Tag Archives: eeoc lawsuit

EEOC Expert Witness Excluded for Unreliable Methodology

A criminal records expert witness has been dismissed from an Equal Employment Opportunity Claim (EEOC) lawsuit for sub-standard research that cherry-picked data to support the plaintiff’s case.  The Federal Fourth Circuit Court of Appeals upheld the dismissal last week, and reaffirmed the high methodological standards that expert witnesses are held to.

Expert Witness Supports EEOC Claim

Litigation in EEOC v FreemanEE due to the defendant’s regular practice of conducting criminal background checks for all job applicants, and dismissing applicants with prohibited criminal histories including violent felonies.  In 2008, an applicant who was denied a position with Freeman filed a charge of discrimination alleging that the policy of criminal background disproportionally affected black applicants in violation of Title VII of the Civil Rights Act.

As the case prepared for trial, the EEOC filed an expert witness report from Kevin Murphy, an industrial / organization psychologist, that purported to demonstrate that Freeman’s criminal record checks discriminated against black applicants.  After a series of supplemental reports from Murphy, Freeman filed a request to have the expert reports dismissed for presenting unreliable data and not adding value to the litigation.  Upon review of the Murphy reports, the trial court agreed with the defendant and rejected the EEOC’s expert.

Fourth Circuit Rejects EEOC Expert Witness on Appeal

The EEOC appealed the lower court’s decision to dismiss its expert witness to the 4th Circuit, but the appeals court was similarly unconvinced by Murphy’s efforts.  First, the Court took issue with Murphy’s decision to exclude hundreds, if not thousands, of applicants that Freeman reported conducting criminal background checks on.  Murphy took a limited sample of applicants to Freeman’s business, and the Court felt that his expert witness report was therefore not representative of the effect criminal record checks had on everyone who applied for a job during the period at issue.  By limiting his sample, the Court found that Murphy had selected data that would support the EEOC’s case rather than paint an accurate picture of the effect of criminal record checks.

Going further, the Court found that Murphy’s expert witness report featured a number of “mind-boggling” errors and unexplained discrepancies in interpreting the criminal record check database that he presented.  From miscoded applicants, to incorrect racial designations, to double-counted records, to missing data throughout the report, Murphy’s efforts were littered with what can generously be considered errors, and suspiciously be viewed as attempts to manipulate the data to favor the EEOC’s claims.  One of the 4th Circuit Justices even wrote separately to admonish the EEOC for “disappointing litigation conduct” in attempting to use Murphy as an expert witness despite his methodological shortcomings and habit of using suspect data that may be “cherry-picked” to favor one side.

Finding “the sheer number of omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ,’” the 4th Circuit agreed with the trial court that the EEOC’s expert witness failed to provide a reliable report and was therefore not fit to testify at trial.  As a result of the decision, the EEOC’s complaint has been dismissed.

10th Circuit Dismisses ADA Claim for Lack of Expert Witness

Earlier this month, the U.S. Court of Appeals for the 10th Circuit upheld the dismissal of a lawsuit because the plaintiff failed to provide an expert witness connecting a diagnosed medical impairment to the harm she allegedly suffered.  In its decision, the 10th Circuit clarifies the standard for proving a medical condition in an ADA claim and reinforces the need for medical expert witnesses.

ADA Plaintiff Alleges Injury Caused Failure to Work

In Felkins v City of Lakewood, Plaintiff Cynthia Felkins, formerly an employee for the City of Lakewood, Colorado, claimed that a medical condition called avascular necrosis caused two significant injuries that prevented her from working for long stretches during the early part of 2009.  In late 2008, Felkins suffered from a broken femur causing her to miss over 466 hours in the first 10 months of her job as an emergency call-center dispatcher.  After being fired in early April of 2009, Ms. Felkins filed a discrimination lawsuit with the Equal Employment Opportunity Commission (EEOC) that alleged the City of Lakewood failed to accommodate for her disability of avascular necrosis.

The City responded that Ms. Felkins had failed to demonstrate that she had a disability that qualified her for a claim under the Americans with Disabilities Act (ADA).  Arguing that Ms. Felkins had not provided documentation or testimony from a medical expert as is required by the ADA, Lakewood attorneys requested the case be dismissed.  The trial court agreed with the City and dismissed the claim because Ms. Felkins’s only proof of her disability was her own testimony, which was not sufficient to prove that her avascular necrosis was the cause of the injuries that kept her from working.

10th Circuit Requires Expert to Prove Medical Condition in ADA Case

On appeal, the 10th Circuit affirmed the trial court’s dismissal after finding that Ms. Felkins’s own testimony that her avascular necrosis caused her injuries was insufficient to prove an ADA claim.  A necessary component to winning an ADA lawsuit is demonstrating the existence of a physical or mental impairment that “substantially limits one or more major activities.”  Throughout her complaint, Ms. Felkins argued that her avascular necrosis created abnormal cell growth and blood flow that prevented her from lifting, walking, and standing normally, and, most importantly to her lawsuit, caused her a long-term injury that kept her away from her job.

Despite repeated insistence that her avascular necrosis led to her medical impairment, Ms. Felkins did not provide any professional medical evidence from an expert witness that the condition affected her major life activities.  Citing relevant case law, the 10th Circuit opinion found the Plaintiff’s allegations that she suffered from an ADA qualifying impairment unconvincing due to lack of an expert.  Writing, “[W]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts,” the Court pointed to the need for an expert to verify Ms. Felkins’s claims that her avascular necrosis caused her injury.

Without an expert witness proving her condition caused limitations that the City of Lakewood needed to consider, the 10th Circuit could not allow the case to proceed on Ms. Felkins’s personal testimony alone.  The case serves as a reminder that, while there is a place for lay-testimony, the word of an expert witness is required when medical conditions are the center of debate in ADA claims.

Medical Expert Witnesses in ADA Claims

While lay-testimony such as Ms. Felkins’s declarations is admissible to describe symptoms of a disease or medical impairment, the 10th Circuit reminded plaintiffs that an expert witness is required to not only diagnose a medical condition but also identify the illness as a cause of limitation on major life activities.  Although the ADA was amended in 2008 to loosen the burden of proving the existence of an ADA qualifying injury, the 10th Circuit found that plaintiffs are still required to connect symptoms and other evidence of impaired life activity to a diagnosed medical condition.

In this case, Ms. Felkins case failed because she could not demonstrate that her alleged avascular necrosis caused her physical limitation.  Without evidence of the necessary cause, she could not demonstrate that she qualified for an ADA claim.  Plaintiffs reading the Felkins case can note that a medical expert witness should be part of any ADA claim in order to connect a diagnosed condition to limitations that require accommodation by employers.