Filed: Feb. 20, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2365 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. FREEMAN, Defendant – Appellee, and THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Intervenor. - PACIFIC LEGAL FOUNDATION; EQUAL EMPLOYMENT ADVISORY COUNCIL; NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER; RETAIL LITIGATION CENTER; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Amici Supporting Appellee. Appeal from the Un
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2365 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. FREEMAN, Defendant – Appellee, and THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Intervenor. - PACIFIC LEGAL FOUNDATION; EQUAL EMPLOYMENT ADVISORY COUNCIL; NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER; RETAIL LITIGATION CENTER; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Amici Supporting Appellee. Appeal from the Uni..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2365
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
FREEMAN,
Defendant – Appellee,
and
THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,
Intervenor.
--------------------------
PACIFIC LEGAL FOUNDATION; EQUAL EMPLOYMENT ADVISORY COUNCIL;
NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS
LEGAL CENTER; RETAIL LITIGATION CENTER; CHAMBER OF COMMERCE
OF THE UNITED STATES OF AMERICA,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:09-cv-02573-RWT)
Argued: October 29, 2014 Decided: February 20, 2015
Before GREGORY, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion,
in which Judge Agee and Judge Diaz joined. Judge Agee wrote a
separate concurring opinion.
ARGUED: Anne Noel Occhialino, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. Donald R.
Livingston, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington,
D.C., for Appellee. ON BRIEF: P. David Lopez, General Counsel,
Lorraine C. Davis, Acting Associate General Counsel, Jennifer S.
Goldstein, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellant. W. Randolph Teslik, Hyland
Hunt, John T. Koerner, AKIN GUMP STRAUSS HAUER & FELD LLP,
Washington, D.C., for Appellee. Meriem L. Hubbard, Joshua P.
Thompson, Jonathan W. Williams, PACIFIC LEGAL FOUNDATION,
Sacramento, California, for Amicus Pacific Legal Foundation.
Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF
INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington,
D.C., for Amicus National Federal of Independent Business Small
Business Legal Center. Rae T. Vann, NORRIS, TYSSE, LAMPLEY &
LAKIS, LLP, Washington, D.C., for Amicus Equal Employment
Advisory Council. Deborah R. White, RETAIL LITIGATION CENTER,
INC., Arlington, Virginia, for Amicus Retail Litigation Center.
Rachel L. Brand, Steven P. Lehotsky, NATIONAL CHAMBER LITIGATION
CENTER, INC., Washington, D.C.; Eric S. Dreiband, Emily J.
Kennedy, JONES DAY, Washington, D.C., for Amicus Chamber of
Commerce of the United States of America.
2
GREGORY, Circuit Judge:
In 2001, Freeman began conducting background checks on its
job applicants, which the Equal Employment Opportunity
Commission (“EEOC”) alleges had an unlawful disparate impact on
black and male job applicants. The district court granted
summary judgment to Freeman after excluding the EEOC’s expert
testimony as unreliable under Federal Rule of Evidence 702.
Without this testimony, the district court found the agency
failed to establish a prima facie case of discrimination. For
the reasons below, we affirm the district court’s exclusion of
the EEOC’s expert testimony and grant of summary judgment to
Freeman.
I.
Freeman is a provider of integrated services for
expositions, conventions, and corporate events, with offices in
major cities throughout the United States. In 2001, the company
commenced background checks of job applicants’ credit and
criminal justice histories. Criminal background checks were
required for all applicants, and credit history checks for
“credit sensitive” positions involving money handling or access
to sensitive financial information. Freeman’s credit and
criminal background check policies excluded applicants whose
histories revealed certain prohibited criteria. If an
3
applicant’s history included one of the listed criteria, like a
conviction for a crime of violence, the applicant was not hired. 1
Freeman modified these criteria on July 20, 2006, and again on
August 11, 2011, after which it no longer conducted credit
checks.
In 2008, after an applicant who was denied a position filed
a charge of discrimination, the EEOC began an investigation of
Freeman’s credit check policy. On September 25, 2008, it
notified Freeman it was expanding this investigation to the
criminal background check policy. On March 27, 2009, the EEOC
issued a letter of determination finding Freeman’s use of credit
and criminal checks violated Title VII.
