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Brand v. Comcast Corporation, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 5, 2014

JAMES BRAND, on behalf of himself and all others similarly situated, Plaintiffs,
v.
COMCAST CORPORATION, INC., Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

James Brand and eleven others, on behalf of a putative class of African-American employees employed at the South Side Chicago facility of defendant Comcast Corporation, Inc., filed suit against Comcast, alleging discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Plaintiffs have also moved to certify their putative class. Plaintiffs and Comcast have each filed motions to strike or bar the declarations, reports, and testimony of witnesses for the opposing party. For the reasons stated below, the Court grants plaintiffs' motion for class certification in part. The Court also denies each side's motions to strike the reports, declarations, and testimony of the other side's witnesses.

Background

The Court takes the following facts from plaintiffs' amended complaint. Comcast is a cable television and home Internet provider that operates several facilities in the Chicago area. The twelve named plaintiffs are Comcast employees who work or worked out of the company's facility on South 112th Street in Chicago. Four of the plaintiffs are or were line technicians for Comcast, and eight are or were service technicians. Plaintiffs allege that the workforce at 112th Street is ninety percent African-American and that Comcast discriminated against the employees at the facility because of the race of the employees and their customers.

Among the named plaintiffs, the average length of employment at Comcast (including its predecessor company, AT&T) is fifteen years. Plaintiffs assert that they have made complaints about their treatment at the 112th Street facility since 2005. Among the topics of their complaints, they contend, were that the facility was infested with cockroaches and other vermin; the facility itself was dilapidated and dangerous; the equipment they received to install for customers was defective, used, or infested with vermin; their requests for equipment were ignored or not timely responded to; and they did not receive adequate training. See 2d Am. Compl. ¶ 28. Plaintiffs also contend that they heard or were called various racial epithets, including "nigger, " "boy, " "you people, " "thugs, " "ghetto, " and "lazy." Id. ¶ 28(n)-(q). They contend that they made various complaints to Comcast management about these concerns, which were ignored.

Furthermore, as a result of the poor equipment and lack of training, plaintiffs say they "were issued unfair discipline which led to reduced promotional and/or training opportunities, negative evaluations, less pay, and, in some cases termination." Id. ¶ 28(w). They expand upon these allegations in their memorandum supporting their class certification motion. There, in addition to the allegations listed above, plaintiffs contend that statistical evidence shows they were promoted less frequently than white Comcast workers, using evidence of examination passage rates for African-Americans at 112th street as compared with white employees at Comcast's suburban Chicago locations. Plaintiffs also make pay comparisons between the two groups, arguing that they were on average paid less than white suburban Comcast employees. Plaintiffs further allege they were more likely to be placed on disciplinary performance improvement plans and that they were disproportionately terminated.

In their amended complaint, plaintiffs acknowledge that the 112th Street facility was renovated in 2009 but argue this did not occur until after they filed charges against Comcast with the Equal Employment Opportunity Commission. Even after the renovation, plaintiffs contend, the facility remains "substandard when compared to the North Chicago or many of the Suburban facilities." Id. ¶ 41. In general, plaintiffs say, Comcast's facilities in Chicago suburbs such as Mount Prospect and Kankakee were better maintained than the 112th Street facility.

Plaintiffs propose a hostile work environment class consisting of all African-American employees who work or worked at Comcast's 112th Street facility between January 2005 and the present. They also propose a terms and conditions class, consisting of African-American employees who worked at the 112th Street facility between November 2007 and the present. Plaintiffs also propose three other classes, which they refer to as subclasses, consisting of African-American employees at the 112th Street facility who they claim experienced discriminatory promotions, pay, or discipline. In support of and in opposition to plaintiffs' motion, each side has submitted reports from certain expert or summary witnesses.

Discussion

A. Motions to strike reports and testimony of experts and declarants

Comcast has moved to strike the report and preclude the testimony of plaintiffs' witnesses Michael Campion and Eric Blank. Plaintiffs have moved to bar the reports and testimony of Comcast's witness Bernard Siskin and to strike the declaration of Comcast's witness Patricia Kelly.

A district court performs "a gatekeeping role" in evaluating the admissibility of expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). Federal Rule of Evidence 702 permits testimony by "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education" so long as

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

If an "expert's report or testimony is critical to class certification, " the court "must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on [the] class certification motion." Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010). The Seventh Circuit has stated that the word "critical" in that statement is intended "to describe expert testimony important to an issue decisive for the motion for class certification." Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 812 (7th Cir. 2012).

In making this determination, "the district court must ascertain whether the expert is qualified, whether his or her methodology is scientifically reliable, and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011) (quoting Fed.R.Evid. 702). The Rule 702 inquiry "is, we emphasize, a flexible one, " Daubert, 509 U.S. at 594-95, and a district court has "broad latitude" in making its determination. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999). Nonetheless, a court must focus "solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 594-95.

