Plaintiff Toby Pack, a CSX employee, applied for leave under the Family and Medical Leave Act (FMLA) due to chronic kidney stones. Although CSX initially approved Pack’s application, it subsequently charged him with FMLA misuse and terminated him.
Pack sued, alleging that CSX fired him in retaliation for his taking FMLA leave. Pack intended to offer the expert testimony of Beth De Lima, but CSX argued that De Lima’s testimony should be excluded.
Human Resources Expert Witness
Beth B. De Lima has extensive experience in developing and implementing HR programs and policies that relate to federal and state employment legislation. She has been assisting corporate, non-profit, and governmental clients with HR policy development and implementation since 1992.
She has worked closely with clients to establish and maintain compliance with federal and state employment legislation, including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
De Lima’s report touches on several topics, including employees’ legal rights under the FMLA and employers’ legal obligations under the FMLA.
A. Relevance
The jury in this case will be asked to determine whether CSX terminated Pack in retaliation for Pack’s use of FMLA leave. CSX argued that De Lima’s opinion is not relevant to that question.
The Court agreed. CSX’s alleged noncompliance with industry standards did not make it any more likely that CSX retaliated against Pack. If CSX had deviated from its own standard procedures in investigating Pack, that might be probative of retaliation.
But CSX having different procedures from other companies did not show that CSX’s explanation for terminating Pack is “unworthy of credence.”
B. Reliability
In her report, De Lima said that the industry standards to which she alludes are “set forth by the Society for Human Resource Management.” But the report never cited specific documents or guidance promulgated by this organization. During her deposition, De Lima confirmed that the standards on which she relied are “written down.” However, when asked which of the sources in her bibliography support her opinions, she was unable to provide an answer. Instead, she asserted that the FMLA itself supports her opinions. When asked which part of the FMLA supports her opinions, she said “it’s not clear.”
In his supplemental briefing, Pack identified five publications from The Society for Human Resources Management which he claims supported De Lima’s opinion. But the supplement never asserted that De Lima actually relied on those publications in forming her opinion and none of the publications are included in De Lima’s bibliography.
Since neither Pack nor De Lima has identified the basis for De Lima’s testimony, they are too unreliable to be admitted under Federal Rule of Evidence 702. Even if De Lima’s opinion were relevant, the Court would exclude it under Rule 702.
Held
The Court granted Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Plaintiff’s expert Beth De Lima.
Key Takeaway
Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.
Case Details:
Case Caption:
Pack V. CSX Transportation, Inc.
Docket Number:
3:24cv688
Court Name:
United States District Court, West Virginia Southern
Plaintiff Andrew Brown alleged that CSX Transportation, Inc. violated his rights under the Family and Medical Leave Act (FMLA) by subjecting him to CSX’s attendance policy and by suspending and ultimately terminating him for taking FMLA leave.
Brown hired Beth De Lima, a “Human Resource / Vocational Rehabilitation consultant,” to offer an expert opinion on whether CSX “met Human Resources Industry Standards of Care regarding the implementation of FMLA.” CSX filed a motion to exclude the testimony of De Lima.
Human Resources Expert Witness
Beth B. De Lima is an expert in the HR aspects of employment regulation compliance, litigation, and vocational rehabilitation.
She is nationally certified as a Senior Professional in Human Resources with a state-specific certification in California (SPHR-CA) by the Society for Human Resource Management (SHRM), a SHRM Senior Certified Professional (SHRM- SCP) and has been appointed to sit on the Employee Health, Safety, and Security Special Expertise Panel.
De Lima opined that CSX’s directive to curb and discourage and interfere with an employee’s usage of FMLA led to mass layoffs of seasoned, tenured, decade long employees as a result of the organization’s failure to ensure they implement HR Industry Standards of Care for a federally protected employee leave benefit known as the FMLA.
A. Opinions Unrelated to Whether CSX Had a Good Faith Belief that Brown Dishonestly Used FMLA Leave During the 2017-2018 Holidays
To begin with, the Court noted that De Lima’s report included opinions on matters that were never at issue or are no longer at issue in this case, including CSX’s attendance policy and the American with Disabilities Act (ADA). CSX argued that these opinions should be excluded as the Court has “dismissed the attendance policy claims” and as “there is no ADA claim in this case.”
