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Van v. Ford Motor Co.

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

August 22, 2019

CHRISTIE VAN, et al., Plaintiffs,


          Robert M. Dow, Jr. United States District Judge.

         Before the Court are Plaintiffs' motion for class certification [318], Defendant's motion to exclude the testimony, reports, and opinions of Dr. Louise Fitzgerald [352], and Plaintiffs' motion to bar the testimony and expert reports of Dr. Liza Gold, M.D. and Dr. Gregory Mitchell, PhD. [370]. For the reasons set forth below, the Court denies Plaintiffs' motion for class certification [318]. The Court grants in part and denies in part Defendant's motion to exclude the testimony, reports, and opinions of Dr. Louise Fitzgerald [352], and grants in part and denies in part Plaintiffs' motion to bar the testimony and expert report of Dr. Liza Gold and Dr. Gregory Mitchell, PhD. [370]. This case is set for further status hearing on September 12, 2019 at 10:30 a.m.

         I. Background

         Plaintiffs are women who currently are employed or who were employed at one of the two Chicago-area Ford Motor Company facilities (the "Plants")-the Chicago Assembly Plant ("Assembly Plant") and the Chicago Stamping Plant ("Stamping Plant"). Plaintiffs seek to represent a class of all present and former female employees who worked at the Assembly Plant or the Stamping Plant between February 14, 2012 and present. The evidence before the Court-if credited at trial-indicates that named Plaintiffs and other putative class members have been subjected to a pervasively sexual, hostile, intimidating and abusive work environment at Defendant's Plants. Female employees at the Plants have been forced to work in an environment containing sexually explicit graffiti, carvings, and drawings. [323, at 33.] Pornographic images have been displayed in lockers and common areas of the Plants. [Id. at 30-33.] Supervisors and team leaders view pornography at their computers. [Id. at 31.] Pornographic and sexual images and videos are shown to women or are passed among male employees (both hourly and salaried) in the presence of women. [Id.] Male employees have taken pictures of their genitalia on their mobile phones and shown the pictures to female employees. [Id.] Male employees also have texted offensive, graphic and/or sexually explicit requests to female employees. [Id.]

         In addition to these egregious allegations, Plaintiffs have presented evidence that certain Plaintiffs and putative class members have been subjected to unwelcome physical contact, including rape. Named Plaintiff Jeanette Gardener provided the following account of an interaction with superintendent Myron Alexander in an EEOC charge of discrimination:

He physically bent me down with my chest against a desk. He grabbed my neck with his other hand and firmly held me down He pushed himself up against my backside. I felt like I was being sexually assaulted and that I was about to be raped. I cried, but Myron just whispered in my ear "try and say something else." I was scared and felt powerless.

[324-160 (Pls.'s Ex. 160), at 5.] Another named Plaintiff, Latricia Shanklin, testified that she was in the office of that same superintendent when he locked the door and began inappropriately touching her. [325-23 (Shanklin Dep. Tr.), at 32-33.] After Ms. Shanklin rejected Mr. Alexander's attempt to unzip her pants, he then grabbed her hand and forced it on his penis. [Id. at 33.] According to Ms. Shanklin, Mr. Alexander would not let her leave his office until Ms. Shanklin performed a sex act on him. [Id.] Ms. Shanklin also testified that she was raped by Human Resources Manager Terrence McClain who allegedly forced himself on Ms. Shanklin after he got Ms. Shanklin's daughter her job back after she was terminated. [Id. at 41-44.] These are just a few examples of the many instances of misconduct alleged by named Plaintiffs.

         Plaintiffs also have identified numerous examples of putative class members who claim to have been subjected to similar conduct. For example, a putative class member who submitted a claim as part of the EEOC conciliation process (discussed below) indicated on her claim form that she was harassed and assaulted by numerous employees, including a manager. [407-15 (Def.'s Ex. 8).] The putative class member indicates that an area manager threatened her, hit her, choked her, and forced her into a sexual relationship. [Id. at 5.] She also indicates that she was inappropriately touched while on Defendant's premises at least weekly from 2015 to early 2017. [Id. at 6.] The putative class member goes on to allege additional harassment by numerous employees of Defendant.

