Chen et al v. Solano et al

Filing 254

MEMORANDUM Opinion and Order; Defendant's motion to bar testimony 161 is granted. See the attached order for details. Signed by the Honorable Iain D. Johnston on 9/15/2021: Mailed notice (yxp, )

Case: 3:14-cv-50164 Document #: 254 Filed: 09/15/21 Page 1 of 15 PageID #:6472

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Fiona Chen,
Plaintiff,

Case No. 3:14-cv-50164

v.

Honorable Iain D. Johnston

Yellen, 1

Janet
Secretary of the
Department of the Treasury,
Defendant.

MEMORANDUM OPINION AND ORDER
Fiona Chen, a former employee of the Internal Revenue Service (“IRS”),
alleges claims of a hostile work environment and discrimination in violation of 42
U.S.C. § 1981 and Title VII of the Civil Rights Act. The Secretary of the Department
of Treasury (“Secretary”) moved to bar the testimony of Ms. Chen’s expert witness,
Professor Kyle Brink, Ph.D. Dkt. 161. After a thorough review, this Court grants
the Secretary’s motion to bar Ms. Chen from presenting and relying upon Professor
Brink’s testimony under Federal Rule of Evidence 702 because it is largely based on
allegations and not “sufficient facts or data” as required by 702(b).

I.

Background

Ms. Chen asserts two claims: (I) hostile work environment based on
circumstances that led to Ms. Chen’s resignation from the IRS, and (II) retaliation

1

The Court substitutes Janet Yellen as the proper defendant. See Fed. R. Civ. P. 25(d).

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based on Ms. Chen’s complaint of discrimination lodged with the Equal
Employment Opportunity Commission (“EEOC”) in the months before her
resignation. Third Amended Complaint, Dkt. 129. Ms. Chen retained Professor
Kyle Brink as an expert in this case and produced his report to the Secretary.
Expert Report, Dkt. 162-1. The Secretary filed a motion to bar this expert under
Fed. R. Evid. 702 and 403, Dkt. 161, and Ms. Chen opposed, Dkt. 171.
Professor Brink is an Associate Professor at Western Michigan University,
teaching courses in business management and human resources in the Haworth
College of Business. He holds a Ph.D. in industrial/organizational psychology, has
numerous peer-reviewed publications on organizational psychology and workplace
management, served as a consultant for numerous companies, and has served as an
expert witness in a dozen cases. Dkt. 162-1, Appendix A, at 27-36. His report, titled
“Evaluation of Evidence of Discrimination, Harassment, and Retaliation,” states
that “[t]he vast majority of evidence I reviewed is from the complaint that was filed
on July 28, 2014.” Id. at ¶ 3 n.1. He further states that he was “asked to review the
evidence to evaluate and interpret it in the context of human resource management
best practices; diversity theory; and equal employment opportunity law, practices,
and violations.” Id. at ¶ 3. Professor Brink’s findings and conclusions assert that
Ms. Chen was “subjected to a barrage of pervasive behaviors . . . directed solely at
Chen, who was the only Taiwanese Asian American in the group” and that those
behaviors were “forms of discrimination and harassment based on race and national
origin.” Id. at ¶¶ 6-8.

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The report discusses Ms. Chen’s qualifications and job performance, including
her credentials and communication skills, summarizes relevant statutory law and
EEOC guidance, and sets out “evidence” of discrimination against and harassment
of Ms. Chen, including the failure to provide her with support and development,
added obstacles and barriers, language-based discrimination, microagressions, and
retaliation. Id. at 2. This alleged “evidence,” based only on the plaintiff’s complaint,
ignores the extensive discovery and deposition testimony that has been developed
over the past seven years. And, in fact, the report’s opinions are often mere
recitations of the allegations in the complaint. See, e.g., Dkt. 162-1, ¶¶ 92-95; cf.
Wendler & Ezra, P.C. v. Am. Int’l Group, Inc., 521 F.3d 790, 791 (7th Cir. 2008) (“an
expert’s ipse dixit is inadmissible”). For the reasons herein, the Court cannot allow
Professor Brink’s expert testimony to proceed to the trier of fact.

II.

