EEOC v. Jackson National Life Insurance Company

Filing 294

ORDER by Chief Judge Philip A. Brimmer on 3/31/2023 re: Defendants' Motion to Exclude Expert Opinion of Patricia Pacey [Docket No. 206 ] is DENIED.(pabsec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 16-cv-02472-PAB-SKC
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
LA’TONYA FORD,
Intervenor Plaintiff,
v.
JACKSON NATIONAL LIFE INSURANCE COMPANY, et. al.,
Defendants.
ORDER
This matter is before the Court on Defendants’ Motion to Exclude Expert Opinion
of Patricia Pacey [Docket No. 206]. Plaintiff-intervenor LaTonya Ford opposes
defendants’ motion. Docket No. 211.
I. BACKGROUND
This is an employment discrimination case that was originally brought by the
United States Equal Employment Opportunity Commission (“EEOC”), seven intervenor
plaintiffs, including Ms. Ford, and fourteen aggrieved individuals. Docket Nos. 21, 31.
The EEOC, the intervenor-plaintiffs (with the exception of Ms. Ford), and defendants,
collectively referred to as “Jackson,” entered into a consent decree that resolved all of
the intervenor-plaintiffs’ claims. Docket No. 182.

Ms. Ford alleges that, after transferring to Jackson’s Denver office, she was
subjected to discrimination in “almost all terms and conditions of employment and a
hostile work environment, all based on her sex, race, and color.” Docket No. 21 at 4,
¶ 8. She further alleges that, despite being a top performer, she was “persistently
passed over for promotion to External Wholesaler, and Jackson promoted less-qualified
white and/or male candidates instead.” Id. After Ms. Ford complained to human
resources and later filed a charge of discrimination and retaliation with the EEOC, she
alleges that she was retaliated against. Id. Finally, Ms. Ford alleges that she was
forced to terminate her employment with Jackson on October 12, 2010. Id.
Pursuant to Federal Rule of Civil Procedure 26(a)(2), Ms. Ford disclosed Dr.
Patricia Pacey, a labor economist, as an expert to testify on the back and front pay
losses she suffered arising from the claimed discriminatory practices of Jackson.
Docket No. 206-1 at 4.
II. LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to
give opinions in a particular subject area. Rather, the Court must “perform[] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
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After determining whether the expert is qualified, the proffered opinions must be
assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be
“based on sufficient facts or data,” be the “product of reliable principles and methods,”
and reflect a reliable application of “the principles and methods to the facts of the
case”).
In ruling on a Rule 702 motion, the district court has a “gatekeeper function to
‘ensure that any and all scientific testimony or evidence admitted is not only relevant,
but reliable.’” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). To perform that
function, a court must “assess the reasoning and methodology underlying the expert’s
opinion, and determine whether it is both scientifically valid and applicable to a
particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592-93). Where an expert witness relies on experience, the
expert “‘must 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.’” United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir.
2014) (quoting Fed. R. Evid. 702, advisory committee notes). When examining an
expert’s method, however, the inquiry should not be aimed at the “exhaustive search for
cosmic understanding but for the particularized resolution of legal disputes.” Daubert,
509 U.S. at 597. It is the specific relationship between an expert’s method, the
proffered conclusions, and the particular factual circumstances of the dispute that
renders testimony both reliable and relevant. Id. at 580.

