UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ERIC SANTIFER, 

 Plaintiff, 

v. 

INERGY AUTOMOTIVE 

SYSTEMS, LLC. et al., 

 Defendants. 

 

Case No. 5:15-cv-11486 

District Judge Judith E. Levy 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

ORDER DENYING DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S 

INDEPENDENT MEDICAL EXAMINATION (DE 21) 

 This matter is before the Court for consideration of Defendants’ February 

16, 2016 motion to compel Plaintiff’s independent medical examination (“IME”). 

(DE 21.) On February 19, 2016, the Court issued a scheduling order requiring 

Plaintiff to respond to Defendants’ motion by March 11, 2016. (DE 22.) To date, 

Plaintiff has not filed a response to the motion. 

 The Court noticed a hearing in this matter for April 6, 2016. (DE 23 and 

24.) However, because this matter can be decided on the papers, the hearing was 

cancelled. E.D. Mich. LR 7.1(f)(2). 

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I. BACKGROUND 

 Plaintiff filed his complaint on April 24, 2015, bringing claims of race 

discrimination pursuant to Title VII of the Civil Rights Act of 1964 and the ElliotLarsen Civil Rights Act. (DE 1.) Specifically, he alleges that he was terminated 

from his position as a Manufacturing Operations Leader at Inergy Automotive 

Systems, LLC, because a co-worker accused him of being aggressive. According 

to Plaintiff, he was not aggressive with the coworker, who also used racial epithets. 

(Id. at 2.) Plaintiff received his Right to Sue letter from the EEOC on February 26, 

2015 and timely commenced the instant action. Plaintiff seeks damages in the 

amount of $2,000,000.00 for lost wages and wrongful termination. (Id. at 4.) 

Specifically, Plaintiff’s prayer for relief reads as follows: 

The Plaintiff is suing the Defendant(s) for $2,000,000.00 for potential 

los[s] of manufacturing career wages; including salaries, estimated 

overtime, annual Cost-of-Living (COLA), benefit expenses, and 

wrongful termination. These estimates are based on the Plaintiff 

completing a 12 year career in manufacturing management to [the] 

age of 65 years old; at $75,000 annual salary that Intergy Automotive 

Systems was paying the Plaintiff at the time of termination. 

(Id.) Plaintiff itemizes his damages to seek $900,000 for lost salary, $180,000 for 

lost overtime, $306,083 for cost of living adjustments, $300,000 for benefits, and 

$313, 917 for wrongful termination. 

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II. THE INSTANT MOTION 

Defendants filed the instant motion to compel Plaintiff’s psychiatric IME on 

the basis that his prayer for “wrongful termination damages” includes damages for 

emotional distress. As support for their position, Defendants point to Plaintiff’s 

January 28, 2016 deposition, in which he testifies to the following: 

Q. Well, let me ask you, you’re also making a claim for emotional 

 distress damages; correct? 

A. Well, because we have been homeless and there’s been strife 

 and there has been difficulty there and I have not been able to 

 achieve—you can allude to the employment situation—

 continuous employment. 

(DE 21-2 at 109, ¶¶ 16-21.) 

Q. And then you state wrongful termination, $313,917. By that do 

 you mean emotional distress damages? 

A. All those things are captured under that because, again, if not 

 for Mr. Rebbeck’s erroneous and untrue allegations, I would 

 not have been terminated because there was no record of 

 anything, but yes, if you want to capture that. 

Q. So that’s your catch-all? 

A. That’s kind of my catch-all there. That was it. 

Q. And do you allege that your being terminated has caused you to 

 suffer emotional-type injuries—or what other injuries or 

 damages are you alleging in that catch-all? 

A. Well, emotionally for sure because it created homelessness that 

 had nothing to do with anything other than the termination. It 

 has been very stressful on my grandmother, who really was 

 resentful and unhappy in the healthcare facility, who has a 

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 reasonable sense of independence despite her lack of mobility. 

 She’s functionally illiterate. So there has been stress on our 

 family to try to get back some reasonable normalcy . . . . 

(Id. at 5, ¶¶ 21-25 and 6, ¶¶ 1-19.) Defendants assert that this testimony 

establishes that Plaintiff has brought his mental health in controversy, meaning that 

Plaintiff must submit to a mental examination. Accordingly, on February 1, 2016, 

Defendants served upon Plaintiff a notice of IME to take place on February 8, 2016 

at 3:00 P.M. at the offices of Gerald Shiener, M.D., in Birmingham, Michigan. 

