890 F2d 420 McCoy v. Kretschmar

890 F.2d 420

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Mark McCOY, Plaintiff-Appellant,
Paul KRETSCHMAR, and Jane Doe Kretschmar, husband and wife
and the marital community composed thereof, et
al., Defendant-Appellee.

No. 88-4222.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 15, 1989.
Decided Nov. 30, 1989.


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Marc McCoy (McCoy) appeals from the district court's order granting summary judgment, dismissing McCoy's federal claim under 42 U.S.C. Sec. 1985, and declining to exercise its pendent jurisdiction over the state law causes of action. McCoy seeks reversal on the following grounds:


One. The district court erred in dismissing the section 1985 claim because there are disputed material facts pertaining to the participation of Dr. Paul Kretschmar and Dr. Guy A. Parvaresh in a racially based conspiracy to violate his civil rights.


Two. The district court erred in granting appellees' motion for a judgment without granting his motion to compel production of additional evidence.


Three. The district court abused its discretion, causing him to suffer prejudice due to unjustified delay, when it permitted Dr. Kretschmar and Dr. Parvaresh to amend their answers to the complaint by allowing them to raise groundless defenses.


Four. The district court erred in dismissing the state law claims of defamation and invasion of privacy because McCoy presented evidence that the doctors knowingly made unconsented false statements about plaintiff and intentionally intruded in his private affairs.


Five. The district court erred in declining to exercise its pendent jurisdiction over claims alleging a violation of Washington's laws against discrimination and interference with contract.

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We disagree and affirm. We discuss each of McCoy's contentions and the facts pertinent thereto under separate headings.1




McCoy contends that the district court erred in dismissing the section 1985 claim because there are disputed issues of material facts.


We review the entry of summary judgment independently, without deference to the district court's legal conclusions "in the light most favorable to the nonmoving party, to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).


To state a cause of action under section 1985(3), 42 U.S.C. Sec. 1985(3) (1981), a plaintiff must allege:


(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.


United Brotherhood of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983). Further, section 1985(3) "has been construed to require a racially or otherwise 'invidiously discriminatory animus' behind the conspirator's action." Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980) (per curiam).


McCoy argues that the following facts show discriminatory animus. Dr. Kretschmar and Dr. Parvaresh were sent a document entitled "employment profile" which listed McCoy's prior union grievances and complaints of discrimination filed against C-Tran. In a letter advising Dr. Parvaresh that a psychiatric examination of McCoy had been requested by C-Tran, Dr. Kretschmar stated that "Mr. McCoy has been involved with the Harassment and Discrimination Claim through the Department of Labor and Industries for some time." McCoy told Dr. Parvaresh that he was concerned that the psychiatric examination had been set up in retaliation for his complaints about discrimination. Dr. Parvaresh refused to disclose to McCoy the information that had been received about him from C-Tran.


Dr. Parvaresh prepared a report which states that "there is a clear paranoid trend in his thinking essentially relating to definite feelings on his part that he is being discriminated against on the basis of race." The report also indicates that McCoy "perceived his examination as a set-up, that the management had already made up their minds to fire him and they were just gathering evidence." Dr. Parvaresh concluded that McCoy exhibited evidence of a "mixed personality disorder with strong features of paranoid perception and passive aggressiveness."


In his deposition, Dr. Parvaresh defined paranoid perception as follows:


If you see the environment as more hostile then it actually is, if you have lack of trust in people you deal with, if you are mistrustful of people you work with. So it is a state ... whereby the person perceives his environment as hostile and punitive."


Dr. Parvaresh stated that he believed that McCoy exhibited paranoid perception because he viewed his employer and his co-workers as "punitive and hostile." Dr. Parvaresh also concluded that McCoy lacked insight and "projects all of his problems to the management and the attitude of the company as a whole." In arriving at his diagnosis, Dr. Parvaresh assumed that McCoy had been discriminated against.


After reading Dr. Parvaresh's initial report, Dr. Kretschmar telephoned the psychiatrist to discuss McCoy. Dr. Parvaresh stated that "if Mr. McCoy were to refuse psychiatric attention he would continue to be stressed out as a bus driver and would not be able to function as such."


In a second report confirming this telephone conversation, Dr. Parvaresh did not refer to the impact on McCoy's ability to perform the duties of a bus driver if he were to refuse psychiatric attention. In his opening brief, McCoy argues that the "concealment" of Dr. Parvaresh's verbal opinion is "especially significant" because the same doctors allowed a white bus driver to return to work after receiving therapy with his personal therapist's approval.


McCoy offered the expert testimony of Dr. August Piper, who practices general psychiatry. McCoy's expert is board certified in internal medicine. He has failed the examination for certification as a psychiatrist. Dr. Piper testified that he had "grave reservations about the suitability, the appropriateness of a physician making a sweeping recommendation, a sweeping pronouncement, that he's, for example, not suited to drive a bus, period, without a detailed and intimate knowledge of what the job entails." In Dr. Piper's opinion, Dr. Parvaresh was guilty of unethical conduct in his evaluation of McCoy. Dr. Piper also testified, however, that he had "no way of determining" whether Dr. Parvaresh intentionally discriminated against McCoy because he is black.


McCoy argues that his evidence raised a disputed issue of material fact concerning discriminatory animus because Dr. Parvaresh and Dr. Kretschmar treated McCoy differently from a "similarly situated white C-Tran bus driver." Since each person's psychological condition is unique, the fact that a white worker may have been returned to work after a psychological examination upon the condition that he receive continuing therapy cannot form the basis of an inference either of disparate treatment or of a race-based animus against McCoy. McCoy would be unable to establish that McCoy and the white worker who was conditionally reinstated were similarly situated. Furthermore, McCoy has not presented evidence that he has undergone psychiatric treatment and has received his therapist's approval to return to his position as a bus driver.





