Shampine v. US Foods, Inc. (PLR2)

Filing 77

MEMORANDUM OPINION AND ORDER granting in part and denying in part 54 Motion in Limine. McRae may testify as to the opinions in her expert report [Doc. 60-2], but she cannot testify that Defendant made findings consistent with the information it gathered nor that Defendant took action consistent with the findings. Signed by Magistrate Judge Jill E McCook on 11/21/22. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
THOMAS J. SHAMPINE,
Plaintiff,
v.
US FOODS, INC.,
Defendant.

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No. 3:20-CV-380-CEA-JEM

MEMORANDUM OPINION AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiff’s Motion in Limine to Preclude the Expert Report and
Opinion Testimony of Ginger McRae, SPHR, SHRM-SCP [Doc. 54]. Defendant responded in
opposition [Doc. 60]. Plaintiff did not file a reply, and the time for doing so has passed. E.D.
Tenn. L.R. 7.1(a). The motion is therefore ripe for adjudication. For the reasons explained below,
the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion [Doc. 54].
I.

BACKGROUND
Plaintiff filed the Complaint in this case on August 25, 2020, and he later amended on

December 6, 2021 [Doc. 25]. The First Amended Complaint (“Amended Complaint”) alleges
violations of the Americans with Disabilities Act of 1990, as amended (“ADAA”) 42 U.S.C.
§ 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103, and the Tennessee Human
Rights Act (“THRA”), Tenn. Code Ann. § 4-20-401 et seq. [Doc. 25 ¶ 1]. 1

1

On June 10, 2022, Plaintiff moved to amend his Amended Complaint “to delete any claims
for discrimination based on sex, race, or sexual orientation” [Doc. 50 p. 2]. Plaintiff states that he
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According to the allegations in the Complaint, Plaintiff began his employment with
Defendant in 2003, and between 2003 through 2018, he successfully performed the duties as the
business development manager, district sales manager, and restaurant operations consultant [Id. ¶¶
9–10]. At some point, Plaintiff was diagnosed with Parkinson’s disease, and while this disease
causes him physical and mental disabilities, he was able to perform all the essential functions of
his job duties as restaurant operations consultant and new business manager [Id. ¶ 13]. He alleges
that his superiors knew that he had been diagnosed with Parkinson’s disease [Id.].
In May 2016, Plaintiff applied for the position of vice president for local sales (“VP Local
Sales”) [Id. ¶ 12; Doc. 25-3]. Plaintiff alleges that he was not afforded the same fair interview
process and opportunities as other candidates for the VP Local Sales position and that Defendant
awarded the position to an individual who was not disabled and much younger than him [Doc. 25
¶ 14]. This employment decision, according to Plaintiff, was part of Defendant’s pattern of
disability and age discrimination [Id.].
On December 3, 2018, Defendant promoted Plaintiff to the position of new business
manager–Knoxville/Chattanooga [Id. ¶ 15]. Later, in mid-July 2019, the Senior Manager of
Corporate Investigations, Janeth Rubi (“Rubi”), and the Director of Corporate Investigations, Scott
Graham (“Graham”), telephoned Plaintiff to request a meeting [Id. ¶ 16]. Although they originally
refused to tell Plaintiff the subject of the meeting, they eventually told him that a customer, Julie
Buhler (“Buhler”), had filed a complaint against him [Id.]. Plaintiff says that they declined,
however, to provide him with any details about the complaint [Id.].

“had to drop his claims for sex and race discrimination because the Court ruled that his deposition
requests came too late in the discovery period (but before it had expired) and would prejudice US
Foods because it was too late” [Doc. 63 p. 5]. The Court has not yet ruled on Plaintiff’s motion to
amend.
2
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Plaintiff met with Rubi and Graham on July 19, 2019 [Id. ¶ 17]. Defendant’s in-house
legal counsel, Stacey Moore (“Moore”), attended the meeting via telephone [Id.]. During the
meeting, Plaintiff says that they interrogated him about Buhler’s complaint and his expense report
and business practices [Id.]. At the time of the meeting, they were aware of his Parkinson’s disease
and that he required medication to control it [Id.]. Despite being aware of his disease, Plaintiff
claims that they required him to respond to specific and detailed questions and without any advance
notice regarding the expense report or business practice issue [Id. ¶ 18]. Plaintiff alleges that the
interrogation put him under intense pressure and anxiety, so much so that he needed a break to
take more medication to control his Parkinson’s symptoms [Id.].

