133 F. Supp. 3d 1034
E.D. Tenn.2015Background
- EEOC sued Tepro under the ADEA on behalf of a 25-member class alleging that a 2009 reclassification (Tech II -> Tech III) and subsequent reduction in force (RIF) targeted employees over 40, caused loss of seniority and layoffs; no employees under 40 were reclassified or laid off.
- Both sides proffered statistical experts: Plaintiff’s Dr. Richard Tonowski (showing statistically significant overrepresentation of older workers in reclassification and RIF) and Defendant’s rebuttal Dr. David Griffin (attacking Tonowski’s methods and arguing alternative comparisons).
- Tepro moved to exclude Tonowski and for summary judgment; EEOC moved to exclude Griffin. Court held Daubert hearing and received supplemental briefs.
- Key disputed factual points: whether reclassification was voluntary or coerced; whether Tepro applied seniority by overall company tenure or by classification; who actually made layoff decisions; existence and use of age-based lists in planning.
- Court denied exclusion of Tonowski, granted in part and denied in part exclusion of Griffin (allowing rebuttal but excluding legal conclusions, improper factual assertions, and inflammatory non-expert remarks), denied Tepro’s summary judgment motion, and denied Tepro’s sanctions motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Tonowski’s statistical testimony | Tonowski’s analyses show statistically significant age disparities relevant to disparate treatment prima facie proof | Tonowski used improper populations/dates, ignored voluntary choices and nondiscriminatory explanations; some analyses more appropriate to disparate impact | Denied exclusion: methods reliable and relevant; challenges go to weight not admissibility |
| Admissibility/scope of Griffin’s rebuttal | Griffin may rebut Tonowski, explain methodological flaws | Griffin exceeded rebuttal scope, opined on disparate impact/adverse impact ratios and legal issues, offered factual conclusions without independent analysis | Rebuttal testimony allowed but limited: may rebut statistics and methodology; excluded legal conclusions, factual assertions presented as facts, and inflammatory non-expert commentary |
| Inclusion of Tonowski’s rebuttal report (timeliness/new opinions) | Rebuttal was responsive and timely under Rule 26 | Report contained new analyses/opinions after deadline and deposition | Allowed: rebuttal filed within 30 days of Griffin; additional analyses responsive to Griffin, not wholly new opinions |
| Summary judgment on ADEA disparate-treatment RIF claim | Statistical and circumstantial evidence (Tonowski + reclassification timing, age-focused lists, no under-40 reclassifications) satisfy prima facie and raise fact questions on pretext | RIF was legitimate cost-saving measure; layoffs based on seniority in Tech III and business necessity; plaintiffs’ evidence insufficient to prove "but-for" age motivation; direct evidence is hearsay | Denied summary judgment: genuine disputes of material fact exist; prima facie met by statistics and circumstantial evidence; pretext remains a close question for jury |
| Affirmative defenses: laches and failure to conciliate in good faith | N/A (Defendant invoked both) | EEOC unreasonably delayed suit after conciliation and prejudiced Tepro; conciliation was inadequate | Both defenses rejected: material factual disputes on conciliation end date/length of delay; Sixth Circuit law limits judicial review of conciliation to whether EEOC attempted conciliation |
| Motion for sanctions under Rule 11/28 U.S.C. § 1927 | N/A | Case was frivolous given depositions; sanctions appropriate | Denied: because summary judgment was denied and genuine factual disputes exist, filing was not objectively frivolous |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (district court gatekeeping; expert testimony must be relevant and reliable)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert reliability principles apply to all expert technical testimony)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for disparate-treatment claims)
- Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) (prima facie case plus evidence of falsity of employer’s reason can permit finding of intentional discrimination)
- Barnes v. GenCorp, Inc., 896 F.2d 1457 (6th Cir. 1990) (statistical disparities in RIF cases may support inference of disparate treatment; relevant comparator pool may include all employees considered by decisionmakers)
- Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530 (6th Cir. 2014) (in RIF cases plaintiff must offer direct, circumstantial, or statistical evidence that employer singled out plaintiff)