The Plaintiffs had been employed by the Metropolitan Government of Nashville and Davidson County, Tennessee. They alleged in their lawsuits that, on May 4, 2020, they were either terminated or demoted for discriminatory reasons, and brought claims asserting many of the same legal violations.
The Defendants filed two motions to exclude the testimony of Plaintiffs’ experts, Dr. Kenneth Smith and Dr. Robin Lovgren.
Accounting Expert Witness
Dr. Kenneth A. Smith has a PhD in Governmental Accounting and has worked as a Certified Public Accountant with local governments. Based on his published research and service on his local school board, he has specific expertise in public school district budgeting, accounting and financial management.
Statistics Expert Witness
Dr. Robin Lovgren is an Associate Professor of Mathematics at Belmont University and has been teaching statistics for 16 years. She has overseen student statistical projects including a statistical regression analysis for the Human Resources Department of a local architectural and engineering firm recently.
She earned her Master of Science in Statistics and Ph.D. in Management Science from the University of Tennessee in Knoxville.
Discussion by the Court
Kenneth Smith
According to Kenneth Smith:
- “Elimination of the Central Office positions was discretionary and not mandated by the budget process”; and
- “The removal of these positions did not appear to follow the procedural and professional steps that commonly occur for budget-driven organizations.”
Metro filed a motion to exclude Smith’s opinions on the basis that they were irrelevant and unreliable, and therefore inadmissible.
Relevance
Metro first argued that Smith’s opinion that the Central Office reorganization at Metro Nashville Public Schools (“MNPS”) was discretionary is irrelevant, because school budgeting always involves a certain amount of discretion, and Metro has never contended otherwise. Rather, Metro stated, it has always acknowledged that the fiscal year budget for fiscal year 2021 “reflected MNPS’ business judgment and budgetary discretion.” It argued that the jury will not be called upon to decide whether the Central Office reorganization was mandated by law but, instead, whether the employment decisions were retaliatory or discriminatory. “So,” it concluded, “an expert opinion that budgeting is discretionary and that reorganization was not required by law has no bearing on any fact of consequence in this case.”
The Court disagreed. While there is no doubt that school budgetary decisions are largely discretionary, involving selections among many possible choices, Smith’s report suggested that Metro’s purported budgetary concerns were grossly overstated, given MNPS’ actual financial situation in 2020. The point of his opinion is that there were many other less controversial and more common areas within the budget from which Metro could have made up whatever deficit it believed it needed to cover, rather than taking the unusual step of cutting personnel first.
Reliability
Metro argued that Smith’s opinion that the Central Office reorganization did not “‘appear’ to follow the correct steps” is not reliable because it amounts to nothing more than speculation based on Smith’s “subjective notion about what should have or could have happened during [the] reorganization.”
Smith observed that: (1) “budget pressure at MNPS in 2020 was fairly similar to prior years”; (2) “there were a large number of reasonable, routine & available options to address the budget pressure”; (3) “most budget options went through a substantive technical review process”; and (4) “this change [i.e., the elimination of Central Office positions] did not follow a substantive technical review process.”
Therefore, Smith concluded that the removal of these positions did not appear to follow the procedural and professional steps that commonly occur for budget-driven reorganizations.
The Court held that Smith’s opinion that the “Central Office Reorganization was not mandated nor necessitated by the budget process” is adequately supported and not based on mere speculation.
Whether the Central Office Reorganization Resulted in Cost Savings
Smith stated in his report that reorganizations like that undertaken by MNPS “sometimes result in actual cost savings, sometimes they are budget neutral and sometimes [they increase rather than decrease] the budget outflows.”
Based on this statement, Metro argued that Smith cannot offer an opinion as to whether MNPS sought or achieved any particular cost savings through the Central Office reorganization.
The Plaintiffs did not address this argument, and it did not appear that Smith offered or intended to offer any such opinion, as he expressly disclaims knowledge of whether cost savings were either projected or achieved. Accordingly, Metro’s request to exclude such an opinion is uncontested. The Court granted this small aspect of Metro’s motion.
Robin Lovgren
Robin Lovgren was asked by the Plaintiffs to “determine whether the employment decisions made in 2020 at [MNPS] show a pattern of discrimination based on engagement in protected activity.”
She conducted a statistical analysis, based on information and documentation provided to her by the Plaintiffs that identified which employees were and were not known by Defendant Battle to have engaged in protected activity.
Based on the information she reviewed, Lovgren concluded that “in 2020 a disproportionately large number of employees engaged in protected activities were adversely affected by the reorganization of the Central Office.”
Statistical Analyses Based on the Number of Central Office Employees Who Had Engaged in Protected Activity
Reliability
Metro argued that Lovgren’s opinions are unreliable, because she failed to “support her opinions with sufficient facts or data to establish how many MNPS employees engaged in protected activity, or how many were adversely affected by the reorganization.”
Lovgren’s opinion regarding which employees were and were not known to have engaged in protected activity was based on Defendant Dr. Adrienne Battle’s deposition testimony.
The Court found it reasonable to assume that Battle, as Director of Schools for MNPS, understood the meaning of “protected activity” and knew what she was acknowledging when she stated she was not aware that any of the individuals had engaged in such activity. Moreover, it was undisputed that she knew the Plaintiffs had, in fact, engaged in protected activity. The Court concluded that Lovgren’s failure to define the term did not render her opinions unreliable.
Likewise, as a matter of common knowledge, it was clear that being demoted, fired, or not rehired after a reorganization are “adverse” employment events, and Lovgren’s failure to define “adversely affected” as used in her report did not render her opinions unreliable.
Relevance
Metro argued that, because Lovgren’s opinions—based on the number of employees who were not known to have engaged in protected activity—were not reliable, they did not “tend to show that any facts are more or less probable” and therefore must be excluded for lack of relevance. However, because the Court found the opinions reliable, this argument failed.
Statistical Analyses Based on the Number of Principals Who Had Engaged in Protected Activity
Metro raised a separate argument regarding Lovgren’s analysis of the relative numbers of school principals who did or did not suffer an adverse employment action and who were or were not known to have engaged in protected activity. Lovgren conceded that she did not have any information regarding school principals (other than Plaintiff James Bailey) who were known to have engaged in protected activity.
And in her explanation of the analyses regarding school principals, Lovgren stated: “The number of principals who engaged in protected activity was not known for this analysis so ‘what-if’ analyses were performed. The [analyses assume that] Bailey was the only principal who engaged in protected activity.”
Because Lovgren admittedly cannot point to any facts in the record to support her assumption that Bailey was the only principal who was known to have engaged in protected activity, the Court held that her statistical analysis relating to school principals are not reliable and must be excluded.
Held
The Court granted in part and denied in part the Defendants’ motions to exclude the opinions of Dr. Kenneth Smith and Dr. Robin Lovgren.
Key Takeaways:
- An expert’s opinion, where based on assumed facts, must find some support for those assumptions in the record. Here, Lovgren’s opinion regarding which employees were and were not known to have engaged in protected activity was based on Defendant Battle’s deposition testimony.
- Expert testimony should be supported by more than subjective belief and unsupported speculation and should be supported by good grounds, based on what is known. Smith’s opinion that the “Central Office Reorganization was not mandated nor necessitated by the budget process” is adequately supported and not based on mere speculation.
Case Details:
| Case Caption: | Hayes V. Metropolitan Government Consolidated Of Nashville and Davidson County, Tennesse |
| Docket Number: | 3:20cv1023 |
| Court Name: | United States District Court, Tennessee Middle |
| Order Date: | July 10, 2025 |
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