By Deborah Hammonds, J.D.
In a sexual harassment suit, a federal district court in Washington granted an employee’s motion to exclude testimony by the employer’s HR expert, finding his methodology unreliable in that he failed to identify the source or how he applied “HR best practices” that he opined were followed here. Furthermore, his credibility determinations were not helpful to the jury and his legal conclusions were inadmissible (Easton v. Asplundh Tree Experts, Co., September 12, 2017, Martinez, R.).
The employee, a flagger, claimed she was sexually harassed by her male supervisor and, after reporting the harassment to another foreman and supervisor, was subjected to retaliation. She filed suit under Washington’s Law Against Discrimination alleging sex discrimination, hostile work environment, emotional distress, and negligence claims.
HR expert. The employer produced a report by its proposed HR expert, a self-described “attorney, hearing officer, and workplace investigator,” which summarized the expert’s opinions on the employer’s actions in response to the allegations. Among other things, he opined that the employer implemented and publicized appropriate anti-harassment and anti-discrimination policies, took reasonable steps to prevent harassment, and acted promptly to investigate and remedy the harassment alleged here.
The employee moved to exclude the expert’s testimony, arguing he was not qualified to be an HR expert, his testimony was unreliable and irrelevant, and his proposed testimony invaded the province of the jury. Agreeing, the court found that the expert’s methodology was unreliable and that he sought to testify to matters that were within the understanding of the jury or that were legal conclusions not properly the subject of expert testimony.
Didn’t identify source of “HR best practices.” The expert opined that the employer’s actions were consistent with HR best practices, Washington legal requirements, and common-sense considerations,” but he failed to identify the source of his “HR best practices.” Further, the expert stated that he relied upon an Association of Workplace Investigators pamphlet, EEOC literature, and a book on arbitration, but failed to include any analysis about how he applied the proffered standards of care to this case or how those publications assisted. Instead, noting that he was limited by the fact that no depositions had been taken, he merely concluded that the employer’s policies and actions were reasonable, without explaining or analyzing how those policies and actions were consistent with HR best practices and whether, and to what extent, he considered the employee’s conflicting allegations about the same issues.
There also was no explanation about how the expert’s experience led him to understand and define “HR best practices.” Instead, his report merely asserted that certain actions taken by the employer were “consistent with HR best practices” and were therefore reasonable.
Not helpful to the jury. Further, the expert’s opinion did not appear to offer expertise that would be helpful to a jury, as his review of the records and resulting credibility determinations were within the common understanding of the jury. Expert testimony is not helpful to a jury, and thus not relevant, when it addresses an issue that is within “the common knowledge of the average layman,” wrote the court. To the extent the expert based his testimony about HR practice standards and the employer’s investigation on nothing more than his common sense, a jury could accomplish the same analysis without an expert. Likewise, his opinions on the impartiality of the investigator were unhelpful because “opinions that are nothing more than vouchers for or attacks on credibility do not assist the trier of fact,” since it is the province of the jury to determine credibility.
Legal conclusions inadmissible. Finally, the expert’s opinions were couched with qualifiers before his conclusion that the employer’s policies should be considered adequate and all of the resulting actions taken were “reasonable.” Those opinions were really legal conclusions regarding the ultimate issue on the employee’s respondeat superior claim. Although experts may use legal terms in expressing their opinions, expert testimony that consists of legal conclusions is unhelpful and inadmissible. An expert may offer factual conclusions that embrace an ultimate factual issue to be decided, but may not state ultimate legal conclusions, such as whether retaliation occurred. Accordingly, the employee’s motion to exclude was granted.
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