Nikolova v. Univ. of Tex. At Austin

585 F.Supp.3d 936

Evdokia NIKOLOVA, Plaintiff

v.The UNIVERSITY OF TEXAS AT AUSTIN, Defendant

CIVIL NO. 1-19-CV-877-RP

United States District Court, W.D. Texas, Austin Division.

Signed February 14, 2022

Joe K. Crews, Robert Wayne Schmidt, Crews Law Firm, P.C., Robert Stephen Notzon, Law Office of Robert Notzon, Austin, TX, for Plaintiff.

Amy Snow Hilton, Benjamin L. Dower, Office of the Attorney General of Texas, Darren Glenn Gibson, Littler Mendelson PC, Austin, TX, for Defendant.

ORDER

SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

Before the Court are Defendant's Motion to Exclude Opinion and Testimony of Plaintiff's Expert Dr. Peter Glick (Dkt. 49), filed November 16, 2021; Plaintiff's Response to Defendant's Motion to Exclude Opinion and Testimony of Plaintiff's Expert Dr. Peter Glick (Dkt. 53), filed December 14, 2021; and Defendant's Reply in Support of its Motion to Exclude Opinion and Testimony of Plaintiff's Expert Dr. Peter Glick (Dkt. 54), filed December 21, 2021. On December 20, 2021, the District Court referred the motion and related filings to the undersigned Magistrate Judge for disposition, pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

I. Background

Plaintiff Evdokia Nikolova, Ph.D., is an assistant professor in the Electrical and Computer Engineering Department ("ECE Department") in the Cockrell School of Engineering at The University of Texas at Austin ("UT Austin"). In the 2015-16 academic year, Plaintiff took a "probationary extension" and "modified instructional duty" ("MID") for pregnancy and childbirth. First Am. Compl. (Dkt. 21) ¶ 15. In the 2018-19 academic year, UT Austin considered Plaintiff for tenure and promotion. On November 20, 2018, UT Austin's Dean of the School of Engineering Sharon Wood "recommended against what she referred to as Dr. Nikolova's ‘early promotion’ for tenure." Id. ¶ 40.

After Plaintiff was denied tenure, she filed this employment discrimination lawsuit against UT Austin, alleging (1) sex and pregnancy discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e, and the Texas Commission on Human Rights Act ("TCHRA"), Chapter 21 of Texas Labor Code; (2) retaliation, in violation of Title VII and the TCHRA; and (3) a violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1). Plaintiff alleges that UT Austin's probationary extension and MID policies "have the effect of discriminating against female assistant professors and/or those who become pregnant during their tenure review time period compared with other assistant professors." Dkt. 21 ¶ 45. Plaintiff further avers that UT Austin treated her differently and subjected her to a higher level of scrutiny than it did male assistant professors, as well as female assistant professors who had not become pregnant and had not taken probationary extension leave for pregnancy. Plaintiff complains that UT Austin also awarded tenure to other male professors in the ECE Department who had less time as working as assistant professors than Plaintiff, and applied more lenient and favorable standards to those male professors.

On July 15, 2020, UT Austin filed a partial motion to dismiss Plaintiff's TCHRA discrimination and retaliation claims under Federal Rule of Civil Procedure 12(b)(1) based on sovereign immunity, and Plaintiff's Equal Pay Act claims for failure to state a plausible claim for relief under Federal Rule of Civil Procedure 12(b)(6). Dkt. 22. On November 13, 2020, the undersigned issued a Report and Recommendation recommending that the District Court grant the motion to dismiss Plaintiff's claims under the TCHRA, but deny the motion to dismiss as to Plaintiff's Equal Pay Act claim. Dkt. 28. The District Court adopted the Report and Recommendation and dismissed with prejudice Plaintiff's TCHRA claims. Dkt. 32.

On September 29, 2021, UT Austin filed a motion for summary judgment, arguing that the evidence is insufficient to raise a triable issue of fact on any of Plaintiff's Title VII claims. Dkt. 39. The motion for summary judgment is pending before the District Court. Jury trial in this case is set to commence on March 7, 2022. Dkt. 43.

UT Austin now moves to exclude the opinions and testimony of Plaintiff's social scientist expert, Dr. Peter Glick, under Federal Rule of Evidence 702.

