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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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10 RICHARD VANGIESON, an Case No.: 3:20-cv-01033-LAB-LL 11 individual, Plaintiff, ORDER DENYING DEFENDANT’S 12 v. MOTION TO COMPEL RULE 35 13 MENTAL HEALTH EXAMINATION LLOYD J. AUSTIN, in his official 14 capacity as the SECRETARY OF [ECF No. 21] 15 DEFENSE, Defendant. 16 17 18 19 Currently before the Court is Defendant’s May 18, 2021 Motion to Compel a Rule 35 20 Mental Health Examination of Plaintiff [ECF No. 21 (“MTC”)], and Plaintiff’s May 24, 21 2021 Opposition [ECF No. 23 (“Oppo.”)]. For the reasons set forth below, Defendant’s 22 motion is DENIED. 23 I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 24 Plaintiff Richard VanGieson is a former employee of the Department of Defense 25 Contract Audit Agency (“DCAA”) hired in April 2012. ECF No. 7, ¶ 1. Defendant is 26 / / / 27 / / / 28 / / / 1 Lloyd J. Austin acting in his official capacity as the Secretary of Defense. Id. at 2; see also 2 id. at 21. The operative complaint is a First Amended Complaint (hereinafter “FAC”) filed 3 by Plaintiff on September 29, 2020. ECF No. 7 (“FAC”). In the FAC, Plaintiff asserts 4 causes of action for discrimination and retaliatory termination in connection with his 5 termination from his employment at the DCAA. FAC ¶¶ 24-35. 6 Plaintiff alleges that he received “fully successful” performance evaluations for six 7 successive years during his employment with the DCAA. FAC ¶ 9. Plaintiff further alleges 8 that from September 2017 through March 2018, he was hospitalized for a “medical 9 condition.” Id. ¶ 10. Plaintiff further alleges in the FAC that upon his return to work in 10 April 2018, he informed his new supervisor, Lisa Gift, of his “medical condition and 11 treatment.” Id. ¶ 11. Plaintiff claims that after informing his supervisor of his condition, he 12 received “written criticisms alleging deficiencies from his supervisor for minor 13 administrative issues” which Plaintiff alleges was “singling Plaintiff out for criticism and 14 discipline, subjecting him to disparate, pretextual treatment.” Id. ¶ 12. 15 As a result of the criticisms, Plaintiff alleges he was given a Performance 16 Improvement Plan on December 17, 2018. Id. ¶ 14. In the following months, Plaintiff 17 claims that his supervisors did not discuss his progress with him and did not recommend 18 any training. Id. ¶¶ 16-18. Plaintiff also alleges that DCAA failed to initiate any 19 conversation about providing accommodations for his medical condition or determining 20 whether his medical condition contributed to his allegedly deficient work performance. 21 Id. ¶ 18. 22 On April 23, 2019, Plaintiff alleges that he was called into a meeting with his 23 supervisor and DCAA Branch Manager in which he was informed that he was being 24

25 26 1 The Court DIRECTS THE CLERK OF COURT to modify the docket to reflect “Lloyd J. Austin, in his official capacity as the Acting Secretary of Defense” as Defendant in place 27 of “Christopher C. Miller, in his official capacity as the Acting Secretary of Defense.” 28 Federal Rule of Civil Procedure 25(d). 1 terminated. Id. ¶ 20. Plaintiff disputed the termination on the basis that his supervisor was 2 discriminating against him because of the medical condition that he had disclosed to her. 3 Id. ¶ 21. Plaintiff alleges that the DCAA did not initiate an investigation into the potential 4 discrimination. Id. ¶ 22. As a result of Defendant's actions, Plaintiff claims that he 5 experienced economic and career losses in addition to “emotional pain, suffering, 6 inconvenience, mental anguish, and loss of enjoyment of life.” Id. ¶ 35. He seeks past and 7 future lost earnings and monetary damages for “emotional pain and suffering, mental 8 anguish, and loss of enjoyment.” Id. at 7-8. 