The opinion of the court was delivered by: Blanche M. Manning United States District Judge
After Sears Holding Management Corporation terminated plaintiff Jill Willis' employment as Senior Counsel in its internal law department in connection with a reduction in force, Ms. Willis sued Sears, contending that Sears' proffered reason -- that she was the lowest performing attorney in her group -- was pretextual. According to Ms. Willis, her race, color, and age led to her termination and caused Sears to deny her equal pay and promotions. Sears seeks to exclude the testimony of Ronald E. Hall, Ph.D. pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and its progeny. For the following reasons, Sears' motion is granted.
In 2005, Ms. Willis began her employment as an attorney in Sears' Law Department.
Her time with Sears ended when Sears terminated her employment on January 30, 2009. Sears contends that this decision was part of a reduction in force because Ms. Willis was the lowest performing attorney in her group. At the time of Ms. Willis' termination, the Law Department was headed by William Harker, the then Senior Vice President and General Counsel for Sears and an African American male. The decision to terminate Ms. Willis was made by Charles Hansen, Vice President and Chief Counsel and a Caucasian male, with Mr. Harker's agreement and approval.
Ms. Willis posits that she was the victim of discrimination as she "was not the least senior in the department and her job duties were much in demand." Dkt. 84 (Response to Motion to Bar) at 2. Specifically, in her complaint, Ms. Willis alleges that she was terminated because of her race, color and age, was denied promotions and equal pay for the same reasons, and Sears retaliated against her for complaining about claimed discrimination. According to Ms. Willis, she was the victim of discrimination because she has darker skin than her African American colleagues at Sears, including Mr. Harker, and has a "Black ethnic appearance." Id. at 3
The expert report prepared by Dr. Hall is entitled "Intra-Racial Discrimination: Black on Black," measures a hefty 3/4 of an inch, and is 222 pages long. Dkt. 94. The original expert report did not specify the facts or data considered by Dr. Hall. At Sears' request, he submitted a supplemental disclosure that stated he had relied on "litigation documents reviewed: Complaint; Jill Willis Deposition; Bill Harker Deposition." Dkt. 81, Ex. A. He also referenced his original report, which contained references to professional materials he considered when preparing his report. Discovery in this case closed on March 21, 2012.
Dr. Hall describes himself as a "full professor of human behavior in the School of Social Work at Michigan State University." Dkt. 94 at 2. He has conducted "empirical investigations on the implications of skin color for human behavior and several nations abroad." Id. The seven-page "Purpose" section of the report discusses his view that "those of African descent, identified by their darker skin, were reduced in status from human to chattel. Subsequently, America was and remains today in effect racist in culture, racist in values, racist in norms, racist in traditions, and unfortunately racist in law." Id. It also states that the purpose of the report is to analyze "victimism by means of black on black persons" in "an attempt to inform litigants about intra-racial discrimination and the implications of victim status for the conduct and continuation of discriminatory behaviors . . . . facilitate the judicial process and enable an emerging multiracial, multiethnic society to incorporate a new perspective that will accommodate recent shifts in the United States and other Western populations." Id. at 3-4. The "Purpose" section concludes with Dr. Hall's opinion that "[j]urisprudence for both the plaintiff and the defendant in the current case will necessitate the reference to history, theory, literature, entertainment, and skin-color litigation as a means to a just outcome." Id. at 7.
In Sears' motion to bar, it provided summaries of the opinions it believes that Dr. Hall expressed in his report. See Dkt. 80 at 3-5 (Memorandum in Support of Motion to Bar); Dkt. 90 at 6-7 (Reply in Support of Motion to Bar). Ms. Willis takes issue with Sears' difficulties in parsing out Dr. Hall's opinions and provides her own summary of Dr. Hall's opinions. The court will view the lengthy report, which largely does not directly address Ms. Willis' claims, through the lens provided by Ms. Willis' summary of Dr. Hall's opinions. In her response to the motion to bar, Ms. Willis states:
There is a correlation between race discrimination and the concomitant stress and hypertension, (Defendant's Exhibit B. pp 39, 48-64)
Defendant, specifically William Harker's negative feelings of not being "favorably impressed" by Plaintiff is caused by her non-Eurocentric appearance, including but not limited to her dark skin. (Defendant's Exhibit B. pp 39-40, 48-97)
Workplace discrimination, including intra-racial color discrimination, prevails today (Defendant's Exhibit B. pp 42, 108- 132)
As a dark-skinned African American, Plaintiff was not only subjected to adverse treatment (discrimination) as a member of an assumed inferior race category [inter-racism] but is subjected to discrimination as a member of an assumed to be inferior, intra-racial, skin color category today (Defendant's Exhibit B. pp 42, 132-143)
Plaintiff did not fit the stereotype of dark skinned Blacks, e.g., intellectually inferior and unproductive. Therefore, her superior credentials may have caused resentment by the less educated and experienced non-Blacks who were in higher positions than Plaintiff; her education and experience worked against her and she experienced Black on Black and White on Black discrimination, including lower pay, no promotion and termination. (Defendant's Exhibit B. pp 42-43, 143-151) Sears' failure to promote and pay Plaintiff commensurate with her education and experience was intentional because she disproved the "Mulatto Hypothesis", e.g., that light-skinned Blacks were more intelligent, industrious, etc. (Defendant's Exhibit B. pp 43-44, 151-188) Sears placed Plaintiff in a position far below what her credentials and experience warranted. And, Plaintiff was supervised by White males with considerably less education and experience.
White wom[e]n, also have a distinct history of discriminating against Blacks. And, White and Black males will favor White and fair skinned Black women over dark skinned women in the workplace (Kathy Waity-Fontanetta). (Defendant's Exhibit B. pp 44-45, ...