Analysis

A pro se party’s filings are construed liberally. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). But “rules
apply to uncounseled litigants and must be enforced.” Members v. Paige, 140 F.3d
699, 702 (7th Cir. 1998) (citing McNeil v. United States, 508 U.S. 106, 112-113
(1993)). The proponent of an expert bears the burden of demonstrating that the
expert’s testimony satisfies the applicable legal standards. Fed. R. Evid. 702
Advisory Committee’s Note (2000 Amend.) (“the proponent has the burden of
establishing that the pertinent admissibility requirements are met by a

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preponderance of the evidence”); Lewis v. CITGO Petroleum Corp., 561 F.3d 698,
705 (7th Cir. 2009).
Admissibility of expert testimony is governed by Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993). “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 . . . the testimony is based on
sufficient facts or data.” Fed. R. Evid. 702 (emphasis added). An expert’s testimony
is admissible if he is qualified, if his methodology is reliable, and if his testimony is
relevant. Kirk v. Clark Equip. Co., 991 F.3d 865, 872 (7th Cir. 2021). Daubert,
working in tandem with Rule 702, requires a District Court to ensure that a
proposed expert’s testimony is both reliable and relevant. Kirk, 991 F.3d at 872
(quoting Daubert, 509 U.S. at 589). As to the reliability prong, “the correct inquiry
focuses not on the ultimate correctness of the expert’s conclusions, but rather on the
soundness and care with which the expert arrived at her opinion.” Id. (cleaned up).
Evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence.” Fed. R. Evid. 401(a); United States
v. Johnson, 916 F.3d 579, 588 (7th Cir. 2019) (affirming the district court’s
admission of government expert testimony as to the drug trade industry). And,
under Rule 702, an expert’s opinion is relevant “so long as it assists the jury in
determining any fact at issue in the case.” Stuhlmacher v. Home Depot U.S.A., Inc.,
774 F.3d 405, 409 (7th Cir. 2014) (holding that an expert’s testimony was proper
even though the expert reached an opposite conclusion). As part of its gatekeeping

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function, a district court must ask itself if the proffered expert testimony is
relevant, that is, if it will aid the jury in its deliberations. See Daubert, 509 U.S. at
589.
Here, the Secretary challenges the expert’s reliability and relevance, but not
his qualifications. Dkt. 162. In addition, the Secretary argues that expert testimony
is not necessary in this area of law because it is not needed to assist the trier of fact,
i.e., the jury, in understanding the evidence. Id. In response, Ms. Chen asserts that
he is qualified, that his report is reliable, and that expert testimony is necessary.
Dkt. 171. 2

A. Qualifications
The Secretary does not challenge Professor Brink’s qualifications. Because
his qualifications are not at issue, the Court does not address this prong. See United
States v. Jett, 908 F.3d, 252, 266 (7th Cir. 2018) (holding that District Judges need
not perform each step of the Rule 702 analysis when it is not specifically requested
by a party).

B. Reliability
The Secretary argues that Professor Blink’s opinions are unreliable because
he relied on insufficient facts and employed unreliable methods. Dkt. 162, at 6-9.
At the outset, the Court notes that it addresses the admissibility of Professor Brink’s
opinions, not his report. The report itself is inadmissible hearsay. See Bianco v. Globus
Med., Inc., 30 F. Supp. 3d 565, 570 (E.D. Tex. 2014); Sommerfield v. City of Chicago, 254
F.R.D. 317, 328 (N.D. Ill. 2008) (expert reports are pristine hearsay).

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Under Federal Rule of Evidence 702(b)-(d), to be reliable, testimony by an expert
witness must be “based on sufficient facts or data;” “the product of reliable
principles and methods;” and “based upon a reasonable application of the principles
and methods to the facts of the case.” Fed. R. Evid. 702; see also Smith v. Ill. Dep’t of
Transp., No. 15 C 2061, 2018 U.S. Dist. LEXIS 133810, at *37-38 (N.D. Ill. Aug. 8,
2018), aff’d, 936 F.3d 554 (7th Cir. 2019) (“Even if the witness qualifies as an
expert, the district court still must ensure that the evidence ‘is sufficiently reliable
to qualify for admission.’”) (internal citations omitted). Because juries tend to give
expert testimony a “talismanic significance,” district courts must carefully perform
the Daubert analysis before admitting such evidence. United States v. Frazier, 387
F.3d 1244, 1263 (11th Cir. 2004).
Both of the Secretary’s arguments come down to Professor Brink’s admission
that the “vast majority of evidence” on which he based his report was Ms. Chen’s
original complaint filed on July 28, 2014. The Secretary correctly notes that the
2014 complaint is not the operative complaint. In 2015, Judge Kapala granted
Defendants’ motion to dismiss this 2014 complaint. Dkt. 35. Over three years later,
Ms. Chen filed the most recent Third Amended Complaint on January 5, 2018. See
Dkt. 129. As this was filed nearly eighteen months before the date of Professor
Brink’s report, he cannot rely on an earlier, dismissed complaint. To the extent that
Professor Brink relied upon allegations from the 2014 complaint that Ms. Chen
substantively changed or omitted when she filed her Third Amended Complaint in
2018, he relied upon allegations that are no longer relevant to the case. See Massey