9 On October 13, 2020, Defendant filed an Answer to the FAC. ECF No. 8. On 10 November 19, 2020, the undersigned Magistrate Judge held an early neutral evaluation 11 conference and case management conference. ECF No. 9. On February 19, 2021, Plaintiff 12 served responses to Defendant’s First Set of Interrogatories. See Exhibit 1 to the Torres 13 Declaration (“Torres Decl.”) filed in support of Defendant’s MTC. Additionally, on May 14 13 and 14, 2021, Plaintiff was deposed in connection with this action. See 15 Torres Decl. ¶ 3; see also Vanderpool Declaration (“Vanderpool Decl.”) filed in support of 16 Plaintiff’s Oppo. ¶¶ 3-4. 17 On May 10, 2021, the parties jointly contacted the Court regarding a discovery dispute 18 brought by Defendant concerning Plaintiff’s objections to Defendant’s request for a Rule 19 35 Mental Health Examination of Plaintiff. ECF No. 18. After the informal telephonic 20 discovery conference, the Court issued a briefing schedule. Id. The parties timely filed their 21 pleadings in accordance with the briefing schedule. See MTC and Oppo. 22 II. LEGAL STANDARD 23 Federal Rule of Civil Procedure 35(a) authorizes a court to “order a party whose 24 mental condition . . . is in controversy to submit to a physical or mental examination by a 25 suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). However, the order “may 26 be made only on motion for good cause.” Fed. R. Civ. P. 35(a)(2)(A). These requirements 27 necessitate an affirmative showing by the movant that: (1) the plaintiff has placed her 28 mental condition in controversy; and (2) good cause exists for the examination. See, e.g., 1 Schlagenhauf v. Holder, 379 U.S. 104, 116-17 (1964); Turner v. Imperial Stores, 2 161 F.R.D. 89, 92 (S.D. Cal. 1995). 3 Although Rule 35 “is to be construed liberally in favor of granting discovery,” a 4 claim for damages for emotional distress, without more, is not sufficient to put mental 5 condition “in controversy.” Turner, 161 F.R.D. at 96-97. “Garden variety” emotional 6 distress claims do not place a party’s mental state in controversy. Id. at 97. Courts have 7 determined that the “in controversy” requirement is met and a plaintiff should undergo a 8 mental examination where: 9 the case[] involve[s], in addition to a claim of emotional distress, one or more of the following: 1) a cause of action for intentional or negligent infliction of 10 emotional distress; 2) an allegation of a specific mental or psychiatric injury 11 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) 12 plaintiff's concession that his or her mental condition is “in controversy” 13 within the meaning of Rule 35(a). 14 Id. at 95. 15 Additionally, compelling a medical examination must be “for good cause.” Id. 16 Factors that courts have considered in assessing whether “good cause” exists, include, but 17 are not limited to, “the possibility of obtaining desired information by other means, whether 18 plaintiff plans to prove her claim through testimony of expert witnesses, whether the 19 desired materials are relevant, and whether plaintiff is claiming ongoing emotional 20 distress.’” Conforto v. Mabus, No. 12cv1316–W (BLM), 2014 WL 3407053, at *3 21 (S.D. Cal. July 10, 2014) (quoting Juarez v. Autozone Stores, Inc., No. 08cv417–L (BLM), 22 2011 WL 1532070, *1 (S.D. Cal. Apr. 21, 2011)). Ultimately, each motion to compel a 23 mental examination must be decided on a case-by-case basis, considering all the relevant 24 circumstances.” Schlagenhauf, 379 U.S. at 121-22. 25 / / / 26 / / / 27 / / / 28 / / / 1 III. DISCUSSION 2 A. Summary of Parties’ Arguments 3 Defendant argues that “Plaintiff’s disability discrimination claim directly places his 4 mental condition at issue and discovery to date, including his own testimony, confirms he 5 is alleging more than ‘garden variety’ emotional distress.” MTC at 3. Specifically, 6 Defendant argues that Plaintiff’s anxiety disorder is key to liability in this case. Id. 7 Defendant states that in order to establish a prima facie case for disability discrimination 8 under the Rehabilitation Act, Plaintiff must show that he was “1) an individual with a 9 ‘disability,’ 2) otherwise