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In addition to the witness having appropriate qualifications and methods, the
proponent of the witness’s opinions must demonstrate that the process by which the
witness derived his or her opinions is reliable. United States v. Crabbe, 556 F. Supp. 2d
1217, 1220 (D. Colo. 2008). Ultimately, the test requires that the expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
While the proponent of the challenged testimony has the burden of establishing
admissibility, the proffer is tested against the standard of reliability, not correctness, see
Allstate Sweeping, LLC v. City & Cnty. of Denver, No. 10-cv-00290-WJM-MJW, 2011
WL 2173997, at *3 (D. Colo. June 2, 2011); the proponent need only prove that “the
witness has sufficient expertise to choose and apply a methodology, that the
methodology applied was reliable, that sufficient facts and data as required by the
methodology were used and that the methodology was otherwise reliably applied.”
Crabbe, 556 F. Supp. 2d at 1221.
Assuming the standard for reliability is met, the Court must also ensure that the
proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156; United
States v. Rodriguez-Felix, 450 F.3d 1117, 1122–23 (10th Cir. 2006). “Relevant expert
testimony must logically advance[] a material aspect of the case and be sufficiently tied
to the facts of the case that it will aid the jury in resolving a factual dispute.” United
States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (quotations and citations omitted).
In assessing whether expert testimony will assist the trier of fact, a court should also
consider “whether the testimony ‘is within the juror’s common knowledge and

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experience,’ and ‘whether it will usurp the juror’s role of evaluating a witness’s
credibility.’” Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).
III. ANALYSIS
Jackson seeks to “exclude Dr. Pacey’s opinions in their entirety.” Docket No.
206 at 1. Jackson has two general objections to Dr. Pacey’s testimony: (1) Dr. Pacey’s
opinions are irrelevant and “admittedly unhelpful to the trier of fact”; and (2) Dr. Pacey’s
opinions are unreliable. Id.
A. Dr. Pacey’s Initial Report
In her Initial Report, dated August 31, 2018, Dr. Pacey opines that plaintiff’s
economic damages totaled to $2,095,724. Docket No. 206-1 at 28. Jackson refers to
this opinion as Aug. 31, 2018 Report Option 1. Docket No. 206 at 3. Dr. Pacey states
that she analyzed the database provided by Jackson to identify the salaries of internal
wholesaler, desk director, business development consultant, and external wholesaler by
year for all Jackson sales personnel from 2007 to 2017. Docket No. 206-1 at 8. Dr.
Pacey explains that this information, which includes the mean, median, 25th, and 75th
percentile salaries by year and tenure, “is the basis for consideration of the probable
career track, i.e., promotion and wage” for Ms. Ford. Id. Dr. Pacey refers to this
compilation of salaries as the “Salary Matrix.” Id. Dr. Pacey provides “economic
parameters,” which include “the probable pre-separation promotions and salary
expectations,” which are offset in her analysis by the actual or estimated wages of Ms.
Ford. Id. Dr. Pacey calculated back pay wages “but for the disparate treatment” and
based on anticipated promotions and salary increases. Id. To calculate front pay
earnings but for disparate treatment, Dr. Pacey added a 3% average increase per year

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for inflation and “consider[ed] an average blended discount rate” of 4%, resulting in “an
approximate average net discount rate” of 1%. Id. Dr. Pacey states that such
calculations are “conservative relative to the probable wage growth for external
wholesalers at Jackson” given historical data. Id. Front pay earnings, “given the
disparate treatment” of Ms. Ford, “incorporate substantially higher than average wage
growth” at 8%, reflecting labor market data “which note reentry is typically at a lower
wage level but generally allows for greater increased wage growth in the early years of
such reemployment.” Id. at 9. Dr. Pacey then discounted the front pay to present
value. Id.
B. First and Second Addenda
On November 30, 2018, Dr. Pacey submitted a First Addendum to her report,
which provided an alternative estimate for Ms. Ford’s damages of $3,013,455, which is
applicable “should it be determined that Ms. Ford would be within the top twenty-five
percent (25%) of performers in the sales force while employed with Jackson.” Docket
No. 206-2 at 3. Jackson refers to this opinion as First Supplement Option 2. Docket
No. 206 at 3.
On March 13, 2019, Dr. Pacey submitted a Second Addendum. Docket No. 2063. The Second Addendum “reflect[s] the assumption that Ms. Ford will not find
reemployment in the financial services industry.” Id. at 3. After Ms. Ford left Jackson,
she was employed by Prudential Financial; however, by January 2019, she had left that
company. Docket No. 206 at 7; Docket No. 206-3 at 3. The calculations in the Second
Addendum are applicable “should it be determined Jackson is liable for the additional
losses [Ms. Ford] will now incur given her need to find new employment” since leaving

