Roberts v. Clark County School District
312 F.R.D. 594
D. Nev.2016Background
- Plaintiff Bradley Roberts, a transgender male employed 22 years by Clark County School District (CCSD), sued for sex discrimination, retaliation, and negligent hiring/supervision after CCSD demanded medical proof of his anatomy to change personnel records and to permit use of men’s restrooms (events beginning Oct. 2011).
- Roberts alleges workplace harassment, intrusive inquiries about his genitalia, and disclosure of private medical/personal information; NERC found probable cause of discrimination in May 2012.
- CCSD served discovery seeking broad medical records (including records of gender-transition treatment and provider identities from 2009–present), social-media and email account identifiers, authorizations for records, and certain audio files; it also sought a qualified protective order to subpoena medical records directly when Roberts refused HIPAA authorizations.
- Roberts resisted, arguing medical/privacy protections (physician/psychotherapist privileges, HIPAA), that he only claims garden-variety emotional distress (no medical treatment), and that the requested discovery is overbroad and irrelevant; he offered limited social-media production and to provide the audio file for copying.
- The magistrate judge limited discovery: denied requests that would require disclosure of intimate medical details or full medical records from 2009–present; compelled targeted supplementation (clarify whether Roberts treated for emotional distress, identify social media platforms and produce content directly related to the claims, produce specific documents evidencing emotional-distress damages, and provide a copy of the audio file); denied the qualified protective order and denied attorneys’ fees to both parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of medical records discovery (gender-transition/anatomical evidence) | Roberts: privacy-privilege/HIPAA protect intimate medical records; he asserts only garden-variety emotional distress and will not rely on medical evidence | CCSD: needs records to establish timeline of transition, anatomy, and to test causation/severity of claimed emotional distress | Denied as to broad medical records and executed authorizations; court held CCSD does not need intimate anatomical details absent a judicial finding they are required and Roberts’ statement that he has no medical treatment for emotional distress stands (subject to supplementation) |
| Discovery of treatment for emotional distress and related witnesses | Roberts: he has not sought medical care for emotional distress and will rely on testimony; garden-variety distress does not waive privilege | CCSD: medical records may show severity, causation, and alternative causes; should be discoverable | Roberts must clarify/supplement whether he consulted/took treatment for emotional distress and must disclose any witnesses (e.g., therapist) and documents he will use; if none, broad medical discovery denied |
| Social media and email account identification | Roberts: blanket account disclosure is overbroad; only relevant, narrowly tailored content should be produced | CCSD: requests account IDs to find evidence of emotional state and events | Court denied requirement to produce all account identifiers and addresses; ordered Roberts’ counsel to list social media sites with accounts (2011–present) and to produce content from Jan 2011 onward that references the lawsuit, CCSD’s response, Roberts’ state of mind, reactions, or treatment by CCSD |
| Qualified protective order to subpoena medical records from providers | Roberts: opposes; wants strict limits on who at CCSD can see records (exclude in-house counsel) | CCSD: seeks QPO under HIPAA to obtain records when plaintiff refuses authorizations | Denied: court refused to grant CCSD leave to subpoena plaintiff’s medical records directly; protective order request denied |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (Sup. Ct. 1989) (gender stereotyping is evidence of sex discrimination)
- Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (transgender plaintiffs may state gender-based claims under certain statutes)
- Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (Title VII claim viable where employer penalizes failure to conform to gender norms)
- Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against a transgender person for nonconformance with gender norms is sex discrimination)
- Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999) (privacy interests in medical information acknowledged)
- EEOC v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D. Cal. 2009) (medical records disclosure may be allowed when plaintiff’s deposition reveals ongoing treatment relevant to claims)
- EEOC v. Wal-Mart Stores, Inc., 276 F.R.D. 637 (E.D. Wash. 2011) (garden-variety emotional distress claims do not automatically waive medical-privilege for records)
- Fitzgerald v. Cassil, 216 F.R.D. 632 (N.D. Cal. 2003) (distinguishing garden-variety emotional distress from diagnosable psychiatric conditions)