., 311 U.S. 223, 236-37, 61 S. Ct. 179, 183, 85 L. Ed 139 (1940); Fl Aerospace v. Aetna Casualty & Sur. Co., 897 F.2d 214, 218-19 (6th Cir.), cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 2d 238 (1990). The court has not been presented with any facts indicating that the Michigan Supreme Court would likely refuse to adopt the tort of intentional infliction of emotional distress. Accordingly, this court recognizes and will address Plaintiffs claim of intentional infliction of emotional distress.

To prevail on an action for intentional infliction of emotional distress in Michigan, a plaintiff must prove: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Bernhardt v. Ingham Regional Medical Ctr., 249 Mich. App. 274, 278, 641 NW 2d 868 (2002). To satisfy the first element, the conduct must have been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. Roberts v. Auto-Owners, 374 NW 2d at 908. A defendant will not be held liable where the conduct amounts to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Id. at 909 (quoting Restatement Torts, 2d, 46, comment d, pp. 72-73). Whether a defendants conduct meets the threshold requirement of extreme and outrageous is a question of law to be decided by the court. Teadt v. St. Johns Evangelical Church, 237 Mich. App. 567, 582, 603 N.W.2d 816 (2000). If reasonable people could differ, it is for the jury to decide. Id.

A review of cases offers guidance on the type of conduct that rises to the level of extreme and outrageous. In deciding whether the alleged conduct is sufficiently extreme and outrageous, courts look to the totality of the circumstances and the context of the alleged conduct. See, e.g., Bhama v. Bhama, 169 Mich. App. 73, 425 NW 2d 733, 736 (1988); Margita v. Diamond Mortgage Co., 159 Mich. App. 181, 189, 406 NW 2d 268, 272 (1987); Rosenberg v. Rosenberg Bros. Special Account, 134 Mich. App. 342, 351 NW 2d 563, 568 (1984); Ledsinger v. Burmeister, 114 Mich. App. 12, 19, 318 NW 2d 558, 561 (1982). It is significant to the determination if there is an abuse of a relationship which puts the defendant in a position of actual or apparent authority over a plaintiff or gives a defendant power to affect a plaintiffs interest. Margita, 406 NW 2d at 272.

The defendant in Margita was accused of continuous harassment by letters and telephone calls over a two-year period attempting to collect a debt that was not overdue. The court found that dismissal was not appropriate and the case should be submitted to a jury. Id., 406 NW 2d at 269-72. The Rosenberg defendant attempted on 26 instances to coerce plaintiff, a widow, into selling her deceased husbands share of a family owned partnership to the defendant at a reduced price. The plaintiff depended on the defendant for income and record keeping. Defendants conduct coupled with plaintiffs financial dependency on the defendant supported a claim for intentional infliction of emotional distress. Id., 351 NW 2d at 567-69. The court in Atkinson, 171 Mich. App. 784, 431 NW 2d 95, 96-98 (Mich. App. 1988) found plaintiffs allegations created a question of fact as to whether the alleged conduct amounted to extreme and outrageous behavior. Plaintiff alleged that the defendant engaged in a pattern of harassment by threatening to terminate and finally terminating plaintiffs workers compensation benefits, reducing benefits to a minimal amount in violation of the Workers Compensation Appeals Board, and demanding that plaintiff pay it a large sum of money that it knew plaintiff did not owe.

In this case, Plaintiffs claim that Dr. Peterson found each of them unfit for duty although there was no medical basis for either diagnosis. According to Plaintiffs, Dr. Peterson intended to find them unfit before he ever interviewed them and regardless of what the interviews revealed. As a result of Dr. Petersons findings, their former co-workers believe they have mental problems, they have lost their jobs and the chance to continue to work in law enforcement, and have suffered significant financial losses as well as extreme emotional distress. Dr. Peterson was clearly in a position to affect the Plaintiffs interests. Plaintiffs had no control over the situation or any alternatives that could avoid any misuse of Dr. Petersons position. Assuming Plaintiffs allegations are true and Dr. Peterson intentionally found them unfit for duty knowing his findings were erroneous and had no objective basis, and knowing his findings would cause each Plaintiff to lose her job, his conduct would amount to more than an indignity, annoyance or petty oppression. Reasonable triers of fact could differ as to whether it amounted to extreme and outrageous conduct.