qualified, meaning he was able to perform the essential functions 10 of the job, with or without reasonable accommodations, and 3) he was subjected to 11 discrimination solely by reason of his disability.” Id. (internal citations omitted). Defendant 12 further argues that Plaintiff characterizes his “disability” as an “Anxiety Disorder” which 13 Plaintiff alleges manifests “in shortness of breath, racing heart rate, intrusive thoughts, 14 inability to function.” Id. (citing Exhibit 1 to the Torres Decl., Plaintiff’s Response to 15 Interrogatory No. 7 at 11). Defendant states that Plaintiff repeatedly testified during his 16 deposition that the “alleged conduct of the supervisor at issue, Lisa Gift, ‘exacerbated’ his 17 anxiety, and at one point described it as ‘extreme anxiety.’” Id. at 3 (citing 18 Torres Decl. ¶ 3). In sum, Defendant argues that “[th]ese claims and allegations not only 19 put his anxiety disorder squarely at issue, but also raise a question of whether Plaintiff was 20 able to perform the essential functions of his job.” Id. 21 Defendant also argues that Plaintiff has placed his mental health in controversy by 22 seeking damages for emotional distress. Id. at 4. Defendant states that the allegations in 23 Plaintiff’s complaint, his interrogatory responses that his termination caused him 24 “significant stress, anxiety, frustration, sadness, and disenchantment,” and his deposition 25 testimony all support that he has put his mental health condition in controversy. Id. at 4-5. 26 Finally, Defendant argues that good cause exists to support a Rule 35 mental health 27 examination because the examination is “relevant to both the disability discrimination 28 claim and demand for emotional distress damages.” Id. at 5. Defendant argues that the 1 examination “will help Defendant determine whether Plaintiff was qualified,” but also 2 “whether the alleged emotional distress is attributable to Defendant’s alleged wrongful 3 conduct of Plaintiff’s other life circumstances or his pre-existing condition.” Id. (internal 4 citation omitted). Defendant argues that the information it seeks to obtain from the 5 examination cannot be obtained elsewhere, noting that “a professional examination of 6 Plaintiff allows for a taking of a careful and detailed history of his symptoms, past stressors 7 and treatment, to determine the extent of the alleged injury, and whether other factors may 8 have contributed to or exacerbated them.” Id. at 6 (internal citation omitted). Defendant 9 states that “Plaintiff testified about other significant stressors, including a dysfunctional 10 relationship with his mother.” Id. Defendant further states that Plaintiff “has suggested he 11 would rely on expert witness testimony at least for rebuttal purposes.” Id. 12 Plaintiff argues that Defendant’s motion should be denied because: 13 [Plaintiff’s] [s]ix years of ‘fully successful’ performance appraisals, medical notes provided to DCAA clearing him to return to work in April 2018 without 14 functional limitations, and his current employment in an equivalent position 15 with the Navy all confirm Mr. VanGieson had and has the physical and mental capacity to perform essential job duties. Even if Defendant had some plausible 16 basis to contest this element, there is no good cause to order an examination. 17 Mr. VanGieson’s current mental health reveals nothing about whether he was capable of performing his essential job functions between April 2018 and May 18 2019. 19 20 Oppo. at 2. Plaintiff further argues that “Mr. VanGieson’s allegations of ‘garden variety’ 21 emotional distress damages do not place his psychological health ‘in controversy.’” Id. 22 (citing Turner, 161 F.R.D. at 93). Rather, Plaintiff argues that “the distress damages sought 23 by Mr. VanGieson arise from the discrimination and retaliation he experienced in 2018 and 24 2019, not for some lasting or ongoing psychological damage.” Id. (citing FAC ¶ 29). 