CSX also argued that De Lima’s testimony on the “implications of CSX’s policies regarding misuse of FMLA leave on weekends and to extend time off” should be excluded as they are irrelevant to the issue in this case — whether CSX had a good-faith belief that Brown dishonestly used FMLA leave over Christmas 2017 and New Year’s 2018.
The Court agreed that De Lima’s opinions regarding the attendance policy and the ADA should be excluded.
However, the Court did not agree that De Lima’s testimony about CSX’s policies regarding FMLA leave on weekends and to extend time off are irrelevant. Although Brown was terminated because of FMLA misuse over the 2017-2018 end-of-year holidays, CSX’s decision to charge Brown with FMLA misuse during that period was partially based on the fact that CSX previously had warned Brown that he was improperly using FMLA leave either before or after his rest days and on weekends. Under the circumstances, it cannot be said that De Lima’s testimony about the implications of CSX’s policies regarding FMLA use on weekends and to extend time off would not logically advance a material aspect of Brown’s case. Indeed, this evidence is probative of whether CSX had a good faith belief that Brown dishonestly used FMLA leave over the 2017-2018 holidays.
B. Reliability
CSX argued that De Lima’s opinions and testimony are not reliable because: (1) De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply, (2) her testimony is not based on sufficient facts or data, (3) she made broad conclusions from unrepresentative samples, and (4) her report contains many errors and mischaracterized the record.
De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply
Contrary to CSX’s contention, De Lima identified the standards set forth by Society for Human Resource Management (SHRM) as the source of the “HR Industry Standards” on which she relies.
CSX further argued that to the extent De Lima “claimed that she relied on her experience to develop these supposed standards, her testimony and opinions are unreliable because she failed to explain ‘how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’”
De Lima explained in her report that she applied generally accepted HR standards as set forth by SHRM, “an organization founded in 1948” that “has over 285,000 members across more than 165 countries and more than 575 chapters in the United States.”
De Lima’s testimony is not based on sufficient facts or data
CSX noted that De Lima asserted there was a clear management directive to curb, discourage, and interfere with employees’ use of FMLA, but he did not cite anything specific.
However, CSX did not claim that this portion of the report is an impermissible characterization of the evidence.
CSX also argued that De Lima made other unsupported assertions that certain documents implicitly or explicitly embody nefarious principles, which they plainly do not. Although CSX may disagree with De Lima’s interpretation of the letter and the disciplinary policy, CSX has not demonstrated that it is unreliable.
CSX further argued that De Lima’s testimony is unreliable as “there is simply too great an analytical gap between the data and the opinion proffered.” Although De Lima references CSX’s handling of discipline of two other employees, a review of De Lima’s report demonstrated that she did not base her opinions on CSX’s handling of the other cases.
Therefore, CSX has not demonstrated that there “is too great an analytical gap between the data and the opinion proffered.”
De Lima’s testimony is unreliable because her report is replete with errors and mischaracterizes the record
CSX claimed that the report inaccurately stated that “CSX’s FMLA policy says that ‘if FMLA is utilized in a manner [CSX] deems to impact the staffing of the organization’ then the ‘approved use of FMLA leave will be documented as negative attendance’” under CSX’s attendance policy.
CSX identified three other mischaracterizations in De Lima’s report. First, CSX stated that De Lima grossly mischaracterized the record by asserting that, “in 2016, CSX’s HR Department informed employees that ‘utilizing FMLA leave would be reported as misuse,’” when the letter actually stated that “using FMLA leave to avoid certain work assignments, to extend time off . . ., to be off on a holiday, the weekend, or to avoid working overtime is considered not only misuse, but fraudulent use of this federally required benefit.”