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v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) (“when a plaintiff files an amended
complaint, the new complaint supersedes all previous complaints and controls the
case from that point forward”); In re County of LaSalle, 169 F.3d 469, 472 (“any
allegations and parties not brought forward [in an amended complaint] fell by the
wayside”). Even if the Court assumes that Professor Brink only relied upon
allegations in the 2014 complaint that survived through to the 2018 complaint, it is
well-established that these allegations are not evidence sufficient to create a triable
issue of fact. See, e.g., Tibbs v. City of Chicago, 469 F.3d 661, 663 n.2 (7th Cir. 2006).
Similarly, these allegations can neither form a reliable factual basis for
expert testimony to be considered at summary judgment or trial. The district court’s
role as “gate-keeper” under Daubert requires it to exclude expert testimony when it
is “based upon speculation, unsupported assumptions, or conclusory allegations.”
Buscaglia v. United States, 25 F.3d 530, 533 (7th Cir. 1994); Sommerfield v. City of
Chicago, 254 F.R.D. 317, 326 (N.D. Ill. 2008) (finding expert testimony to be
objectionable when the underlying facts of have no “affirmative proof”). “Allegations
in a complaint are not evidence.” Nisenbaum v. Milwaukee County, 333 F.3d 804,
810 (7th Cir. 2003). Indeed, federal courts across the country have found that expert
opinions that rely primarily upon allegations in a complaint are not “based on
sufficient facts and data,” as required by Rule 702, and are otherwise unreliable.
See, e.g., Wasilewski v. Abel Womack, Inc., No. 3:10cv1857 (VAB), 2017 U.S. Dist.
LEXIS 4953 (D. Conn. Jan. 14, 2016) (questioning the reliability of an expert’s
methodology to the extent that he relied exclusively on allegations from complaints

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to establish the facts); Mosby v. Railey, No. 5:3cv167-OC-10 GRJ, 2005 U.S. Dist.
LEXIS 57437, *3 (M.D. Fla. Jul. 29, 2005) (expert testimony based solely on the
allegations in the operative complaint, plaintiff’s personnel file, and racial
demographics of the police department was not “based upon sufficient facts and
data”); Rowe Entertainment, Inc. v. William Morris Agency, Inc., No. 98cv8272
(RPP), 2003 U.S. Dist. LEXIS 17623, *10 (S.D.N.Y. Oct. 2, 2003) (proposed expert
testimony based solely on allegations in the complaint and a “limited number” of
depositions was not based upon “sufficient facts or data”).
The Secretary contends that Professor Brink’s testimony “is nothing more
than unsupported speculation, failing to take into account the prior under-oath
statements made by Chen’s co-workers and supervisors during the administrative
investigative phase, documents produced in discovery, and no less than seven
depositions taken by Chen of supervisors and union officials.” Dkt. 162, at 6. This
Court agrees.
The report includes abundant citations to the original complaint (Dkt. 1) and
four pages of the attachments, which include pages of unsourced narrative, Ms.
Chen’s complaint to the Department of the Treasury, the decision of the EEOC, and
what appears to be Ms. Chen’s formal Departure Rating from the IRS (Dkt. 1-1, at
18-21). The report also includes citations to ten pages of bates-numbered documents
(numbers 4947, 1542-1551). Forms of the word “deposition” appear five times in the
document: all within Professor Brink’s CV detailing his experience as an expert
witness. Dkt. 162-1, at 31. Forms of the word “testify” appear five times, four of

