The opinion of the court was delivered by: Judge Elaine E. Bucklo
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Pro se plaintiff David Kronenberg, a lawyer, initiated this lawsuit in 2009 against his former employer, Baker & McKenzie LLP ("Baker"), alleging, among other things, that Baker discriminated and retaliated against him in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12201 et seq., ("ADA"). Mr. Kronenberg claims that Baker failed to provide him reasonable or substitute accommodation after he informed human resources and a supervising partner that he was suffering from "a chronic degenerative spinal condition" -- a disability which he alleges substantially impaired his ability to perform his work as an associate attorney with the firm. (Amended Complaint, Introduction, p. 1).
As part of its discovery requests, Baker served interrogatories and production requests on Mr. Kronenberg, seeking "the names of all [his] physical and mental healthcare providers from 2000 to the present" and "an original, signed release" for any medical information or documents relating to treatment by these providers. (Defendant's Motion to Compel Discovery Responses at 1, 6)("Motion"). Mr. Kronenberg objected to the breadth of Baker's demands and only provided information concerning those physicians who treated his back disorder since 1998. (Motion at 6). He has refused to execute general releases and instead limited his disclosure to only those medical records related to treatment of his spinal condition. (Id.).
Dissatisfied with these responses, Baker has filed a "Motion to Compel Discovery Responses." In his response brief, Mr. Kronenberg contends that records or information relating to any of his mental healthcare providers are protected from discovery by the psychotherapist-patient privilege. (Plaintiff's Response in Opposition to Defendant's Motion at 1-2)("Response"). It is Baker's contention that Mr. Kronenberg has placed his mental health in issue, thus waiving his psychotherapist-patient privilege by seeking damages for pain and suffering and by seeking reinstatement and back pay. In light of the claimed waiver, Baker contends that the mental health information sought in Baker's interrogatories and production requests is discoverable.
All evidentiary privileges are vexatious in their immediate impact since they impede the "search for the truth." It is for that reason that they are construed narrowly. See Pierce County, Wash. v. Guillen, 537 U.S. 129, 144-145 (2003); University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990); Herbert v. Lando, 441 U.S. 153, 175 (1979); United States v. Nixon, 418 U.S. 683 (1974). But neither law nor life is governed, to borrow Toynbee's lambent phrase, by a "single supreme simplicity." There are values and deeply felt intuitions of public policy beyond the search for truth that must be weighed in the balance. One of the interests of transcendent importance is the mental health of the Nation's citizenry. To promote that vital public interest, the Supreme Court has recognized a psychotherapist-patient privilege in the federal courts. Jaffee v. Redmond, 518 U.S. 1 (1996). And consistent with the importance attached to that vital public interest, the Court in Jaffee rejected any balancing test that would allow a judge, in determining questions of privilege, to weigh the privilege against the asserted need for the evidence.
At bottom, Baker's arguments, although not phrased this way, are little more than a claim that Mr. Kronenberg's mental health records may have relevant information to which Baker should have access because it will assist Baker in its presentation of its case and in the defense of Mr. Kronenberg's case. To accept such an argument would resurrect the balancing that Jaffee foreclosed and would disregard the principle that "[p]arties ... do not forfeit [a privilege] merely by taking a position that the evidence might contradict." United States v. Salerno, 505 U.S. 317, 323 (1992). If this principle were not the rule, then in virtually every case a waiver might be found since the party opposing the privilege could argue plausibly that the psychological records might well reveal significant evidence that would contradict the evidence offered by the party asserting the privilege or call into question the privilege holder's veracity.
The cases teach that a plaintiff in an ADA case does not forfeit his psychotherapist-patient privilege merely by asserting a physical "disability;" by seeking damages that do not include emotional damage; or by making but later withdrawing or formally abandoning a claim for emotional distress. It is only when a party puts his mental state in issue through some action of his own designed to advance his interests in the case (such as by claiming a disability involving his mental state, by basing his claim upon the psychotherapist's communications with him, or selectively disclosing part of a privileged communication) that the privilege is waived.*fn1 In re Sims, 534 F.3d 117, 134 (2nd Cir. 2008). Nothing like that has occurred in this case.