         As noted by Defendant, the allegations of misconduct are not limited to male employees. Plaintiff Christie Van accuses her then-supervisor and co-Plaintiff Cephani Miller of making inappropriate comments. Specifically, Ms. Van testified that Ms. Miller retaliated against her and asked Ms. Van whether she thought everyone was sexually harassing her because she's so sexy. [358-13 (Def.'s Ex. 54 - Van Dep. Tr.), at 146-47.] Ms. Van, in turn, was accused of engaging in misconduct by putative class member Shanetta Myles. Specifically, Ms. Myles indicated in an interview that Ms. Van commented on Ms. Myles's weight and body parts. [358-16 (Def.'s Ex. 106), at 12.] According to Ms. Myles, Ms. Van also stated "give me some of those [titties]." [Id.] Similarly, a putative class member Rosetta Smith submitted an affidavit indicating that Maria Price openly discussed her sexual preferences in the workplace. [358-11 (Def.'s Ex. 30 -Smith Decl.), at 101, ¶ 21.] Ms. Price also would greet male employees with a hug and often would blow kisses at them. [Id. at 102, ¶ 22.] Ms. Price testified that Carmel Gregory "was interested in a romantic relationship" with Ms. Price and "would constantly call [Ms. Price] to the office upstairs and tell [her] how pretty [she] was and stop giving [Ms. Gregory] the [baby doll] eyes and just to get to know her." [358-13 (Def.'s Ex. 50 - Price Dep. Tr.), at 126.] Indeed, in Ms. Price's EEOC Charge, Ms. Price listed Ms. Gregory as one of her sexual harassers. [29-21, at 2.] Plaintiff Helen Allen-Amos accused Monique Johnson of acting inappropriately by "always grabbing on men, sitting on their laps," and squeezing their butts when she hugged the men. [358-13 (Def.'s Ex. 36), at 8.] Defendant's response brief outlines numerous other examples of allegations of misconduct against women working at the Plants.

         Although the allegations of misconduct against Defendant are abundant, the putative class contains at least a dozen women who swear they "suffered no injury" because they never experienced sexually harassing conduct. [358-11 (Def.'s Exs. 9-20).] Yet another dozen women attest that they may have experienced an isolated instance of inappropriate conduct, but either were not bothered by the conduct; handled it themselves in a satisfactory manner (e.g., by telling the offender to stop); or found Defendant's response to the reported misconduct to be appropriate. [358-11 (Def.'s Exs. 21-32).]

         Plaintiffs contend that Defendant was aware that women at the Plants were being subj ected to pervasive sexual harassment and sex discrimination for at least two years before Plaintiffs filed this lawsuit in 2014 but that Defendant failed sufficiently to remedy the issue. Plaintiffs identify a number of purported deficiencies with Defendant's response to known complaints of sexual harassment. Plaintiffs identify complaints that were made to Defendant but that were never documented in Defendant's records. [323, at 40-42.] Plaintiffs also contend that Defendant failed sufficiently to discipline those who were the subject of complaints. For example, Plaintiffs identify one wrongdoer who twice bit women on the buttocks, but who was not punished for the first instance and was only given "coaching and counseling" for the second instance. [Id. at 35.] To take another example, Plaintiffs note that it took Defendant nearly a year to discipline an employee for making improper comments to numerous women in violation of Defendant's anti-harassment policies. [Id. at 43.] Plaintiffs outline additional examples of known harassers who Plaintiffs contend Defendant failed to discipline in a timely and/or appropriate manner. [Id. at 43-46.]

         Plaintiffs also contend that Defendant's management and human resources departments discouraged complaints, including complaints to Defendant's harassment hotlines. For example, named Plaintiff Ms. Van testified that Human Resources supervisor Mr. McClain threatened Ms. Van for calling the hotline. [325-29 (Van Dep. Tr.), at 39.] By way of another example, union chairman Grant Morton testified that-on multiple occasions in or about 2012 and early 2013-he was told by labor relations representative Natalie Dahringer that women needed to drop complaints before accommodations would be approved to reassign a woman to a different job or department or shift. [325-46 (Morton Dep. Tr.), at 16-17.] Mr. Morton testified that this happened with complaints made by named Plaintiff Ms. Van. [Id.] Although Ms. Dahringer denies this, there is conflicting testimony on the issue.

         Plaintiffs further contend that several women have been retaliated against by co-workers and supervisors for complaining about sexual harassment, as well as rejecting sexual advances of male supervisors. [323, 48-49.] For example, when named Plaintiff Maria Price complained about sexual harassment to Coby Millender, he told her to "bring [her] pretty lips" to his office to discuss her complaint and threatened that he would put her on a worse shift if she did not go. [325-22 (Price Dep. Tr.), at 13.]

         This alleged misconduct occurred at Defendant's Chicago Assembly Plant and Stamping Plant, both of which are massive in size. The Assembly Plant has four standalone buildings totaling more than 2, 813, 260 square feet on 113 acres. [358, at 16-17; see also Ford Motor Co., Plant Detail-Chicago Assembly Plant, available at (last visited August 21, 2019).] A single vehicle travels roughly 6.5 miles from the start of the production cycle to the end. [358-10 (Def.'s Ex. 2), at 18, ¶ 18.] Since 2012, the Assembly Plant has run three production shifts: the A Crew (day), the B Crew (night), and the C Crew (weekend), with more than 1, 000 employees per shift. [358-10 (Def.'s Ex. 4 - Kantautas Decl.), at 43, ¶ 19.] The Assembly Plaint also has five general production areas-body, paint, final, quality, and material planning & logistics (MP&L)-each of which is overseen by its own area manager. [358-10. (Def.'s Ex. 3 - Pipkins Decl.), at 21, ¶ 12.] Several of these "areas" themselves have multiple departments-which, in some cases, are in separate buildings. [Id. at 21, ¶ 14.]

