Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—S.D.N.Y.: Metro North can’t require employee to execute release authorizing access to EAP records, (Oct 7, 2025)

By Kathleen Kapusta, J.D.

Metro North’s EAP brochure prominently described EAP services as “Free” and “Confidential.”

Communications by a Metro North Commuter Railroad employee with his employer’s EAP are protected against compelled disclosure by the psychotherapist-patient privilege, a federal court in New York ruled, denying the commuter rail service’s motion to require him to execute a release authorizing access to his EAP records. But if he does not agree to limit his claim to garden-variety damages in his race discrimination lawsuit, said the court, it would require him to enter into a “stipulation formally disavowing any claim for non-garden-variety emotional injuries and expressly agreeing not to offer evidence regarding his” EAP consultation or any other mental health treatment or diagnosis he may have received (Walker v. Metro North Commuter Railroad, No. 23 Civ. 9883 (GS) (S.D.N.Y. Oct. 1, 2025)).

Alleging that his manager discriminated against him by giving him and other Black employees less desirable assignments, mocking and belittling him, and filing fraudulent disciplinary charges against him, the employee sued Metro North for disparate treatment, retaliation, and hostile work environment in violation of Title VII. During his deposition, he testified that he consulted with Metro North’s EAP several times for “stress relief or some kind of consulting they can offer me,” including after various workplace incidents.

Release. Afterward, Metro North’s counsel asked the pro se employee to sign a release authorizing the EAP to provide it with the entire contents of his file and the substance of all conversations with EAP personnel. Asserting that his visits with EAP personnel were confidential, the employee refused to sign the release.

Relevant? Moving to compel the release of his records, Metro North argued that they were relevant because the employee “testified that he spoke to EAP representatives about the treatment that he received at work, which is also the subject of his claims in this action.” Thus, the records, it continued, could reflect party admissions including those bearing on his credibility.

In its 1996 Jaffee v. Redmond decision, the court here noted, the U.S. Supreme Court held that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure.” Not only have several courts found this privilege applies to an employee’s confidential consultations with an EAP counselor, a Metro North affiliate entity also took this position with respect to its own EAP program.

Confidential. And here, observed the court, not only did the employee allege that employees are given assurances their consultations with EAP counselors will be kept confidential, Metro North’s EAP brochure prominently describes EAP services as “Confidential” and states that “Employees are understandably concerned about privacy issues at the job,” and that, with certain exceptions not pertinent here, all “conversations are confidential.” Thus, said the court, the employee had a reasonable expectation his conversations would remain confidential and protected.

Moreover, while some courts disagree over whether the Jaffee privilege extends to consultations with unlicensed mental health professionals, there was evidence the employee consulted with either a licensed social worker or with a counselor who acted under the supervision of a licensed social worker, said the court, finding his communications with the EAP were protected against compelled disclosure by the psychotherapist-patient privilege.

Waiver. Metro North, however, also argued that the employee put his emotional state and his communications with his EAP counselors “at issue” through his claims in this action, which seek damages for emotional distress, and through his discovery responses, which indicate he will be relying on his visits to EAP to support his claim for emotional distress damages. Though the employee initially asserted that he should be allowed to use, as evidence in support of his damages claim, the fact that he made visits to the EAP and the dates of those visits, while simultaneously refusing access to the contents of his communications with the EAP, he later stated that he did not feel he needed to introduce evidence that he visited the EAP unless asked a question by Metro-North that would elicit that information. “Since [the employee] is no longer insisting on making affirmative use of his EAP consultations, there is no longer a basis to find a waiver on that ground,” said the court.

As to Metro North’s contention the employee waived the privilege by seeking “significant emotional distress damages,” the Second Circuit, the court observed, has “soundly rejected the contention that ‘anybody who asks for [damages for] pain and suffering has waived the psychiatric privilege... [and that] a claim of ‘garden variety’ injury waives the psychotherapist-patient privilege.’” Noting that the parties stated that they did not anticipate using expert witnesses, and that the evidence of emotional harm would be limited to the employee’s emotional testimony, the court found his emotional distress claims were best classified as garden variety.

Stipulation. Accordingly, said the court, “based on the current record, [the employee’s] claim for emotional distress damages has not effected a waiver of privilege with respect to his EAP records.” Given the possibility, however, that he may not agree to limit his claim to garden-variety damages, and in order to avoid potential prejudice to Metro North, the court required him to enter into “a stipulation formally disavowing any claim for non-garden-variety emotional injuries and expressly agreeing not to offer evidence regarding his” EAP consultations or any other mental health treatment or diagnosis he may have received. If he was unwilling to enter into such a stipulation, he would need to authorize release of his EAP records from April 2017 to the present.

The case is No. 23 Civ. 9883 (GS).

Judge: Stein, G.

Attorneys: Jesse L. Walker, pro se. Jennifer Anne Mustes, Metro North Commuter Railroad, for Metro North Commuter Railroad.

Cases: EvidenceDiscovery Discrimination NewYorkNews