(DE 21-3.) 

 As noted above, Plaintiff did not file a response to this motion. However, in 

emails to Defendants dated February 2, 2016, February 8, 2016, and February 14, 

2016 Plaintiff asserted that he was not required to submit to the IME. Specifically, 

he argued that his wrongful termination damages constituted “less than 15%” of 

his damages and noted that he was “not claiming emotional stresses or 

complications that have caused medical concerns.” (DE 21-4 at 4.) 

III. DISCUSSION 

Pursuant to Federal Rule of Civil Procedure 35, a court may “order a party 

whose mental or physical condition . . . is in controversy to submit to a physical or 

mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 

35(a)(1). The motion must “specify the time, place, manner, conditions, and scope 

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of the examination, as well as the person or persons who will perform it.” Fed. R. 

Civ. P. 35(a)(2)(B). 

 The party making the motion to compel IME has the burden of 

demonstrating that: “(i) the opposing party’s physical or mental condition is in 

controversy, and (ii) there is good cause to require the opposing party to submit to 

the examination.” Gohl v. Livonia Pub. Sch., No. 12-cv-15199, 2015 WL 

1469749, at *1 (E.D. Mich. Mar. 30, 2015) (citing Benchmaster Inc. v. Kawaelde, 

107 F.R.D. 752, 753 (E.D. Mich. 1985)). According to the leading case on this 

subject, these standards are not met by “mere conclusory allegations of the 

pleadings—nor by mere relevance to the case—but require an affirmative showing 

by the movant that each condition as to which the examination is sought is really 

and genuinely in controversy and that good cause exists for ordering each 

particular examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). Such 

an analysis “requires discriminating application by the trial judge . . . .” Id. 

 ‘“The majority of courts have held that plaintiffs do not place their mental 

condition in controversy merely by claiming damages for mental anguish or 

“garden variety” emotional distress.”’ Gaines-Hanna v. Farmington Pub. Sch., No. 

04-cv-74910-DT, 2006 WL 932074, at *8 (E.D. Mich. Apr. 7, 2006) (quoting 

Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 553, N.D. Ga. 2001); see also, 

e.g., Acosta v. Tenneco Oil Co., 913 F.2d 205, 209 (5th Cir. 1990) (concluding that 

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ruling in the defendant’s favor would “sanction a mental examination in every age 

discrimination case”); Ford v. Contra Costa Cnty., 179 F.R.D. 579, 580 (N.D. Cal. 

1998) (Where defendants “presented little more than [the plaintiff’s] prayer for 

emotional and mental distress damages,” they did not meet their burden under Rule 

35(a)); Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 528 (M.D. Fla. 

1988) (declining to compel an IME where the plaintiff merely asserted a claim of 

damages for physical and emotional distress, but did not allege “psychiatric 

injuries.”); Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D. Cal. 1995) 

(collecting cases). The phrase “garden variety emotional distress damages” has 

been defined as “the generalized insult, hurt feelings and lingering resentment 

which anyone would be expected to feel if he or she were the recipient of an 

adverse employment action attributed to discrimination.” Owens v. Sprint/United 

Mgmt. Co., 221 F.R.D. 657, 660 (D. Kan. 2004); see also Santelli v. ElectroMotive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (describing garden variety emotional 

distress as “the negative emotions that [plaintiff] experienced essentially as the 

intrinsic result of the defendant’s alleged conduct” but not the “resulting symptoms 

or conditions that [plaintiff] might have suffered.”); Kunstler v. City of New York, 

No. 04-civ-1145(RWS)(MHD), 2006 WL 2516625, at *9 (S.D.N.Y. Aug. 29, 

2006) aff’d, 242 F.R.D. 261 (S.D.N.Y. 2007) (garden variety emotional damages 

are “the distress that any healthy, well-adjusted person would likely feel as a result 

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of being so victimized” by the defendants’ misconduct); Flowers v. Owens, 274 

F.R.D. 218, 225-26 (N.D. Ill. 2011) (collecting cases). Courts in the Sixth Circuit 

adopt the majority view. 7 Moore’s Federal Practice 3d ¶ 35.03[2]; see, Johnson v. 