Dr. Peterson has cited the following cases where the courts found that the defendants conduct did not meet the extreme and outrageous standard: Selph v. Gottliebs Financial Services, Inc., 35 F. Supp.2d 564, 569 (W.D. Mich. 1999) (co-workers acted inappropriately by leaving notes on plaintiffs desk, kissing her, and calling her at home); Hartleip v. McNeilab, Inc., 83 F.3d 767, 777 (6th Cir. 1996) (co-worker threatened plaintiffs job, pressured her to enter into a relationship with him, and discussed his fantasies about her with other co-workers); Marquis v. Tecumseh Products Co., 206 F.R.D. 132, 190-91 (E.D. Mich. 2002) (co-workers and supervisor subjected plaintiffs to sexually derogatory comments, inappropriate touching, biting and kissing, death threats, demotions and unwanted propositions). In each of these cited cases the defendants were the plaintiffs co-workers or immediate supervisors, which put the defendants in a much different relationship with the plaintiffs than the relationship Dr. Peterson had with Denhof and LeClear.

Plaintiffs have pleaded a prima facie case of intentional infliction of emotional harm. Accordingly, the court denies Dr. Petersons motion under FED. R. CIV. P. 12(b). Because, based upon the current record, there are material facts at issue, the court also denies the motion for summary judgment under FED. R. CIV. P. 56.

V.

For the reasons discussed, the court GRANTS Dr. Petersons Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6) as to Plaintiffs claim under Michigans Elliott-Larsen Civil Rights Act (Count Five), and DENIES the motion as to Plaintiffs claim for Intentional Infliction of Emotional Distress.

So ordered this 12th day of December, 2003.

/s/ Wendell A. Miles

United States District Court

for the Western District of Michigan

Southern Division

Patricia Denhof et al.,

Plaintiff,

vs.

Harry Dolan, et al.,

Defendants.

Case No. 1:02-CV-275

2003 U.S. Dist. Lexis 23135

December 16, 2003.

Hugh W. Brenneman, Jr., United States Magistrate Judge.

This matter is before the court on the municipal defendants n1 motion for a protective order (docket no. 97) and defendant Glen Petersons motion for a protective order (docket no. 122).

On April 25, 2003, the court granted the municipal defendants motion for protective order insofar as it sought an ex parte in camera review of the ten (10) fitness for duty evaluations of police officers that are not parties to this litigation. See Order (docket no. 135). The court then consolidated the remainder of the motion on the issue of granting a protective order with defendant Petersons motion for a protective order. Id.

In their motion, municipal defendants seek a protective order pursuant to FED. R. CIV. P. 26(c) with respect to the fitness for duty evaluations of Grand Rapids Police Officers performed by defendant Peterson since 1987. In his motion, defendant Peterson seeks a protective order pursuant to Rule 26(c) that he not be required to disclose information or materials related to fitness for duty examinations of any police officers other than the named Plaintiffs. The court has performed an in camera review of the requested psychological evaluations. For the reasons stated below, defendants request for a protective orders shall be granted.

I. Standard of Review

FED. R. CIV. P. 26(b)(1) allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party. Material is discoverable if it is relevant to the subject matter of the action or is reasonably calculated to lead to the discovery of admissible evidence. Id. Under FED. R. EVID. 401, relevant evidence is defined as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The broad ranging discovery under Rule 26(b) can be restricted by issuance of a protective order pursuant to FED. R. CIV. P. 26(c), which provides in pertinent part that

upon motion by a party ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

A party seeking a protective order under Rule 26(c) bears the burden of demonstrating good cause required to support such an order. See Nix v. Sword, 11 Fed. Appx. 498, No. 00-3033, 2001 WL 599707 at*2 (6th Cir. May 24, 2001); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir.1973); Trans Pac. Ins. Co. v. Trans-Pac. Ins. Co., 136 F.R.D. 385, 391 (E.D.Pa.1991). The party seeking the protective order must show good cause by demonstrating particular need for protection. Broad allegations of harm unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Lewis v. St. Lukes Hosp. Assn, 1997 U.S. App. Lexis 34854, No. 96-4147, 1997 WL 778410 at *4 (6th Cir. Dec. 9, 1997), quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir.1986).

