Washington Court Weighs In On Privilege Waiver & What Is Opposition Activity

In Lodis v. Corbis Holdings, Inc., No. 67215-1-I (Wash. Ct. App. Jan. 14, 2013), the Washington State Court of Appeals has helped clarify what has become a contentious issue in employment litigation, ruling that "when a plaintiff puts his mental health at issue by alleging emotional distress . . . [t]he defendant is entitled to discover any records relevant to the plaintiff's emotional distress." In the same opinion, the court also held that a human resources executive need not step "outside his or her role of representing the company" to be protected from adverse treatment based on counseling others against discriminatory conduct.

Background

In 2005, Corbis Corporation, a stock photo company, hired the plaintiff as its vice president of worldwide human resources. In 2007, a new chief executive officer (CEO) took over. Soon thereafter, the CEO promoted the plaintiff to be part of Corbis's executive management team.

After taking over, the CEO allegedly made many comments indicating his preference for younger workers, referring to older workers as being "out of touch," "an old-timer," "grandmotherly," or "the old guy on [the] team." He also allegedly expressed a desire to hire "younger" workers for Corbis's executive management team.

The plaintiff, who was both over 40 and in charge of Corbis's company-wide HR operations, repeatedly spoke with the CEO about his age-related comments, Corbis's nondiscrimination obligations, and the potential risk created by the CEO's remarks. The plaintiff also expressed concern about the CEO's comments to Corbis's general counsel.

Just a few months after the plaintiff spoke to the general counsel about the CEO's remarks, the CEO fired the plaintiff, citing negative working relationships. Three months later, the plaintiff sued, claiming that the stated basis for his discharge was pretext, and that the real reasons were to retaliate against him for his discussions about the CEO's age-related comments and to discriminate against him based on his age.

The complaint specifically claimed an entitlement to money damages for emotional distress caused by the discharge. After the suit was commenced, Corbis sought discovery related to the plaintiff's claimed distress—in particular, records from two psychologists who had treated him. The plaintiff refused to produce the records, claiming they were protected from disclosure by the psychotherapist-patient privilege.

Prior to trial, the court dismissed the plaintiff's retaliation claim on the basis that he did not "step outside" his role as vice president of HR when he warned the CEO about age discrimination, and so could not have engaged in protected "opposition activity" sufficient to support a claim under the anti-retaliation provision of the Washington Law Against Discrimination (WLAD).

The case then proceeded to trial on the...