                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


                                     )
BINE-AMIN TOKHI,                     )
                                     )
                  Plaintiff,         )
                                     ) Civil Action No. 09-335(EGS)
                  v.                 )
                                     )
RITE AID CORPORATION,                )
                                     )
                  Defendant.         )
                                     )

                            MEMORANDUM OPINION

     Pending before the Court is plaintiff’s motion for entry of

a protective order and defendant’s request for an order requiring

plaintiff to attend and submit to a mental examination pursuant

to Federal Rule of Civil Procedure 35.        Upon consideration of

plaintiff’s motion, the response and reply thereto, the

applicable law, and for the reasons stated below, the Court

GRANTS plaintiff’s motion for entry of a protective order and

DENIES defendant’s request for an order directing plaintiff to

attend a psychiatric examination.

I.   Background

     Plaintiff Bine-Amin Tokhi (“Tokhi”), a former employee of

defendant Rite Aid Corporation (“Rite Aid”), filed this action on

February 20, 2009, alleging wrongful termination in violation of

the public policy exception to the at-will employment doctrine

and negligent retention.       Compl. ¶ 1.   Plaintiff is seeking

“[a]ll relief legally available to him,” including, but not
limited to, reinstatement, economic damages, compensatory

damages, and punitive damages.   Compl. ¶ 143.     Defendant answered

the complaint on March 17, 2009, and the parties have been

engaged in discovery since April 2009.

      The pending motion involves a discovery dispute that arose

after Rite Aid indicated that it would “like to make arrangements

for Plaintiff to submit to examination by a psychiatrist pursuant

to Rule 35 of the Federal Rules of Civil Procedure.”      See Def.’s

Ex. 2.   In response to this request, plaintiff filed a motion for

a protective order with the Court.      In its opposition brief,

defendant formally requested that plaintiff be ordered to attend

and submit to a mental examination by Dr. Brian Schulman, M.D.

See Def.’s Br. at 6.   The examination would consist of “an

interview, the administration of various psychiatric rating

scales and questions regarding Mr. Tokhi’s prior medical,

psychological and employment history[.]”      Def.’s Br. at 6.

Plaintiff’s motion for a protective order and defendant’s request

for a mental examination are now ripe for determination by the

Court.

II.   Legal Standard and Analysis

      Federal Rule of Civil Procedure 35(a) provides that an order

for a mental examination may be made only on “motion for good

cause and on notice to all parties and the person to be

examined.”   Fed. R. Civ. P. 35(a)(2).     In Schlagenhauf v. Holder,


                                    2
379 U.S. 104 (1964), the Supreme Court clarified that a Rule 35

examination should be ordered only if the party requesting the

examination has adequately demonstrated that the party’s mental

or physical condition is “in controversy” and that there is “good

cause” for the examination requested.   Id. at 119; see also id.

at 118, 121-22 (explaining that there must be a “greater showing

of need” under Rule 35 than under other discovery rules, and

emphasizing that “[m]ental and physical examinations are only to

be ordered upon a discriminating application by the district

judge of the limitations prescribed by the Rule” in order to

prevent the “untoward result” of routine examinations).

     As the parties acknowledge in their briefing, there is a

split among courts regarding whether a plaintiff puts his mental

condition “in controversy” by seeking damages for emotional

distress as a result of employment discrimination.   The D.C.

Circuit has not yet addressed the issue.1   A minority of courts

has held that a plaintiff places his mental condition “in

controversy” by simply making a claim for emotional distress


     1
          Despite defendant’s assertion to the contrary, there is
no settled “rule of law within this Circuit” regarding mental
examinations under Rule 35. Def.’s Br. at 5. See, e.g., Benham
v. Rice, 238 F.R.D. 15, 27-29 (D.D.C. 2006) (following the
“minority view” and ordering a psychiatric examination), rev’d in
relevant part, No. 03-1127-HHK, Mem. Op. & Order, Docket No. 115
(D.D.C. Sept. 14, 2007) (adopting the “majority view” and
determining that a mental examination was unwarranted); see also
Nunskey v. Lambright, 251 F.R.D. 3, 7 (D.D.C. 2008) (following
the “minority view” “in the absence of controlling authority to
the contrary”).

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damages as part of an employment discrimination claim.   See,

e.g., Nunskey v. Lambright, 251 F.R.D. 3, 7 (D.D.C. 2008) (“[I]t

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.”

