Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, Office of Open Records
ORDER granting in part and denying in part EEOC's MIL 17 ... (see Paras 1a-b for specifics) & directing parties to be prepared to discuss any addt'l evidentiary disputes remaining, in full, @ pretrial conference set for 7/19/17. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 7/12/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PENNSYLVANIA, OFFICE OF
CIVIL ACTION NO. 1:15-CV-1895
(Chief Judge Conner)
AND NOW, this 12th day of July, 2017, upon consideration of the motion
(Doc. 17) in limine by plaintiff, the Equal Employment Opportunity Commission
(“EEOC”), asking the court to exclude at trial the testimony of Monique Ericson
(“Ericson”), a forensic accountant and expert witness on the subject of backpay
damages offered by the defendant, Commonwealth of Pennsylvania, Office of Open
Records (“the Commonwealth”), based on Ericson’s reliance on the “aggregate
method” of calculating such damages in her report, and wherein the EEOC argues
specifically that mitigation of backpay must be calculated periodically by quarter
rather than in the aggregate, (see Doc. 18 at 3-5), and that Ericson’s report and
testimony based on an aggregate method are thus inadmissible under Federal
Rule of Civil Procedure 702,1 (id. at 5-7), and further upon consideration of the
Commonwealth’s brief (Doc. 20) in opposition to the EEOC’s motion, wherein the
Commonwealth concedes that “it is true that [the] periodic mitigation method of
computation for back pay may be the preferred manner of calculation,” (id. at 3),
but asserts, without citation to authority, that “the aggregate computation method
may also be used,” (id.), and further asserts, assuming arguendo that the periodic
mitigation method applies, that mitigation should be calculated annually rather
than quarterly, (id. at 3-4), and the court observing that limited decisional law exists
on the question of proper calculation of mitigation in cases such as this, brought
pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq., and in which the aggrieved individual—in this action, Joseph Bednarik
(“Bednarik”)—over time earned total mitigation income exceeding his total backpay
damages, and further observing that the Third Circuit Court of Appeals has not
addressed whether the aggregate mitigation method or the periodic mitigation
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
FED. R. EVID. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 58889 (1993); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994). The
Third Circuit describes Rule 702 as embodying a “trilogy of restrictions on expert
testimony,” to wit: qualification, reliability, and fit. Schneider ex rel. Estate of
Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing In re Paoli, 35 F.3d at 74143). The instant dispute concerns the third restriction only: the fitness of Ericson’s
testimony. (Doc. 18 at 5-7). This restriction “goes primarily to relevance,” Daubert,
509 U.S. at 591, and tasks us to determine whether the Ericson’s testimony will
assist the factfinder in resolving matters of consequence.
method applies in such circumstances,2 but that other courts to address the
question routinely adopt the periodic mitigation method,3 and that the practical
implications of the aggregate mitigation method—to wit: incentivizing employers
to delay a remedy as long as possible because “every day the employee put[s] in on
the better paying job reduce[s] back pay liability,” NLRB v. Seven-Up Bottling Co.
of Miami, Inc., 344 U.S. 344, 347 (1953) (exploring issue in context of the National
Labor Relations Act)—run directly counter to the “central statutory purposes of
eradicating discrimination . . . and making persons whole for injuries suffered
through past discrimination,” Rodriguez v. Taylor, 569 F.2d 1231, 1238 (3d Cir. 1977)
(quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)), and the court thus
agreeing with the EEOC to the extent we hold that a periodic mitigation method
The District Court for the District of Columbia explains the distinction
between the two methods well:
Under the periodic mitigation method, if a plaintiff’s
interim earnings in any year exceed the wages she lost
due to the discrimination, that excess must not be
deducted from any back pay for other years to which
plaintiff is entitled to relief. On the other hand, the
aggregate mitigation method compares the wages plaintiff
lost with her interim earnings over the entire recovery
period. If her lost earnings would have been less than her
interim earnings, she does not receive a back pay award.
Barnett v. PA Consulting Group, Inc., 35 F. Supp. 3d 11, 23 (D.D.C. 2014) (citations
See, e.g., Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 693 (8th Cir.
1983), abrogated on other grounds as stated in Hernandez v. Bridgestone Ams. Tire
Operations, LLC, 831 F.3d 940, 949 (8th Cir. 2016); Barnett, 35 F. Supp. 3d at 24; see
also Skalka v. Fernald Envtl. Restoration Mgmt., 178 F.3d 414, 426 (6th Cir. 1999).
rather than an aggregate mitigation method shall apply to any backpay damages
calculation sub judice, but disagreeing with the EEOC to the extent it recommends
quarterly computations, and concluding that the weight of authority in the ADEA
context supports computation on a yearly basis, see supra note 3, it is hereby
The EEOC’s motion (Doc. 17) in limine is GRANTED in part and
DENIED in part to the following extent:
Ericson’s testimony shall be inadmissible at trial to the extent
same concerns and applies the aggregate mitigation method for
calculating backpay damages.
In the event Bednarik is entitled to backpay damages, such
damages shall be calculated pursuant to the periodic mitigation
method on a yearly basis.
To the extent additional evidentiary disputes remain, the parties shall
be prepared to discuss them in full at the pretrial conference currently
scheduled for Wednesday, July 19, 2017.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
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