According to Plaintiff,

Defendant’s representatives involved in the investigation, as well as Plaintiff’s superiors, were
aware that the medication adversely affects Plaintiff’s memory and stamina [Id. ¶ 22].
After the July 19, 2019 meeting, Plaintiff claims that he made verbal and written pleas to
Defendant’s investigators and his superiors proclaiming his innocence with respect to Buhler’s
complaint and the allegations relating to his expense report and business practices [Id. ¶ 24]. On
August 26, 2019, Defendant noticed Plaintiff to a meeting at a hotel conference room in
Morristown, Tennessee [Id. ¶ 25]. Defendant’s human resources business partner, Nathan Mize
(“Mize”), and Moore attended the meeting [Id.]. The area president, Bill Ray (“Ray”), attended
via telephone [Id.]. Mize stated that Defendant completed its investigation relating to Buhler’s
compliant, but the investigation “drew no conclusion,” meaning that it found no evidence to
support Buhler’s allegations of sexual assault [Id. ¶¶ 25–26]. Mize reported, however, that the
investigation revealed that Plaintiff violated other rules, such as staying at an unapproved Airbnb,
failing to truthfully and accurately complete his expense reports, and failing to fully cooperate with
the investigation [Id.]. Mize and Moore fired Plaintiff [Id.]. Plaintiff alleges that Moore instructed
Mize not to respond to questions regarding who made the decision to terminate, who conducted
3
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the investigation, the names of individuals who provided input to the decision makers, and the
names of any witnesses [Id.]. According to Plaintiff, Defendant filled his position as the new
business manager with an individual who does not have a disability and who is much younger than
him [Id. ¶ 29].
Plaintiff claims that Defendant terminated his employment because of his disability and
age [Id. ¶ 30]. Plaintiff alleges that Defendant was aware that his disability causes memory issues
and fatigue, and given his disability, Defendant should have furnished him advance notice of the
issues relating to Buhler’s complaint and the expense report and business practices that were in
question [Id. ¶ 31]. Such accommodations, according to Plaintiff, would have provided him with
an opportunity to be fully prepared for the multiple-hour interrogation on July 19, 2019 [Id.].
Plaintiff accuses Defendant of “engag[ing] in deliberate and designed employment practices to
attract, hire, promote, and retain individuals and employees on non-heterosexual sexual preference,
non-Caucasian race, and female gender of which resulted in a pattern and practice of disparate
treatment and impact on heterosexual Caucasian male employees, including [Plaintiff]” [Id. ¶ 32].
Plaintiff avers that he complied with all Defendant’s policies and procedures, and Defendant
engaged in disparate treatment against him “with respect to its investigation, due process and
discipline, and in termination of his employment with respect to said business expenses and ethics
policies” [Id. ¶ 33].
II.

PLAINTIFF’S MOTION TO EXCLUDE DEFENDANT’S EXPERT
Defendant has designated Ginger McRae (“McRae”), Esq., SPHR, SHRM-SCP, as an

expert in this case [Doc. 60-2]. McRae has worked in the labor and employment area for over
thirty-five years and in various roles, including as a judicial law clerk, attorney, in-house counsel,
and as a human resources consultant [Id. at 1]. Since January 2001, she has been a human
resources consultant and has served as an expert witness on employment policies and practices in
4
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other cases [Id.]. Defendant retained McRae “to determine whether [its] policies and practices . .
. with respect to conducting workplace investigations are consistent with generally accepted human
resources practices” [Id. at 2]. In addition, McRae provides “an opinion as to whether the
application of those policies and practices in the circumstances of this case was consistent with
generally accepted human resources practices” [Id.].
McRae opines that Defendant established reasonable policies to guide investigations of
employee conduct, its investigation of the Buhler complaint was consistent with generally accepted
human resources practices, and that Plaintiff’s challenges to the investigation do not show that the
investigation was inconsistent with generally accepted human resources practices [Id. at 5–8]. To
support her conclusions, McRae relies on her experience in the labor and employment area and
various other sources, including the Equal Employment Opportunity Commission Guidance on
Vicarious Employer Liability for Unlawful Harassment by Supervisors (“EEOC Guidance”), the
Association of Workplace Investigations (“AWI”) Journal, and the Association of Corporate
Counsel’s InfoPak on Internal Investigations [Id. at 5–6].
Plaintiff moves to exclude McRae’s testimony, and Defendant responds in opposition
[Docs. 55, 60]. Plaintiff did not reply, and the time to do so has passed. E.D. Tenn. L.R. 7.1(a).
III.

STANDARD OF REVIEW
“Federal Rule of Evidence 702 obligates judges to ensure that any scientific testimony or

evidence admitted is relevant and reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999) (quoting Daubert v. Merrell Dow Pharmas., Inc., 509 U.S. 579, 589 (1993)). Rule 702
provides:
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:

5
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(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.
The Supreme Court of the United States stated in Daubert that a district court, when
evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring “that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. This
standard “attempts to strike a balance between a liberal admissibility standard for relevant evidence
on the one hand and the need to exclude misleading ‘junk science’ on the other.” Best v. Lowe’s
Home Ctrs., Inc., 563 F.3d 171, 176–77 (6th Cir. 2009).
The factors relevant in evaluating the reliability of the testimony include: “whether a
method is testable, whether it has been subjected to peer review, the rate of error associated with
the methodology, and whether the method is generally accepted within the scientific community.”
Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 970–71 (M.D. Tenn. 2002) (citing Daubert,
509 U.S. at 593–94). The inquiry is “a flexible one,” and these factors do not constitute a definitive
checklist or test. Kumho Tire Co., 526 U.S. at 138–39 (citing Daubert, 509 U.S. at 593); see also
Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (explaining that these factors “are
simply useful signposts, not dispositive hurdles that a party must overcome in order to have expert
testimony admitted”).
“Although Daubert centered around the admissibility of scientific expert opinions, the trial
court’s gatekeeping function applies to all expert testimony, including that based upon specialized
6
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or technical, as opposed to scientific, knowledge.” Rose v. Sevier Cnty., No. 3:08-CV-25, 2012
WL 6140991, at *4 (E.D. Tenn. Dec. 11, 2012) (citing Kumho Tire Co., 526 U.S. at 138–39). “[A]
party must show, by a ‘preponderance of proof,’ that the witness will testify in a manner that will
ultimately assist the trier of fact in understanding and resolving the factual issues involved in the
case.” Coffey, 187 F. Supp. 2d at 70–71 (quoting Daubert, 509 U.S. at 593–94). The party offering
the expert has the burden of proving admissibility. Daubert, 509 U.S. at 592 n.10.
The court will not “exclude expert testimony merely because the factual bases for an
expert’s opinion are weak.” Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir.
2012) (quotation marks and citations omitted). Exclusion is the exception, not the rule, and “the
gatekeeping function established by Daubert was never ‘intended to serve as a replacement for the
adversary system.’” Daniels v. Erie Ins. Grp., 291 F. Supp. 3d 835, 840 (M.D. Tenn. Dec. 4, 2017)
(quoting Rose v. Matrixx Initiatives, Inc., No. 07–2404–JPM/tmp, 2009 WL 902311, at *7
(W.D. Tenn. Mar. 31, 2009)) (other quotations omitted). Rather, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
Rule 702 does not “require anything approaching absolute certainty.” Daniels, 291 F. Supp. 3d
at 840 (quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671–72 (6th Cir. 2010)).
District courts generally have “considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is reliable.” Id. at 375 (quoting Kumho
Tire, 526 U.S. at 152). Decisions by the district court are thus reviewed for an abuse of discretion.
See id. (citing Nelson v. Tenn. Gas Pipeline Co., 234 F.3d 244, 248 (6th Cir. 2001). “This
deferential standard makes sense because Daubert establishes a ‘flexible’ test that considers many
indicia of reliability[,]” and relevance will depend “on the particular science and the particular
scientist before the court.” Id. (citing Kumho Tire, 526 U.S. at 150).
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IV.

ANALYSIS
Plaintiff argues that McRae’s opinions are inadmissible pursuant to Rules 402, 403, and

702 of the Federal Rules of Evidence. He asserts McRae’s opinions are unnecessary, irrelevant,
unreliable, and more likely to confuse and mislead the jury for several reasons: (1) the claims in
this case are driven by the facts such that scientific testimony or technique is not necessary; (2)
McRae’s report lacks material facts; (3) McRae opines on legal issues, provides legal citations,
and engages in legal analysis, and her opinions attempt to usurp the role of the jury and resolve
factual disputes; (4) McRae’s expert report contains immaterial and highly prejudicial allegations
that would only confuse the issues and mislead the jury; and (5) Defendant has already
conclusively admitted that its alleged reasons for firing Plaintiff were pretextual [Doc. 54; Doc. 55
pp. 1–2]. 2
The Court has considered the parties’ filings and McRae’s expert report. The Court finds
that the majority of McRae’s opinions are reliable and relevant, and therefore, admissible in this
action. The Court further finds that she provides a reasonable factual basis for her opinions. While
the Court finds McRae’s testimony that Defendant conducted an investigation consistent with
generally accepted human resources standards does not usurp the jury’s role, the Court will exclude
McRae’s opinions that Defendant “made findings consistent with the information gathered[] and
took action consistent with the findings[,]” [Doc. 60-2 p. 9], as these opinions invade the province
of the jury. Finally, at this juncture, the Court declines to determine whether McRae’s expert
report, or any part thereof, should be excluded under Rule 403.

2

In support of its fifth reason, Plaintiff relies on its Requests for Admission (“RFAs”), which
Defendant did not timely answer. On October 25, 2022, the Court granted Defendant’s emergency
motion to withdraw deemed admissions [Doc. 73]. While Plaintiff has filed an objection to that
Memorandum and Order [Doc. 74], the Court finds it is not necessary to address this argument in
light of the decision. To the extent the District Judge sustains Plaintiff’s objection, Plaintiff may
seek to file an appropriate motion addressing this issue.
8
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A.