After conciliation failed, the EEOC filed suit under
Sections 706 and 707 of Title VII. 2 42 U.S.C. §§ 2000e-5,
2000e-6. It alleged Freeman’s criminal checks had a disparate
1
Freeman required a form authorizing a background search to
be completed with each job application, which, according to a
company handbook, Freeman thought would “deter individuals with
negative information from applying.” However, the checks were
not conducted until after a conditional offer of employment had
been made. It appears most criteria, as well as making false
statements on the job application, led to automatic
disqualification. But, Freeman usually gave applicants a
reasonable amount of time to resolve outstanding arrest warrants
before rescinding an offer.
2
The Office of Personnel Management intervened in the case
to protect the confidentiality of information related to federal
government background investigations, which Freeman sought.
4
impact on black and male job applicants, 3 and that the credit
checks had a disparate impact on black job applicants. The
district court subsequently limited the class of applicants on
behalf of which the EEOC could seek relief to those individuals
affected by criminal checks from November 30, 2007 to July 12,
2012, and those affected by credit checks from March 23, 2007 to
August 11, 2011.
The case proceeded to discovery. The EEOC produced a
report by Kevin Murphy, an industrial/organizational
psychologist, and one by Beth Huebner, an associate professor of
criminology, which purported to replicate Murphy’s results.
Then, eight days after its expert disclosure deadline, the EEOC
produced an amended report from Murphy with slightly altered
calculations. Freeman moved to exclude Murphy’s and Huebner’s
reports and also moved for summary judgment. In response to
Freeman’s motion to exclude, the EEOC filed a new declaration
and supplemental report from Murphy, with revised calculations
and the results from his analysis of a new, expanded database.
The EEOC also moved to file a sur-reply, and while that motion
was pending, served Freeman yet another supplemental expert
3
The EEOC’s complaint originally alleged the checks also
had a disparate impact on Hispanics. After its expert found no
statistically significant effect on Hispanic applicants, the
parties jointly dismissed the EEOC’s claim that the criminal
checks discriminated against this class.
5
report from Murphy, as well as a supplemental report by Huebner,
which the agency sought to introduce at the summary judgment
hearing on June 19, 2013.
The district court denied the EEOC’s motion for leave to
file a sur-reply and granted Freeman’s motion to exclude
Murphy’s testimony on the basis that it was “rife with
analytical errors” and “completely unreliable” under Federal
Rule of Evidence 702. The court granted Freeman’s motion for
summary judgment. The EEOC timely appealed.
II.
Federal Rule of Evidence 702 governs the admissibility of
expert evidence. Expert testimony under Rule 702 is admissible
if it “rests on a reliable foundation and is relevant.”
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th Cir.
1999) (quoting Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141
(1999)). In determining reliability, a district court exercises
a special gatekeeping obligation. See
Kumho, 526 U.S. at 147.
It possesses “broad latitude” to take into account any “factors
bearing on validity that the court finds to be useful.” 4
4
These factors may include “whether the reasoning or
methodology underlying the expert’s opinion has been or could be
tested; whether the reasoning or methodology has been subject to
peer review and publication; the known or potential rate of
error; and the level of acceptance of the reasoning or
(Continued)
6
Westberry, 178 F.3d at 261. The scope of the court’s
gatekeeping inquiry will depend upon the particular expert
testimony and facts of the case. See
Kumho, 526 U.S. at 150.
We review a district court’s decision to admit or to
exclude expert evidence for an abuse of discretion. See
Westberry, 178 F.3d at 261. A district court abuses its
discretion if it relies on an error of law or a clearly
erroneous factual finding. See
id. We reverse the district
court only if we have “a definite and firm conviction that the
court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.”
Id. (quoting Wilson v. Volkswagen of Am., Inc.,
561 F.2d 494,
506 (4th Cir. 1977)).
A.