         Fifteen miles away from the Assembly Plant is the Stamping Plant-a 2.5 million square foot building on 139 acres. [358-10 (Def.'s Ex. 5 - Zaborowski Decl.), at 50, ¶ 5; see also Ford Motor Co., Plant Detail-Chicago Stamping Plant, available at (last visited August 21, 2019).] One named Plaintiff described the Stamping Plant as a "mini city." [358-13 (Ex. 42 - Exum Dep. Tr.), at 78-79.] Since May 2012, the Stamping Plant has had three production crews, each with 300-500 hourly employees. [358-10 (Def.'s Ex. 6 - Taylor Decl.), at 56, ¶¶ 16, 19.] The process at the Stamping Plant begins with sheets of blank steel, which are loaded into the Stamping Plant by employees of the MP&L department. From there, the steel enters the stamping or "press" side of the plant and is transported to one of 16 stamping machines spread over 600, 000 square feet, which are separated into six zones. [358-10 (Def.'s Ex. 5 -Zaborowski Decl.), at 50, ¶ 7.] These zones are overseen by four first-level salaried employees or "Process Coaches." [Id. at 50, ¶ 8.] From the press side, the steel moves to the assembly portion of the Stamping Plant, which covers 1, 000, 000 square feet and includes 45 separate assembly lines spread across five zones. [Id. at 50, ¶ 9.] Each zone is overseen by a Process Coach. [Id.] Employees in the assembly side of the Stamping Plant cannot see those on the press side. [358-13 (Exum Dep.Tr.), at78.]

         Both Plants are subject to various of Defendant's anti-harassment corporate directives and policy letters, which are implemented by local Human Resources and Labor Relations personnel. [358-10 (Def.'s Ex. 1 - Lavender Decl.), at 7-8, ¶¶ 28-30.] Defendant's Anti-Harassment Directive sets forth Defendant's "prohibition of harassment and its commitment to fostering a respectful, inclusive work environment" at all facilities. [358-14 (Def.'s Ex. 62), at 2-4.] Defendant's Anti-Harassment Policy (the "Policy") provides employees with examples of behavior that Defendant considers harassing and makes clear that all employees should "immediately report" any violation. [358-14 (Def.'s Ex. 67), at 22-24.] Employees are told they can report violations to (1) their supervisor; (2) their local Human Resources representative(s); (3) Defendant's anti-harassment hotline; (4) or Personnel Relations. [Id.] The Policy warns that violations will result in discipline, up to and including termination "even for a first offense." [Id.] The Policy also explains that Defendant strictly prohibits "retaliatory actions" against those who make good-faith complaints of harassment or cooperate in a harassment investigation. [Id.] Defendant trains all new hires on its anti-harassment Policy at orientation [358-10 (Def.'s Ex. 4 -Kantautas Decl.) at 43, ¶ 17; 358-10 (Def.'s Ex. 6 - Taylor Decl.), at 56, ¶ 13], and every new employee receives a copy of the Policy. [See, e.g., 358-14 (Def.'s Ex. 70 - Barron Policy Acknowledgment), at 35.] During the class period, Defendant repeatedly conducted anti-harassment and diversity training at the Plants. [See 358-6 (Def.'s App. E - Part 1); 358-7 (Def.'s App. E - Part 2); 358-8 (Def.'s App. E - Part 3).] However, Plaintiffs have identified evidence indicating that training programs at the Plants may have provided contradictory information. For example, Plaintiffs submit the affidavit of Bernadette Clyburn, which states that although Defendant's Policy was on the table in a training program she attended, "the instructor contradicted that written policy and focused on intimidating and threatening consequences of reporting workplace sexual harassment." [324-230 (Pls.'s Ex. 231 - Clyburn Decl.), at 2, ¶¶ 12-13.] In connection with the EEOC Conciliation Agreement discussed below, Defendant also has implemented a new comprehensive anti-harassment training program, which is delivered at work by a third-party vendor, Seyfarth Shaw. [358-10 (Def.'s Ex. 1 - Lavender Decl.), at 11-12, ¶¶ 42-45.]