A defendant may demonstrate good cause for issuance of a protective order under Rule 26(c) by demonstrating that the requested material is not relevant to the claims raised in the plaintiffs suit. See, e.g., Samad v. Jenkins, 845 F.2d 660 (6th Cir. 1998) (contents of file prepared by employer for possible employment termination proceedings had no impact on plaintiffs ability to demonstrate denial of a federal civil rights claim); Cavens v. City of Trenton, 192 F.R.D. 154 (D.N. J. 2000) (contents of psychological evaluations of non-party white police officers not relevant to discrimination claims of minority police officers claiming disparate treatment); Eagle Industries, Inc., v. Ransburg Corp., 124 F.R.D. 197 (S.D. Ind. 1989) (actual content of confidential information which defendant corporation failed to disclose to plaintiff shareholders, which allegedly included proprietary information and trade secrets, was not neither relevant nor necessary to prove the plaintiffs claims that the defendant breached a fiduciary duty by not disclosing confidential information to the plaintiffs to enable them to submit a higher bid to purchase the defendant corporation).

II. Discussion

In their motion for a protective order, municipal defendants object to the disclosure of the ten evaluations because

(1)  the evaluations would not lead to any evidence that is probative of the issues in the present suit, and

(2)  an examination invades certain privacy rights of the current and former police officers that were the subject of the evaluations. Municipal defendants Brief at 6-7. Specifically, municipal defendants argue that the motivation of the individual city defendants in referring plaintiffs for fitness of duty evaluations has nothing to do with the actual outcome of the psychological examination. Municipal Defendants Brief at 6. In addition, the ten psychological evaluations subject to the motion for a protective order involve different people in different states of psychological disrepair, which should not be probative of the retaliatory motive issue which affects [defendants]. Id. In their supplemental briefing, municipal defendants point out that the analysis of the ten psychological evaluations would open up additional issues for factual exploration in both discovery and trial, and would result in several mini trials providing no probative information for the finder of fact. Municipal Defendants Supplemental Brief at 3.

For his part, defendant Peterson objects to plaintiffs second interrogatories and requests for production of documents directed to him and dated March 3, 2002, requesting the names of all GRPD officers referred to Dr. Peterson for an FEDE in the last 20 years, and the production of any reports, notes, raw data, test scores and other information relied upon or generated by Dr. Peterson in the course of performing the FEDE. Defendant Petersons Brief in support of motion for protective order at 2. Dr. Peterson claims

(1)  that he is ethically prohibited from disclosing this information under the American Psychological Associations Ethical Principles of Psychologists and Code of Conduct,

(2)  that regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. 164.502) prevent the disclosure of this protected health information,

(3)  that the disclosures are not relevant, and

(4)  that the disclosures are not likely to lead to the discovery of admissible evidence. Id. at 3-5.

With respect to the relevancy issue, Dr. Peterson states that the evaluations are not relevant to plaintiffs discrimination claims, because plaintiffs must demonstrate that the doctor gave a different psychological assessment to an officer that was psychologically similarly situated in all respects to plaintiffs. Defendant Petersons Brief at 5-6. Defendant Peterson contends that the other officers were not sufficiently similar in all relevant respects to use as comparable subjects for plaintiffs claims.

Plaintiffs contend that they are entitled to the evaluations for two reasons. First, they contend that the municipal defendants agreed to provide the documents, and refused disclosure only after Dr. Peterson was named as a defendant in this matter. Second, plaintiffs contend that these evaluations are relevant to demonstrate how other officers have been referred for fitness for duty, which, in turn, is relevant to the First Amendment and retaliation claims. Plaintiffs apparently contend that municipal defendants selected officers to be evaluated by defendant Peterson without any set or written policy, that the municipal defendants picked only portions of files to present to defendant Peterson, and the municipal defendants deliberately concealed information that would be helpful to a finding that they were fit for duty. Plaintiffs Brief in support of reply to motions for protective order at 10. Plaintiffs also claim that defendant Peterson believes what his client (i.e., defendant City) tells him, automatically takes their view of the officers, notes his personal dislike for them and uses their enforcement of their civil rights as the source and focus of his opinions as to lack of fitness for duty. Id.

A. Municipal defendants motion for protective order

The court finds that municipal defendants have shown good cause for issuance of a protective order under Rule 26(c), in that the evaluations of non-party officers are not relevant to plaintiffs claims against them. Plaintiffs claims against the municipal defendants relate to the process of referring female officers to Dr. Peterson and post-evaluation employment decisions. Plaintiffs most recent complaint includes the following claims. In Counts I and II, brought pursuant to 42 U.S.C. 1983, plaintiffs allege that municipal defendants retaliated against them for exercising their First Amendment rights to free speech and to petition. In Count III, plaintiffs allege a claim of intentional infliction of emotional distress. In Count IV, plaintiffs allege a claim of sex discrimination and retaliation under Title VII. Finally, in Count V, plaintiffs allege sex discrimination and retaliation under Michigan law (the Elliott Larsen Civil Rights Act).