Whether McRae’s Opinions are Reliable and Relevant

Plaintiff states that this case is about intentional discrimination, meaning the claims are fact
driven and do not require scientific theory or technique to assist the jury. Plaintiff also states that
McRae’s report is not grounded in the facts of the case nor based upon testable scientific theory or
technique and would not be helpful to the trier of fact.
In response, Defendant argues that McRae’s testimony is relevant and reliable and provides
helpful insight with respect to internal investigations and employee discipline.

Defendant

acknowledges that McRae is not a scientific expert “to the extent that she does not use measurable
data or peer reviewed experimentation to arrive at her conclusions,” but it asserts that “Daubert,
Kumho Tire, and their progeny make clear that experts like McRae are just as credible and valuable
to a jury as scientific experts” [Doc. 60 p. 8]. The relevant question, according to Defendant, “is
whether ‘the standard applied by the expert is generally accepted in the relevant community’” [Id.
(quoting Kumho Tire, 526 U.S. at 152)]. Defendant claims “there is no question that McRae’s
standards and methodologies are generally accepted in the field of human resources” given her
background as a certified human resource professional, namely a SPHR and SHRM-SPC [Id. at
8–9, 12–16].
As articulated in Kumho Tire, courts must comply with their gatekeeping requirement in
ensuring expert testimony is relevant and reliable, regardless of whether the expert’s testimony is
scientific, technical, or otherwise specialized. 526 U.S. at 152; see also Tyus v. Urb. Search Mgmt.,
102 F.3d 256, 263 (7th Cir. 1996) (“Social science testimony . . . must be tested to be sure that the
person possesses genuine expertise in a field and that her court testimony ‘adheres to the same
standards of intellectual rigor that are demanded in [her] professional work.’” (quoting Braun v.
Lorillard Inc., 84 F.3d 230, 234 (7th Cir.1996))). Indeed, testimony does not need to be scientific
or technical in the traditional sense to be admitted under Rule 702 or Daubert. See Fed. R. Civ.
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P. 702(a) (explaining that an expert may testify if her “scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”);
Kumho Tire, 526 U.S. at 152 (finding that the gatekeeping obligations of determining reliability
and relevancy established in Daubert apply with equal force to non-scientific experts but noting
that the factors announced in Daubert are not definitive); J.B-K.-1 v. Sec’y of Ky. Cabinet for
Health & Fam. Servs., 462 F. Supp. 3d 724, 732–33 (E.D. Ky. 2020) (admitting non-scientific
expert testimony of a state-court judge as relevant and helpful to the trier of fact), aff’d sub nom.,
J. B-K. by E.B. v. Sec’y of Ky. Cabinet for Health & Fam. Servs., 48 F.4th 721 (6th Cir. 2022).
And “[n]ot all expert opinions are susceptible to scientific and methodological testing that can be
replicated in a lab or confirmed through empirical analysis.” Salter v. Olsen, No. 18-CV-13136,
2020 WL 4331537, at *4 (E.D. Mich. June 8, 2020), report and recommendation adopted sub
nom., Salter v. City of Detroit, No. 18-13136, 2020 WL 4284062 (E.D. Mich. July 27, 2020). The
Sixth Circuit has recognized that “the four specific factors utilized in Daubert may be of limited
utility in the context of non-scientific expert testimony[,]” and if the four factors “‘were to be
extended to outside the scientific realm, many types of relevant and reliable expert testimony—
that derived substantially from practical experience—would be excluded.’” First Tenn. Bank Nat’l
Ass’n v. Barreto, 268 F.3d 319, 334 (6th Cir. 2001) (quoting United States v. Jones, 107 F.3d 1147,
1158 (6th Cir. 1997)).
Here, McRae offers her specialized knowledge and relies on her decades of experience in
human resources—along with other resources, including the EEOC Guidance, the AWI Journal,
and the Association of Corporate Counsel’s InfoPak on Internal Investigations—to render her
opinions. Plaintiff has not sufficiently explained why McRae’s experience and reliance on various
sources, including the EEOC Guidance, is not sufficient under Rule 702, Daubert, and Kumho. In
any event, based on McRae’s extensive professional background and her reliance on these sources,
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the Court finds McRae’s testimony reliable. It also recognizes that courts have admitted similar
expert testimony. See Nelson v. Pace Suburban, No. 17 C 7697, 2022 WL 1401529, at *3–5 (N.D.
Ill. Mar. 21, 2022) (admitting human resources expert’s testimony where expert relied upon EEOC
and SRHM guidance in forming her opinions); Saldana v. Tex. Dep’t of Transp., No. A-14-CV282-LY, 2015 WL 3952328, at *4 (W.D. Tx. June 29, 2015) (“Considering [the expert’s] wellcited expert report, [the plaintiff] has shown [the expert’s] opinion relies on professional sources
and that her testimony will demonstrate the intellectual rigor that characterizes the practice in the
human resource field.”).
As for relevancy, Plaintiff claims that “McRae’s opinion testimony and report regarding
this discrimination case is not properly grounded in the facts of this case” [Doc. 55 p. 9]. 3 But
Plaintiff offers no support for this assertion. 4 Regardless, the Court disagrees because Plaintiff has
put at issue how Defendant conducted its investigation. For example, Plaintiff alleges that Rubi
and Graham refused to tell him the purpose of the July 19, 2019 meeting; that during the meeting,
Defendant’s representatives interrogated him; and that Defendant never provided him with an
“opportunity to gather, review, or reference any reports or records that he was interrogated about—
and subsequently terminated over” [Doc. 25 ¶¶ 16, 17, and 23]. In her report, McRae opines on
the generally-accepted human resources practices and whether Defendant’s investigation complied
with those practices. McRae states that “[i]n her experience the subject of an investigation is not
provided any information about the nature of the matter being investigated prior to the subject and