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which, again, are in Professor Brink’s CV detailing his experience as an expert
witness. Id. The fifth appears in reference to Chen’s supervisor, Kilmnick, who
“testified that he knows Solano did nothing to evaluate Chen.” Id. at ¶ 48. However,
to support this opinion, Professor Brink cites to Ms. Chen’s 2014 complaint as the
factual basis, not Kilmnick’s testimony. Id. (citing Dkt. 1, ¶ 148 (“Kilmnick . . .
testified that he knew Solano did nothing to evaluate Chen”)). This is just one
example of how Professor Brink’s opinions relied on Ms. Chen’s one-sided set of
allegations instead of the facts and data of the case. A thorough review of the report
includes numerous opinions based on Ms. Chen’s dismissed allegations
masquerading as “evidence.” See Dkt. 162-1, ¶¶ 30, 36, 37, 39, 41, 79, and 92.
Allegations are not the proper foundation for expert testimony.
In Smith, the Seventh Circuit held that a district court properly excluded
expert testimony that “relied only on what appears to be plaintiff-curated records.”
Smith v. Ill. Dep’t of Transp., 936 F.3d 554, 558 (7th Cir. 2019). The court explained
that the expert’s reliance “on an anemic and one-sided set of facts casts significant
doubt on the soundness of her opinion.” Id. at 558-59. As the expert in Smith,
Professor Brink admittedly relied on a one-sided set of facts, curated by Ms. Chen.
When expert opinions are based on unreliable and incomplete facts, they are
fundamentally flawed. Id. The “facts” presented by Ms. Chen in her complaint are
not “facts” in evidentiary sense contemplated by Rule 702. Ms. Chen contends that
her allegations will comprise the majority of her testimony at trial, and while trial
testimony is sufficient for Rule 702, the issue is that the expert relied only on her

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set of facts—without the Secretary’s. Dkt. 171, at 5. It is this Court’s task to ensure
that expert testimony is reliably based on facts and data before allowing it to
proceed to the trier of fact, and as to Professor Brink’s opinions, the Court cannot be
certain of that.
For example, Professor Brink’s opinions in the section of the report titled
“Language-Based Discrimination and Harassment,” assert that Kilmnick, Ms.
Chen’s new manager, “laughed at how [she] pronounced a word and compared her
to another employee who speaks English with an accent,” and that “[a] few days
later, Kilmnick yelled at [her] for how she speaks, indicating that he did not like her
voice, tone of voice, and speed of speech.” Dkt. 162-1, ¶¶ 70-71. But discovery
revealed that Kilmnick’s version of events was quite different. Kilmnick claimed
that Ms. Chen continually raised her voice during a phone call. 3 Kilmnick stated
that when he asked why she raised her voice, she responded that she was a woman
and that was why her voice seemed high. Dkt. 189-2, p. 5. Kilmnick then claims she
asked why she was the only woman in the group and whether Kilmnick had an
issue dealing with women. Id. at pp. 5-6, 8. Then, Ms. Chen accused Kilmnick of
being prejudiced against people with accents. Id. at p. 6. Kilmnick responded by
saying that there was another employee in the group who spoke with an accent and
that he had no problem with accents. Id. This example is precisely why an expert’s

For context, just after Ms. Chen joined Kilmnick’s group, they exchanged emails regarding
Ms. Chen’s alleged duty to drive to the Chicago office on June 13, 2007, to sign timesheets
for her prior group (under Solano’s management). Kilmnick said that it sounded like a
waste of time and instead instructed her to work from the Morton Grove office on June 13
and 14, 2007, where he needed her to be. The telephone call was a follow-up to an email
exchange on the topic. See Dkt. 189-2, at pp. 5-6, 8-9.
3

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reliance on one-sided allegations cannot form a reliable expert opinion under Rule
702. One-sided facts do not comprise “sufficient facts and data.” Where Ms. Chen
alleges that Kilmnick yelled at her for how she speaks, as a form of language-based
harassment, Kilmnick’s account tells a story of a manager dealing with an
uncooperative and defensive employee.
Ms. Chen defends Professor Brink’s testimony by arguing that “[i]t is
unreasonable . . . to request an expert on a case to review all 3,564 pages first hand
instead of reviewing the summary paragraphs derived from the pages.” Dkt. 171, at
6. 4 And here, they were even contained conveniently on one CD-Rom. Id. at 5. Based
on the undersigned’s experience with evidentiary matters, it is not uncommon to
require experts to in federal court to review thousands—if not tens or hundreds of
thousands—of pages of evidence from the record in shaping their opinions. It is
unreasonable, however, to provide an expert with an outdated complaint instead of
the evidence and data compiled through years of discovery. Although Ms. Chen
included copies of official documents—e.g., the EEOC decision, her Treasury
complaint, and her IRS Departure Rating—those documents are presented in the
context of a narrative explaining Ms. Chen’s interpretation of the facts and thereby
form an unreliable basis for an expert opinion. Had Professor Brink cited to or
explained that he was relying upon documentation from official investigations or
deposition testimony, this analysis would be different. That didn’t happen here.
To be sure, this Court’s decision does not address the latter, as it does not appear that
Professor Brink was provided or relied upon any type of unbiased, joint summary of the
evidence in the record. He stated that he relied on Ms. Chen’s complaint, which is, by
definition, one-sided in our adversarial system.

