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Cherkaoui v. City of Quincy

United States District Court, D. Massachusetts

July 23, 2015

CITY OF QUINCY, Defendant.


DONALD L. CABELL, Magistrate Judge.

This matter comes before the Court upon a motion to compel discovery [dkt #29] filed by the defendant, city of Quincy ("the defendant" or the "city of Quincy"). The plaintiff, Debra Cherkaoui ("the plaintiff"), opposes the motion. After considering the parties' submissions, the law, and following oral argument, the defendant's motion to compel is ALLOWED in part and DENIED in part. The reasons for these rulings are explained below.


In or around 1998 the defendant hired the plaintiff, who is Muslim, as a public school teacher. Except for a relatively brief interruption when her child was born, the plaintiff worked for the city of Quincy continuously and regularly received positive performance evaluations. In April 2009 the plaintiff began to wear a headscarf for religious reasons. She alleges that the defendant thereafter began to discriminate against her by treating her discourteously, treating her differently than other similarly situated teachers, giving her inappropriate or impractical assignments, and failing to respond satisfactorily when she complained. The plaintiff suffers from Attention Deficit Hyperactivity Disorder ("ADHD") and alleges that the defendant also failed to accommodate her requests for accommodations for her disability. The plaintiff subsequently resigned on October 31, 2013 and eventually commenced the present action.

In her amended complaint, the plaintiff alleges ten separate causes of action. Pertinent here, four of the claims allege disability discrimination arising from her ADHD, including claims for discrimination and for retaliation, in violation of M.G.L. ch. 151B (Counts 5 and 7), and similar claims for discrimination and retaliation under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. ยง 12101 (Count 6 and 8). The plaintiff also alleges that she has suffered "severe emotional distress" and "continues to be damaged" as a result of the defendant's conduct. In addition to these claims, the plaintiff elaborated through her opposition and at oral argument that she has also "had some issues with depression in the past and received some treatment for it." The plaintiff does not allege that her depression is a disability, or that she has been discriminated against on the basis of it, but she claims that it "bears some relevance to damages to the extent that it involves a prior health issue."

Against this backdrop, the defendant moves to compel the plaintiff to provide fully executed releases to allow the defendant to obtain medical records from two specific entities, and state records relating to her unemployment benefits.[2]


a. The Legal Framework

Federal Rule of Civil Procedure 37(a)(1) provides that "... a party may move for an order compelling disclosure or discovery[]" where the movant has conferred in good faith and attempted to obtain it without court action. Fed.R.Civ.P. 37(a)(1). In that regard, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to any party's claim or defense...." Fed.R.Civ.P. 26(b)(1). "As a general matter, relevancy must be broadly construed at the discovery stage such that information is discoverable if there is any possibility it might be relevant to the subject matter of the action." E.E.O.C. v. Electro-Term, Inc., 167 F.R.D. 344, 346 (D. Mass. 1996) (citation omitted).

b. Analysis

i. Medical Records

The defendant contends that it is entitled to discover any evidence bearing on the plaintiff's claimed ADHD disability, including evidence relating to her diagnosis and treatment, as well as the emotional distress damages she claims to have suffered. The defendant argues that the information it seeks is "relevant to determining whether a sufficient causal connection exists" between the plaintiff's allegations of discrimination and her damages, and is also relevant to the extent it supports or fails to support the plaintiff's claim of ADHD and a depressive disorder as pre-existing conditions. The defendant specifically seeks records from two entities it has a basis to believe provided treatment to the plaintiff during the relevant time period, including Boston Health Care and the Wellcare Physicians Group, LLC. The plaintiff argues that the medical records are protected from disclosure by the psychotherapist-patient privilege.

Federal law generally recognizes a psychotherapist-privilege, which protects from disclosure communications between the psychotherapist and his or her patient. See Jaffee v. Redmond, 518 U.S. 1, 15-17 (1996); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997). In order for the privilege to apply, a party must put forth sufficient facts to show by a preponderance of the evidence that the allegedly privileged communications were made (1) confidentially (2) between a licensed psychotherapist and her patient (3) in the course of diagnosis or treatment. In re Grand Jury Proceedings (Gregory Violette), 183 F.3d 71, 73 (1st Cir. 1999). Here, the plaintiff, beyond asserting that the privilege applies, has not attempted to articulate how each of the elements has been met. Indeed, the plaintiff has not provided any evidence relating to either Boston Health Care or the Wellcare Physicians Group, the type and breadth of services each entity provides, the type of treatment each provided to the plaintiff, who provided the treatment, whether any communications the plaintiff had with anyone at either facility were confidential, and with a licensed psychotherapist, and whether any such communications were in the course of diagnosis or treatment. As such, there is no basis to find the privilege applicable here.

To be sure, it would not be unreasonable to infer that the medical records at issue probably do relate to psychotherapeutic treatment. After all, the plaintiff has alleged a mental health related disability, depression and severe emotional damages. She is, moreover, in the best position to know exactly what is in the records the defendant seeks, and has responded to the defendant's request by invoking the psychotherapist-patient privilege. But, an inference alone, unsupported by articulable facts put forth by the plaintiff, is just not enough to prove by a preponderance of the evidence that the records reflect treatment related, confidential communications with licensed psychotherapists. The Court ...

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