1. Campion (witness for plaintiffs)

Plaintiffs have submitted the report of Michael Campion, a professor of management at Purdue University. Campion's report criticizes the conclusions of Comcast's expert Siskin along with the data Comcast made available on pay and promotions. Campion also concludes that Comcast's black employees are paid less than white employees in the greater Chicago region, as are black workers at the 112th Street facility when compared to white Comcast workers in the Chicago suburbs and as are all black workers at Comcast facilities within Chicago compared to all white suburban Comcast workers. Comcast contends that Campion is not qualified as an expert in statistics; he bases his analysis on mistaken assumptions; he incorrectly focused on disparities across Comcast facilities; and he made errors such as use of a disparate impact test even though plaintiffs are using a disparate treatment theory.

a. Qualifications

In ascertaining whether an expert is qualified, "[t]he question we must ask is not whether an expert witness is qualified in general, but whether his qualifications provide a foundation for him to answer a specific question." Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (internal alterations and quotation marks omitted). A court is to "consider a proposed expert's full range of practical experience as well as academic or technical training." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). However, "[t]he district court usurps the role of the jury, and therefore abuses its discretion, if it unduly scrutinizes the quality of the expert's data and conclusions rather than the reliability of the methodology the expert employed." Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013). In that vein, "shaky' expert testimony may be admissible, assailable by its opponents through cross-examination." Gayton, 593 F.3d at 616 (citing Daubert, 509 U.S. at 596).

Campion concedes he is not a professional statistician, and it is fairly clear that the nature of his report is statistical. For example, Campion makes judgments about the statistics value of defendant's expert's study. See Def.'s Ex. D (Expert Report of Michael A. Campion, Ph.D.) at 7 ("There are less than a handful of White employees in the Communications Technician jobs in any given year at 112th Street. This means there is inadequate statistical power to detect a race difference."); id. at 12 ("Breaking down the promotion analyses into each unique type of promotion reduces the sample sizes to the point where they have limited ability to detect race differences (i.e., they have low statistical power)."). The report also contains regression analyses and various other statistical computations. The Court must determine if Campion is qualified to answer the specific questions he poses, Gayton, 593 F.3d at 616, which include assessments of the correctness of Comcast's expert's statistical report, as well as Campion's own statistical analyses.

Comcast's attack on Campion's qualifications largely concerns his educational background, teaching history, and prior experience testifying on statistics. However, these are not the only factors to be considered in evaluating an expert's qualifications. As noted above, the Court must consider Campion's "full range of practical experience." Smith, 215 F.3d at 718. In fact, "Rule 702 of the Federal Rules of Evidence specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Summers v. State St. Bank & Trust Co., 453 F.3d 404, 412 (7th Cir. 2006) (internal alterations and quotation marks omitted).

Although Campion is not a statistician-he is a professor of management-he has a sufficient background in statistics to testify on the subjects covered in his report. As Campion's report notes, he has written or co-authored many articles in scientific and professional journals, and "[t]he majority of the articles and presentations include statistical analyses." Def.'s Ex. D at 3. A perusal of these articles, which are listed on Campion's academic resume (an exhibit Comcast itself provided, see Def.'s Ex. C at 8-33), reveals ample evidence of Campion's experience in the field of statistics, including regression analyses. See, e.g., Julia Levashina et al., The Structures Employment Interview: Narrative and Quantitative Review of the Research Literature, 67 Personnel Psych. 241 (2014); Julia Levashina & Michael A. Campion, Measuring Faking in the Employment Interview: Development and Validation of an Interview Faking Behavior Scale, 92 J. Applied Psych. 1638 (2007); Frederick P. Moregeson et al., Self-Presentation Processes in Job Analysis: A Field Experiment Investigating Inflation in Abilities, Tasks, and Competencies, 89 J. Applied Psych. 674 (2004). Although Campion was not the lead author on some of these articles, he was nonetheless an author, demonstrating his frequent participation in academic work incorporating statistical analysis.

Comcast says Campion has "never published on statistics, " Def.'s Mot. at 10, but as the above-cited articles and others on his resume show, Campion has certainly employed statistics in academic work concerning employment. Given his background and experience, Campion need not have written articles opining on the subject of statistics to qualify as an expert qualified to perform statistical analysis. Comcast also selectively quotes from Campion's deposition; although Campion did answer "it depends" when asked whether he is a statistician, he also noted correctly that statistics is "one of the core competencies of people in my field, " a statement borne out by his published academic work. Def.'s Ex. F at 23-24. The Court concludes that Campion is qualified to perform statistical analysis and draw conclusions from it about plaintiffs' allegations in this case.

b. Methodology

Rule 702 requires an expert's report to be based upon "reliable principles and methods." Fed.R.Evid. 702(c); Lees v. Carthage Coll., 714 F.3d 516, 521 (7th Cir. 2013). Although district courts are limited to scrutinizing "the reliability of the methodology the expert employed" rather than "the quality of the expert's data and conclusions...[, ] this is not always an easy line to draw." Manpower, Inc., 732 F.3d at 806. In all cases, "[t]he critical inquiry is whether there is a connection between the data employed and the opinion offered." Id.