         Although Plaintiffs assert in a conclusory fashion that Defendant maintained a uniform "policy of declining to find sexual harassment claims corroborated without corroborating witnesses" [323 at 55], Defendant's representatives expressly disclaim the existence of any such policy. [358-16 (Def.'s Ex. 108 - Washington Decl.), at 25, ¶¶ 6-7; 358-16 (Def.'s Ex. 109 -Taylor Suppl. Decl.), at 28, ¶ 6.] Defendant's actual guidance provides that when confronted with only "testimonials from the complainant and the accused," the investigator should use her best judgment to "consider the credibility" of each; whether one version of events seems "far-fetched"; whether anyone had "a reason to lie"; whether one person's account "conflict[s] with any other evidence"; and whether there is a "pattern of behavior" at issue (e.g., prior disciplinary action). [358-14 (Def.'s Ex. 69), at 32.] Defendant also notes that there have been many instances in which individuals have been disciplined for sexual harassment absent corroborating witnesses, even when the accused has denied the alleged harassing conduct. [358, at 33 n.23 (citing Def.'s Ex. 80).]

         Plaintiffs argue that Defendant's attempts to cure decades of sexual harassment at the Plants have failed. Several multi-plaintiff lawsuits have been brought against Defendant, including a lawsuit captioned Rivera v. Ford Motor Company, No. 95-cv-2990 ("Rivera"), and a class action captioned Warnell v. Ford Motor Company, No. 98-cv-1503 (''Warnell''), both of which were filed in this district. In both cases, the plaintiffs alleged sexual harassment, sex discrimination, race discrimination, assault, battery and intentional infliction of emotional distress. After a class was certified in Warnell, Defendant entered into a conciliation agreement with EEOC (the "1999 Conciliation Agreement"). [324-15 (Pls.'s Ex. 16 - 1999 Conciliation Agreement).] As indicated by the allegations in this lawsuit, according to Plaintiffs, the problems have persisted.

         In August 2017, Defendant entered into another Conciliation Agreement with the EEOC (the "2017 Conciliation Agreement"). In the 2017 Conciliation Agreement, without admitting wrongdoing, Defendant committed to maintaining robust, EEOC-approved anti-harassment training programs at the Plants [139-1, at 4-5, ¶¶ 11-16], appointing a Human Resources professional to oversee the Plants' handling of harassment and retaliation claims [id. at 6-7, ¶¶ 19-22], and appointing a panel of independent monitors (the "Panel") to oversee the Plants for at least three years. [Id. at 7-10, ¶¶ 25-37.] Defendant also agreed to establish a claims process for all women and African-Americans employed at the Plants from January 1, 2010 to August 1, 2017, making these individuals eligible to receive compensation from a fund of up to $10, 125 million to the extent they were found by the Panel to have experienced sex or race harassment, discrimination, or retaliation. [Id. at 10-11, ¶¶ 38-39.] The 2017 Conciliation Agreement established three tiers of award amounts, with anticipated award targets of $10, 000, $20, 000, and $30, 000. The 2017 Conciliation Agreement initially identified 170 individuals (78 male and 92 female), that received a settlement or were deemed eligible for an award without needing to complete or submit a claim form. [407, at 3.] An additional 736 women submitted claims forms. [335-4 (Def.'s Ex. D - Rust Decl.), at 3, ¶ 4.] As of May 20, 2019, 556 women were offered an award in connection with the 2017 Conciliation Agreement and 522 of those women chose to accept their awards. [396-1 (Mills Decl.), at 2, ¶¶ 7-8.] As of that date, the aggregate value of the awards accepted by women was $6, 376, 364.50. [Id. at 2, ¶ 10.] The amounts recoverable by those in each tier, however, were lower than the target amounts identified in the 2017 Conciliation Agreement because the total amount of compensation awarded and associated taxes exceeded the contractually agreed-upon total amount of the settlement fund ($10.25 million). [402-1, at 9-11, ¶¶ 39, 47; see also 409, at 3.]

         II. Legal Standard

         To be certified as a class action, a proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a), as well as one of the three alternative requirements in Rule 23(b). Messner v. Northshore Univ. Health System, 669 F.3d 802, 811 (7th Cir. 2012). Rule 23(a) provides that a named party may sue on behalf of individuals who are similarly situated if: (1) the class is so numerous that joinder of all putative class members is impracticable ("numerosity"); (2) there are questions of law or fact common to the putative class ("commonality"); (3) the claims or defenses of the named party are typical of the claims or defenses of the putative class members ("typicality"); and (4) the named party will fairly and adequately protect the interests of the class ("adequacy"). Fed.R.Civ.P. 23(a). "[A] proposed class must always meet the Rule 23(a) requirements." Messner, 669 F.3d at 811. "Because Rule 23(a) provides a gate-keeping function for all class actions, ordinarily [courts] begin there and only turn * * * to Rule 23(b) after [the courtis] certain that all of Rule 23 (a)'s requirements had been met." Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 374 (7th Cir. 2015).