3

Plaintiff asserts variations of this argument throughout his brief, and related aspects of this
argument are addressed below. See infra Sections IV.B.–C.
4

Plaintiff submits that an “expert’s opinion must relate to an issue that is actually in dispute
and must provide a valid scientific connection to the pertinent injury” [Doc. 55 p. 8 (quoting
Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L. Rev. 1345,
1351 (1994))]. The law review article upon which Plaintiff relies, however, was published prior
to the Supreme Court’s decision in Kumho Tire.
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third-party witness interviews” and she explains why [Doc. 60-2 pp. 7–8]. In light of Plaintiff’s
allegations, the Court finds that McRae’s opinions are relevant to the issues in this case.
B.

Whether McRae Considered Material Facts

Plaintiff asserts that McRae’s testimony should be excluded because her opinions lack
consideration or any mention of the material facts. Specifically, Plaintiff says that McRae does
not mention Scott Tallent’s (“Tallent”) deposition testimony nor references any facts related to
Plaintiff’s comparator, Jason Ledford (“Ledford”). As for Tallent, a management level employee,
he testified that Rubi investigated him at one point, and she tried to get him demoted from his
position by making false or fabricated assumptions against him [Doc. 55 p. 9; Doc. 56 pp. 2–3].
Tallent further testified that if a subordinate stayed at an Airbnb and turned in the receipt,
depending on the amount, he would talk to the subordinate rather than terminate him/her [Doc. 56
p. 4]. Tallent reviewed the employee handbook and did not find anything regarding employees
staying at Airbnbs [Id. at 7]. As for Rubi, she testified that Ledford “engaged in the same or similar
conduct as [Plaintiff]” [Doc. 55 p. 9]. Yet, Plaintiff asserts, Ledford, who has no known disabilities
and is more than fifteen years younger than Plaintiff, sustained no disciplinary action.
Defendant responds that McRae’s report contains a recitation of the facts from July 1, 2019,
through August 26, 2019, including the investigation process, key decisionmakers, and locations,
and references to Plaintiff’s deposition testimony, pleadings in this action, Defendant’s employee
handbook, and other evidence from this case. With respect to Plaintiff’s position that McRae’s
report lacks consideration or mention of material facts, including facts related to Ledford and
Tallent, Defendant argues that Plaintiff offers no case law in support of his position. In addition,
Defendant points out that Plaintiff did not take McRae’s deposition, which Defendant asserts,
would have given him the opportunity to ask about Tallent’s deposition testimony and any alleged
comparator evidence. In any event, Defendant states that Plaintiff’s “references to Tallent and
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Ledford are wholly irrelevant in this context” because McRae was not retained to analyze Rubi’s
conduct in unrelated investigations [Doc. 60 p. 10]. Defendant further states that McRae did
consider statements from Tallent and Ledford because “McRae reviewed the investigative file for
Defendant’s Ethics and Compliance Case 2019-1726, the Shampine investigation, which included
interviews with Tallent and Ledford” [Id.]. According to Defendant, Plaintiff may cross examine
McRae on these facts.
“Where an expert’s testimony amounts to ‘mere guess or speculation,’ the court should
exclude his testimony, but where the opinion has a reasonable factual basis, it should not be
excluded.” United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993). “Rather, it is up
to opposing counsel to inquire into the expert’s factual basis.” Id. (citation omitted). Plaintiff does
not assert McRae’s opinion is a mere guess or speculation; he challenges the factual basis of
McRae’s opinion. McRae’s opinion, however, has a reasonable factual basis. She discusses that,
consistent with Defendant’s Prohibition Against Discrimination, Harassment, and Retaliation
Policy, it initiated an investigation after a customer complained about Plaintiff [Doc. 60-2 p. 3].
McRae summarizes how Defendant conducted the investigation and why such methods were
appropriate, relying on the EEOC Guidance, the AWI Journal, the InfoPak on Internal
Investigations, and other resources [Id. at 4–8]. She reviewed the Amended Complaint, the
customer complaint, Defendant’s initial production of documents, Defendant’s investigative file,
and Plaintiff’s deposition [Id. at 11]. 5 The Court is satisfied that McRae’s opinions have a
reasonable factual basis.
It is well established that within the Sixth Circuit, “weaknesses in the factual basis of an
expert witness’ opinion . . . bear on the weight of the evidence rather than on its admissibility.”

