By Evelyn Norton

Today in a published opinion, EEOC v. Freeman, the Fourth Circuit affirmed the decision of the United States District Court for the District of Maryland to grant summary judgment to the national employer Freeman. 

The District Court Found the EEOC Could Not Establish a Prima Facie Case of Discrimination

In 2001, Freeman began conducting criminal background checks and credit history checks for job applicants.  If these histories revealed certain prohibited criteria, Freeman excluded the applicant. In 2006, Freeman modified its criteria and, later in 2011, stopped conducting credit history checks.

In response to an applicant’s filing of a charge of discrimination against Freeman in 2008, the EEOC began its investigation of Freeman’s background and credit check policy. In 2009, the EEOC issued a letter of determination announcing its finding that Freeman’s background and credit checks violated Title VII. Subsequent to a failed conciliation, the EEOC filed suit against Freeman.  The EEOC alleged that Freeman’s background checks had a disparate impact on black and male job applicants and Freeman’s credit checks had a disparate impact on black job applicants.

Eight days after the discovery disclosure deadline, the EEOC filed an amended report by its expert witness, Kevin Murphy.  The report included slightly altered calculations.  In response, Freeman moved to exclude all of the EEOC’s witness reports and moved for summary judgment.  The district court granted Freeman’s motion to exclude  Kevin Murphy’s testimony, finding the report unreliable under the Federal Rule of Evidence 702. The EEOC was unable to establish a prima facie case of discrimination without the testimony.  As a result, the district court also granted Freeman’s motion for  summary judgment.

The District Court Did Not Abuse Its Discretion in Excluding the Expert Testimony

The Fourth Circuit reviewed the district court’s decision to exclude the expert testimony for an abuse of discretion.  The Court observed that pursuant to Federal Rule of Evidence 702, expert testimony is only admissible if it “rests on a reliable foundation and is relevant.” However, the Court found that the expert testimony’s “mind-boggling” errors supported the district court’s conclusion that the testimony was unreliable.

The Expert Testimony Included Numerous Errors

The Fourth Circuit observed that the district court identified an “alarming” number of errors and analytical fallacies in the expert’s reports.  For example, the reports neglected to include hundreds of applicant background check logs that Freeman had submitted to the EEOC.  The expert also failed to utilize a sample size from the relevant time period and omitted data from half of Freeman’s branch offices.  Thus, the Court found that the “sheer number of mistakes and omissions” in the reports rendered it beyond a range where experts could reasonably differ.  Therefore, the Court concluded that the district court did not abuse its discretion in excluding the expert testimony.

The Court affirmed the grant of Freeman’s motion for summary judgment solely on the basis that the district court did not abuse its discretion  in granting Freeman’s motion to exclude the EEOC’s expert testimony.

 Summary Judgment Affirmed

The Fourth Circuit affirmed the grant of summary judgment in Freeman’s favor.