         Rule 23(b) sets forth four circumstances under which a class action may be maintained, two of which Plaintiffs rely on here: Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) permits class certification if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Rule 23(b)(3) permits class certification if: (1) questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members ("predominance"); and (2) a class action is superior to other available methods of resolving the controversy ("superiority"). Messner, 669 F.3d at 811. Moreover, the class must also meet Rule 23's "implicit requirement of 'ascertainability, '" meaning that the class is "defined clearly and based on objective criteria." Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).

         Plaintiffs bear the burden of proving that they are entitled to class certification. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Although class certification proceedings are not "a dress rehearsal for the trial on the merits," Messner, 669 F.3d at 811, for purposes of deciding the certification question, the Court does not presume that all well-pleaded allegations are true. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir. 2001). Rather, before it allows a case to proceed as a class action, the Court "should make whatever factual and legal inquiries are necessary under Rule 23." Id. at 676. "A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). But the showing need not be "to a degree of absolute certainty. It is sufficient if each disputed requirement has been proven by a preponderance of evidence." Messner, 669 F.3d at 811 (citation omitted). The Court exercises broad discretion in determining whether class certification is appropriate given the particular facts of the case. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998).

         III. Analysis

         Plaintiffs have moved for class certification on their Title VII sexual harassment and hostile work environment claims. Specifically, Plaintiffs propose that the class be defined as:

All women working at the Ford Chicago Assembly Plant and Chicago Stamping Plant from January 2012 to present.

[318, at ¶¶ 3, 5.] The parties do not dispute that Plaintiffs' proposed class satisfies Rule 23(a)'s numerosity requirement or Rule 23's implicit ascertainability requirement. Defendant argues, however, that Plaintiffs fail to satisfy Rule 23(a)'s commonality, typicality, and adequacy requirements. Defendant further argues that Plaintiffs cannot satisfy the requirements of any Rule 23(b) subsection. The Court addresses each of these arguments in turn. Before doing so, however, the Court addresses the pending motions to exclude expert testimony. Beaton v. Speedy PC Software, 907 F.3d 1018, 1027 (7th Cir. 2018) (explaining that the district court '"must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion,' if the 'expert's report or testimony is critical to class certification'" (quoting Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 814-15 (7th Cir. 2010)).

         A. Daubert Motions

         Before the Court are the parties' motions [352; 370] to exclude expert testimony. Federal Rule of Evidence 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provide the legal framework for the admissibility of expert testimony. See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011); United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). Rule 702 requires that the district judge act as a "'gate-keeper' who determines whether proffered expert testimony is reliable and relevant before accepting a witness as an expert." Winters v. Fru-Con Inc., 498 F.3d 734, 741-42 (7th Cir. 2007) (quoting Autotech Tech. Ltd. P'ship v., 471 F.3d 745, 749 (7th Cir. 2006)); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999); Daubert, 509 U.S. at 589.

         In reviewing a motion to exclude testimony under Rule 702, 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, 663 F.3d at 893-94 (quoting Fed.R.Evid. 702); see also Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (outlining the "three-step analysis" for assessing the admissibihty of expert testimony). "The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). District judges possess considerable discretion in dealing with expert testimony. Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-43 (1997) (holding that abuse of discretion standard applies in reviewing district court rulings on admissibihty of proposed Rule 702 opinion testimony).

         Defendant has moved to exclude the expert testimony of Plaintiffs' expert witness Dr. Louise Fitzgerald. [352.] Plaintiffs have moved to exclude the expert testimony of Defendant's rebuttal expert witnesses-social psychologist and law professor Dr. Gregory Mitchell, J.D., Ph.D., and psychiatrist Dr. Liza Gold, M.D. [370.]

         i. Dr. Louise Fitzgerald

         In their motion for class certification, Plaintiffs rely in part on the expert report of Dr. Louise Fitzgerald, who Plaintiffs contend is "highly regarded in the field of psychology as expert on social psychology" focusing on "issues regarding gender and women's studies." [373, at 1.] Dr. Fitzgerald purports to ground her opinions in the social framework methodology. [355 (Fitzgerald Dep. Tr.), at 200.] Defendant recognizes Dr. Fitzgerald as an expert in her field specializing in sexual harassment. However, Defendant argues that Dr. Fitzgerald's testimony should be excluded because it is not actually based on the "social framework" method that she purports to use, or on any other reliable scientific method. Specifically, Defendant argues that "[a] proper social framework report summarizes general research in a subject-matter area and provides context for the fact-finder to interpret case-specific evidence" [353, at 11-12]-and does not apply the research to the facts of the case. Id. at 12 ("[A] valid social framework opinion may 'not tell the jury what to decide in any given case'-only 'what to consider.'" (quoting Tuli v. Brigham & Women's Hosp., Inc., 592 F.Supp.2d 208, 211 (D. Mass. 2009)). Because Dr. Fitzgerald seeks to tell the jury what to decide in this case-according to Defendant-her opinion fails to properly apply the social framework methodology. Defendant also argues that Dr. Fitzgerald's opinions will not assist the trier of fact. Thus, although Defendant does not dispute Dr. Fitzgerald's qualifications at the first step of the Rule 702/Daubert analysis, Defendant argues that Dr. Fitzgerald's opinions do not satisfy the second and third steps of the analysis.