II. Legal Standards

In Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that trial judges must ensure that scientific testimony or evidence is not only relevant, but also reliable. Subsequently, Rule 702 of the Federal Rules of Evidence was amended to provide that a witness

qualified as an expert ... may testify ... in the form of an opinion ... if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Guy v. Crown Equip. Corp. , 394 F.3d 320, 325 (5th Cir. 2004) (quoting FED. R. EVID. 702 ). The Rule 702 and Daubert analysis applies to all proposed expert testimony, including nonscientific "technical analysis" and other "specialized knowledge." Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Under Daubert , expert testimony is admissible only if the proponent demonstrates that (1) the expert is qualified; (2) the evidence is relevant; and (3) the evidence is reliable. See Moore v. Ashland Chem. Inc. , 151 F.3d 269, 276 (5th Cir. 1998) ; Watkins v. Telsmith, Inc. , 121 F.3d 984, 989 (5th Cir. 1997). The overarching focus of a Daubert inquiry is the "validity and thus evidentiary relevance and reliability—of the principles that underlie a proposed submission." Watkins , 121 F.3d at 989 (quoting Daubert , 509 U.S. at 594-95, 113 S.Ct. 2786 ). The proponent of expert testimony bears the burden of establishing the reliability of the expert's testimony. Sims v. Kia Motors of Am., Inc. , 839 F.3d 393, 400 (5th Cir. 2016). Because the Daubert test focuses on the underlying theory on which the opinion is based, the proponent of expert testimony need not prove that the expert's testimony is correct, but rather that the testimony is reliable. Moore , 151 F.3d at 276. This determination of reliability includes a preliminary determination "whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert , 509 U.S. at 592-93, 113 S.Ct. 2786.

Trial courts ordinarily apply four factors when considering the reliability of scientific evidence: (1) whether the technique can be or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the relevant scientific community generally accepts the technique. Id. This test of reliability is flexible, and these factors "neither necessarily nor exclusively apply to all experts or in every case." Kumho Tire , 526 U.S. at 141, 119 S.Ct. 1167.

Notwithstanding the testing of an expert's qualification, reliability, and admissibility, "the rejection of expert testimony is the exception rather than the rule." FED. R. EVID. 702 advisory committee's note to 2000 amendment. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 596, 113 S.Ct. 2786.

III. Analysis

Plaintiff has designated Dr. Peter Glick, a social science researcher, as an expert to provide information on stereotyping, bias, and discrimination in the workplace. Plaintiff produced Glick's expert report on April 9, 2021,¹ and Glick was deposed on November 5, 2021.² Glick describes his report as follows:

I will provide "social framework" testimony to inform the decision makers in this case about empirically validated principles concerning the operation of stereotypes and bias that can lead to workplace discrimination via double-standards toward women as compared to men. Social psychological and organizational research provides a scientific knowledge base illuminating the forms stereotyping and discrimination take, the circumstances that elicit stereotyping and bias, and their relation to discriminatory behavior. This information can substantially supplement decision-makers’ knowledge, going beyond common assumptions about how stereotypes and biases operate.

Dkt. 49-1 at 7.

The majority of Glick's report discusses the social framework theory and how sex stereotypes and discrimination exist throughout society and in particular in the Science, Technology, Engineering, and Math ("STEM") fields. Specifically, Glick discusses gendered double standards, discrimination in STEM fields, discrimination and bias in students’ evaluations of teachers, discrimination by female leaders in STEM, pregnancy and motherhood discrimination, discrimination due to work-life flexibility policies, how evaluation procedures can minimize or permit discrimination, and retaliation against women who complain about discrimination.

The last portion of Glick's report "considers how research on stereotyping, bias, and discrimination relates to Dr. Nikolova's case based on case documents I have reviewed." Id. at 41. Glick opines that "Dean Wood's "decision-making about Dr. Nikolova was consistent with bias toward pregnant women, mothers, and workplace accommodation policy use." Id. at 58. In addition, Glick opines that Dean Wood's gender and prior experiences could make her more likely to discriminate against Plaintiff. Id. at 60-61.

UT Austin argues that Glick's testimony should be excluded as unreliable under Daubert and Rule 702 because (1) his application of "social...