The allegations set forth in PP 71 and 72 of plaintiffs second amended complaint (docket no. 148) relate to the referral of officers for psychological evaluations, while the allegations in PP 73 and 74 relate to the post-evaluation treatment of the female officers. In P 71, plaintiffs allege that male officers with serious mental/emotional health issues and apparently actively suicidal officers have been permitted to continue to work without any referral for fitness for duty evaluations. In P 72, plaintiffs allege that the municipal defendants have a history of referring female police officers who complain of sexual harassment/discrimination and illegal actions on the part of the City to Dr. Peterson for fitness for duty or disability evaluations. In P 73, plaintiffs contend that the referrals of female officers inevitably result in the female officers being placed off duty and forced to take a disability pension and simply leave law enforcement altogether. Finally, in P 74, plaintiffs allege that this appears to clearly be the intent and plan here, carried out by the City and the individual Defendants acting in concert.

Plaintiffs contend that the following inquiries are relevant to their claims:

1. What has/does the City [of Grand Rapids] usually give Dr. Peterson for these types of evaluations?

2. What sort of behavior or speech by officers, or mental health counseling for officers, or discipline of officers triggers these fitness for duty evaluations?

3. In cases of serious, manifest mental health problems, family stresses, violent behavior and medical issues, what does the City do with its officers?

4. Does it treat males differently than females?

5. Do referrals made in the last several years show that men are only sent when criminal activity appears, but women are sent for merely raising the possibility that they are being discriminated against illegally?

Plaintiffs Reply at 11. Plaintiffs further state that their counsel is not interested in the salacious details of these officers mental health issues, but rather in why, if and when the officers were referred for counseling and fitness for duty by the City [of Grand Rapids] for same. Id. at 13.

After performing an in camera review of the psychological evaluations at issue, and consideration of plaintiffs allegations, the court concludes that these evaluations are not relevant to plaintiffs claims. The records reviewed by the court do not demonstrate why, if and when the officers were referred for a fitness for duty examination. In addition, these evaluations do not address how municipal defendants referred the officers for evaluation or any post-evaluation employment decisions made with respect to the officers. In summary, the information contained in these evaluations is not relevant, because the information does not have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See FED. R. EVID. 401.

In reaching this determination, the court has considered the opinion in Cavens v. City of Trenton, 192 F.R.D. 154 (D. N.J. 2000). In Cavens, the court discussed the relevance of police psychological evaluations of non-parties to a case involving civil rights claims. In Cavens, black police officers alleged, among other claims, that the defendants implemented policies and practices that treated the black officers differently from similarly situated white officers. As part of their proofs, plaintiffs sought to obtain the psychological reports and records of a defendant police officer and four non-party white officers. The court found that the requested psychological evaluations were not relevant to plaintiffs claims that they were being treated differently from similarly situated white officers. In reaching this determination, the court noted the relationship between the content of the psychological evaluation and the subsequent disciplinary action taken by the police department:

The Court finds that evidence of alleged disparate treatment in connection with psychological evaluations, would be found in whatever disciplinary action the Police Department takes based on the final diagnosis of pass or fail. For sake of argument, if a pass or fail is determinative of whether a police officer is retained or fired, and a white officer receives a fail and is retained, and a black officer receives a fail and is fired, then this may be circumstantial evidence of disparate treatment. It is not necessary to examine the underlying psychological records to make out a case of disparate treatment because the underlying records themselves had no impact on the end result. Cavens, 192 F.R.D. at 164. The court finds that reasoning in Cavens is applicable to plaintiffs claims in the present case.

Plaintiffs suggest that the court should follow the decision in Smith v. City of Plano,2002 U.S. Dist. Lexis 12642, No. 01 C 7111, 2002 WL 1483902 (N.D. Ill. July 9, 2002), in which trial court denied a motion to quash a subpoena for the psychiatric evaluation of a police lieutenant in a racial discrimination case. Contrary to plaintiffs assertion that the Smith case is very similar to theirs, the court finds the Smith decision to be clearly distinguishable from plaintiffs case. In Smith, the subpoena sought the psychological evaluation a defendant, who was ordered to undertake a fitness for duty examination after other officers complained that the defendant was mistreating them. Unlike the present case, the defendant in Smith did not raise an objection to relevance; rather, the defendant objected to the subpoena on the ground of doctor-patient privilege. Here, however, plaintiffs seek psychological evaluations performed on non-parties, who underwent evaluations for matters unrelated to plaintiffs claims. Under these circumstances, the Smith decision does not support plaintiffs claims.