5

Defendant attached the investigative file as an exhibit to its motion for summary judgment
[Doc 51-1 pp. 78–83].
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L.E. Cooke Co., 991 F.2d at 342 (citations omitted); see also Andler, 670 F.3d at 729 (explaining
that “it is not proper for the Court to exclude expert testimony merely because the factual bases
for an expert’s opinion are weak” (citation omitted)). Hence, the Court finds Plaintiff’s arguments
are more appropriate for cross examination of McRae; any alleged omissions can be adequately
addressed through cross examination. Nelson, 2022 WL 1401529, at *5 (explaining that “it is the
role of the jury, not this Court, to determine whether [the expert] used the right information and
came to credible results” (citation omitted)).
C.

Whether McRae’s Opinions Usurp the Jury’s Role

Plaintiff asserts that McRae’s opinions should be excluded because she opines on legal
issues, provides legal citations, engages in legal analysis, and attempts to usurp the role of the jury
and resolve factual disputes. 6 He advances several reasons for this argument. 7 First, Plaintiff
states that McRae reviewed documentation from Rubi’s investigation and cherry picked facts
while disregarding or omitting other material facts. Second, McRae concludes that Defendant’s
investigation was sound and the termination of Plaintiff’s employment was appropriate, but
whether Defendant’s decision to terminate Plaintiff’s employment was motivated by disability and
age discrimination is a fact-driven inquiry that requires consideration of material facts as well as

6

In this section of his brief, Plaintiff also argues that Defendant has conclusively admitted
that every reason proffered by it for terminating Plaintiff was pretextual, relying on Defendant’s
unanswered RFAs. As explained above, see supra note 2, the Court finds that it is not necessary
to address this argument.
Earlier in his brief, Plaintiff states that McRae “concedes that her opinions and conclusions
rely upon the EEOC guidance materials referenced in her report” and her experience [Doc. 55 p.
4]. Plaintiff adds, “McRae’s report states her opinion is derived from judicial decisions,
regulations, and other guidance issued by government agencies and scholarly research” [Id.]. But
Plaintiff does not explain why these statements support excluding McRae from testifying in this
case. As the Court previously explained, see supra Section IV.A., other courts have admitted
expert testimony that relies on similar sources. Further, other than McRae’s opinions that the
Court will exclude, Plaintiff has not identified additional areas that constitute legal conclusions.
14
7

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disregard of immaterial facts. Plaintiff asserts that McRae did not consider all the material facts,
including whether other non-disabled or younger employees engaged in similar conduct and were
not disciplined or subject to an investigation. Third, Plaintiff claims that McRae interprets
Defendant’s policy and attempts to render factual conclusions on disputed issues of fact. Finally,
Plaintiff states that McRae’s interpretation of Defendant’s investigation of Plaintiff and related
policies are not based on specialized knowledge or statistical analysis.
Defendant denies that McRae renders any conclusions regarding Plaintiff’s claims of
discrimination and asserts that it did not retain McRae to render such opinions. Instead, McRae’s
report and proposed testimony “are limited in scope to reviewing and analyzing [Defendant’s]
internal investigation policies and procedures, determining whether those policies and procedures
are consistent with industry standards, and determining whether those policies and procedures
were followed in this case” [Doc. 60 p. 13]. 8 Defendant therefore asserts that her role is to “assist
the jury in understanding the intricacies of sound human resource, ethics, and compliance policies,
and to opine as to whether [Defendant’s] investigation of the allegation of sexual assault made
against Plaintiff was conducted in an appropriate manner” [Id.]. Defendant does not intend to offer
her testimony to reach any legal conclusions, and it asserts that her report does not do so.
Although Plaintiff claims that McRae cherry picked the facts, he does not explain the facts
that McRae cherry picked nor how her doing so affects the reliability of her opinions. Indeed,
Plaintiff’s arguments are largely repetitive of the argument that McRae failed to consider all the
material facts, but as explained above, see supra Section IV.B., Plaintiff may cross examine