McCoy asserts that the district court erred in granting defendants' motion for summary judgment without granting McCoy's motion to compel production of additional evidence. McCoy sought discovery of evidence concerning a white C-Tran bus driver who was allowed to return to his job after successfully completing psychiatric therapy.


We review the denial of discovery motions for abuse of discretion. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir.1986). Federal Rule of Civil Procedure 26(b)(1) requires the production of discovery of any matter not privileged and relevant to the subject matter, claims and defenses raised by a party. We also review for abuse of discretion a district court's determination that the probative value of proffered evidence is outweighed by its prejudicial effect. United States v. Layton, 767 F.2d 549, 553 (9th Cir.1985).


The district court denied McCoy's motion to compel discovery as it pertained to the psychiatric evaluation of the white bus driver. The district court concluded that "[g]iven the highly subjective and individually unique nature of mental dysfunction, psychiatric evaluations and treatments disclosure of these documents is not likely to attain plaintiff's goal and do not override the individual's right to privacy of personal information." McCoy has failed to explain how the psychiatric report of a white person would prove that the doctors discriminated against a black bus driver.


The district court's concern for the privacy rights of the white patient is appropriate given the sensitive material contained in psychiatric reports. The district court did not abuse its discretion in denying the motion to compel these discovery documents.




McCoy asserts that the district court abused its discretion in permitting the defendants to amend their answers. He argues that the delay prejudiced him.


We review a district court's decision to grant leave to amend a pleading for an abuse of discretion. Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir.1981). "Ordinarily, leave to amend should be freely given in the absence of prejudice to the opposing party." Id. In addition, Federal Rule of Civil Procedure 15(a) provides in pertinent part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."


McCoy filed the complaint on February 20, 1987. Dr. Parvaresh answered on April 29, 1987. On May 26, 1988, Dr. Parvaresh filed a motion for leave to file his amended answer. Dr. Parvaresh added to the seventh affirmative defense claims that McCoy's claim is barred by the collective bargaining agreement and that McCoy failed to file under the provisions of that agreement, and failed to request arbitration. The district court granted Parvaresh's motion on June 15, 1988. On July 18, 1988, the district court granted summary judgment for Parvaresh.


"Several factors govern the propriety of a motion to amend: (1) undue delay, (2) bad faith, (3) prejudice to the opponent, and (4) futility of amendment." Gabrielson, 785 F.2d at 766. McCoy has not demonstrated that he was prejudiced as a result of the order granting the motion to amend the answer, and he asserts none of the other grounds that would make the district court's action improper. Thus the district court did not abuse its discretion in granting leave to amend.





McCoy contends that the district court erred in granting the motion for summary judgment regarding his defamation and invasion of privacy claims. McCoy contends that the statements and conclusions of Dr. Parvaresh and Dr. Kretschmar in declaring McCoy unfit to work as a bus driver defamed him, invaded his privacy by intruding into his private life, and publicized offensive and false material which cast him in a false light. McCoy claims that the record shows that Dr. Parvaresh and Dr. Kretschmar knew these statements were false.


We must apply Washington law to review McCoy's substantive state law claims. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Sorosky v. Burroughs Corp., 826 F.2d 794, 802 (9th Cir.1987). The elements of a defamation case are: (1) falsity; (2) unprivileged communication; (3) fault; and (4) damages. Herron v. King Broadcasting Co., 109 Wash.2d 514, 521, 746 P.2d 295, 300-01 (1987), aff'd on rehearing, 112 Wash.2d 762, 776 P.2d 98 (1989) (en banc).


McCoy did not submit any psychiatric testimony that tended to show that medical opinions rendered by the doctors were false. Instead, the evidence proffered by McCoy shows that the diagnosis was based on inadequate data. The court did not err in granting summary judgment on the defamation claim. To bring a false light claim, McCoy must show that "he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position." Restatement (second) of Torts, Section 652E, comment b (1977); Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 471, 722 P.2d 1295, 1297 (1986). As discussed above, McCoy failed to demonstrate that the psychiatric diagnosis was false.


Summary judgment was also proper regarding McCoy's cause of action for intentional invasion into his private life. Unauthorized disclosure of private communications with a psychotherapist to an employer can constitute an invasion of privacy. See Leggett v. First Interstate Bank, 86 Or.App. 523, 739 P.2d 1083 (1987). Under the collective bargaining agreement, however, the employees agreed to submit to a medical examination under these circumstances, thereby negating a necessary element of this cause of action, lack of consent.




McCoy asserts that the district court abused its discretion in declining to exercise pendent jurisdiction over McCoy's claims of discrimination and interference with contract.


We review the denial of pendent jurisdiction for abuse of discretion. Danner v. Himmelfarb, 858 F.2d 515, 524 (9th Cir.1988), cert. denied, 109 S.Ct. 2067 (1989). When a balancing of factors indicates "that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice." Id. at 524 (quoting Carnegie-Mellon Univ. v. Cohill, 108 S.Ct. 614, 618-19 (1988)). The district court did not abuse its discretion in declining to exercise pendent jurisdiction over the state law claims since the federal claims were dismissed by summary judgment.




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


This court has jurisdiction over an appeal from a final judgment under 28 U.S.C. Sec. 1291 (1982). The notice of appeal was timely filed under Federal Rule of Appellate Procedure 4(a)(4). A motion for reconsideration "tolls the running of the time limitations for filing the notice of appeal until the district court rules on the motion." Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.1984); see also Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.1984) (where motion does not state rule under which it was filed, we will treat it as a motion to reconsider under Fed.R.Civ.P. 59(e) if timely filed within 10 days of the entry of judgment.)