(internal quotation marks omitted)).   The majority of courts,

however, will not require a plaintiff to submit to a psychiatric

examination unless, in addition to a claim for emotional distress

damages, one or more of the following factors is present:

“(1) plaintiff has asserted a specific cause of action for

intentional or negligent infliction of emotional distress;

(2) plaintiff has alleged a specific mental or psychiatric injury

or disorder; (3) plaintiff has claimed unusually severe emotional

distress; (4) plaintiff has offered expert testimony in support

of her claim for emotional distress damages; [or] (5) plaintiff

concedes that [his] mental condition is ‘in controversy’ within

the meaning of Fed. R. Civ. P. 35(a).”   Fox v. Gates Corp., 179

F.R.D. 303, 307 (D. Col. 1998).   Under this “majority view,” a

Rule 35 mental examination should not be ordered unless the

plaintiff has asserted something more than a “garden variety”

claim of emotional distress.   See, e.g., Turner v. Imperial

Stores, 161 F.R.D. 89, 97 (S.D. Cal. 1995) (“The weight of the

authority on this issue establishes that in order for a party


                                  4
seeking to compel a psychiatric examination under Rule 35 to

establish that the other party’s mental condition is ‘in

controversy’ within the meaning of the Rule, the moving party

must show more than that the party in question has claimed

emotional distress.”).

     In this case, plaintiff alleges that he was unlawfully

terminated by defendant.   Compl. ¶ 1.      Plaintiff has not asserted

a separate cause of action for intentional or negligent

infliction of emotional distress.       See Pl.’s Br. at 3-4.   Mr.

Tokhi has not alleged any specific mental or psychiatric injury,

nor has he claimed unusually severe emotional distress.         See

Pl.’s Br. at 4.   Instead, plaintiff alleges only that he

“suffered garden variety emotional distress” as a result of his

termination by Rite Aid, see Def.’s Ex. 1 at 23, and seeks

compensatory damages related to the “humiliation, embarrassment,

and indignity” associated with his allegedly unlawful

termination.   See Pl.’s Br. at 3 (explaining that plaintiffs who

suffer unlawful discrimination are entitled to recover

compensatory damages for “humiliation, embarrassment, and

indignity” under D.C. law, as those injuries “flow naturally”

from such discrimination (citing Kennedy v. District of Columbia,

654 A.2d 847, 863 (D.C. 1995))).       Plaintiff represents that he

“does not intend to offer expert testimony in support of [his]




                                   5
claim for garden variety emotional distress damages.”   Pl.’s Br.

at 4.

     Having carefully considered the unsettled case law in this

area and the facts of this case, the Court concludes that Mr.

Tokhi did not put his mental condition “in controversy” within

the meaning of Rule 35 by seeking damages for “garden variety”

emotional distress stemming from his termination, nor has Rite

Aid shown good cause for a psychiatric examination.   In adopting

the majority view regarding Rule 35 examinations, the Court is

persuaded by Judge Kennedy’s discussion in Benham v. Rice:

        The majority of courts that have examined the issue
        have concluded that a Rule 35 mental examination
        should not be ordered unless something more is
        involved than just a ‘garden variety’ claim of
        emotional distress. And there is good reason for
        such restraint. Extraordinarily intrusive as they
        invariably are, such orders would have an
        unwarranted chilling effect on persons who believe
        that they have been subjected to unlawful
        discrimination if they faced a physical or mental
        examination anytime they sought redress for such
        perceived discrimination. . . . To blithely order
        such exams in any civil rights case would ‘open the
        floodgates to requests for mental examinations
        whenever a plaintiff alleged past pain and
        suffering in a routine [civil rights] case.’

No. 03-1127-HHK, Mem. Op. & Order, Docket No. 115 at 3 (D.D.C.

Sept. 14, 2007) (quoting Hodges v. Keane, 145 F.R.D. 332, 335

(S.D.N.Y. 1993), internal citations omitted); see also Turner,

161 F.R.D. at 97 (rejecting the minority view that a claim for

emotional distress without more is sufficient to put a party’s

mental state in controversy because “[i]f this were the law, then

                                6
mental examinations could be ordered whenever a plaintiff claimed

emotional distress or mental anguish,” and emphasizing that “Rule

35(a) was not meant to be applied in so broad a fashion”).   In

sum, this Court is unwilling to require a party to undergo a

psychiatric examination simply because the party requests

compensatory damages for emotional distress in an employment

discrimination case; something more must be shown to satisfy the

moving party’s burden under Rule 35.   Accordingly, plaintiff’s

motion for a protective order is GRANTED.   Plaintiff need not

submit to a Rule 35 mental examination as requested by defendant.

An appropriate Order accompanies this Memorandum Opinion.

     SO ORDERED.

Signed:   EMMET G. SULLIVAN
          United States District Judge
          October 20, 2009




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