The district court identified an alarming number of errors
and analytical fallacies in Murphy’s reports, making it
impossible to rely on any of his conclusions. Freeman provided
the EEOC with complete background check logs for hundreds, if
not thousands, of applicants who Murphy did not include in his
database of fewer than 2,014 background checks conducted largely
before October 14, 2008. J.A. 1061. Only 19 post-October 14,
methodology by the relevant professional community.” Westberry,
178 F.3d at 261 n.1 (citing Daubert v. Merrell Dow Pharms.,
Inc.,
509 U.S. 579, 593-94 (1993)).
7
2008 applicants were included in Murphy’s database, all but one
of whom failed the checks. J.A. 1063. However, Freeman,
through its background check vendor, “conducted more than 1,500
criminal background investigations and more than 300 credit
investigations on applicants between October 15, 2008 to August
31, 2011” with Freeman producing in discovery “race and gender
information for hundreds of these applicants.” J.A. 461-62.
Murphy furthermore omitted data from half of Freeman’s branch
offices. This is despite the fact that he did not seek to
utilize a sample size from the relevant time period, but
purported to analyze all background checks with verified
outcomes.
Most troubling, the district court found a “mind-boggling”
number of errors and unexplained discrepancies in Murphy’s
database. For example, looking at a subset of 41 individuals
for whom the EEOC is seeking back pay, 29 had at least one error
or omission. Seven were missing from the database altogether.
Seven were listed in the database without a race code, “one was
incorrectly coded as passing the criminal background check, two
were incorrectly coded as failing the criminal background check,
one ha[d] an incorrect race code, five ha[d] incorrect gender
codes, nine [we]re listed twice and double-counted in Murphy’s
results, and three who failed the credit check [we]re not coded
with a credit check result.” J.A. 1064. The EEOC claims these
8
errors were present in the original data, a contention dispelled
by comparing the information from the discovery materials to
Murphy’s database. It was in fact Murphy who introduced these
errors into his own analysis. 5
The EEOC also contends that Murphy fixed any errors in his
analysis in subsequently-filed, supplemental reports. The
district court examined a third report by Murphy 6 and found that
he did not make certain corrections to his database, despite
claims of doing so. Contrary to his assertions, Murphy did not
change “incorrect coding of race and pass/fail status for
several individuals.” J.A. 1065. The district court also found
that Murphy “managed to introduce fresh errors into his new
analysis,” like double-counting applicants who had failed their
background checks. 7 Id. And Murphy’s new, expanded database
5
Although Murphy contends that any errors in the data were
in the discovery materials from Freeman, we do not discern any
clear error by the district court in making this factual
finding.
6
The EEOC proffered a fourth report by Murphy at the
summary judgment hearing, but did not attach it to the agency’s
earlier motion to file a sur-reply. The district court also
found the EEOC never properly offered Huebner’s supplemental
report. The court declined to allow the EEOC to file a sur-
reply, and we therefore find that neither Murphy’s fourth report
nor Huebner’s supplemental report are part of the record.
7
The district court also held that Murphy’s third and
fourth reports were not proper supplements under Federal Rule of
Civil Procedure 26(e), but were “poorly disguised attempts to
counter Defendant’s arguments with new expert analyses.” We
agree that EEOC cannot use Rule 26(e) as a “loophole . . . [to]
(Continued)
9
still omitted hundreds of applicants for whom Freeman produced
complete information in discovery.
The sheer number of mistakes and omissions in Murphy’s
analysis renders it “outside the range where experts might
reasonably differ.” Kumho, 526 U.S. at 153. We therefore
cannot say the district court abused its discretion in
ultimately excluding Murphy’s expert testimony as unreliable.
III.
We affirm the district court’s grant of summary judgment 8 to
Freeman solely on the basis that the district court did not
abuse its discretion in excluding EEOC’s expert reports as
unreliable under Rule 702. We decline to consider whether the
district court erred in limiting the time period in which the
EEOC could seek relief, as any error in this regard was
inconsequential in light of Murphy’s pervasive errors and
utterly unreliable analysis. We decline to reach any other
issues in the district court’s opinion.
AFFIRMED
revise [its] disclosures in light of [Freeman’s] challenges to
the analysis and conclusions therein.” Luke v. Family Care &
Urgent Med. Clinics, 323 F. App’x 496, 500 (9th Cir. 2009).