Comcast argues that Campion did not evaluate plaintiffs' inferior equipment theory, nor did he perform a detailed investigation into the facts of this case or read corporate deposition testimony about promotions and compensations. But neither of these contentions goes to Campion's methodology in executing the analysis in his report, which is what the Court appropriately considers. Nor do Comcast's contentions show there is no "connection between the data [Campion] employed" and the opinion he offered. Id. Comcast's arguments do not, for example, question Campion's computational methods or the theory behind them. Rather, these arguments go to the weight of Campion's report, which is properly a matter for the jury's consideration. It is reserved to the trier of fact "to evaluate the soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis." Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1068 (7th Cir. 2013) (internal quotation marks omitted). If a jury in this case ultimately concludes that Campion's report is not entitled to weight because, as Comcast argues, he "skimmed" plaintiffs' complaint, or because his report does not touch on plaintiffs' inferior equipment theory-which, it must be said, is not plaintiffs' only discrimination-related argument-then it is entitled to do so. But weighing the persuasiveness of an expert's report is not an appropriate undertaking for a court considering whether to allow the expert to testify.

Another of Comcast's arguments against Campion's report does, however, touch on his methodology. Comcast points out that one of Campion's analyses employs a "four-fifths" or "80%" test to evaluate intentional discrimination in promotions. See Def.'s Ex. D at 21 (discussing use of "Adverse Impact Ratio, " which views "[v]alues below.80" in measuring differences in passing rates between groups as "preliminary evidence of meaningful differences"). Comcast argues that this test "is not the methodology for evaluating intentional discrimination allegations." Def.'s Mem. at 14. (The four-fifths standard was established by the Equal Employment Opportunity Commission and "has not provided more than a rule of thumb for the courts." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988) (plurality opinion).)

Plaintiffs consistently present their claims as disparate treatment claims, not disparate impact claims. See, e.g., Pls.' Mem. at 7 ("Comcast's disparate treatment of African Americans at 112th Street Contributed to the hostile work environment."); id. at 40 (putative class members "have suffered disparate treatment" due to a number of conditions); id. at 43 (it is a common question among terms and conditions class members "whether the working conditions at the 112th facility amount to disparate treatment of African Americans"). The two types of claims present different concerns. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Plaintiffs appear to concede that Campion used the 80% test. They argue, however, that it "is a useful benchmark' from which to conduct further analyses, which is exactly what Dr. Campion did." Pls.' Resp. at 9.

As with Comcast's other arguments about Campion's methods, its contention about his use of the 80% test does not touch upon whether that test is "scientifically reliable." See Bielskis, 663 F.3d at 893. Rather, Comcast is arguing that the test is not pertinent to a disparate-impact claim; it does not contend that the test itself is flawed or that the data Campion used in employing it were questionable. Plaintiffs are entitled to argue, as they do here, that despite the test's more typical use in a disparate-impact case, it may be used as a "benchmark" assisting in analysis of their disparate treatment claims. Whether that benchmark is of any assistance to the trier of fact is for the trier of fact to decide. The Court notes, however, that its decision not to exclude Campion's testimony because of his use of this test does not alter the outcome of its decision on the motion for class certification. As discussed below, the Court declines to certify plaintiffs' proposed promotions subclass for failure to meet the requirements of Federal Rule of Civil Procedure 23(a)(2), in part because such statistical analyses do not aid plaintiffs in establishing a common question of the reasons for the various promotion decisions that affected them.

c. Assistance to trier of fact

Rule 702 also requires that "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." This requires in part "that expert testimony be relevant, reliable, and have a factual basis." Lapsley v. Xtek, Inc., 689 F.3d 802, 809 (7th Cir. 2012).

Comcast contends that Campion " does not offer any opinion on " the issue of whether "Comcast has subjected African-American employees at 112th Street to unequal working conditions and employment opportunities because of their race and the race of the customers they service." Def.'s Mem. at 12. Rather, Comcast argues, Campion "addresses how African-American employees fare against white employees throughout the GCR [Greater Chicago Region], " which "is of no moment" because plaintiffs do not make allegations about facilities other than 112th Street. Id. In other words, Comcast contends Campion's report is not relevant. Comcast essentially overlooks, however, that Campion has indeed made an analysis specific to African-American 112th Street employees. He writes in his report that "[s]everal comparisons were conducted" for the report, "including... Blacks at 112th Street compared to Whites in the Suburbs. This analysis focuses only on the Blacks at the location where the lawsuit was filed and compares them to Whites who are at locations outside of the City." Def.'s Ex. D at 18. Tables 1, 2, 3, and 4 of the report contain the data on this comparison. See id. at 26-30. Comcast is therefore incorrect that Campion has offered no opinion on the disparities between African-American Comcast employees at the 112th Street facility and employees at other locations.