8

More specifically, her report reflects that she was “retained . . . to review relevant
information and provide an opinion as to whether the policies and practices of [Defendant] with
respect to conducting workplace investigations are consistent with generally accepted human
resources practices. [She] was also retained to provide an opinion as to whether the application of
those policies and practices in the circumstances of this case was consistent with generally
accepted human resources practices.” [Doc. 60 p. 13].
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McRae to the extent he believes McRae did not consider certain evidence (i.e., Tallent’s deposition
testimony or comparator evidence or that Defendant did not have a policy about overnight stays at
an Airbnb). In other words, this assertion, even if true, is not a basis to exclude McRae. L.E.
Cooke Co., 991 F.2d at 342.
Plaintiff states that McRae’s interpretation of Defendant’s investigation and related
policies is not based on any specialized knowledge or statistical analysis and that the jury is fully
capable of resolving the factual issues without McRae’s assistance. As an initial matter, there is
no requirement that an expert opinion must be based on a statistical analysis. Further, the Court
finds that McRae has specialized knowledge in light of her decades of experience in human
resources in various roles [See Doc. 60-2 p. 2]. EEOC v. Autozone, Inc., No. CV-06-1767-PCTPRG, 2008 WL 5245579, at *3 (D. Ariz. Dec. 17, 2008) (“McRae’s 24-year career in labor and
employment law renders her qualified for purposes of Fed. R. Civ. Evid. 702.”). Moreover,
“numerous courts have permitted extensive testimony by human resources experts.” Sitter v.
Ascent Healthcare Sols., Inc., No. C-09-5682 EMC, 2011 WL 2682976, at *1 (N.D. Cal. July 8,
2011) (citations omitted); see Nelson, 2022 WL 1401529, at *5 (finding that the expert’s “opinions
will help a jury in deciding this case [because] [a] reasonable juror, seeing that a company deviated
substantially from established industry norms which are meant to prevent discrimination, could
infer intent to allow discrimination” (citation omitted)); Mueller v. Daugherty Sys., Inc., No. 1:18CV-3358-MLB, 2021 WL 3754582, at *8 (N.D. Ga. June 14, 2021) (finding that expert testimony
regarding the standards of care applicable to internal workplace investigations and whether the
defendant’s internal investigation fell below uniformly adopted minimum standard practices
would assist the jury in determining whether the defendant’s stated reasons for plaintiff’s
termination were legitimate or pretextual); Saldana, 2015 WL 3952328, at *3 (allowing the expert
to testify that the defendant did not act consistently with generally accepted human resources
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practices); Ferretti v. Pfizer Inc., No. 11-CV-04486, 2013 WL 140088, at *20 (N.D. Cal. Jan. 10,
2013) (concluding that expert testimony regarding the defendant’s compliance with generally
accepted human resources standards was admissible, in part, for purposes of summary judgment);
Pittman v. Gen. Nutrition Corp., No. CIV. A. H-04-3174, 2007 WL 951638, at *5 (S.D. Tex. Mar.
28, 2007) (concluding that the disputed expert may testify that the defendant’s “conduct was
inconsistent with what he deems prevailing human resources standards or [the defendant’s] own
personnel policies, but may not testify that certain facts show an intent to discriminate or retaliate,
show ‘discrimination,’ or show ‘pretext’”); see also Barber v. Louisville & Jefferson Cnty. Metro.
Sewer Dist., No. 3:05-CV-142-R, 2007 WL 121350, at *3 (W.D. Ky. Jan. 12, 2007) (allowing
disputed expert to testify to “how employment-at-will issues are dealt with in human resource
departments”). 9
Finally, Plaintiff contends that McRae’s opinions usurp the role of the jury because she
reaches a conclusion that Defendant conducted a sound investigation and that Defendant’s decision
to terminate was appropriate. Pursuant to Federal Rule of Evidence 704, “An opinion is not
objectionable just because it embraces an ultimate issue.” But an expert may not render legal
conclusions. United States v. Melcher, 672 F. App’x 547, 552 (6th Cir. 2016) (explaining that
“[a]n expert offers a legal conclusion when he defines the governing legal standard or applies the

9

In support of his argument, Plaintiff cites to one case, Moisenko v. Volkswagenwerk
Aktiengesellschaft, 198 F.3d 246, 1999 WL 1045075 (6th Cir. 1999) (table opinion). In Moisenko,
the Court acknowledged that Rule 403 applies to expert testimony and that because expert
testimony “can be both powerful and misleading[,]” courts must “exercise[] more control over
experts than over lay witnesses.” Id. at *4 (quoting Daubert, 509 U.S. at 595) (citation omitted)).
To the extent Plaintiff argues McRae’s opinions usurp the role of the jury because they are
unnecessary, irrelevant, and likely to confuse or mislead the jury under Rule 403, the Court finds
Plaintiff’s argument not well taken. McRae’s opinions are prohibitive of the issues in this case
given that Plaintiff has put at issue how Defendant conducted the investigation, see supra Section
IV.A. Further, Plaintiff can cross examine McRae as to the factual basis of her opinions if Plaintiff
believes that McRae attempts to resolve factual issues, see supra Section IV.B.
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standard to the facts of the case” (citations omitted)). A legal conclusion is not helpful to the jury
because it merely instructs the jury in what verdict to reach. Woods v. Lecureux, 110 F.3d 1215,
1220 (6th Cir. 1997).
Here, McRae concludes, “In summary, in my expert opinion, Defendant conducted an
investigation that met generally accepted human resources practices, made findings consistent with
the information gathered, and took action consistent with the findings” [Doc. 60-2 p. 9]. The Court
finds McRae’s testimony that Defendant conducted an investigation consistent with generally
accepted human resources standards does not usurp the jury’s role. See Saldana, 2015 WL
3952328, at *3 (finding that while the expert’s opinion that the defendant did not follow generally
accepted human resources practices embraced an ultimate issue in accordance with Rule 704, it
was not an impermissible legal conclusion). But her opinions that Defendant made findings
consistent with the information gathered and took action consistent with the findings are a much
closer call. It seems that the jury can determine (1) whether Defendant made findings consistent
with the information it gathered and (2) whether it took action consistent with those findings. The
Court will therefore exclude these two opinions. Brightwell v. Bandera Cnty., No. SA-16-CA1216-XR, 2017 WL 5346393, at *8 (W.D. Tex. Nov. 13, 2017) (explaining that the expert “may
not assess, evaluate, or confirm [the defendant’s] decision to terminate” because “[s]uch opinions
invade the province of the jury”); Barber, 2007 WL 121350, at *3 (excluding expert’s opinion that
defendant “had legitimate business reasons for terminating the [p]laintiffs and that he found no
evidence of retaliation”).
D.