Peake, 273 F.R.D. 411, 412 (W.D. Tenn. 2009) (citing Gaines-Hanna, supra.) and 

Taylor v. Nat’l Grp. of Co’s, Inc., 145 F.R.D. 79, 79-80 (N.D. Ohio 1992). “A 

similar majority . . . also recognize that a mental exam is warranted when one or 

more of the following factors are present:” 

(1) a tort claim is asserted for intentional infliction or negligent 

infliction of emotional distress; (2) an allegation of a specific mental 

or psychiatric injury or disorder is made; (3) a claim of unusually 

severe emotional distress is made; (4) plaintiff intends to offer expert 

testimony in support of a claim for emotional distress damages; and/or 

(5) plaintiff concedes that her mental health condition is in 

controversy within the meaning of Rule 35. 

Stevenson, 201 F.R.D. at 554; see also Moore’s, supra. §35.03[1][b]. Courts in 

this district have applied these factors in deciding whether a motion to compel IME 

should be granted. Green v. Michigan Dep’t of Nat. Res., No. 08-14316, 2009 WL 

1883532, at *3 (E.D. Mich. June 30, 2009) (compelling an IME where plaintiff 

specified a physical manifestation of his emotional distress, thereby alleging a 

“level of severity beyond that of garden variety emotional distress and mental 

anguish”); Kuslick v. Roscxcewski, No. 09-12307-BC, 2012 WL 988355, at *4 

(E.D. Mich. Mar. 16, 2012) (compelling an IME where the plaintiff’s “primary 

damages are for emotional harm caused by the incident,” raising them to a level 

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beyond garden variety damages); Gaines-Hanna, 2006 WL 932074 at *8 

(compelling an IME where the plaintiff’s witness list indicated that medical expert 

testimony would be offered and alleged “unusually severe emotional distress.”) 

 Applying the foregoing factors, Plaintiff has not alleged more than garden 

variety emotional distress damages, if he has even done that. First, he does not 

assert a claim for intentional or negligent infliction of emotional distress. His only 

claim is for race discrimination pursuant to Title VII of the Civil Rights Act of 

1964 and the Elliot-Larsen Civil Rights Act. Nor does he allege a specific mental 

or psychiatric injury or disorder. He does not even specifically seek damages for 

emotional distress in his complaint. (DE 1 at 4.) 

 Instead, Defendants’ entire argument rests upon the above mentioned 

deposition testimony, in which Plaintiff, after being pressed in cross-examination, 

indicates that he has been homeless and “had difficulty.” (DE 21-2 at 3, ¶¶ 16-23.) 

He further testified that any emotional distress damages were captured under the 

heading of “wrongful termination” damages.” (Id at 5-6.) Again, Plaintiff 

describes his emotional distress as homelessness brought on by his loss of income. 

(Id. at ¶¶ 9-10.) This could not be considered a claim of unusually severe mental 

distress sufficient to compel an IME. Plaintiff does not even allege that he suffers 

from a mental health issue, other than the entirely predictable stress one would 

expect to be brought on by losing his income and home. See Varlesi v. Wayne 

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State Univ., No. 14-1862, 2016 WL 860236, at *3 (6th Cir. Mar. 7, 2016) 

(upholding the district court’s refusal to compel an IME where the plaintiff was 

claiming ‘“garden variety’ emotional harm resulting from the ordeal” of pregnancy 

discrimination and retaliation in a Title IX action). 

 Furthermore, from the current record, there is no indication that Plaintiff 

intends to offer expert testimony in support of his claim for emotional distress 

damages. Finally, Plaintiff has not conceded that his mental health condition is in 

controversy, noting that less than 15% of his damages were for wrongful 

termination with only a “minor portion, if any[,] for medical/emotional reasons.” 

(DE 21-6 at 2.) Notably, Defendants do not cite to any case law in their brief to 

demonstrate that any other court has compelled an IME in a similar circumstance. 

Nor has the Court’s independent research revealed binding authority (or otherwise) 

in which an IME was compelled for a Title VII plaintiff who did not even allege 

that he or she suffered from emotional distress in his complaint. There is simply 

not enough in the record before the Court, beyond Plaintiff’s brief deposition 

testimony, to indicate that the Court should exercise its discretion to compel an 

IME in this matter. 

IV. CONCLUSION 

 Defendants have not established that Plaintiff’s mental condition is in 

controversy for the purposes of compelling an IME pursuant to Rule 35. Nor have 

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Defendants established good cause for such an order. Accordingly, Defendants’ 

motion to compel IME is DENIED. (DE 21.) 

IT IS SO ORDERED. 

Dated: April 4, 2016 s/Anthony P. Patti 

 ANTHONY P. PATTI 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing order was sent to parties of record on 

April 4, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

 

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