Comcast is correct, however, that part of Campion's analysis focuses on comparisons between all white and all African-American employees of Comcast in the Chicago area as a whole and is not limited to African-American employees at the 112th Street facility. See id. at 18 (listing "[a]ll Blacks versus all Whites in all locations" and "[a]ll City Blacks compared to Whites in the Suburbs" among Campion's points of analysis); id. at 26-30 (tables containing data on these comparisons). Comcast accurately points out that plaintiffs are asserting claims only for Comcast's 112th Street African-American employees, not for any other employee of Comcast. Although Campion's calculations in these other categories may be relevant at a later stage of the case, they are not relevant to the question of whether a class of 112th Street Comcast employees should be certified. Therefore, the Court declines to consider these larger comparisons for class certification purposes.

Comcast also argues that the Court should strike Campion's report because he did not offer definitive conclusions on causation. Although this fact, if correct, might limit the persuasive value of the report-as Comcast frames it, the lack of causation analysis could be "unhelpful, " Def.'s Mem. at 12-the Court does not agree that a lack of causation analysis renders the report entirely irrelevant and warrants striking the report in full.

2. Blank (witness for plaintiffs)

Plaintiffs have also submitted the report of Eric Blank, an information security attorney. Blank's report states that his work in the case "has included the examination, processing, and extraction of data from a 15 Gigabyte text file, " which was "in database-type format." Pls.' Ex. 9 at 4-5. In the report, Blank describes how he identified errors in the records within the file and ran searches on the data to create a database, excerpts of which are attached to the report. Blank adds that he searched the database for the specific terms "new" and "used, " "by location." Id. at 6. At no point, however, does Blank describe what the data represent, the results of his search, or what his opinion about the results might be. The attachments to the report include a list of locations-presumably Comcast facilities, although, again, the report does not confirm this-with percentages and amounts for each facility listed under columns for "New" and "Used." See, e.g., id. Ex. D, Workbook 1.

Comcast contends that Blank is not qualified as an expert in statistical analysis of data; the report contains faulty data; and Blank does not actually provide any analysis or conclusions, which it contends makes his report irrelevant and inadmissible under Rule 702. "The Blank Report should not be treated as an expert report, " Comcast argues, "because it does not go beyond' the data it purports to summarize." Def.'s Mem. at 6. In response, plaintiffs contend that "Blank did not merely summarize' data, " because he had to create a database containing the evidence and run queries on it, the results of which show 112th Street employees installed more used equipment than other Comcast Chicago employees. Pls.' Resp. at 6.

The Court concludes that Blank need not be qualified as an expert. In his report, Blank does not "testify in the form of an opinion or otherwise" in that he does not "appl[y]" his expert knowledge "to the facts of the case." Fed.R.Evid. 702(d). Instead, Blank's report discusses how he formatted and searched the data, and it attaches small portions of his spreadsheets without any analysis of what lies within.

This does not mean, however, that the Court should strike the report. It is properly admitted as "a summary, chart, or calculation to prove the content of voluminous writings... that cannot be conveniently examined in court" under Federal Rule of Evidence 1006. Blank's report indicates that he formatted voluminous data into charts, excerpts of which are attached as exhibits to the report; the result is clearly a summary, chart, and calculation of evidence that cannot feasibly be examined in court. Under the rule, the proponent of the summary must make the evidence available to other parties. Here, as plaintiffs point out, the data itself came from Comcast, so Comcast presumably has already seen "the originals or duplicates" as required under Rule 1006. In addition, "[b]ecause a Rule 1006 exhibit is supposed to substitute for the voluminous documents themselves..., the exhibit must accurately summarize those documents." United States v. White, 737 F.3d 1121, 1135 (7th Cir. 2013). Comcast does not contend that the summary itself is inaccurate-it does not make any arguments about the state of the underlying data that Comcast provided to plaintiffs, to the extent that Blank neglected to use portions of it. Rather, it argues that there is duplicate, incomplete, and partial data underlying the summary. Again, as plaintiffs observe, Comcast provided the data in question, and plaintiffs say "Blank decided to analyze the data as produced -rather than try to cherry pick data for corrections.'" Pls.' Resp. at 8. There is therefore little reason to think from Comcast's arguments that the summary itself is inaccurate.

The Court concludes that Blank's report is properly admitted as a ...


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