         Plaintiffs assert that "Dr. Fitzgerald has used methods and relied on concepts and information generally accepted as reliable by other experts in her field * * * to formulate her opinions that if the evidence and data on the whole (documents produced in discovery and witness statements and depositions) are true, a common question that an objectively hostile workplace environment exists, and a common, meaningful injunctive remedy is required to make it stop." [373, at 3.] Specifically, Plaintiffs provide the following overview of the opinions offered by Dr. Fitzgerald:

1. The Chicago Ford Plants, both CAP and CSP, exhibit high levels of every indicator of risk for harassment known to social science.
2. The working environment at the Chicago Ford Plants (CAP and CSP) appears to be permeated with sexual harassment of the grossest, ugliest, and most degrading kind. * * * the harassment is so pervasive as to have inevitably exposed every female employee of the plants, to a greater or lesser degree. At the very least, every female employee works in an environment in which women, sex, and sexuality are insulted and degraded as a matter of course. These events are neither random, isolated, nor unique, but rather constitute the warp and woof of everyday life in the plant.
3. Defendant is aware of this situation and has been since at least 2012 and has chosen to ignore, obscure, downplay and otherwise failed to take is obligations seriously.
4. There is an urgent need for comprehensive, long-term, monitored interventions in the Plants with the aim of changing behavior, behavioral contingencies, employee perceptions, management attitudes and the entire organizational climate. Anything less constitutes a waste of time and resources, as well as a threat to organizational reputation and good will, and-most importantly-worker psychological health, physical safety, and overall wellbeing.

[373, at 3.]

         The Court first will address Rule 702's reliability requirement. "Rule 702 was substantially revised in 2000 to affirm the trial court's role as gatekeeper and provide some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." Lees v. Carthage Coll., 714 F.3d 516, 521-22 (7th Cir. 2013) (internal quotation marks, citations, and alterations omitted); see also United States v. Parra, 402 F.3d 752, 758 (7th Cir.2005) ("At this point, Rule 702 has superseded Daubert, but the standard of review that was established for Daubert challenges is still appropriate."). In order to evaluate the reliability of an expert's testimony, courts should the following factors: "(1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community." Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017) (quoting Krik v. Exxon Mobil Corp., 870 F.3d 669, 674 (7th Cir. 2017)) (internal quotation marks omitted). "In addition, the Rule 702 advisory committee's note to the 2000 amendment outlines other benchmarks relevant in assessing an expert's reliability: (5) whether 'maintenance standards and controls' exist; (6) whether the testimony relates to 'matters growing naturally and directly out of research they have conducted independent of the litigation,' or developed 'expressly for purposes of testifying'; (7) '[w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion'; (8) '[w]hether the expert has adequately accounted for obvious alternative explanations'; (9) '[w]hether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting'; and (10) '[w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.'" Id. (citation omitted).

         "Importantly, this list is neither exhaustive nor mandatory." Id. (quoting C W. ex rel Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015)) (internal quotation marks omitted). Because "there are many different kinds of experts, and many different kinds of expertise," Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999), the test for reliability is "flexible" and "Dauberts list of specific factors neither necessarily nor exclusively applies to all experts or in every case." United States v. Romero, 189 F.3d 576, 584 (7th Cir. 1999) (quoting Kumho, 526 U.S. at 137). "Ultimately, reliability is determined on a case-by-case basis." C W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015) (citing Ervin v. Johnson & Johnson, 492 F.3d 901, 904 (7th Cir. 2007)).