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Prudential. Docket No. 206-3 at 3. Dr. Pacey provided two options in the Second
Addendum. Id. at 4–7. Option 1 reflects compensation at the median salary level for
years 2011 to 2017, with the exception of 2012, which reflects compensation at the 25th
percentile level and estimates Ms. Ford’s damages as $3,219,690. Id. at 3, 8. Jackson
refers to this option as Second Supplement Option 1. Docket No. 206 at 3. Option 2
has more varied compensation levels, with pay at the 25th percentile for 2011, 2012,
and 2014, at the median for 2013 and 2015, and at the seventy-fifth percentile for 2016
and 2017. Docket No. 206-3 at 6. Option 2 estimates Ms. Ford’s damages at
$4,137,420. Id. at 7. Jackson refers to this opinion as Second Supplement Option 2.
Docket No. 206 at 3.
C. Relevance and Helpfulness
The relevancy of an expert’s testimony depends upon whether it can properly be
applied to assist the trier of fact to decide facts in issue. See Daubert, 509 U.S. at 592–
93. Such testimony is not helpful if it draws inferences or reaches conclusions within
the jury’s competence or within an exclusive function of the jury. See United States v.
Call, 129 F.3d 1402, 1406 (10th Cir. 1997). Expert testimony is unnecessary where it
addresses a question the jury is capable of assessing or determining for itself. See
Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994).
Jackson argues that Dr. Pacey’s testimony is “wholly irrelevant” because,
although Ms. Ford argues that she was constructively discharged on October 12, 2010,
she actually resigned from Jackson and therefore is not entitled to any economic
damages following her resignation. Docket No. 206 at 2, 9. Jackson explains that
Tenth Circuit law is “clear that a plaintiff is not entitled to economic damages following

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the date of a voluntary resignation from employment absent constructive discharge.” Id.
at 9 (citing Derr v. Gulf Oil Corp., 796 F.2d 340, 342 (10th Cir. 1986)). Therefore,
Jackson argues, Ms. Ford’s damages, if any, are limited to the difference between what
Ms. Ford was actually paid and what she would have been paid absent discrimination
until the date of her resignation. Id. Jackson also argues that, because the jury is
capable of calculating damages on its own, Dr. Pacey’s testimony is unnecessary and
unhelpful. Id. at 14.
Ms. Ford argues that, because the constructive discharge claim is “extant, Dr.
Pacey’s opinion regarding damages related thereto remains relevant.” Docket No. 211
at 9. Ms. Ford also argues that the question of whether Ms. Ford was constructively
discharged, or voluntarily resigned, is unrelated to the reliability of Dr. Pacey’s
methodology. Id. Furthermore, Ms. Ford states that Dr. Pacey is not offering opinions
on whether Ms. Ford is entitled to specific categories of damages, but rather she is
providing the jury with various calculations that allow the jury to determine damages
based on its liability findings. Id.
The Court agrees with Ms. Ford that, if the jury finds that she was constructively
discharged, Dr. Pacey’s opinions on the damages that Ms. Ford incurred due to
constructive discharge are relevant to the claim and may be helpful to the jury in
calculating damages. Moreover, while juries often calculate damages without the
benefit of expert testimony, the Court finds that Dr. Pacey’s testimony would help the
jury conduct its calculations. Dr. Pacey’s methodology factors in inflation, career
trajectory, ancillary benefits, and other items to determine the extent of Ms. Ford’s
damages, which are not matters within the ken of an average juror. See Zimmerman v.

