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GREEN v. KINNEY SHOE CORP.

April 18, 1989

GUY A. GREEN, Plaintiff,
v.
KINNEY SHOE CORPORATION, Defendant


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 Defendant Kinney Shoe Corporation ("Kinney") has moved in limine to exclude certain witnesses proposed by the plaintiff to give expert testimony at trial. Oral argument was heard on February 16, 1989. In this memorandum and order, the Court grants in part Kinney's motion.

 This case is an employment discrimination suit brought under both Title VII of the Civil Rights Act of 1964 and District of Columbia law, the latter of which entitles the plaintiff to a jury. Plaintiff Guy A. Green, who was a Kinney store manager in Texas, contends that he moved to the Washington, D.C., area with an understanding from Kinney that he would be given one of the first manager's positions that became available in the Washington, D.C., area. Kinney did not offer him a manager's spot, however, but employed him as an assistant in a largely black area of suburban Maryland. Mr. Green contends that Kinney's actions toward him were racially motivated.

 Expert testimony is admissible under the Federal Rules of Evidence if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. This standard is "broadly phrased" and is meant to make admissible a wide range of expert opinions on a wide variety of subjects. See id. advisory committee's notes; Ernst v. Ace Motor Sales Inc., 550 F. Supp. 1220, 1223-24 (E.D. Pa. 1982), aff'd, 720 F.2d 661 (3rd Cir. 1983). As broad as the standard is, however, expert testimony should not be admissible when the proposed testimony infringes on one of the decisions that is entrusted solely to the jury -- e.g., an examination of the credibility of witnesses -- or when it runs counter to conclusions of law, many of which are themselves amalgams of expert opinion crafted by courts and legislatures.

 A court should exercise special caution in admitting expert testimony on the issue of evaluating an employer's motivations in discrimination cases. To deal with the always-difficult problem of determining motivations, the courts have developed precise tests and standards for setting out a prima facie case, validating tests with adverse impact, and making other legal conclusions. These standards cannot be contradicted by an expert who would, for example, find a prima facie of discrimination in an employer's hiring statistics when, under the legal standard, no prima facie case exists. Nor should a court accept testimony from an expert who would conclude that a promotion test is not discriminatory when, under the proper legal analysis, the test is shown to have an adverse impact and is not validated as job-related. To admit such evidence would be to allow improperly the finder of fact to consider rejecting the policy decisions and evidence standards that have been imposed on discrimination trials by higher courts.

 II. Analysis and Conclusions

 With these cautionary considerations in mind, the Court considers Kinney's objections to the testimony of three experts that the plaintiff wishes to call at trial.

 A. Paul Katz

 The plaintiff seeks to offer expert testimony from Paul Katz, a "compensation consultant" who helps businesses determine the appropriate level of salaries and wages and helps develop examinations and training programs. Mr. Katz would testify about (1) the significance of Kinney's use of subjective criteria in promoting employees, (2) Mr. Green's qualifications to be a manager as compared with those hired instead of him, and (3) his statistical analysis of the level of minority representation among Kinney's managers.

 The Court refuses to permit Mr. Katz to testify about the significance of Kinney's use of subjective criteria in promoting employees. It should be clear to any reasonable person that a subjective promoting process could enable an employer to hide discriminatory intent. Indeed, this kind of argument may be made, based on the evidence, by lawyers in closing argument. The finders of fact do not need expert testimony on this point. Indeed, such testimony may be harmful, in that the finders of fact may be led to believe that subjective hiring is inherently suspect under discrimination law, whereas in fact it is perfectly lawful for employers to use a subjective promotion process. *fn1" See, e.g., Casillas v. Department of the Navy, 735 F.2d 338, 345 (9th Cir. 1984); Pinckney v. County of Northampton, 512 F. Supp. 989, 1001-02 (E.D. Pa. 1981). Such an opinion regarding the use of subjective criteria would be substantially more prejudicial than probative. Fed. R. Evid. 403.

 In addition, the Court will not permit Mr. Katz to testify in regard to a comparison of employee qualifications. Again, this type of evaluation requires no special expertise and may be argued by lawyers on the evidence. Moreover, the factors that Mr. Katz proposed to use were not those that Kinney was entitled to, and chose to, use. The finders of fact should not be led to believe that Mr. Katz's proposed factors are any more valid than those used by Kinney. Courts have correctly refused expert testimony on this point. See e.g., Patterson v. McLean Credit Union, 805 F.2d 1143, 1147 (4th Cir. 1986).

 Finally, the Court will not permit Mr. Katz, who is not a statistician, to testify about his impressions of statistical evidence. The Court requires that any statistical inferences be made through statistical tests approved for use in discrimination cases. The Court also prefers that a qualified statistician -- such as Dr. Milton Goldsamt, whom the Court has permitted the plaintiff to call at trial -- make such calculations. If this is not possible, however, the Court would permit Mr. Katz to make and explain the appropriate statistical test, as long as the test is done in the proper method, and as long as Mr. Katz is prepared to explain accurately the statistical significance of the results. ...


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