         Although the parties do not address these factors as such, the Court must apply the law of the circuit, and thus will address them. The Court begins by considering whether Dr. Fitzgerald actually employed the "social framework" methodology she purports to have used in reaching her opinions, as this is Defendant's primary objection to Dr. Fitzgerald's opinions. As noted by Defendant, numerous scholars have noted that the "a social framework necessarily contains only general statements about reliable patterns of relations among variables as discovered within social scientific research * * * and goes no further." John Monahan et. al., Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”, 94 Va.L.Rev. 1715, 1745 (2008). Indeed, Professor Monahan-the individual who by Dr. Fitzgerald's own admission coined the term "social framework" [373-2, at 6, ¶ 13(b)]-takes this position.[1] Even an article relied upon by Plaintiffs in their response to Defendant's initial Daubert motion recognized that, under the "social framework" methodology, testimony is "offered not to prove discrimination in a particular case or cases-that determination is one the fact finder will make in light of all of the evidence-but to offer a backdrop of information about how the phenomenon of stereotyping operates so that the fact finder can assess the specific case in light of that information." Melissa Hart & Paul M. Secunda, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L. Rev. 37, 52 (2009).[2]

         In defense of her report, Dr. Fitzgerald argues that what today is referred to as the social framework methodology was used long before the term was coined, citing the use of social science evidence in litigation.[3] [373-2 (Dr. Fitzgerald Rebuttal Aff.), at 6, ¶ 13(b).] For example, Dr. Fitzgerald notes that the strategy of combining legal argument with scientific evidence was used in Brown v. Board of Education, 347 U.S. 483, 495 (1954). [373-2 (Dr. Fitzgerald Rebuttal Aff), at 6, ¶ 13(b).] This argument misses the mark, as Defendant is not arguing that social science evidence is a categorically improper basis for expert testimony. Rather, Defendant contends that Dr. Fitzgerald improperly applied the social science methodology. Apart from Dr. Fitzgerald's unsupported testimony, Plaintiffs have not identified any evidence supporting the conclusion that Dr. Fitzgerald properly applied the "social framework" methodology that she purports to apply.

         Moreover, even putting aside the question of whether Dr. Fitzgerald properly applied the social framework methodology, Plaintiffs fail to establish that Dr. Fitzgerald's opinions regarding the prevalence of sexual harassment at the Plants otherwise are reliable. To begin, even if the underlying social science evidence upon which Dr. Fitzgerald bases her opinions is reliable and accepted in the relevant scientific community, Dr. Fitzgerald may not extrapolate unfounded conclusions from that evidence.[4] Expert testimony should be excluded when "there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Based on the evidence cited by Plaintiffs, the Court is unable to determine how Dr. Fitzgerald reached her opinions regarding the prevalence of sexual harassment at the Plants from that research. In other words, Plaintiffs fail to identify any reliable methodology used by Dr. Fitzgerald.

         Plaintiffs repeatedly note that "reliability" primarily is "a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or the conclusions produced." Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013). The Court recognizes that "[t]he soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment." Id. (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). "Rule 702's requirement that the district judge determine that the expert used reliable methods does not ordinarily extend to the reliability of the conclusions those methods produce-that is, whether the conclusions are unimpeachable." Id. (quoting Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 765 (7th Cir. 2013) (internal quotation marks omitted). However, other than citing to the social framework methodology, Plaintiffs do not explain the process by which Dr. Fitzgerald reached her conclusions regarding the prevalence of sexual harassment at the plants. And Joiner expressly requires proposed experts to supply that connective reasoning before obtaining judicial permission to present their conclusions in a courtroom. 522 U.S. at 146.

         The only evidence Plaintiffs have presented regarding Dr. Fitzgerald's methodology for reaching this conclusion is Dr. Fitzgerald's affidavit, which states:

Each of the opinions I expressed in my report, my Supplemental Declaration/Affidavit, my deposition and in this Rebuttal Declaration are expressed to a reasonable degree of psychological and scientific degree of certainty and are based on materials, [sic] evidence, information, principles and sources customarily relied upon by other experts in my field and are developed using methods and relying on concepts and information generally accepted as reliable by other experts in my field.

[373-2 (Dr. Fitzgerald Rebuttal Aff), at ¶ 15.] However, this assertion provides no additional clarity. Although exclusion of "expert testimony is the exception rather than the rule," Woods v., LLC, 2019 WL 2323874, at *15 (N.D. 111. May 30, 2019) (quoting Fed.R.Evid. 702, advisory committee notes (2000 Amendments)), the Court cannot satisfy its gatekeeping function by simply accepting an expert's conclusory assertion that she reached her conclusions by using methods and relying on concepts and information generally accepted as reliable by other experts in her field. Robinson v. Davol Inc., 913 F.3d 690, 696 (7th Cir. 2019) ("Rule 702 and Daubert require the judge to act as a vigorous gatekeeper to ensure the reliability of expert testimony." (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)); Joiner, 522 U.S. at 146 ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.").

