Equal Emp't Opportunity Comm'n v. Tepro, Inc.

133 F.Supp.3d 1034

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.TEPRO, INC., Defendant.

Case No. 4:12–cv–75.

United States District Court, E.D. Tennessee, at Winchester Division.

Signed Sept. 28, 2015.

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.

ORDER

HARRY S. MATTICE, JR., District Judge.

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.

I. MOTIONS IN LIMINE

A. Background

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) (noting that the typical fourth prong of the prima facie case—that the employee was replaced by someone outside the protected class or that similarly situated employees outside the protected class were treated more favorably—is supplanted in workforce reduction cases). "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.

B. Legal Standards

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) (noting that an expert is different from a lay witness and is accordingly "permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation."). 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:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702.

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 ("Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.") (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) (finding methodology used by expert to be "sufficiently similar" to the facts of the case at hand to allow the expert's opinion, noting that "[a]ny weaknesses in such an opinion caused by the differences ... may be addressed through cross-examination."); Zuzula v. ABB Power T & D Co., Inc., 267 F.Supp.2d 703, 711 (E.D.Mich.2003) (noting that Daubert and Rule 702 require "that an expert's opinion be based on a foundation grounded in the actual facts of the case, that the opinion is valid according to the discipline that furnished the base of special knowledge, and that the expert appropriately ‘fits' the facts of the case into the theories and methods he or she espouses."); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 152, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (noting that an expert's testimony may be inadmissible if it does not "fit the facts" of the case).

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) ("The important thing is not that experts reach the right conclusion, but that they reach it via a sound methodology"); Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 176–77 (6th Cir.2009) ("Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science’ on the other."). 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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