Second, CSX contended that De Lima’s statement that “CSX made no effort to determine if the FMLA use was consistent with the already approved medical certificates for the impacted employees” and never requested documentation from employees “to clarify the validity of the FMLA usage” conflicts with the testimony of Jolanda Johnson, Manager, Benefits–FMLA, who testified that, before charging employees, she reviewed the medical reasons for leave to determine whether they clearly explained a need for leave over the holidays.
Third, CSX challenged De Lima’s statement that “‘as an alternative to complying with the FMLA process for curing, CSX is simply ignoring the need to determine if the need for FMLA leave can be confirmed by curing the medical certificate and just moves on with the termination.’”
None of the alleged factual discrepancies or mischaracterizations warrant excluding De Lima’s opinions and testimony. The Court found De Lima’s methodology sufficiently reliable. The alleged flaws in De Lima’s methodology raised by CSX would be addressed during cross-examination.
C. Assistance to the Trier of Fact
Next, CSX argued that De Lima’s opinions—off-base critiques of whether CSX engaged in a “curing process,” adequately trained its managers, and abided by “HR industry standards”—are not relevant to the question of whether Brown was subjected to unlawful retaliation.
From De Lima’s testimony that CSX’s investigation fell below HR industry standards, a jury could infer that CSX did not have a good faith belief that Brown dishonestly took FMLA leave over the 2017-2018 end-of-year holidays and that CSX terminated Brown in retaliation for taking FMLA leave during that period. Accordingly, De Lima’s opinion on whether CSX complied with industry standards in investigating suspected FMLA misuse would be helpful to the jury.
However, De Lima’s report consisted of many legal conclusions. De Lima frequently opined or implied that CSX’s policies and procedures regarding suspected FMLA misuse violate the FMLA. De Lima also offered her interpretation of an employer’s obligations under the FMLA.
The Court agreed with CSX that it would be improper to allow De Lima to testify about these issues at trial as they are legal conclusions. However, De Lima may still opine that CSX did not comply with industry standards in investigating suspected FMLA misuse as that is not a legal conclusion.
CSX also challenged De Lima’s statement that the “focus in the Investigations seems to be the impact of the employee’s FMLA leave on the operations of the railroad’s workforce availability when employees are utilizing FMLA.” The Court is not persuaded.
The challenged portions of De Lima’s report may factor into the jury’s determination on whether CSX had a good faith belief that Brown misused FMLA leave, but they do not merely tell the jury what result to reach. Accordingly, this is not a basis for excluding De Lima’s opinions and testimony.
D. Rule 403
In the alternative, CSX argued that De Lima’s testimony should be excluded pursuant to Rule 403 because it is unfairly prejudicial, confuses the issues, and would mislead the jury. CSX contended that De Lima’s report contains language that is “inflammatory” and “over-the-top.” CSX further argued that De Lima’s “confused report” is not relevant as it “misunderstands both the applicable regulation and the issues in this case.” However, as De Lima is expected to testify at trial, the Court held that her “opinions will be presented via her sworn testimony, and her report may be used to refresh her recollection or for impeachment, but the report itself is hearsay and is not admissible.”
Held
The Court granted in part and denied in part Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Beth De Lima.
Key Takeaway
As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.
Case Details:
Case Caption:
Brown V. CSX Transportation,, Inc.
Docket Number:
8:24cv2777
Court Name:
United States District Court for the Middle District of Florida, Tampa Division
This case arises from an employment dispute involving Defendant Gannett Co., Inc., doing business as USA Today. Plaintiff Taylor Bailey, a former Gannett employee, asserted claims against Gannett for breach of contract and sex discrimination under Title VII.
Bailey retained Chris S. Thrutchley provide expert opinions and testify regarding Plaintiff’s allegations and Defendant’s alleged conduct in this action.
Chris S. Thrutchley is an attorney with over thirty years experience in employment and labor law. His experience includes serving as the Director of Human Resources for one of Oklahoma’s largest employers, in which capacity he ensured employment policies, processes, and practices were legally compliant.
