BINGHAM v. RAYTHEON TECHNICAL SERVICES CO., LLC

Filing 86

ENTRY on Motion to Exclude the Expert Report and Testimony of Lance Sebergagen, PH.D. - Raytheon's motion to exclude (Filing No. 50 ) is GRANTED. Signed by Judge Tanya Walton Pratt on 11/14/2014. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

CHARLES M. BINGHAM,
Plaintiff,
vs.
RAYTHEON TECHNICAL SERVICES CO.,
LLC,

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Case No. 1:13-cv-00211-TWP-DKL

Defendant.
ENTRY ON MOTION TO EXCLUDE THE EXPERT REPORT
AND TESTIMONY OF LANCE SEBERGAGEN, PH.D.
This matter is before the Court on Defendant Raytheon Technical Services Co., LLC’s
(“Raytheon”) Motion to Exclude the Expert Report and Testimony of Lance Seberhagen, Ph.D.
(“Dr. Seberhagen”) under Federal Rules of Evidence 702 and 403. (Filing No. 50). Plaintiff
Charles Bingham (“Mr. Bingham”) has designated Dr. Seberhagen as a putative statistics expert
to support his claim that Raytheon terminated his employment because of his age. For the reasons
set forth below, Raytheon’s motion is GRANTED.
I.

BACKGROUND

The Court previously denied Raytheon’s motion for summary judgment (Filing No. 63)
and the detailed facts of this case can be found in that Entry. Relevant to the current motion, Dr.
Seberhagen completed a report in which he opines that Mr. Bingham’s layoff was not due to a
Reduction in Force (“RIF”) or lack of work, but rather was due to his age. He bases this conclusion
on a comparison between the number of logistics specialists hired and the number laid off between
January 2011 and January 2013. In addition, he performed a statistical analysis from which he

concludes that Raytheon’s layoffs from February 1, 2012 to January 31, 2013 had an adverse
impact on employees age fifty-five and over.
II.

LEGAL STANDARD

“Under the Daubert gatekeeping requirement, the district court has a duty to ensure that
expert testimony offered under Federal Rule of Evidence 702 is both relevant and reliable.”
Jenkins v. Bartlett, 487 F.3d 482, 488–89 (7th Cir. 2007). “Whether proposed expert testimony is
sufficiently reliable under Rule 702 is dependent upon the facts and circumstances of the particular
case.” Id. The Court is given latitude to determine “not only how to measure the reliability of the
proposed expert testimony but also whether the testimony is, in fact, reliable.” Gayton v. McCoy,
593 F.3d 610, 616 (7th Cir. 2010). “The court should [ ] consider the proposed expert’s full range
of experience and training in the subject area, as well as the methodology used to arrive at a
particular conclusion.” Id.
III.

DISCUSSION

Raytheon argues that Dr. Seberhagen’s expert report and testimony fail to meet the
admissibility standards of Federal Rule of Evidence 702, and the standards set forth in Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, Raytheon argues that Dr.
Seberhagen’s opinions should be excluded because he failed to confirm the underlying facts on
which he relied and/or relied upon false factual assumptions, and the report is not relevant to Mr.
Bingham’s claim.
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,

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and (3) the witness has applied the principles and methods reliably to the facts of
the case.

Fed. R. Evid. 702. Under this framework, the district court performs a “gatekeeping” function to
ensure that scientific evidence is both relevant and reliable. Daubert, 509 U.S. at 589. This is a
three-step analysis: the witness must be qualified as an expert by knowledge, skill, experience,
training, or education, Fed. R. Evid. 702; the expert’s reasoning or methodology underlying the
testimony must be scientifically reliable, Daubert, 509 U.S. at 592–93; and the testimony must
assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702.
Raytheon does not question Dr. Seberhagen’s knowledge, skill, training or education;
rather, their challenge is based upon the sufficiency of the facts and data used by Dr. Seberhagen,
the reliability of his principles and methods used in his analysis, and whether he applied the
principles and methods reliably to the facts of the case.
A. Sufficiency of Facts and Data
Raytheon argues that Dr. Seberhagen failed to confirm the underlying facts upon which he
relied, and failed to take into account important facts that would have impacted the outcome of his
analysis. Dr. Seberhagen based his analysis upon the assumption that all logistics specialists in
pay grades A01 through A04, regardless of geographic location, were similarly situated and could
perform the work of any other logistics specialist, and that Raytheon randomly selected employees
for layoff without considering any employee-specific factors other than age. Dr. Seberhagen was
not provided with Raytheon’s RIF guidelines, documents relating to the layoffs of anyone other
than Mr. Bingham, or the testimony of the eight deponents; he testified that he was provided the
documents that counsel decided were relevant. Seberhagen Dep. 16:3-17:13 (Filing No. 46-19, at