B. Defendant Petersons motion for protective order

Next, the court finds that defendant Peterson has shown good cause for issuance of a protective order under Rule 26(c), in that the evaluations of non-party officers are not relevant to plaintiffs claims against him. The court adopts the reasoning in section II. A., supra, to the extent that plaintiffs characterize defendant Peterson as a state actor. The court also notes that two counts are directed solely at the doctor: Count VI (tortious interference with plaintiffs contractual relations) and Count VII (negligence).

In Count VI, plaintiffs allege that defendant Peterson violated [their] right to be free from interference in their contractual relationship with their employer. Second Amended Compl. at P 187. Plaintiffs allege that defendant Peterson gave the City of Grand Rapids improper advice to refer plaintiffs for a fitness for duty examination, crafted biased and false reports recommending that plaintiffs were not fit for duty, intentionally falsified results so that plaintiffs would not be permitted to return to work, relied on hearsay accounts of police officers being sued by plaintiffs, ignored evidence of discriminatory behavior which caused plaintiffs mental and emotional distress, and prejudged plaintiff Denhof and recommended her termination before clinically evaluating her. Id. at P 190. Plaintiffs allege that defendant Petersons improper conduct resulted in the constructive discharge of plaintiffs. Id. at P 191.

In Count VII, plaintiffs allege that defendant Peterson breached his duty owed to plaintiffs to follow the standards and principles pertinent to performing fitness for duty evaluations, including failing to properly evaluate the testing performed and failing to provide opinions accurately based upon the test results, failing to allow personal feelings to interfere with his decision-making and opinions, failing to remain objective, and otherwise negligently performing the examination/evaluation.

Id. at PP 194-95.

The claims set forth in Counts VI and VII relate to defendant Petersons actions only as to the plaintiffs in this case. Under Michigan law, plaintiffs must prove the following elements to prevail on a tortious interference with a business relationship claim:

(1)  the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy;

(2)  knowledge of the relationship or expectancy on the part of the defendant interferer;

(3)  an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damage to the party whose relationship or expectancy has been disrupted.

Wausau Underwriters Ins. Co. v. Vulcan Development, Inc., 323 F.3d 396, 404 (6th Cir. 2003). Plaintiffs have failed to articulate how the psychological records of other officers relate to these claims. The court finds no conceivable relationship between the information contained in the psychological evaluations of the non-party officers and the question of whether defendant Peterson tortiously interfered with plaintiffs employment contracts.

Similarly, plaintiffs have not articulated how the psychological evaluations of non-party officers is relevant to their negligence claim against defendant Peterson. To state a prima facie case of negligence in under Michigan law, plaintiffs must establish the following four elements: (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached that duty; (3) that the defendants breach caused the plaintiffs harm, which includes (a) cause in fact and (b) legal, or proximate, cause; and (4) damages to the plaintiff. Hunley v. DuPont Automotive, 341 F.3d 491, 496 (6th Cir. 2003); Case v. Consumers Power Co., 463 Mich. 1, 615 N.W.2d 17, 20 & n. 6 (2000). The information contained in the unrelated evaluations performed by defendant Peterson does not tend to prove that he owed a duty to plaintiffs, that he breached that duty, that plaintiffs were harmed or that plaintiffs were damaged. The fact that defendant Peterson examined other officers, and then found those officers either fit or unfit for duty, has no bearing on whether he was negligent in his evaluation of plaintiffs.

Accordingly, municipal defendants motion for a protective order pursuant to FED. R. CIV. P. 26(c) (docket no. 97) and defendant Petersons motion for protective order pursuant to FED. R. CIV. P. 26(c) (docket no. 122) will be GRANTED, and a protective order entered contemporaneously herewith.

Dated: December 16, 2003

/s/ Hugh W. Brenneman, Jr.

United States Magistrate Judge

1. Chief Harry P. Dolan, Lt. Daniel Mills, Capt. Pamela Carrier, Lt. Rebeca Whitman, Lt. Carol Price, Sgt. Charlotte Mason, Kurt Kimball, and City of Grand Rapids.