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Pay Disparity Expert Excluded in Shipyard Case

Deborah Elkins//August 14, 2017

Pay Disparity Expert Excluded in Shipyard Case

Deborah Elkins//August 14, 2017

In this suit by 37 black shipyard workers who allege they are not as well paid as white workers, a Newport News U.S. District Court excludes reports with regression analyses performed by a labor economist working for each side; the analysis of plaintiff’s expert failed to control for plaintiffs’ varying job classifications, data that defendant failed to disclose during discovery, and the defense expert used job classification data drawn from the memory of a single shipyard manager, which could not be verified.

Statistical analyses

The parties’ four motions all involve efforts to disqualify each other’s labor economist expert witness. The labor economists each performed a regression analysis of data provided by the shipyard to determine whether a statistically significant pay disparity existed among black and white shipyard workers.

Plaintiffs retained Mark R. Killingsworth, D. Phil., a labor economist, and disclosed his report on Oct. 19, 2016. He performed a statistical analysis of data regarding the pay of all workers at the shipyard. His analysis purported to demonstrate statistically significant pay disparities between all black and white workers at the shipyard. Defendants moved to strike the report as untimely filed under the court’s expert report deadline, but plaintiffs attributed the late disclosure to the shipyard’s delay in providing them with the necessary data to complete the report.

Defendant also has moved to preclude the expert’s testimony on the ground that his analysis is irrelevant an unreliable under Fed.R. Evid. 702 and Daubert and Kumho Tire Co. Defendant attached the expert report of G. Edward Anderson, Ph.D. His report criticized Killingsworth’s analysis because it did not limit the data analyzed to the pay of workers in the same trades as plaintiffs. Relying on data provided by a shipyard management official, Anderson performed his own analysis of the newly refined data which purported to show that, among all workers in the same trades as plaintiffs, no disparity existed between the pay of black and white welders, fitters and laborers at the shipyard. Plaintiff also has moved to exclude Anderson’s report.

Dueling experts

Killingsworth controlled for multiple variables to reach his conclusions about pay disparities, but he did not control for the specific job classification data. Plaintiffs are correct that defendants did not produce in discovery the type of specific job classification data that would have permitted analysis of the pay rates of black and white shipyard employees with the same specific job titles or trades. Plaintiffs’ Interrogatory 13 quite explicitly asked for the specific job classification data at issue.

Anderson believes the shipyard manager who provided data to him about plaintiffs’ job classifications relied largely on his memory for the information used in the chart he produced for Anderson.

The admissibility of Killingsworth’s opinion relies on the relevance and reliability of the opinion itself, and not on the reasons why Killingsworth did not have the information that would have made that opinion relevant and reliable. Any fault that may be attributed to defendant because of the shortcomings in complying with its discovery obligations does not otherwise make Killingsworth’s opinion admissible.

The problem with Killingsworth’s analysis is that, by not using specific job classification data in his analysis, he failed to account for a major factor – that the employees being compared were similarly situated, i.e., performed substantially similar jobs. If this were a pattern and practice case, plaintiffs could proffer statistical data of the kind of regression analysis performed by Killingsworth to show the company had a standard operating procedure overall to pay black shipyard workers less than white workers. But this is not a pattern and practice case. Each of the 37 plaintiffs bears the burden of proving that, because of his race, he was paid less than persons outside his protected class who were similarly situated.

Killingsworth’s opinion does not establish anything about how black welders, fitters and laborers are paid compared to white welders, fitters and laborers. His regression analysis is so incomplete as to be inadmissible as irrelevant opinion.

Defense economist

Turning to the defense expert, the data systems maintained by defendant did not capture specific information regarding specific job titles and salaries during the specific time periods for plaintiffs and their white counterparts. The shipyard manager provided such specific information, at least in part from memory, to Anderson. Anderson relied on this information, not provided to plaintiffs, to conclude there was no pay disparity.

Here, the manager’s data is unreliable because there is no way to verify or replicate it. Anderson did not verify the true source of the data the manager provided. Since the data is derived from the memory of one person, it cannot be verified or replicated. This shipyard cannot have it both ways. Even if the manager’s data were considered reliable, the shipyard’s failure to produce this information when obligated to do so should preclude it from being able to use the manager’s data for its benefit.

Crawford v. Newport News Industrial Corp. (Allen) No. 4:14cv130, July 28, 2017; USDC at Newport News, Va.; James H. Shoemaker Jr. for plaintiffs; Patrick H. O’Donnell for defendants. VLW 017-3-386, 18 pp.

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