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ECF pp. 13-14). Dr. Seberhagen also did not account for the actual attrition that took place during
the time period he analyzed, only the number of layoffs compared the number of new hires.
Dr. Seberhagen’s failure to consider facts relating to Raytheon’s RIF guidelines and
procedures, the circumstances surrounding the other layoffs, and the differences between the
various logistics specialists positions, and employee attrition for reasons other than layoffs, does
not satisfy the requirement that expert opinions and testimony be based upon sufficient facts and
data. He asserts that, from January 1, 2011 through January 31, 2013, Raytheon hired more new
logistics specialists under age 55 than logistics specialists who were laid off; however, he ignores
the fact that there was an overall reduction of logistics specialists when looking at all attrition. Dr.
Seberhagen did not rely on a complete picture of Raytheon’s layoff practices; instead, he ignored
factors other than age in his analysis, and erroneously assumed the fungiblity of all logistics
specialists, regardless of job duties, experience, pay, or location, and also did not consider other
reasons for employment separation such as retirement, resignation, promotion, or death. This
failure to consider important information is problematic, and calls into question the reliability of
his analysis and conclusions.
B. Reliability of Principles and Methods
As a general matter, Seventh Circuit case law holds that statistical analysis is ill suited for
proving causation in disparate treatment cases. Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,
349 (7th Cir. 1997) (“We have held statistics are improper vehicles to prove discrimination in
disparate treatment (as opposed to disparate impact) cases.”). The case Mr. Bingham relies upon
to support his argument that statistical evidence can be used in disparate treatment cases, Adams
v. Ameritech Svcs., Inc., 231 F.3d 414 (7th Cir. 2000) is distinguishable. Adams involved a pattern
and practice age discrimination case brought by a class of over eighty employees terminated during

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the same RIF, and the plaintiff offered statistical evidence that the RIF factors had a disparate
impact based upon age. The instant case involves a single layoff in which Mr. Bingham alleges
that the RIF did not actually occur and was pretext for discrimination, not that the RIF factors
favored younger employees. Thus, the Court concludes that this is not the type of case in which
statistical analysis is relevant.
In addition, the principles and methods used by Dr. Seberhagen in his statistical analysis
are problematic. He acknowledged in his deposition that the method he used to analyze the data—
adverse impact ratios—is inappropriate for analysis of small sample sizes such as the one analyzed
for his report. Seberhagen Dep. 26:9-28:21 (Filing No. 46-19, at ECF pp. 23-25). He went on to
acknowledge that the Fisher’s Exact Test is recognized as the best test for analyzing small sample
sizes. Seberhagen Dep. 54:24-55:6 (Filing No. 46-19, at ECF pp. 49-50). Dr. Seberhagen admits
himself that he did not use the most reliable methodology, and that the method he did use was
unreliable for the size of the sample he used. Thus, the Court does not need to analyze whether
Dr. Seberhagen used a reliable principle or method; his own testimony indicates that he did not.
Even if a statistical analysis were relevant to showing discrimination in Mr. Bingham’s case, the
analysis methodology itself is unreliable.
C. Application of Principals and Methods to the Facts of the Case
Not only is the methodology used by Dr. Seberhagen unreliable, application of the method
to the facts is unreliable as well. Dr. Seberhagen testified in his deposition that the age groups he
selected for analysis—under fifty-five versus fifty-five and up—were selected by Mr. Bingham’s
counsel, as well as the time periods to be analyzed and which positions constituted “similar jobs.”
Seberhagen Dep. 19:4-20:18 (Filing No. 46-19, at ECF pp. 16-17). While Dr. Seberhagen testified
that he reviewed Raytheon’s documents and agreed with Mr. Bingham’s counsel’s concept, he