BACKGROUND OF THE LITIGATION
Mr. Kronenberg's Amended Complaint states that he has suffered from degenerative spinal disk disease since at least 1998, when he underwent surgery to alleviate the severe back pain and nerve damage that had rendered him unable to walk, stand or sit up. The surgery was apparently successful because, between 1999 and 2006, Mr. Kronenberg experienced only relatively minor symptoms or pain. It was during this time -- in September 2004 -- that Mr. Kronenberg joined Baker & McKenzie as an associate attorney in its Chicago office.
Between July 2005 and September 2005, Mr. Kronenberg received his first annual performance review at Baker -- a comprehensive and structured report, the results of which he claims were overwhelmingly positive. In the spring of 2006, however, Mr. Kronenberg's back condition worsened, causing radiating pain and involuntary muscle movement, which made it difficult for him to work for extended periods at a computer. According to the Amended Complaint, it was at this point that Mr. Kronenberg approached his supervisor, James O'Brien, and requested to meet with him to discuss a medical leave or other accommodation to his disability. According to the complaint, Mr. O'Brien failed to respond to repeated informal requests to meet and discuss accommodation to Mr. Kronenberg's disability. Mr. Kronenberg then filed a formal written request for a medical leave of absence under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., ("FMLA"), and he submitted a proposed reduced work schedule as an accommodation for his "disability."
In August 2006, Baker granted Mr. Kronenberg an "administrative" leave, which was converted to FMLA leave as soon as the necessary paperwork had been completed. Mr. Kronenberg alleges that Baker promised in writing to restore him to his position at the end of his FMLA leave and to reconsider his request for making reasonable accommodations to his disability. At the end of the FMLA leave period, however, Baker again declined to provide him reasonable accommodation and did not reinstate him or attempt to find him an equivalent position as they promised. Instead, Mr. Kronenberg's FMLA leave was converted to an "indefinite administrative leave." (Id.).
During this absence, Mr. Kronenberg requested that Baker make accommodations for his spinal condition by modifying his employment from full-time to part-time. In March 2007, Baker informed Mr. Kronenberg that no part-time positions were available. In April, the parties again discussed the matter over the telephone, and at Baker's request, Mr. Kronenberg submitted a written proposal for his modified employment, which included ergonomic furniture in addition to his prior request for part-time employment. (Id. at 7).
Having heard nothing from Baker for nearly two months, Mr. Kronenberg followed up by inquiring as to the progress of the evaluation of his proposal and invited Baker to propose its own alternative accommodation measures if it disliked any aspect of the existing proposal. Baker finally responded on June 15, 2007, by informing Mr. Kronenberg that it had instead planned to terminate his employment and that he would soon be receiving a severance agreement. Mr. Kronenberg once again appealed to Baker by submitting yet another formal written request that it either consider his proposal or provide an alternate plan for reasonable accommodation to his disability. Baker failed to respond to this request, and, on July 31, 2007, it terminated Mr. Kronenberg's employment. Baker's Answer does not say why he was terminated beyond contending that it was for legitimate and non-discriminatory reasons.
Of the eleven counts originally charged in the complaint, only two counts under the ADA remain in the action. Count I, captioned "Americans with Disabilities Act: Failure to provide reasonable accommodation; Unlawful discharge," alleges that Baker's conduct violated the ADA, and refers to 29 CFR 1630.9, which provides that "it is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business." Count II, captioned "Americans with Disabilities Act: Retaliation," claims Baker retaliated against him in violation of the ADA.
The Amended Complaint alleges that Baker has "deprived [him] of equal employment opportunities," and that as a result, Mr. Kronenberg has suffered "economic loss, deleterious impact to his professional career, dignitary injuries, and other injuries." (Amended Complaint at ¶¶68-72, 81). The Amended Complaint seeks to hold Baker liable for its claimed discrimination based upon Mr. Kronenberg's "chronic degenerative spinal condition" and seeks to require "Baker to reinstate [him] to his position as an associate attorney, ...