8
We emphasize that by our disposition we express no opinion
on the merits of the EEOC’s claims.
10
AGEE, Circuit Judge, concurring:
Although I concur in Judge Gregory’s opinion, I write
separately to address my concern with the EEOC’s disappointing
litigation conduct. The Commission’s work of serving “the
public interest” is jeopardized by the kind of missteps that
occurred here. Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318,
326 (1980). And it troubles me that the Commission continues to
proffer expert testimony from a witness whose work has been
roundly rejected in our sister circuits for similar deficiencies
to those we observe here. It is my hope that the agency will
reconsider pursuing a course that does not serve it or the
public interest well.
I.
As in other cases, the EEOC proffered expert testimony to
establish the alleged disparate impact of Freeman’s background
check policies. Yet the expert testimony here was fatally
flawed in multiple respects.
A.
The district court used harsh words to describe the work of
the EEOC’s “expert,” Kevin R. Murphy. The court found that
Murphy’s reports contained a “plethora” of “analytical
fallacies,” reflected “cherry-picked” data, produced “a
meaningless, skewed statistic,” and included a “mind-boggling
11
number of errors.” EEOC v. Freeman, 961 F. Supp. 2d 783, 793-96
(D. Md. 2013). Even when Murphy submitted late-in-the-day
amendments, he still relied upon “a skewed database plagued by
material fallacies.”
Id. at 796. The slapdash nature of
Murphy’s work convinced the district court that the EEOC had
only a “theory in search of facts to support it.”
Id. at 803.
The majority opinion rightly agrees with the district
court’s view, as Murphy’s work simply did not meet the standards
for expert testimony that Federal Rule of Evidence 702 provides.
But this was not a close question, and three problems merit
special recognition.
First, courts often caution experts against drawing broad
conclusions from incomplete data. In Lilly v. Harris-Teeter
Supermarket, 720 F.2d 326 (4th Cir. 1983), for instance, this
Court criticized an expert for using data from only a limited
set of relevant locations and years to draw conclusions about a
much broader class. See
id. at 337 (“The first problem with
this data, however, is that its scope -- covering the stores and
warehouse for only 1976 and only the stores for 1975 -- is
insufficient to prove discrimination from 1974 through 1978.”);
see also EEOC v. Am. Nat’l Bank,
652 F.2d 1176, 1195 (4th Cir.
1981) (deeming expert evidence unreliable where it drew
conclusions about seven-year period from only one of those seven
years). The principle espoused in Lilly derives from a common-
12
sense idea: expert work should not be considered “[w]hen the
assumptions made by [the] expert are not based on fact.” Tyger
Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137, 144 (4th Cir.
1994).
Yet as the majority notes, Murphy made the very mistake
identified in Lilly: he omitted important information from
relevant periods and locations. The EEOC challenged credit
check policies beginning in late March 2007 and ending in early
August 2011; its criminal-background-check claims spanned
November 30, 2007 to the present. For reasons unknown, Murphy’s
data included barely any information on applicants after mid-
October 2008 -- ignoring at least two-and-a-half years of
relevant and available data for each claim. By arbitrarily
putting aside those years, Murphy ignored 300 credit checks and
1,500 criminal background checks. Indeed, Murphy even ignored
applicant data on persons that the EEOC identified as purported
victims. Worse still, Murphy ignored relevant criminal
background check data from 21 of Freeman’s 39 different
locations.
Neither Murphy nor the agency explained these omissions.
Although the EEOC speculates that Freeman produced incomplete
data, the record says differently. Among other things, Freeman
produced applicant logs, datasheets, and background check forms
that Murphy could have used to compile relevant information.
13
Thus, as the majority indicates, the district court’s finding
that Freeman presented more than sufficient data is far from
clearly erroneous. For his part, Murphy insisted that there was
no need to look at more of the available information regardless
of relevance. Yet he never explained why his model incorporated
enough observations to ensure a valid statistical result. 1
Second, courts have consistently excluded expert testimony
that “cherry-picks” relevant data. See, e.g., Bricklayers &
Trowel Trades Int’l Pension Fund v. Credit Suisse Secs. (USA)
L.L.C, 752 F.3d 82, 92 (1st Cir. 2014); Greater New Orleans Fair
Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev.,
639 F.3d
1078, 1086 (D.C. Cir. 2011); Barber v. United Airlines, Inc., 17
1
Experts may use appropriate sampling methods to draw
conclusions. But determining an appropriate sample size can be
a “tricky” question in statistics, Am. Honda Motor Co., Inc. v.