25 Plaintiff states that “[a]lthough Mr. VanGieson continued seeking treatment for his anxiety 26 disorder after DCAA fired him, he does not allege the termination caused his anxiety 27 disorder or compelled him to seek treatment for it.” Id. at 5-6. Plaintiff further states that 28 “[t]he cognitive behavioral therapy he received in late 2019 through 2020 was simply a 1 continuation of the therapy he’d been doing since 2015.” Id. at 6 (citing Exhibit 1 to the 2 Torres Decl., Plaintiff’s Response to Interrogatory No. 8 at 13). 3 Finally, Plaintiff argues that there is no good cause for the mental health examination 4 because “Mr. VanGieson’s current mental condition has no probative value regarding his 5 capacity to perform essential job functions, or the emotional distress he experienced, in 6 2018 and 2019.” Id. at 6. Plaintiff further states that “through other discovery methods, 7 Defendant has already obtained the same and/or better information regarding Mr. 8 VanGieson’s mental health.” Id. 9 B. Whether Plaintiff’s Mental Condition is “In Controversy” 10 Here, the Court finds that Plaintiff’s mental condition is in controversy. To 11 determine if Plaintiff’s mental condition is in controversy, the Court must evaluate the five 12 Turner factors set forth above. Under the first factor, Plaintiff has not alleged a cause of 13 action for intentional or negligent infliction of emotional distress. See FAC. 14 Under the second factor, Plaintiff identified his “disability” as an “Anxiety Disorder 15 [which] manifested in shortness of breath, racing heart rate, intrusive thoughts, inability to 16 function.” Exhibit 1 to the Torres Decl., Plaintiff’s Response to Interrogatory No. 7 at 11. 17 Plaintiff also provided in discovery that his “Anxiety Disorder first manifested itself in 18 early 2016.” Id. Plaintiff further states that through his own efforts after DCAA terminated 19 his employment, including “traditional and Cognitive Behavioral Therapy, counseling, and 20 modification of [his] own regimen, these symptoms began to subside in Fall of 2020.” Id. 21 Plaintiff’s discovery responses further provide that his supervisor, Ms. Gift, “exacerbat[ed] 22 [his] medical condition and impact[ed] [his] job performance.” Exhibit 1 to the Torres 23 Decl., Plaintiff’s Response to Interrogatory No. 13 at 17. 24 Under the third factor, whether Plaintiff has a claim of unusually severe emotional 25 distress, the Court notes that Plaintiff states that he did not suffer “emotional distress to the 26 point of requiring medical intervention or psychiatric treatment,” but “the degrading 27 experience of being discarded simply because [he] suffered from a disability caused [him] 28 significant stress, anxiety, frustration, sadness, and disenchantment.” Id., Plaintiff’s 1 Response to Interrogatory No. 15 at 20. However, Plaintiff later stated that he did seek 2 additional treatment for his emotional injuries, noting “that [he] didn’t leave the house for 3 almost a month after [his] separation and that [he] increased the frequency of [his] visits 4 with [his] therapist to try and cope with the feelings and fears in productive ways.” Id., 5 Plaintiff’s Response to Interrogatory No. 17 at 21. The Court finds Plaintiff’s argument 6 that his emotional distress can be best characterized as “garden variety” is unpersuasive. 7 “Garden variety [claims are] claims of generalized insult, hurt feelings, and lingering 8 resentment [that] do not involve a significant disruption of the plaintiff’s work life and 9 rarely involve more than temporary disruption to the claimant’s personal life.” 10 Ortiz v. Potter, 2010 WL 796960 at *3 (E.D. Cal. March 5, 2010). Here, Plaintiff concedes 11 that Ms. Gift exacerbated his anxiety disorder and may have contributed to him not leaving 12 the house for almost a month, which the Court finds rises above “garden-variety” emotional 13 distress. 14 Under the fourth factor, Defendant contends that “during the meet and confer 15 process, Plaintiff suggested he would rely on expert witness testimony at least for rebuttal 16 purposes.” MTC at 6. Plaintiff’s Opposition is silent on the issue of expert testimony. 