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Univ. of Utah, 2018 WL 10152217, at *3 (D. Utah. Aug. 8, 2018) (“[A]n award of front
pay cannot be based solely on lay testimony regarding salary, benefits, and an
employee’s intent regarding her employment duration” because calculating “front pay
requires a prediction of future events involving ‘many complicated and interlocking
factors.’” (quoting Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1458 (10th Cir. 1997),
overruled on other grounds, TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661
F.3d 495, 496 (10th Cir. 2011)).
However, the Court finds that Dr. Pacey’s opinions for the years after Ms. Ford
left Prudential, as noted in Dr. Pacey’s Second Addendum, would not be helpful to the
jury. In her deposition, Dr. Pacey acknowledged that she issued the Second Addendum
based on Ms. Ford’s conversations with Dr. Pacey, wherein Ms. Ford claimed that
Jackson improperly “blackball[ed]” her and caused Prudential to terminate her. Docket
No. 206-4 at 15, 158:7-160:4. As a result, Ms. Ford believes that Jackson is
responsible for her inability to find employment in the industry. Id. Dr. Pacey testified
that “the damages identified in the second addendum from Ms. Ford are based on the
predicate that but for the actions of Jackson and/or Prudential, she’s no longer in the
industry and doesn’t believe she can get back in it.” Id., 159:19-24. Dr. Pacey
acknowledged that Ms. Ford’s “damages would be substantially larger if it’s determined
that Jackson and/or Prudential were the cause behind it, that loss.” Id. at 16, 163:3-9.
The claims in this case have been brought against defendants for discrimination and
retaliation that occurred from January 2008 to the date of Ms. Ford’s constructive
discharge. See Docket No. 283-1 at 44; Docket No. 51 at 4, ¶ 8. Ms. Ford has made
no claims against Jackson for retaliation while she worked at Prudential or for tortious

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interference with her employment at Prudential. Those issues are not part of this case
and any testimony or assumptions about them from Dr. Pacey are irrelevant and would
be prejudicial to Jackson. Ms. Ford cannot effectively amend the complaint to add a
cause of action through her expert’s testimony.
The Court finds that Dr. Pacey’s methodology for her damages calculations,
other than those in the Second Addendum, are both relevant and helpful to the jury.
D. Reliability
Jackson makes three arguments about the reliability of Dr. Pacey’s opinions.
First, Jackson seeks to exclude the Initial Report because Dr. Pacey “assumed [Ms.]
Ford would be promoted to the [external wholesaler] position in the third quarter of
2010,” but the assumption that Ms. Ford would be promoted, and when she would have
been promoted, was “based entirely on [Ms.] Ford’s own belief.” Docket No. 206 at 5–6.
Second, Jackson argues that the figures taken from the Salary Matrix are unreliable
because they do not take into account variables that would have affected Ms. Ford’s
compensation. Id. at 11. Third, Jackson argues that Dr. Pacey provided no explanation
for choosing various rates of pay for Ms. Ford in the Initial Report, the First Addendum,
or the Second Addendum. Jackson argues that in her initial report Dr. Pacey assigned
Ms. Ford, for 2011 to 2017 (with the exception of 2012), a “median rate of compensation
for Jackson’s [external wholesaler] company-wide with similar tenure,” and, for 2012,
Dr. Pacey assigned Ms. Ford compensation at the 25th percentile. Id. (citing Docket
No. 206-1 at 25). In the First Addendum, Dr. Pacey recalculated Ms. Ford’s
compensation at the 75th percentile for some years. Id. (citing Docket No. 206-2 at 6).
But, according to Jackson, Dr. Pacey provided no methodology for her conclusions that