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also stated that although he was provided data through 2013, he still limited his analysis to the
time period requested by counsel. Id. He acknowledged that there was no adverse impact for the
layoff of employees age fifty-five and over in calendar years 2011 or 2012, it was only when he
used the time period specified by Mr. Bingham’s counsel—the twelve month period beginning
February 1, 2012 through January 31, 2013—that an adverse impact was found. Dr. Seberhagen
conceded that the one month shift from a starting date of January 1, 2012 to February 1, 2012,
which added one additional laid-off employee, resulted in “a significant statistical difference” in
his assessment versus analyzing 2012 as a calendar year. Seberhagen Dep. 28:22-29:17 (Filing
No. 46-19, at ECF pp. 25-26). This it appears that Dr. Seberhagen, at the instruction of Mr.
Bingham’s counsel, selected a time period that would result in a showing of adverse impact, not
one that was necessarily relevant to Mr. Bingham’s claim. This does not evidence a reliable
application of the facts to the methodology.
Dr. Seberhagen also does not provide any explanation of why he used a sub-group of the
class protected under the ADEA, rather than the statutory cut-off for protection under the statute
of age forty. Dr. Seberhagen testified that he could not recall any other cases in which he was
retained where the age breakdown was limited to fifty-five and over versus under fifty-five, and,
again, that he analyzed these sub-group because counsel requested that he do so. Seberhagen Dep.
20:15-21:13 (Filing No. 46-19, at ECF pp. 17-18). Dr. Seberhagen did not select these age ranges
because they yielded an accurate, relevant result; rather, he used these subgroups it fit Mr.
Bingham’s counsel’s “theory of the case.” Seberhagen Dep. 62:2-9 (Filing No. 46-19, at ECF p.
57).Other courts have rejected the use of subgroups of employees over the age of forty when
assessing whether employment decisions were based upon age. See EEOC v. McDonnell Douglas
Corp., 191 F.3d 948, 950-51 (8th Cir. 1999) (rejecting EEOC’s attempt to offer evidence of

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disparate impact based on age 55 and over versus under age 55); Smith v. Tennessee Valley Auth.,
924 F.2d 1059 (6th Cir. 1991); Lowe v. Commack Union-Free Sch. Dist., 886 F.2d 1364 (2nd Cir.
1989). Likewise, the Court finds that these age groups appear to have been selected because it
yielded the desired result—a showing of adverse impact—not because it was necessarily relevant
to Mr. Bingham’s claim.
Dr. Seberhagen’s analysis did not properly apply his methodology to the relevant facts in
the case. As previously discussed, he ignored important, relevant facts in his analysis. The
Seventh Circuit has stated, “[s]tasticial evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of discrimination,” and that such analysis
must account for an employer’s legitimate, non-discriminatory explanations. Radue v. KimberlyClark Corp., 219 F.3d 612, 616-17 (7th Cir. 2000). Dr. Seberhagen did not include in his analysis
any of the factors actually used by Raytheon in its RIF procedures. He instead assumes that layoff
selections were random, despite the existence of Raytheon’s documented RIF guidelines, and
despite evidence that Mr. Bingham’s supervisors selected a decisional unit and completed a
decisional unit form. “[An] expert’s failure to make any adjustment for variables bearing on the
decision whether to discharge or retain a person . . . other than age—his equating a simple statistical
correlation to a causal relation— . . . indicates a failure to exercise the degree of care that a
statistician would use in his scientific work[.]” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940,
942 (7th Cir. 1997). Because Dr. Seberhagen did not account for any of Raytheon’s legitimate,
nondiscriminatory factors in his analysis, including salary grade, duties, department, geography,

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job knowledge, or length of service, the Court concludes that his report and opinions provide no
probative evidence supporting Mr. Bingham’s age discrimination claim. 1
The Court finds that the report and testimony of Dr. Seberhagen do not satisfy the
requirements of Federal Rule of Evidence 702 and the standards under Daubert, and are thus
inadmissible at trial. Therefore, Raytheon’s motion to exclude (Filing No. 50) is GRANTED.
SO ORDERED.

Date: 11/14/2014

Distribution:
Debra H. Miller
MILLER & FISHER LLC
[e-mail]
James R. Fisher
MILLER & FISHER LLC
[e-mail]
Amanda C. Couture
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
[e-mail]
Kenneth B. Siepman
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
[e-mail]

1

Because the Court finds that Dr. Seberhagen’s report and testimony are unreliable, they are also inadmissible under
Federal Rule of Evidence 403 on the basis that their “probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.” Fed. R. Evid. 403.

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