Allen, 600 F.3d 813, 818 (7th Cir. 2010) (per curiam), and
Murphy never engaged with it. Some evidence suggests that
Murphy used a convenience sample –- that is, he used only the
information that was readily at hand. See J.A. 797-98
(indicating that Murphy analyzed only data that was entirely
complete without the need for supplementation); see also
Freeman, 961 F. Supp. 2d at 794 (“Murphy instead relied almost
entirely on the two Excel spreadsheets in creating his
database”). Although convenience samples are “easy to take,”
they “may suffer from serious bias.” David H. Kaye & David
Freeman, Reference Guide on Statistics in Reference Manual on
Scientific Evidence 83, 162 (Fed. Judicial Ctr. 2d ed. 2000).
Murphy was no stranger to having courts reject his work for
improper sampling. See EEOC v. Kaplan Higher Learning Educ.
Corp., No. 1:10 CV 2882,
2013 WL 322116, at *11 (N.D. Ohio Jan.
28, 2013) (criticizing Murphy for failing to explain why his
selective use of data did not “skew the sample”), aff’d
748 F.3d
749 (6th Cir. 2014).
14
F. App’x 433, 437 (7th Cir. 2001); Fail-Safe, LLC v. A.O. Smith
Corp., 744 F. Supp. 2d 870, 891 (E.D. Wis. 2010); In re Bextra &
Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 524 F.
Supp. 2d 1166, 1176-77 (N.D. Cal. 2007). “Cherry-picking” data
is essentially the converse of omitting it: just as omitting
data might distort the result by overlooking unfavorable data,
cherry-picking data produces a misleadingly favorable result by
looking only to “good” outcomes.
Murphy undeniably “cherry-picked.” The very few pieces of
post-October-2008 data that Murphy included consisted of 19
applicants. Of those 19, one was a double-counted applicant,
one was a “fail” miscoded as a “pass,” and the remaining were
all “fails” under one or the other (or both) checks. This 100%
failure rate among the 19 post-October-2008 applicants wildly
varies from the 3.5% failure rate for criminal checks and 9.9%
failure rate for credit checks reflected in the rest of the
data. See J.A. 326 (noting that “the likelihood of failing
either [check] is low”). Thus, not only was Murphy capriciously
selective in his use of post-October-2008 data, but the high
number of “fails” among his few selections suggests that he
fully intended to skew the results. The district court
certainly thought so, terming Murphy’s work “an egregious
example of scientific dishonesty.” Freeman, 961 F. Supp. 2d at
792.
15
Finally, Murphy’s analysis contained many obvious errors
and mistakes, and these “factual deficiencies” further evidence
his “faulty methods and lack of investigation.” Brown v.
Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 773 (7th Cir.
2014); see also Dart v. Kitchens Bros. Mfg. Co., 253 F. App’x
395, 399 (5th Cir. 2007) (noting that “basic mathematical errors
and flaws in methodology” were appropriate reasons to exclude an
expert); cf. Overton v. City of Austin,
871 F.2d 529, 539 (5th
Cir. 1989) (per curiam) (“[A] trial court should not ignore the
imperfections of the data used[.]”). For example, Murphy’s
initial statistical analysis was filled with basic arithmetic
mistakes. Even once those fundamental errors were corrected,
problems lingered. Murphy excluded applicants with known race
and gender information, inaccurately claiming incomplete
information. He miscoded criminal and credit check outcomes, as
well as race and gender information. And he double-counted
other applicants. As the majority recounts, within a sample of
41 known “victims” in Murphy’s database, 29 of those 41 (or more
than 70%) had errors or omissions.
In sum, Murphy’s work was riddled with fundamental errors,
mistakes, and misrepresentations. I certainly agree with the
majority’s determination that the district court appropriately
excluded Murphy’s evidence.