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Ms. Ford would have been compensated at a particular rate in a particular year. Id. at
11–12. Rather, according to Jackson, Dr. Pacey increased the damages calculation in
the First Addendum based on Ms. Ford’s “subjective insistence that she would have
been a higher-than-median performer,” ignoring variables that impact external
wholesaler pay, like compensation/commission, bonuses, channel, territory, and sales
ability. Id. at 12. In the Second Addendum, Dr. Pacey increased her calculation again
based on the “unsupported conjecture that Jackson was the cause of [Ms.] Ford’s
termination from Prudential[,] . . . despite being informed by [Ms.] Ford that her
termination from Prudential related to below expectations performance.” Id. at 13.
Ms. Ford counters that Jackson’s arguments fail because experts’ reports are
tested against the standard of reliability, not correctness. Docket No. 211 at 4 (citing
Independence Inst. v. Gessler, No. 10-cv-00609-PAB-MEH, 2012 WL 959397, at *2 (D.
Colo. Mar. 21, 2012)). In addition, Ms. Ford argues that Dr. Pacey based her opinions
on statistical data from Jackson, economic data, and her unchallenged expertise as a
labor economist. Id. Dr. Pacey analyzed the average promotion time for non-protected
employees at Jackson and then applied that timeline to Ms. Ford, and she explained
that, if the jury determines that a different promotion date is appropriate, the damages
calculation can be adjusted based on the jury’s fact finding. Id. at 4–5. Ms. Ford
contends that Dr. Pacey did not base her report on Ms. Ford’s “pushback” or subjected
beliefs. Id. at 4. As to Jackson’s arguments that Dr. Pacey did not properly consider
factors like sales territories, Ms. Ford argues that Jackson has stated that the sales
territories are adjusted to be “equally the same.” Id. at 5 (citing Docket No. 204 at 11,
¶ 76).

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While the date that Dr. Pacey chose for Ms. Ford’s promotion to external
wholesaler is somewhat arbitrary, it was based on employee averages and was picked
“for simplicity.” Docket No. 206-4 at 7, 49:12–23. And while Ms. Ford’s belief that her
promotion should have occurred “three months earlier” than her peers may have had a
role in Dr. Pacey’s selection of the promotion date, Dr. Pacey explains that “there[ is] no
exact answer.” Id., 50:01–52:12. Ms. Ford argues that, if the jury determines that Dr.
Pacey chose the wrong date, it may modify the calculations accordingly. Docket No.
211 at 4–5.
The Court agrees with Ms. Ford. Dr. Pacey is not qualified to predict when Ms.
Ford may or may not have been promoted but for discrimination the jury may find.
Rather, as Dr. Pacey noted, she assumed the promotion date for purposes of her
calculations, and she explained how the jury can modify the damages based on its
finding that Ms. Ford should have been promoted on a different date than the one Dr.
Pacey chose. Id. at 2–3. While Jackson argues that Dr. Pacey’s methodology was
nothing more than her “personal judgment,” Docket No. 219 at 5, Jackson does not
challenge Dr. Pacey’s qualifications as a labor economist. Under the circumstances,
Dr. Pacey’s assumptions do not render her opinions unreliable given that Dr. Pacey
disclaims making any judgments about whether the assumptions are true.
While Dr. Pacey provided little justification for why she first placed Ms. Ford at
the median for earnings in some years and at the 25th and 75th percentiles for other
years, her doing so does not lead to exclusion because, as with the selection of the
promotion date, her assumptions do not render the calculations that result from the
assumptions clearly unreliable. Furthermore, Dr. Pacey provides alternative

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calculations, at different percentiles, that the jury could employ if it were to find Ms.
Ford’s performance differed from Dr. Pacey’s assumptions.
Finally, Jackson claims that Dr. Pacey failed to analyze several variables that
determine the compensation of an external wholesaler, namely, base salary, special
compensation (commission), and a year-end bonus. Docket No. 206 at 12. However,
Jackson does not explain what the magnitude of any such failure would be on Dr.
Pacey’s calculations. The Rule 30(b)(6) testimony that Jackson cites does not support
the argument that these variables would result in a material difference. See Docket No.
206-8. Moreover, Jackson cites no support for the proposition that Dr. Pacey’s failure to
take these variables into account are contrary to Dr. Pacey’s methodology or fall below
the standards of her profession. Therefore, the Court finds that Dr. Pacey’s failure to
account for these variables does not render her opinions so unreliable as to justify their
exclusion.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants’ Motion to Exclude Expert Opinion of Patricia Pacey
[Docket No. 206] is DENIED.
DATED March 31, 2022.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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