Equal Employment Opportunity Commission v. Sierra Pacific Industries

Filing 93

ORDER signed by Judge Morrison C. England, Jr on 10/4/10 DENYING Pltf's 58 Motion to Exclude Finkle's Testimony. However, Finkle's testimony at trial will be subject to the conditions enumerated in this order. (Owen, K)

Equal Employment Opportunity Commission v. Sierra Pacific Industries

Doc. 93

1 2 3 4 5 6 7 8 9 10 11 12 Plaintiff, 13 AHMED ELSHENAWY, 14 Plaintiff-Intervenor, 15 v. 16 SIERRA PACIFIC INDUSTRIES, 17 Defendant. 18 ----oo0oo---19 Presently before the Court is Plaintiff's Motion to Exclude 20 the testimony of Defendant's designated human resources expert, 21 Paul Finkle. 22 improperly invades the province of the jury, rely on improper 23 methodology, and lack any basis in specialized knowledge that 24 would assist the jury in considering the issues presented by this 25 case. 26 respect to admissibility in that regard. 27 Dow Pharms., Inc., 509 U.S. 579, 589 (1993). 28 1 See Daubert v. Merrell Plaintiff cites the Court's function as gatekeeper with Plaintiff contends that Finkle's conclusions ORDER EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, No. 2:08-cv-01470-MCE-DAD UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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The Court is unpersuaded by Plaintiff's claim that Mr. Finkle's expected testimony is by nature so unreliable that it runs afoul of Daubert standards. Finkle's credentials show

that he has extensive experience in the human resources and management counseling going back more than thirty years. basis of that experience, he is qualified to opine whether Defendant's management acted within the appropriate standard of care in acting upon, and responding to, complaints of disparate treatment and/or harassment. Finkle can further testify as to On the

the adequacy of Defendant's policies and procedures in those areas. That testimony may well assist the jury in reaching the

ultimate conclusion in this matter: whether or not Defendant is liable for any discrimination, retaliation and/or harassment that Elshenawy may have endured. Consequently, Plaintiff's Motion to Exclude Finkle's testimony in its entirety must necessarily fail. To the extent

that Plaintiff claims that the basis for Finkle's opinions are incomplete and/or erroneous, those contentions can adequately be addressed through vigorous cross-examination, and the jury can decide what weight, if any, to accord Finkle's testimony. With

respect to the scope of Finkle's testimony, however, Plaintiff correctly points out that Finkle cannot offer direct testimony with regard to the ultimate legal conclusions that the jury must decide: whether or not Elshenawy suffered disparate treatment, whether or not retaliation against Elshenawy for engaging in protected activities took place, and whether or not a hostile work environment may have existed. /// 2

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The Court agrees that testimony to that effect by Finkle would impermissibly usurp the jury's role in deciding this case. The

Court will monitor Finkle's testimony during the course of trial to ensure that this does not occur. In accordance with the

provisions of Federal Rule of Evidence 408(a), which protects "conduct or statement made in compromise negotiations", the Court will further ensure that Finkle does not offer testimony predicated on the content of any mediation statement submitted by Plaintiff in connection with attempting to settle this matter. Imposing a blanket prohibition on Finkle's testimony altogether, however, as Plaintiff advocates through this Motion, is not indicated. Plaintiff's Motion to Exclude Finkle's testimony (ECF

No. 58) is accordingly DENIED,1 but Finkle's testimony at trial will be subject to the conditions enumerated above.2 IT IS SO ORDERED. Dated: October 4, 2010

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

Because oral argument was not be of material assistance, the Court ordered this matter submitted on the briefs. E.D. Cal. Local Rule 230(g). The Court notes that Plaintiff has also levied procedural objections to Mr. Finkle's report in accordance with the requirements of Federal Rule of Civil Procedure 26(e). To the extent that Mr. Finkle may not have signed his original report in this case, Plaintiff does not dispute that they failed to bring this shortcoming to Defendant's attention prior to the filing of this Motion. Any defect in that regard is non-material and can be readily cured; Plaintiff's objection is therefore overruled. The remainder of Plaintiff's Rule 26(e) objections are similarly rejected. 3
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