Sorber v. Sec. Walls, LLC

MICHELLE SORBER, TONY HERNANDEZ, DANIEL CHILDERS,DON HART, HAROLD DICKERSON, WILLIAM MELTON, MARGRET MELTON,ZINMON WHITTER, MOSES SIFUENTEZ, ARMANDO GONZALEZ, JERRY HEAD,HOWARD PERRY, and MARTHA MOORE,AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JULIUS MOORE, Plaintiffs v. SECURITY WALLS, LLC, Defendant

Case No. A-18-CV-1088-SH

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

June 1, 2020

ORDER

Before the Court are the Plaintiffs' Motion for Partial Summary Judgment, filed January 3, 2020 (Dkt. No. 33); Defendant's Motion to Exclude Testimony from Plaintiffs' Expert, Dr. David Jones, and Request for Hearing, filed January 9, 2020 (Dkt. No. 34);¹ and the related response and reply briefs. The parties consented to proceed before a Magistrate Judge on February 24, 2020. Dkt. No. 75.

I. Background

Defendant Security Walls, LLC is a contractor for security guard and private investigation services. In December 2013, the Internal Revenue Service awarded Defendant a contract to provide security guard services at its facilities in Austin, Texas ("the IRS Contract"). Dkt. No. 33 at 1;Dkt. No. 51 at 3. Defendant officially replaced the previous contractor for security services, S&K Aerospace, LLC ("S&K"), on March 1, 2014. Id. The Plaintiffs are thirteen individuals who were employed as security guards at the Austin IRS offices by S&K but denied continued employment by Defendant.²

Plaintiffs' claims revolve around certain medical examinations and physical fitness tests Defendant ordered that all applicants, including incumbent security guards, must complete to be considered for a security guard position at the Austin IRS facilities. See Dkt. No. 33 at 6-11; Dkt. No. 33-8. The IRS Contract established certain medical and physical fitness standards required of all security guards. See Dkt. No. 33-2. The Contract provided that: "All prospective employees must undergo a pre-employment medical/physical examination. A licensed physician shall administer examinations. . . . Failure by a guard to meet any of the required medical qualifications may result in the guard being disqualified from performing under the contract." Dkt. No. 33-2 at 1. If a security guard did not pass the examination or test, the IRS Contract provided that the examining physician could certify that the security guard was qualified for the position despite the results. Id.

In December 2013, Defendant arranged for third-party medical facility St. David's Occupational Health Services ("OHS") to develop and administer the pre-employment medical examinations and physical fitness tests. Dkt. No. 33-4. Defendant gave OHS the medical and physical standards listed in the IRS Contract and had OHS make testing recommendations. Dkt. No. 33-6 at 13:24-15:8; Dkt. No. 33-7. Defendant rejected OHS's recommendation to use standard law enforcement agency tests based on cost, and instead followed OHS's alternativerecommendation to use the examination and fitness assessment for U.S. Customs and Border Patrol agents. Dkt. No. 33-4.

Medical assistants at OHS conducted the medical examinations and physical fitness tests in December 2013 and January 2014. Dkt. No. 33-6 at 30:25-31:22; Dkt. No. 51-3. The security guards first had a medical examination, which consisted of vision, hearing, blood pressure, EKG, and other tests. See Dkt. No. 33-8; Dkt. No. 51 at 5-6. If the security guard passed the medical examination, he or she was allowed to take the physical fitness test, which consisted of completing twenty push-ups within one minute, twenty-five sit-ups within one minute, and a five-minute step test. Id.; see also Dkt. No. 51-14 at 53:4-18. On Defendant's instructions, the OHS medical assistants administered the tests on a pass/fail basis. Dkt. No. 33-6 at 31:18-22, 34:15-35:4.

Nine of the plaintiffs³ passed the medical examination but failed the physical fitness test. Dkt. No. 1 at ¶ 18. One of the plaintiffs, Howard Perry, failed the medical examination and thus was not given the physical fitness test. Dkt. No. 1 at ¶ 19. Plaintiff Michelle Sorber did not take the medical examination or the physical fitness test because Defendant rejected her requests for testing accommodations for her alleged disabilities. Dkt. No. 1 at ¶ 20. Plaintiffs William Melton and Margaret Melton did not take the medical examinations or the physical fitness tests because their young son was in the hospital. Dkt. No. 1 at ¶ 21. None of the Plaintiffs were offered continued employment with Defendant. Dkt. No. 33-5 at 37:4-25.

In replacing S&K and filling security guard positions, Defendant was required to follow Executive Order 13495, Non-Displacement of Qualified Workers under Service Contracts (the "Executive Order").⁴ Exec. Order No. 13495, 74 Fed. Reg. 6103 (Jan. 30, 2009); Dkt. No. 1 at¶ 42. The Executive Order provided that "under a contract that succeeds a contract for performance of the same or similar services at the same location," the successor contract shall "offer those employees (other than managerial and supervisory employees) employed under the predecessor contract whose employment will be terminated as a result of the award of the successor contract, a right of first refusal of employment under the contract in positions for which they are qualified." Consequently, under the Executive Order, Defendant was required to offer employment to Plaintiffs as incumbent employees, as long as they were qualified for the security guard position. Plaintiffs contend that despite being incumbent employees qualified for the position, Defendant failed to continue their employment based on unlawful and discriminatory hiring practices.

Plaintiffs allege that Defendant violated the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12117 ("ADA"), by subjecting them to prohibited pre-offer medical examinations, refusing reasonable requests for testing accommodations, and discriminating against them based on disability or perceived disability. Plaintiffs further allege that the challenged testing had a disparate impact on women, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and on individuals over the age of 40, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-630 ("ADEA").

Plaintiffs, as a class, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of disability, age, and sex. Dkt. No. 1 at ¶ 29. On July 6, 2018, the EEOC found that there was reason to believe violations had occurred under the ADA. Id. at ¶ 31. The EEOC did not make any findings on Plaintiffs' allegations of sex and age discrimination. Id. at ¶ 32. The EEOC issued a Notice of Right to Sue Letter on September 27, 2018. Id. ¶ at 33.

Plaintiffs filed their complaint on December 14, 2018.⁵ Dkt. No. 1. On January 3, 2020, Plaintiffs moved for partial summary judgment as to Defendant's liability under Section 12112(d) of the ADA, Title VII, and the ADEA. Dkt. No. 33. Defendant opposes the motion (Dkt. No. 51) and objects to Plaintiffs' summary judgment evidence (Dkt. No. 52). Defendant also filed a motion seeking to exclude the opinion of Plaintiffs' expert, Dr. David Jones. (Dkt. No. 34).

II. Motion to Exclude

Because Jones's expert report is among the evidence Defendant objects to as summary judgment evidence, the Court addresses the motion to exclude Jones's opinion first.

A. Legal Standard

In Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993), the Supreme Court held that trial judges must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. After Daubert, 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 (1999). Under Daubert, expert testimony is admissible only if the proponent demonstrates that (1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998); Watkinsv. 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 594-96). "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.

Daubert sets forth four specific factors that the trial court ordinarily should apply 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...