         Plaintiffs further argue that Dr. Fitzgerald's testimony should be allowed because courts regularly allow (including in employment discrimination cases) social science testimony in which psychological research has been applied to the facts of a specific case without clinical examinations of individual class members. The Court acknowledges the potential import of social science evidence in litigation and recognizes that courts have allowed such testimony when Rule 702 and Daubert otherwise are satisfied. As the Seventh Circuit has noted, "social science testimony is an integral part of many cases, ranging from employment discrimination actions, to family law matters, to criminal proceedings." United States v. Hall, 93 F.3d 1337, 1342-43 (7th Cir. 1996). Still, Dauberts "framework for assessing expert testimony is applicable to social science experts, just as it applies to experts in the hard sciences." Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996) (citations omitted). As Judge St. Eve has written, "the methodology used by social science experts to reach their conclusions must 'adhere to the same standards of intellectual rigor that are demanded in [their] professional work' in order to be reliable." Obrycka v. City of Chicago, 792 F.Supp.2d 1013, 1024 (N.D. 111. 2011) (quoting Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002)). Plaintiffs do not sufficiently explain how Dr. Fitzgerald's testimony satisfies this standard with respect to her testimony regarding the prevalence of sexual harassment at the Plants.

         Defendant has identified a number of problems with Dr. Fitzgerald's methods independent of whether Dr. Fitzgerald is properly applying the social framework methodology.[5] First, Defendant argues that the opinions of Dr. Fitzgerald should be excluded because she improperly draws generalizations about the putative class based on an unrepresentative sample. Dr. Fitzgerald herself has noted that "you cannot generalize from a litigation sample to a non-litigation sample to an organization sample." [355 (Dr. Fitzgerald Dep. Tr.), at 190.] During her deposition, Dr. Fitzgerald could not say how many women were in the putative class (she believed there are over one thousand, but she was not sure). [Id. at 141.] Dr. Fitzgerald also testified that her opinions do not represent a research study and that her opinions therefore were not based on any sample size. [Id. at 171.] Yet Dr. Fitzgerald attempts to make generalizations about the experiences of every putative class member based on the experiences of named Plaintiffs and certain other complainants. Although the Court agrees that clinical testing is not a prerequisite to providing expert social science testimony, [6] expert social science testimony still must comply with Rule 702 and Daubert. Obrycka, 792 F.Supp.2d at 1024.

         Defendant also argues that the opinions of Dr. Fitzgerald should be excluded because she "cherry picked" the data she used to support her opinions. For example, her report does not even mention the dozen declarations from women who swear they never experienced or witnessed any sexually harassing conduct at the Plants. Nor does Dr. Fitzgerald address EEOC interviews with putative class members indicating that they may have been exposed to isolated incidents of sexual harassment, but that the workplace nonetheless was not permeated with sexually offensive and degrading behavior.[7] For example, in an EEOC interview, one putative class member indicated that she once was inappropriately touched by a co-worker but that she never heard any sexual comments or saw any sexual pictures, carvings, graffiti, or the like. [See 324-90 (Pls.'s Ex. 90 -Putative Class Member Questionnaire).] It is problematic that Dr. Fitzgerald does not address this evidence.[8] Experts who engage in cherry-picking of the evidence fail to satisfy the scientific method and Daubert. Fail-Safe, LLC v. A.O. Smith Corp., 744 F.Supp.2d 870, 889 (E.D. Wis. 2010); see also Barber v. United Airlines, Inc., 17 Fed.Appx. 433, 437 (7th Cir. 2001) (testimony excluded where expert "merely accepted some of the testimony and * * * data that suited his theory and ignored other portions of it that did not"). Plaintiffs have offered no response to this argument.

         Based on the arguments presented by the parties, the Court concludes that Plaintiffs have not met their burden of establishing that Dr. Fitzgerald's opinions regarding the prevalence of sexual harassment at the Plants-including Dr. Fitzgerald's testimony regarding each putative class members exposure to sexual harassment and/or ambient sexual harassment-are based on reliable methods. Thus, to the extent that Dr. Fitzgerald offers opinions regarding the prevalence of sexual harassment at the Plants, Defendant's motion to exclude the testimony of Dr. Fitzgerald is granted.

         Plaintiffs also have not demonstrated that Dr. Fitzgerald's testimony-to the extent relied upon in their motion for class certification-would assist the trier of fact. To be relevant, expert testimony must "help the trier of fact to understand the evidence or to determine a fact in issue," Fed.R.Evid. 702, and an "expert's opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate that opinion." United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991), am. on unrelated grds., 957 F.2d 301 (7th Cir. 1992).

         In their motion for class certification, Plaintiffs rely on the expert report of Dr. Fitzgerald to establish the following:[9]

1. The work force numerically is dominated by men and that a great majority of supervisors are male [323, at 26];
2. Female employees at the Plaints do not know where to go to complain id. at 37];
3. Defendant's failure to properly record and track certain complaints about sexual harassment demonstrates the lack of importance that Defendant placed on the issue [id. at 42];
4. Defendant has been on notice for years that women are being harassed at these Plants, and pornographic graffiti and materials have been evident in public areas throughout the plants, yet Defendant has ...

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