Kenneth W. Legacki, Anchorage, for Petitioners.
Linda J. Johnson, Clapp, Peterson, Tiemessen, Thorsness & Johnson, LLC, Anchorage, Todd K. Sherwood, Assistant Municipal Attorney, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for Respondent.
Jeffrey J. Barber, Barber & Banker, LLC, Anchorage, for Amicus Curiae Alaska Association for Justice.
Before: FABE, Chief Justice, WINFREE, MAASSEN, and BOLGER, Justices.
Two former police officers brought claims against the Municipality of Anchorage for racial discrimination, alleging a hostile work environment in violation of state law. The officers claimed damages for mental anguish, and the Municipality sought discovery concerning the nature of their mental anguish claims. But the officers refused to comply with these discovery requests, invoking the physician and psychotherapist privilege. The Municipality moved for an order to compel the officers to sign releases authorizing the disclosure of medical, pharmacy, and psychological counseling records, which the superior court granted. The officers then petitioned this court for review of the order. Upon review, we conclude that the assertion of garden-variety mental anguish claims in an employment discrimination case does not automatically waive the physician and psychotherapist privilege.
II. FACTS AND PROCEEDINGS
A. The Officers' Claims Under AS 18.80.220
Alvin Kennedy and Eliezer Feliciano (the officers) were police officers with the Anchorage Police Department (APD) who sued the Municipality of Anchorage (the Municipality) for racial discrimination and retaliation. Kennedy is African-American, and Feliciano is Hispanic. They alleged that the Municipality violated state law because APD created a hostile work environment for the officers, in which they were treated disparately because of their races. The alleged discrimination includes racially-profiled traffic stops, disparate discipline for questionable investigative searches, hostile remarks and actions concerning the undercover clothing worn by minority officers, reassignment from other units, denial of performance pay increases and promotions, and a retaliatory police investigation. Both claim damages for mental anguish.
In response to discovery requests from the Municipality, each officer stated how the alleged discrimination had affected him. Kennedy reported that he was " very angry, disappointed and occasionally sad." He stated that his " trust levels [were] very low" and that he was " discouraged and disappointed" by the actions of the Municipality and APD.
Feliciano stated that he was " disturbed" by the alleged discrimination. He elaborated:
The conduct of the APD has given me the feeling that everything I have done throughout my career has been for naught. I feel sad, resulting in lower activity and feeling anxious, empty, hopeless, helpless, worthless, guilty, irritable and restless. I have experienced insomnia, fatigue, loss of
energy, aches and pains, and a strained relationship with my wife and children.
Both officers alleged that they had to retire because of the discrimination they suffered at APD. Both asserted that they had not sought any medical treatment or counseling, nor taken any medication related to their mental anguish claims.
B. Proceedings Below
The officers filed a complaint in June 2010 alleging employment discrimination. They amended this complaint in June 2011 to include claims for retaliation and mental anguish. The Municipality sought discovery, requesting that the officers (1) identify all medical professionals, counselors, and pharmacies that had provided them services since 2005; (2) produce copies of all medical and counseling records since 2005; and (3) sign releases for the same information. The officers refused to comply with these requests.
In March 2012 the Municipality filed a motion to compel the officers to sign releases for medical, counseling, and pharmacy records. The Municipality argued that it was entitled to discovery of the officers' medical records because the officers had put their medical histories at issue by seeking damages for mental anguish. The Municipality contended that such records were necessary to determine whether there was any medical evidence of mental anguish and whether the officers' alleged mental anguish was caused by other factors unrelated to their discrimination claims.
The officers opposed the motion to compel. They asserted that they had not received any treatment or medication in response to the alleged racial discrimination, and they would not rely on expert medical testimony to establish damages. They argued that because they merely asserted garden-variety mental anguish claims, there was no waiver of the physician and psychotherapist privilege. The superior court granted the Municipality's motion to compel and ordered the officers to provide the requested medical releases.
We granted review, directing the parties to brief the following issues: (1) Should the assertion of garden-variety mental anguish claims in employment discrimination cases automatically waive a claimant's physician and psychotherapist privilege? (2) If not, (a) How should garden-variety claims of mental anguish be defined? (b) Are the mental anguish claims of each of the officers in this case garden-variety claims? (c) What are the proof limitations that ...