Whether McRae’s Opinions are Excludable Under Rule 403

Plaintiff asserts that McRae purposefully and prejudicially describes Buhler’s complaint,
which includes accusations of criminal sexual behavior, in detail “as if fact” [Doc. 55 p. 12].
Despite McRae acknowledging in her report that the investigation brought into question Plaintiff’s
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compliance with business conduct polices and related expenses, Plaintiff asserts McRae’s report
and testimony “will place the proverbial skunk” of criminal sexual allegations “in the jury box”
[Id.]. Thus, Plaintiff argues, McRae’s opinion and testimony is inadmissible under Rule 403 and
should be precluded.
Defendant denies such references are prejudicial. As an initial matter, it notes that Buhler’s
detailed complaint was the genesis of the investigation and that “Defendant had no option but to
thoroughly investigate the allegation because it was the right thing to do and because it risked
serious legal exposure if it did not” [Doc. 60 p. 15]. Defendant also notes that Plaintiff disclosed
the alleged assault in his Amended Complaint and he discussed the alleged assault during his
deposition. It is Defendant’s position that “McRae’s report references the allegation not to
comment on its veracity, but to highlight the importance of [Defendant’s] immediate
commencement of an investigation to comply with its own policies and procedures” [Id. at 16
(emphasis omitted)]. Defendant further asserts that “if Plaintiff believes that discussion of the
alleged assault (or even the allegation) will be prejudicial to his case, the appropriate remedy is a
motion in limine on that specific issue, rather than an attempt to exclude McRae’s report and
testimony in their entirety” [Id.].
Based upon the information before the Court, it seems that the parties agree that Defendant
received a letter dated July 1, 2019, from an attorney for Buhler alleging that Plaintiff sexually
assaulted her and that this letter triggered Defendant’s investigation. Given that, there is a
reasonable basis for McRae detailing Buhler’s complaint in the factual background section of her
expert report [Doc. 60-2 pp. 3–4]. At the heart of Plaintiff’s argument is whether Buhler’s
complaint is admissible. But the undersigned finds this issue premature at this juncture because
there has not been a ruling on whether Buhler’s complaint, in its entirety, is admissible. Fakhoury
v. O’Reilly, No. 16-13323, 2022 WL 909347, at *1 (E.D. Mich. Mar. 28, 2022) (explaining that a
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court should only exclude evidence “when that evidence is determined to be clearly inadmissible
on all potential grounds” (citation omitted)). Thus, whether the probative value of this information
“is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence,” Fed. R. Evid.
403, is better left for a motion in limine. Trice v. Napoli Shkolnik PLLC, No. CV 18-3367
ADM/KMM, 2020 WL 4816377, at *13 (D. Minn. Aug. 19, 2020) (finding the defendant’s
arguments that the expert’s opinions are inadmissible under Rule 403 were “more properly raised
in a motion in limine”); In re Se. Milk Antitrust Litig., No. 2:07-CV 208, 2011 WL 2749579, at *1
(E.D. Tenn. July 14, 2011) (finding that the defendant’s motion is not an issue that “would ordinary
be raised in a Daubert motion but raises a question of the admissibility of evidence[,]” which was
“more appropriately suited for a motion in limine”).
IV.

CONCLUSION
For the reasons explained above, the Court GRANTS IN PART AND DENIES IN PART

Plaintiff’s Motion in Limine to Preclude the Expert Report and Opinion Testimony of Ginger
McRae, SPHR, SHRM-SCP [Doc. 54]. McRae may testify as to the opinions in her expert report
[Doc. 60-2], but she cannot testify that Defendant made findings consistent with the information
it gathered nor that Defendant took action consistent with the findings.
IT IS SO ORDERED.
ENTER:
_________________________
Jill E. McCook
United States Magistrate Judge

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