16
B.
These problems would be troubling enough standing alone,
but they are even more disquieting in the context of what
appears to be a pattern of suspect work from Murphy.
EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th
Cir. 2014), provides only the most recent example. There, the
EEOC sought to use Murphy’s testimony to challenge an employer’s
use of credit checks, just as it did here. 2 A panel of the Sixth
Circuit, however, unanimously affirmed the district court’s
decision to exclude Murphy’s determinations. Like his work in
this case, Murphy’s analysis in Kaplan was filled with errors;
among other things, he again “overrepresented ‘fails’ generally”
and again drew conclusions from a skewed, unrepresentative
sample.
Id. at 752, 754. When the defendant in Kaplan noted
several such problems, Murphy responded by filing a series of
late reports attempting to repair his earlier ones –- much as he
did in this case. 3 The Sixth Circuit held that, despite Murphy’s
2
In Kaplan, “the EEOC sued the defendants for using the
same type of background check that the EEOC itself uses.” 748
F.3d at 750. The EEOC’s claim here is largely the same. Still,
the irony of that course is not the subject of this appeal,
which focuses only upon the actions that the agency undertook in
presenting its case.
3
In the present case, Murphy submitted additional reports
right up to the day of the summary judgment hearing. As the
majority notes, the district court correctly saw these last-
minute changes for what they were: “poorly disguised attempts to
(Continued)
17
eleventh-hour effort to patch his mistakes, his methodology
“flunked” every test used to assess expert reliability. Id. at
752. After cataloguing a variety of flaws in Murphy’s analysis,
the Sixth Circuit concluded that Murphy’s testimony amounted to
“a homemade methodology, crafted by a witness with no particular
expertise to craft it, administered by persons with no
particular expertise to administer it, tested by no one, and
accepted only by the witness himself.”
Id. at 754. That
account describes the EEOC’s expert evidence in this case to a
tee.
Murphy’s flawed approach is not just a recent problem.
Over a decade ago, in Cooper v. Southern Co., Murphy drew
different but no less severe criticism. See 390 F.3d 695 (11th
Cir. 2004), overruled in part by Ash v. Tyson Foods, Inc.,
564
U.S. 454, 456-57 (2006) (per curiam). The Eleventh Circuit
concluded a report from Murphy served only to “recapitulate[]
the basic allegations of the plaintiffs in the guise of an
expert report.”
Id. at 716 n.10. Indeed, his report lacked any
counter [Freeman]’s arguments with new expert analyses.”
Freeman, 961 F. Supp. 2d at 797. The EEOC nevertheless insists
that the tardy reports were merely supplements. But “[t]o
construe Rule 26(e) supplementation to apply whenever a party
wants to bolster or submit additional expert opinions would
wreak havoc in docket control and amount to unlimited expert
opinion preparation.” Campbell v. United States, 470 F. App’x
153, 157 (4th Cir. 2012) (quotation marks and alterations
omitted).
18
“statistical evidence to substantiate [its] broad claims.” Id.
Thus, the report and the “sweeping conclusions” within it were
“of extremely limited use.”
Id.
Other recent cases provide additional examples of Murphy’s
lax attitude towards scientific rigor. In Boelk v. AT & T
Teleholdings, Inc., No. 12–cv–40–bbc,
2013 WL 3777251 (W.D. Wis.
July 19, 2013), for example, Murphy attempted to offer an expert
opinion premised on “common sense,” “obvious[ness],” and
“foreseeab[ility].”
Id. at *8. Unsurprisingly, the district
court held that such testimony was “not the appropriate subject
of expert testimony” and did not create a genuine dispute of
material fact at summary judgment.
Id. Echoing a familiar
theme, the court dubbed Murphy’s testimony “too general and
speculative to be useful.”
Id. The Second Circuit too has
rejected Murphy’s conclusions, holding that Murphy had
incorrectly accused another expert of making unfounded
assumptions in her report. See M.O.C.H.A. Soc’y, Inc. v. City
of Buffalo,
689 F.3d 263, 278-79 (2d Cir. 2012).
II.