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Even though Ms. Chen states that Professor Brink interviewed her, received
some depositions, and reviewed the Secretary’s answer to the Third Amended
Complaint, Professor Brink does not identify any of these evidentiary sources in his
report, as he is required to do under Federal Rule of Civil Procedure 25(a)(2)(B)(ii) if
he considered or relied upon them. Dkt. 171, at 5, 8; see also Members, 140 F.3d at
702. And it is not enough that she claims she will later testify to these allegations at
trial. Expert opinion based on unsupported assumptions or speculation is
excludable. Buscaglia, 25 F.3d at 533; cf. Farmer v. DirectSat USA, LLC, No.
08cv03962, 2013 U.S. Dist. LEXIS 39912, *26 (N.D. Ill. Mar. 22, 2013) (“Although
shaky expert testimony may be admissible, . . . unreliable expert testimony is the
very testimony that a district court, acting in its gatekeeping role, is charged with
excluding.”) (cleaned up).
Even if the Court were to assume the 2014 complaint constituted “sufficient
facts and data” on which an expert could rely, Professor Brink’s near-universal
reliance on one filing without reference to many other filings on record would “cast[]
significant doubt on the soundness” of his opinions. Smith, 936 F.3d at 558-59; see
also Sommerfield, 254 F.R.D. at 326 (allowing expert testimony based solely on a
plaintiff’s summary of deposition testimony “would be an abdication of the screening
function” under Daubert). Further, reliance on a one-sided set of facts without
considering potentially competing evidence is unreliable as a methodology; failure
to address the other facts in evidence “amounts to cherry-picking the facts . . . and
such selective use of facts fails to satisfy the scientific method and Daubert.”

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LeClerq v. The Lockformer Co., No. 00cv07164, 2005 U.S. Dist. LEXIS 7602, *15
(N.D. Ill. Apr. 28, 2005) (excluding expert testimony because the expert’s “disregard
of relevant data undermine[d] the reliability of [the] entire opinion”) (internal
citations omitted). The outdated, previously-dismissed complaint cannot provide a
sufficient factual basis for Professor Brink’s expert opinion, and his admitted
reliance predominantly on that single document cannot provide a reliable
methodology. Professor Brink needed to review the evidence itself to obtain an
accurate picture of the evidence in this case, and he did not do that. Ms. Chen has
simply failed to demonstrate that Professor Brink’s testimony comports with the
reliability standard required by Federal Rule of Evidence 702 and the United States
Supreme Court’s decision in Daubert.

C. Relevance
The Secretary also argues that Professor Brink’s opinion does not meet the
standard in Rule 702(d) because it is comprised of “solely legal conclusions” that he
reached based on Ms. Chen’s “allegations.” Dkt. 162, at 2. An expert’s opinion is
relevant if it “assists the jury in determining any fact at issue in the case.”
Stuhlmacher, 774 F.3d at 409 (emphasis added). Experts are not called upon to
provide opinions or conclusions as to questions of law; the rules of evidence limit
their expertise to questions of fact. The legal opinions or conclusions of an expert
are “unhelpful to a trier of fact.” Van v. Ford Motor Co., 332 F.R.D. 249, 270-71
(N.D. Ill. 2019) (emphasis added); cf. 4 Weinstein’s Federal Evidence (ed. 2020) §

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704.04(2)(a) (“The most common reason for excluding opinion testimony that gives a
legal conclusion is lack of helpfulness.”). A thorough review of the report yields
numerous impermissible conclusions of law. See e.g., Dkt. 162-1, ¶¶ 10, 13, 14, 15,
39, 40, 46, 55, 56, 68, 69, and 77.
And, in the alternative, the Secretary argues that even if this Court were to
find Professor Brink’s proposed testimony relevant, it should be excluded under
Rule 403. “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The Secretary
argues that if Professor Brink’s testimony were to be presented to a jury, his
opinions and conclusions of law “will conflate what does or does not constitute a
hostile work environment or retaliation,” and will confuse and mislead the jury,
specifically regarding the inevitable jury instructions. Dkt. 162, at 10. The Court
agrees. An expert’s testimony is not intended to instruct the jury as to legal issues
or draw legal conclusions about the facts in evidence; it is limited to assisting the
jury in determining facts at issue, and Ms. Chen has not demonstrated that
Professor Brink’s testimony is either reliable or relevant to make the opinions
admissible.

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III.

Conclusion

For the above reasons, the Secretary’s motion to bar the expert testimony of
Professor Kyle Brink [161] is granted.

Date: September 15, 2021
___________________________
Honorable Iain D. Johnston
United States District Judge

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