Additionally, from 2014 to 2016, Thrutchley served as Chief of the Oklahoma Attorney General’s Office of Civil Rights Enforcements, in which capacity he led a team of agents and attorneys in enforcing the Oklahoma Anti-Discrimination Act. Thrutchley currently serves as the employment law practice group leader for a large Oklahoma law firm, as well as an arbitrator for the American Arbitration Association for employment disputes arising in Oklahoma. Finally, Thrutchley has been certified by the HR Certification Institute as a “Senior Professional in Human Resources,” and by the Society for Human Resources Management as a “Senior Certified Professional.”
Gannett primarily contended that Thrutchley’s opinions constituted impermissible legal conclusions.
Legal Conclusions
First, in the “Legal Standards” section, Thrutchley purported to summarize the applicable “legal standards” and, in doing so, impermissibly sought to “define the law of the case.”
Further, throughout the report, Thrutchley applied the “legal and policy standards to the facts” in order to opine that certain conduct constituted, or raised an inference of, “sex-based harassment.” Likewise, Thrutchley opined that certain actions by Gannett interfered with Bailey’s employment and “would amount to a materially adverse employment action, an element of unlawful retaliation” or that “an inference of retaliatory motive” arises “capable of surviving summary judgment.” Thrutchley also opined that Gannett created a “hostile” or “toxic” work environment satisfying “the essential elements of a hostile work environment harassment claim.”
The Court held that Thrutchley’s opinions in this regard impermissibly stated a legal conclusion by applying the laws to the facts.
Thrutchley also opined that Gannett’s responses to the Texas Workforce Commission’s investigation into Bailey’s unemployment benefits claim were “demonstrably false.” An expert may not offer testimony regarding credibility. Given that it is the jury’s role to determine credibility, the minimal probative value of Thrutchley’s opinions in this regard is substantially outweighed by the danger of unfair prejudice. Thus, the opinions are also excluded pursuant to Federal Rule of Evidence 403.
Finally, Thrutchley offered opinions regarding Gannett’s internal policies and Defendant’s compliance with same. However, Gannett’s policies are not so complicated to require expert testimony.
Thrutchley also opined as to best practices upon receipt of a harassment, discrimination, or retaliation complaint, and that Gannett failed to follow same.
Such opinions are not prohibited legal conclusions and, further, may be helpful to the jury. Thus, the Court declined to exclude the opinions as impermissibly usurping this Court’s role to articulate the law and the jury’s duty to apply same.
Reliability
Gannett argued that Thrutchley’s opinions on best practices upon receipt of a harassment, discrimination, or retaliation complaint must nevertheless be excluded as the product of an unreliable methodology.
Having reviewed Thrutchley’s opinions, the Court concluded that it is more likely than not that his opinions in this regard reflect a reliable application of his knowledge and experience to the facts of the case.
Gannett next criticized Thrutchley’s opinions as lacking a sufficient foundation due to his reliance on hearsay and his alleged “adopting both the allegations of Plaintiff and her legal positions.”
First, with respect to Gannett’s criticism of Thrutchley’s reliance on hearsay, “Rule 703 allows an expert witness to base his testimony upon facts or data that are hearsay, provided that those facts or data are ‘of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’”
The Court observed that Thrutchley did not merely parrot the out-of-court statements but, instead, utilized the statements to form his own independent opinions. Accordingly, Thrutchley’s reliance on hearsay is not improper.
Insofar as Gannett criticized Thrutchley as effectively adopting Bailey’s version of events, Thrutchley stated that he reviewed the Texas Workforce Commission Hearing Transcripts, the Amended Complaint and the EEOC Charge as well as various documents produced in discovery.
Based on the foregoing, the Court concluded that it is more likely than not that Thrutchley’s opinions are based on sufficient facts and data and the opinions are the product of a reliable application of principles and methods to the facts of the case.
Held
The Court granted in part and denied in part Gannett’s motion to exclude the testimony of Chris Thrutchley
Key Takeaway
An expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility. Moreover, Gannett’s policies are not so complicated to require expert testimony. Rather, a lay juror with “normal experiences and qualifications” can review Gannett’s policies and determine whether Gannett complied with, or violated, those policies in response to Bailey’s complaint.
