United States District Court, N.D. Illinois, Eastern Division
JAMES JONES, NICOLE STEELS, KAVON WARD, AND IONA TOLES, on behalf of themselves and others similarly situated, Plaintiffs,
NATIONAL COUNCIL OF YOUNG MEN'S CHRISTIAN ASSOCIATIONS OF THE UNITED STATES OF AMERICA (" YMCA of the USA" ), an Illinois not-for-profit corporation, and ELINOR HITE, former Senior Vice President of YMCA of the USA, Defendants
For James Jones, Nicole Steels, on behalf of themselves and all others similarly situated, Plaintiffs: James Bryan Wood, LEAD ATTORNEY, The Law Office of J. Bryan Wood, Chicago, IL; Jessica Judith Fayerman, The Prinz Law Firm, P.C., Chicago, IL; Johanna J. Raimond, Law Offices of Johanna J. Raimond Ltd., Chicago, IL.
For Kavon Ward, Plaintiff: James Bryan Wood, The Law Office of J. Bryan Wood, Chicago, IL; Johanna J. Raimond, Law Offices of Johanna J. Raimond Ltd., Chicago, IL.
For Iona Toles, Plaintiff: Johanna J. Raimond, Law Offices of Johanna J. Raimond Ltd., Chicago, IL.
For National Council of Young Men's Christian Associations of the United States of America, (" YMCA of the USA" ) an Illinois not-for-profit corporation, Defendant: Richard Patrick McArdle, LEAD ATTORNEY, Aleka Lenette Jones, Brianne M. Gruszka, Gerald L. Pauling, Jay C. Carle, Kyle R. Hartman, Tracy Marie Billows, William Francis Dugan, Seyfarth Shaw LLP, Chicago, IL; David Donald Kadue, PRO HAC VICE, Seyfarth Shaw Llp, Los Angeles, CA; David Bennett Ross, Seyfarth Shaw LLP, New York, NY.
For Elinor Hite, former Senior Vice President of YMCA of the USA, Defendant: Richard Patrick McArdle, LEAD ATTORNEY, Aleka Lenette Jones, Brianne M. Gruszka, Gerald L. Pauling, Jay C. Carle, Tracy Marie Billows, William Francis Dugan, Seyfarth Shaw LLP, Chicago, IL; David Donald Kadue, PRO HAC VICE, Seyfarth Shaw Llp, Los Angeles, CA; David Bennett Ross, Seyfarth Shaw LLP, New York, NY.
MEMORANDUM OPINION AND ORDER
John J. Tharp, Jr., United States District Judge.
Plaintiffs James Jones, Nicole Steels, Kavon Ward, and Iona Toles have filed
this suit on behalf of themselves and other similarly-situated employees of the National Council of Young Men's Christian Associations of the United States of America (the " Y" ), alleging claims of race discrimination and retaliation against the Y and Elinor Hite, the former director of the Y's human resources (" HR" ) department, pursuant to Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , the Illinois Human Rights Act (" IHRA" ), 775 ILCS 5/1-101 et seq. , and the D.C. Human Rights Act (" DCHRA" ), D.C. Code § 2-1401.01 et seq. Now before the Court are the parties' respective objections to the Report and Recommendation of Magistrate Judge Arlander Keys issued on September 5, 2013 (" Report" ). Judge Keys has recommended that the Court: (i) grant the defendants' motion to strike the report and testimony of one of the plaintiffs' proffered experts, Dr. Anthony G. Greenwald; (ii) deny the defendants' motion to strike the report and testimony of another expert proffered by the plaintiffs, Dr. Mark Killingsworth; (iii) deny the plaintiffs' motion for class certification; and (iv) grant the defendants' motion to deny class certification. For the reasons set forth below, the Court overrules the parties' objections to Magistrate Judge Keys' thorough and persuasive Report and adopts the Report's recommendations in full. This opinion assumes familiarity with Judge Keys' Report and will not repeat its descriptions of the relevant facts and legal arguments of the parties except as specifically necessary to address the parties' objections.
1. Defendants' Motion to Strike: Dr. Anthony G. Greenwald
Judge Keys recommended that the Court strike the report and testimony of one of the plaintiffs' retained experts, Dr. Anthony G. Greenwald. The plaintiffs object to that recommendation, asserting that it is unnecessary to address the defendants' motion as to Dr. Greenwald because they do not rely on Dr. Greenwald to support their motion for class certification.
There seems little point to this objection. While the plaintiffs are correct that American Honda Motor Company v. Allen, 600 F.3d 813 (7th Cir. 2010) does not require courts to rule on a Daubert motion before addressing class certification, that is beside the point. Whether or not the plaintiffs rely on Dr. Greenwald's report and testimony in support of their class certification motion, the defendants have raised a Daubert challenge to the use of Dr. Greenwald's report and testimony for any purpose; the defendants' motion is not limited to the context of class certification. The parties have fully briefed the issues raised by that challenge and, accordingly, it would be appropriate for the Court to address it now, even if it were not directly relevant to the class certification motion. And in any event, the plaintiffs cited Dr. Greenwald's report in their class certification brief (Dkt. 359 at 3 n.1), in their
objections to the Report's recommendation to deny their class certification motion (Dkt. 448 at 8 n.7), and they argued in response to the defendants' motion that it was relevant to the question of commonality (Dkt. 423 at 12-13), so the plaintiffs' contention that the Court should defer consideration of the motion is unpersuasive.