17 See Oppo. Accordingly, this factor weighs in favor of Defendant. 18 Finally, as to the fifth factor, Plaintiff does not concede that his mental condition is 19 in controversy as illustrated by the arguments made in his Opposition. See Oppo. In sum, 20 the Court finds that based on the five factors set forth in Turner, Defendant has met his 21 burden to demonstrate that Plaintiff’s mental health is in controversy for purposes of Rule 22 35. Next, the Court must consider whether good cause exists to compel a Rule 35 23 examination. 24 C. Whether Defendant has Shown Good Cause for Compelling a Mental Examination 25 26 Defendant asserts that he has shown good cause for the Court to order a 27 psychological examination with four arguments. MTC at 5. First, Defendant maintains that 28 he needs the examination to evaluate what extent of Plaintiff’s emotional distress damages 1 are attributable to Defendant’s conduct versus other outside stressors. Id. at 6. Second, 2 Defendant argues the information obtained from an examination cannot be obtained 3 elsewhere because “[a]vailable medical records are not a substitute for an examination.” 4 Id. Third, Defendant argues that “Plaintiff has not committed to forgoing expert testimony 5 altogether in support of his claims.” Id. And fourth, Defendant contends that he lacks 6 Plaintiff’s medical records from 2020. Id. 7 The Court finds that Defendant’s arguments fail. First, Defendant can obtain the 8 desired information by other means; namely, Plaintiff’s medical records. Plaintiff produced 9 voluminous medical records regarding his past mental state. See Oppo. at 6 (“Plaintiff 10 produced over 305 pages of medical records from three separate health-care providers, 11 including full psychological and medical histories, treatment plans, and progress notes 12 from his therapist that describe [Plaintiff’s] contemporaneous mental state, symptoms, 13 triggers, and potential causes of his anxiety disorder”); see also Vanderpool 14 Decl. ¶¶ 2, 7, 8. Furthermore, Defendant has deposed Plaintiff in a two-day deposition and 15 has also deposed Plaintiff’s wife. Oppo. at 6. As such, Defendant has had an opportunity 16 to inquire about the extent of Plaintiff’s disability and emotional distress. 17 The Court also finds a Rule 35 mental health examination would not be relevant to 18 Plaintiff’s anxiety disorder which subsided in fall 2020. Exhibit 1 to the Torres Decl., 19 Plaintiff’s Response to Interrogatory No. 7 at 13. A mental health examination at this 20 procedural posture will only provide insight into Plaintiff’s current mental health and allow 21 for discussion of Plaintiff’s past medical history including his anxiety disorder from 2018 22 through 2019. Notably, Plaintiff is not claiming ongoing emotional distress. Id. 23 Considering that Plaintiff has already produced extensive medical records from the relevant 24 time period, the Court finds that a current mental examination would not be relevant to 25 Plaintiff’s level of emotional distress from three years ago. See Mahil v. Option Care 26 Enterprises, Inc., No. 20CV1559-BEN-MDD, 2021 WL 1428496, at *3 (S.D. Cal. 27 Apr. 15, 2021) (“The Court also finds that an IME would not be relevant to Plaintiff’s past 28 emotional distress claims as the IME will focus on Plaintiff’s current mental state and only 1 || discuss Plaintiff's past medical history.”). The Court finds the possibility that Plaintiff may 2 ||rely on a rebuttal expert to support his emotional distress claims insufficient to compel a 3 ||Rule 35 mental health examination. In light of these considerations, the Court finds that 4 ||Defendant has not demonstrated “good cause” to compel a Rule 35 mental health 5 || examination. 6 IV. CONCLUSION 7 For the foregoing reasons, the Court ORDERS Defendant’s Motion be DENIED. 8 IT IS SO ORDERED. 9 || Dated: June 4, 2021 NO 10 DSF | 11 Honorable Linda Lopez D United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28