American Bar Association
Media Alerts
Media Alerts - E.E.O.C. v. Freeman, et al. -- Fourth Circuit
Decrease font size
Increase font size
April 4, 2015
  E.E.O.C. v. Freeman, et al. -- Fourth Circuit
Headline: Fourth Circuit Scolds EEOC for Relying on a Not-So-Expert Witness

Areas of Law: Evidence

Issue Presented: Whether an expert report containing numerous errors is admissible under Federal Rule of Evidence 702.

Brief Summary: In 2008, the Equal Employment Opportunity Commission (EEOC) began investigating the Freeman Company's credit check and criminal history employment policies after a rejected applicant filed a charge of discrimination with the EEOC. The EEOC ultimately found that Freeman's background check policies violated Sections 706 and 707 of Title VII and filed suit against Freeman, alleging that the background checks had an unlawful disparate impact on black and male applicants. When the case moved into the discovery phase, the EEOC produced an expert report by industrial/organizational psychologist Kevin Murphy. After the expert disclosure deadline passed, the EEOC attempted to produce amended reports from Murphy on three separate occasions, and moved to file a sur-reply. The district court denied the EEOC's motion, and granted summary judgment to Freeman after excluding Murphy's testimony as unreliable under Federal Rule of Evidence 702 (a rule governing the admissibility of expert evidence).

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision. While not ruling on the merits of the EEOC's claims, the court found that the "alarming number of errors and analytical fallacies" identified in Murphy's report made it impossible to rely on the report's conclusions. While some errors were fixed in the subsequently filed supplemental reports, Murphy still did not make corrections to his database despite claims of doing so, and introduced new errors into the report. Errors in Murphy's report included omitted information, double-counted results, and incorrect data. In addition, Murphy failed to include much of the raw data provided by Freeman in his report, despite the fact that Murphy purported to analyze all background checks with verified outcomes. Accordingly, the court found the district court did not abuse its discretion in excluding Murphy's analysis as unreliable, noting that the number of mistakes and omissions rendered Murphy's analysis "outside the range where experts may reasonable differ."

In a concurring opinion, Judge Agee reiterated the majority's concerns and stressed that the EEOC's work of serving the public interested was jeopardized by Murphy's missteps. Judge Agee was also troubled by the fact that the EEOC used Murphy after his work had been roundly rejected in other circuits for similar deficiencies, including in other EEOC cases. Judge Agee noted that the EEOC owes a duty to the public and a duty to employers, and concluded that the EEOC's behavior in this case failed its duty to employers - its duty to reasonably investigate charges, conciliate in good faith, and cease enforcement attempts after learning an action lacks merit.

To read the full opinion, please click here.

Panel: Judges Gregory, Agee, and Diaz

Argument Date: 10/29/2014

Date of Issued Opinion: 02/20/2015

Docket Number: Case No. 13-2365

Decided: Affirmed by published opinion.

Case Alert Author: Laura Koman, Univ. of Maryland Carey School of Law

Counsel: Anne Noel Occhialino, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Donald R. Livingston, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellee. ON BRIEF: P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Jennifer S. Goldstein, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. W. Randolph Teslik, Hyland Hunt, John T. Koerner, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellee. Meriem L. Hubbard, Joshua P. Thompson, Jonathan W. Williams, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Pacific Legal Foundation. Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington, D.C., for Amicus National Federal of Independent Business Small Business Legal Center. Rae T. Vann, NORRIS, TYSSE, LAMPLEY & LAKIS, LLP, Washington, D.C., for Amicus Equal Employment Advisory Council. Deborah R. White, RETAIL LITIGATION CENTER, INC., Arlington, Virginia, for Amicus Retail Litigation Center. Rachel L. Brand, Steven P. Lehotsky, NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C.; Eric S. Dreiband, Emily J. Kennedy, JONES DAY, Washington, D.C., for Amicus Chamber of Commerce of the United States of America.

Author of Opinion: Judge Gregory

Concurring Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/04/2015 04:26 PM     4th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top