In their opposition to the defendants' motion, the plaintiffs maintain that they intend to use Dr. Greenwald's testimony " to educate the factfinder on general principles," quoting the text of the Advisory Committee Notes to Federal Rule of Evidence 702. Dkt. 423 at 5. Dr. Greenwald's opinions are based on his work developing the " Implicit Association Test" (" IAT" ), which he states has been " validated with tens of thousands of participants in laboratory research studies." Greenwald Rpt. at ¶ 8-9. Dr. Greenwald's report does not describe the IAT process, but the plaintiffs do not dispute that it is a computerized exercise based on automatic word associations that test subjects make when shown pictures of individuals of various genders, races, and ethnicities. The photos are displayed for only milliseconds; then the test subjects are asked to make an association. " If a test-taker responds more quickly, say, to the pairing of photographs of African-American faces with negative character trait words than to the pairing of European-American faces with the same negative traits, the test-taker is said to exhibit an implicit negative stereotype toward African-Americans." Dkt. 403, Ex. B at 10-11.
The " general principle" Dr. Greenwald derives from IAT testing and which the plaintiffs wish to educate a jury about is " that bias or stereotypes--and particularly unconscious bias against African Americans, which is widely present in the American population--poses greater risk of manifesting itself in conjunction with subjective criteria." Dkt. 423 at 1. The plaintiffs state that Dr. Greenwald's testimony is offered only for the purpose of educating the jury about the general principle that people in the United States " operate on the basis of implicit biases--stereotypes--that function on an unconscious level even amongst good, well intentioned people and lead us to relatively favor whites and relatively disfavor blacks." Plt's Obj. at 8 n.7.
The plaintiffs attempt to explain the relevance of this general principle by representing that they are offering Dr. Greenwald's opinions only to answer a question that may " nag" the jury, namely " how it is possible that so many different managers, presumably well-meaning (some of whom are blacks themselves) could so systemically disadvantage black workers?" Id. But that is no more than to say that the plaintiffs offer Dr. Greenwald's testimony as evidence of causation, and the plaintiffs concede as much: " Plaintiffs seek to rely on Prof. Greenwald's report and testimony ... as evidence of general causation ...." Dkt. 423 at 1. In this regard, it is significant that Dr. Greenwald does not merely opine that Americans might harbor implicit bias against African Americans that might manifest itself in the absence of objective information and criteria; he opines that " implicit or hidden biases . . . are now established as causes of adverse impact that is likely unintended and of which perpetrators are likely unaware." Greenwald Rpt. at ¶ 15 (emphasis added). Indeed, Dr. Greenwald opines that, in the absence of " clear evidence of either overt discriminatory intent or evidence to support race-neutral alternative explanations," id. at ¶ 14, " it is more likely than not that adverse impact is a consequence of unintended discrimination, which can be brought about by managers
who remain unaware of having acted in ways that produce adverse impact," id. (emphasis added). In other words, unless the evidence to the contrary is " clear," Dr. Greenwald maintains that it is " more likely than not" that implicit discriminatory bias accounts for any disparity between the treatment of African Americans and other racial groups.
Given these opinions, the Court does not credit plaintiffs' contention that Dr. Greenwald's testimony is for the limited purpose of educating the factfinder as to general principles and the plaintiffs do not attempt to defend the admissibility of his opinions on the basis that he has applied the general principles of his implicit bias theory to the facts of this case. As Judge Keys recognized, Report at 21, Dr. Greenwald's six-page report falls far short of providing a reliable basis to support an opinion that implicit bias of the Y's managers caused any disparity in performance evaluations, pay, or promotions at the Y.
Even at the level of general principles, the Court is not persuaded that Dr. Greenwald's testimony and opinions are adequately tied to the facts of this case to be useful to a jury. Even opinions about general principles have to be logically related to the factual context of a case to be admissible--those general principles must still " fit" the case--as the Advisory Committee Note to the 2000 amendments to Rule 702, on which the plaintiffs heavily rely, points out. But Dr. Greenwald's opinions do not fit; they are (so far as his report suggests, anyway) derived solely from laboratory testing that does not remotely approximate the conditions that apply in this case specifically or more generally in the context of an employer's decisions about employee compensation and work assignments. As the defendants point out:
All Dr. Greenwald can tell us is that people who spontaneously react to virtual strangers in laboratory settings whom they will never meet or see again, with nothing at stake, will tend to make unconscious associations that are not favorable to blacks. ... In this lawsuit, by contrast, we are considering deliberate business decisions in the workplace--not split second decisions in a laboratory--by individuals who know the people for whom they are making important decisions concerning their pay, promotions, and performance evaluations, in a setting where the decision-makers operate in a supervised environment and under the constraints of EEO policies and laws, the violation of which has serious consequences, including individual liability.
Dkt. 430 at 5. Neither Dr. Greenwald nor the plaintiffs establish a logical connection between the principle that hidden bias may be manifested in the absence of any other information and the premise that hidden bias says anything about the results of employment decisions made by supervisors and managers who are ...