Despite Murphy’s record of slipshod work, faulty analysis,
and statistical sleight of hand, the EEOC continues on appeal to
defend his testimony. Conceding that Murphy’s report was not an
“A+ report,” the EEOC nevertheless says that it meets some
19
indeterminate threshold of reliability. In doing so, however,
the Commission advances positions that are not grounded in law.
Most troubling is its view that problems in an expert’s data are
an inappropriate reason to exclude that expert.
Evidence is admissible only if “it rests on a reliable
foundation.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597
(1993). Thus, the trial court must probe the reliability and
relevance of expert testimony any time “such testimony’s factual
basis, data, principles, methods, or their application are
sufficiently called into question.” Kumho Tire Co. v.
Carmichael,
526 U.S. 137, 149 (1999). Federal Rule of Evidence
702 likewise directs courts to verify that expert testimony is
“based on sufficient facts or data.” See Fed. R. Evid. 702(b).
“A court may conclude that there is simply too great an
analytical gap between the data and the opinion offered,” and
accordingly choose to exclude the opinion. Gen. Elec. Co. v.
Joiner,
522 U.S. 136, 146 (1997).
The EEOC, however, ignores this threshold analysis by
contending that the issue of the reliability of an expert’s data
is always a question of fact for the jury, except perhaps in
some theoretical, rare case. See, e.g., Reply Br. 15
(“[P]urported flaws in Murphy’s analyses concerned data . . .
and therefore concerned weight/credibility issues for trial, not
admissibility.”). The agency’s contention ignores Daubert’s
20
instruction that the district court must act as a gatekeeper.
Moreover, no court has accepted the agency’s argument. Rather,
courts widely agree that “trial judges may evaluate the data
offered to support an expert’s bottom-line opinions to determine
if that data provides adequate support to mark the expert’s
testimony as reliable.” Milward v. Acuity Specialty Prods.
Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011) (quotation marks and
alteration omitted); accord Blunt v. Lower Merion Sch. Dist.,
767 F.3d 247, 276 (3d Cir. 2014); In re TMI Litig.,
193 F.3d
613, 697 (3d Cir. 1999); United States v. City of Miami,
115
F.3d 870, 873 (11th Cir. 1997). The EEOC’s contention was not
simply meritless, but unsupported and without a legal
foundation.
* * * *
The EEOC wields significant power, some of which stems from
the agency’s broad discretion to investigate, conciliate, and
enforce, and some of which derives from public actions that
exert influence outside the courtroom. The Commission’s actions
can be also expected to have broader consequences than those of
an ordinary litigant given the “vast disparity of resources
between the government and private litigants.” EEOC v. Great
Steaks, Inc., 667 F.3d 510, 519 (4th Cir. 2012).
21
In deciding when to act, the Commission must balance
sometimes-competing responsibilities. On the one hand, the
agency must serve the employee’s interest by preventing an
employer from “engaging in any unlawful employment practice”
under Title VII. 42 U.S.C. § 2000e-5(a). On the other hand,
“the EEOC owes duties to employers as well: a duty reasonably to
investigate charges, a duty to conciliate in good faith, and a
duty to cease enforcement attempts after learning that an action
lacks merit.” EEOC v. Argo Distrib., LLC, 555 F.3d 462, 473
(5th Cir. 2009). That the EEOC failed in the exercise of this
second duty in the case now before us would be restating the
obvious.
The EEOC must be constantly vigilant that it does not abuse
the power conferred upon it by Congress, as its “significant
resources, authority, and discretion” will affect all “those
outside parties they investigate or sue.” EEOC v. Propak
Logistics, Inc., 746 F.3d 145, 156 (4th Cir. 2014) (Wilkinson,
J., concurring). Government “has a more unfettered hand over
those it either serves or investigates, and it is thus incumbent
upon public officials, high and petty, to maintain some
appreciation for the extent of the burden that their actions may
impose.”
Id. The Commission’s conduct in this case suggests
that its exercise of vigilance has been lacking. It would serve
the agency well in the future to reconsider how it might better
22
discharge the responsibilities delegated to it or face the
consequences for failing to do so.
23
