Plaintiff, Alex Mundy, a former graduate student at the University of Wisconsin—Madison, filed this lawsuit against the Board of Regents of the Universities of Wisconsin (the Board of Regents) alleging illegal retaliation in violation of the Rehabilitation Act. Mundy claimed the Board of Regents retaliated against her by refusing to award her a coursework master’s degree because she filed a previous lawsuit alleging Professor Cameron Currie deprived her of a master’s research degree in bacteriology because of her disability in violation of the Rehabilitation Act.
In her first case, Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. Schutz did not update his 2021 report for this case. The Board of Regents moves to exclude his testimony as inadmissible under Federal Rule of Evidence 702.
Vocational Rehabilitation Expert Witness
Kevin Schutz has worked for Professional Rehabilitation Services for over 35
years, where he currently works as a vocational rehabilitation counselor. He also has a master’s degree in rehabilitation psychology.
Discussion by the Court
In his report, Schutz opined that Mundy would be able to earn approximately an additional $20,000 per year if she had a master’s degree in bacteriology. Schutz explained that this estimate is based on a comparison of the average pay of life scientists in the Madison labor market to the average pay of public health and social service workers.
He stated that these estimates were based on 2019 data from the Wisconsin Department of Workforce Development, and that, at the time Schutz interviewed Mundy to prepare his report, Mundy was earning $54,000 annually working as an associate project coordinator at a clinic research company, which put her in the middle of the pay range for public health and social service workers. Schutz also opined that Mundy could remediate her lost earning capacity by going back to school to earn the master’s degree, which would reduce her earning by $50,000 to $100,000 over the year or two year that it would take her to complete the degree.
The Court held that there were fundamental problems with how Schutz applied the general method in his report despite there being nothing inherently unreliable about the method that Schutz used to evaluate the earning gap that Mundy suffered without a bacteriology master’s degree.
Schutz concluded that her earning potential without the completed bacteriology degree was $50,000 to $60,000 per year, but with the degree it would have been $70,000 to $80,000 per year, resulting in annual lost earnings of $20,000.
Schutz’s analysis was severely flawed
The Court found several flaws wth Schutz’s analysis. To start, Schutz framed his analysis by citing “Examples of options available to Mundy with a completed Bachelor of Science degree in bacteriology would be positions found in life science and social science environments.” But Mundy was pursing a master’s degree in bacteriology. And she already had a master’s degree in pubic health. So it’s not clear that Schulz had properly identified Mundy’s qualifications and identified the proper comparator positions.
Next it’s not clear what positions Schutz thought would be available to Mundy with her completed bacteriology degree. Schutz provided the “the average pay to life scientists in the Madison labor market,” but he did not explain what positions were included in reaching that average. “Life scientist” could refer to a wide range of jobs, from that of a routine laboratory technician with a technical degree to high-level research requiring an advanced degree. It is impossible to assess whether it is reasonable to compare Mundy’s earning potential with a master’s degree in bacteriology to the average life scientist salary without knowing if the jobs included in that average are ones that Mundy might be able to get.
Schutz’s analysis of Mundy’s earning potential without the bacteriology master’s degree had similar problems. Schutz begins by saying that Mundy’s employment options without the bacteriology degree “would revolve around employment in public health and social service types of environments,” presumably because she already had a master’s degree in public health. But the example salaries that Schutz provided were for a “health education specialist,” “community and social service specialists,” “administrative assistant types of positions,” and “administrative or social/human service types of positions.”
Schutz’s 2024 deposition
Schutz testified that he stood by his original opinion that Mundy has a $20,000 annual earning gap without the bacteriology degree, and he opined that he believes the earning gap will last for the remainder of Mundy’s career.
Schutz’s deposition testimony is that Mundy, over the course of three years of work in her profession, has remediated any impairment in her earning potential. Perhaps Mundy endured some loss of earnings over the course of the last three years, but Schutz provided no opinion on that. Perhaps inflation played a role in the increase in Mundy’s salary, but Shutz provided no opinion on that either. In other words, Schutz’s own testimony earlier in his deposition contradicted his conclusion.
Held
The Court concluded that Schutz’s conclusion that Mundy will endure a permanent impairment of her earning potential of $20,000 per year is a mere conclusion without supporting analysis. The Court excluded the testimony of Kevin Schutz.
Key Takeaway:
Alex Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. The Court found several flaws wth Schutz’s analysis. For instance, Schulz had not properly identified Mundy’s qualifications or the proper comparator positions. Besides, Schutz’s own testimony earlier in his deposition contradicted his conclusion about Mundy’s $20,000 annual earning gap.
Case Details:
| Case Caption: | Mundy, Alex V. Board Of Regents For The University Of Wisconsin System |
| Docket Number: | 3:22cv561 |
| Court: | United States District Court for the Western District of Wisconsin |
| Order Date: | June 26, 2024 |
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