Equal Emp't Opportunity Comm'n v. Tepro, Inc.
Decision Date | 28 September 2015 |
Docket Number | Case No. 4:12–cv–75. |
Citation | 133 F.Supp.3d 1034 |
Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. TEPRO, INC., Defendant. |
Court | U.S. District Court — Eastern District of Tennessee |
Anica C. Jones, Gerald L. Thornton, Kelley R. Thomas, Equal Employment Opportunity Commission, Nashville, TN, Faye A. Williams, Markeisha Katera Savage, Matthew H. McCoy, United States of America, Memphis, TN, for Plaintiff.
Marcia Dawn McShane, Mary Dohner Smith, Constange, Brooks & Smith, William A. Blue, Jr., Constangy, Brooks & Smith, Nashville, TN, Tamula R. Yelling, Constangy, Brooks & Smith, LLP, Birmingham, AL, Timothy R. Newton, Constangy, Brooks & Smith, Atlanta, GA, for Defendant.
Before the Court are Defendant's Motion in Limine to Preclude the Expert Testimony of Dr. Richard Tonowski (Doc. 102) and Plaintiff's Motion in Limine to Preclude the Expert Report and Opinion Testimony of Dr. David Griffin (Doc. 110). For the reasons discussed herein, the Court will DENY Defendant's Motion (Doc. 102) and will GRANT IN PART and DENY IN PART Plaintiff's Motion (Doc. 110).
Also before the Court is Defendant's Motion for Summary Judgment. (Doc. 93). For the reasons discussed herein, the Court will DENY Defendants' Motion. (Doc. 93). Finally, Defendant's Motion for Sanctions (Doc. 95) will be DENIED.
On November 15, 2012, the EEOC filed this Age Discrimination in Employment Act ("ADEA") action against Defendant Tepro, Inc. on behalf of a class of 25 former Tepro employees. (Doc. 1; see Doc. 105–2). The Complaint alleges that, in January or February 2009, Tepro began reclassifying employees in the protected age group—that is, those over the age of 40—from "Tech II" to "Tech III" positions—sometimes through the use of false statements, coercion, or threats—and that this reclassification resulted in the reclassified employees losing their seniority dates and ultimately being laid off.1 The Complaint further alleges that, by the end of June 2009, more than 25 employees in the protected age group who had been reclassified as Tech III, as well as other Tech III employees in the protected age group, had been laid off. No employees outside of the protected age group were subject to the reclassification or lay off.
This case involves claims for disparate treatment in violation of the ADEA—specifically, that Tepro engaged in a discriminatory workforce reduction.2 Both parties have offered statistical experts to offer opinions regarding Tepro's employee reclassification efforts and reduction in force ("RIF"); each has now moved to have the other's expert precluded from testifying as an expert. (See Docs. 102, 110).
In the Sixth Circuit, when a workforce reduction is a factor in the decision to terminate, a plaintiff cannot establish its prima facie case "absent additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990) ; see also, e.g., Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 536–37 (6th Cir.2014) ; Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir.1998) ( ). "Appropriate statistical data showing an employer's pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a defendant discriminated against individual members of the class" if the statistics "show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity." Barnes, 896 F.2d at 1466. Thus, statistical evidence regarding Defendant Tepro's workforce may be relevant evidence for Plaintiff to prove its prima facie case of discrimination as to these former Tepro employees.
The parties presented argument at a hearing on their Motions on February 27, 2015. (Doc. 129). Both parties subsequently filed supplemental briefs with respect to Dr. Tonowski. (Docs. 131, 132). The parties' evidentiary Motions are now ripe for the Court's review.
Each party seeks to exclude the expert testimony and/or reports of its opponent's expert witness.3 The proponent of the expert evidence has the burden of establishing that the evidence is admissible. See Fed.R.Evid. 104(a) ; Donathan v. Orthopaedic & Sports Med. Clinic, PLLC, 2009 WL 3584263, at *20 (E.D.Tenn. Oct. 26, 2009). Such evidence is governed by Federal Rule of Evidence 702, which provides that a "witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise." Fed.R.Evid. 702 ; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( ). Additionally, under Rule 403, the Court has the authority to exclude any evidence as to which the "probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."
An expert's testimony may be admissible under Rule 702 if:
The Supreme Court has clarified the language and scope of Rule 702, as well as the role of the district court in assessing the admissibility of expert testimony. In Daubert, the Supreme Court held that Rule 702 imposes an obligation upon district court judges to serve as "gatekeepers," who "ensure that any and all scientific testimony ... is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. 2786. It noted that "[t]he subject of an expert's testimony must be ‘scientific ... knowledge,’ " clarifying that "[t]he adjective ‘scientific’ implies a grounding in the methods and procedures of science," and that "the word ‘knowledge’ connotes more than subjective belief or unsupported speculation." Id. at 589–90, 113 S.Ct. 2786.
The Court in Daubert noted that the relevance standard was "a liberal one" as defined in Rule 401. Id. at 587, 113 S.Ct. 2786 () (internal quotation marks omitted). The relevance consideration has been described as the "fit" requirement of Daubert —that is, the expert must "fit" the facts of the case into the principles and methodologies used to render his opinion. United States v. Smithers, 212 F.3d 306, 313, 325–26 (2000) ; see also, e.g., Galloway v. Big G. Exp., Inc., 590 F.Supp.2d 989, 997 (E.D.Tenn.2008) ( ); Zuzula v. ABB Power T & D Co., Inc., 267 F.Supp.2d 703, 711 (E.D.Mich.2003) ( ); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 152, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ( ).
The Daubert Court also refined the reliability standard, noting that all scientific testimony or evidence must have a reliable "foundation" or "basis in knowledge and experience in [the expert's] discipline." Id. at 592, 597, 113 S.Ct. 2786. The Court explained that, in assessing admissibility under these standards, courts should focus "solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786 ; see also Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 675 (6th Cir.2010) (); Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 176–77 (6th Cir.2009) (). Nonetheless, the Court is not required "to admit opinion evidence ... if "there is simply too great an analytical gap between the data and the opinion proffered." " Joiner, 522 U.S. at 146, 118 S.Ct. 512.
Thus, when faced with a Daubert challenge, this Court must first make a threshold determination as to whether the expert is testifying as to scientific knowledge and that such knowledge will assist the trier of fact. Following this determination, the Court must assess the additional factors set forth in Daubert to determine whether the expert testimony or evidence is sufficiently reliable to be admitted. These factors include:
1) whether the expert's scientific technique or theory can be, or has been, tested; 2) whether the technique or theory has been subject to peer review and publication; 3) the known or potential rate of error of...
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