---
title: "Human Resources Expert Witness’ Testimony About Retaliation Excluded"
meta:
  "og:description": "Human resources expert witness' testimony about retaliation go to the ultimate issue, which is the province of the trier of fact"
  "og:title": "Human Resources Expert Witness’ Testimony About Retaliation Excluded"
  author: "Expert Witness Profiler"
  description: "Human resources expert witness' testimony about retaliation go to the ultimate issue, which is the province of the trier of fact"
---

# Human Resources Expert Witness’ Testimony About Retaliation Excluded

Posted on September 6, 2024 by Expert Witness Profiler

Carol Stepien is a former employee of the National Oceanic and Atmospheric Administration (“NOAA”) in Seattle. She  worked at the Pacific Marine Environmental Laboratory (“PMEL”), a lab within NOAA, an agency in the Department of Commerce. She contended that NOAA had discriminated against her based on her sex and age, subjected her to a hostile work environment, and retaliated against her when she complained. NOAA countered that Stepien had engaged in various forms of misconduct, including mistreating colleagues, as detailed in an extensive, independent investigation.

Stepien sought to exclude [Erick West](https://expertwitnessprofiler.com/expert-witness/Erick-West/1548626)‘s testimony regarding mitigation, backpay, front pay, and lost retirement benefits while NOAA sought to exclude some of the opinions of [Deborah Diamond](https://expertwitnessprofiler.com/expert-witness/Deborah-Diamond/1549476), Stepien’s expert on “HR and [i]nvestigations.” 

## **Economics Expert Witness**

[Erick West](https://expertwitnessprofiler.com/expert-witness/Erick-West/1548626) has bachelor’s and master’s degrees in economics from the Washington State University and has been working as an economist since 2003. He is a forensic economist who serves as the President of West Economics, Inc. He has extensive experience investigating economic damages involving hundreds of different occupations and industries.

[Get the full story on challenges to Erick West’s expert opinions and testimony with an in-depth Challenge Study.](https://app.expertwitnessprofiler.com/login?eId=1548626) 

## **Human Resources Expert Witness**

[Deborah Diamond](https://expertwitnessprofiler.com/expert-witness/Deborah-Diamond/1549476) has worked as “a federal manager, management official, agency-grievance examiner, and certified mediator,” and has “extensive knowledge of federal government human-resource policies and procedures, including those regarding discipline.” She has worked as an EEO Officer and an investigator for the IRS, and as an independent fact-finder and licensed private investigator. 

[Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Deborah Diamond’s expert testimony.](https://app.expertwitnessprofiler.com/login?eId=1549476) 

## **Discussion by the Court**

#### **Stepien’s Motion to Exclude Erick West**

Stepien contended that although she has diligently searched for another job since leaving NOAA, she has been unable to obtain other employment. NOAA asserted an affirmative defense that Stepien failed to mitigate her damages, and disclosed Erick West as a rebuttal expert regarding Stepien’s claimed damages.

West opined about the amount of Stepien’s past lost wages, health, and TSP benefits; her future lost wages, health, and TSP benefits; and her future lost FERS pension benefits. He calculated how her salary would have increased over time had she remained employed with NOAA, and noted the cash awards she could have received. West also opined that “with a reasonable job search effort, Stepien should have been able to secure alternative employment by _at least_ April 1, 2023 that was commensurate with her education and extensive work experience.” He bases that conclusion on statistics from the U.S. Bureau of Labor Statistics (“BLS”) regarding the average duration of unemployment for job seekers in 2021 and 2022.

##### **Methodology**

Stepien argued that West cannot opine regarding whether she conducted a reasonable job search. Stepien also argued that West should not be permitted to testify regarding whether she would have found a job within two years based on BLS data because those statistics are “not even tailored to a person of her educational background and experience.”

The Court held that the the problem here is not the reliability of BLS data in general, but the fact that West fails to set forth how he reached his assumption that it should have taken Stepien no more than two years (three to four times the average length of time) to obtain a job “that was commensurate with her education and extensive work experience.”

West did not specify what that methodology was or how he applied it here to discern the amount of time it should have taken Stepien to secure another job. 

##### **Helpfulness to the Trier of Fact**

West’s report listed six positions “that are commensurate with Stepien’s education and employment history.” The Court held that opinion to be the province of a vocational expert, which West was not.

Even if West had the requisite experience to opine on this issue, his opinion about other “commensurate” positions is not helpful to the trier of fact because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

However, Stepien did not dispute that West’s analysis of Stepien’s alleged lost past and future wages and benefits, salary growth at NOAA, her paid health benefits, employer-paid retirement benefits, worklife expectancy, and life expectancy were within his expertise, consistent with  [Rule 702](https://www.law.cornell.edu/rules/fre/rule_702#:~:text=Rule%20702%20sets%20forth%20the,is%20a%20relatively%20narrow%20inquiry.).

#### **NOAA’s Motion to Exclude Certain Testimony of Deborah Diamond**

NOAA noted that Diamond offered opinions “about the investigatory process, or what she describes as ‘investigating the investigations.'” Although NOAA contended that those opinions “are of little relevance,” it “did not challenge them.”

NOAA objected to Diamond’s opinions about whether NOAA’s selected discipline complied with NOAA and DOC policies and “industry standards” as well as its administrative leave policy. It also sought to exclude Diamond’s opinions about whether NOAA retaliated against Stepien.

Diamond opined on generally accepted standards of performance, included a chart regarding how NOAA “addressed Stepien’s performance/conduct issues compared to the standard practices for addressing performance/conduct issues,” opined that discipline should be “progressive,” and opined “on whether the discipline imposed was administered appropriately” to Stepien. She described generally accepted standards regarding when and how administrative leave should be used. Diamond opined, among other things, that “[f]or most human resource professionals, the decision to discipline Dr. Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found [ ](https://advance.lexis.com/document?crid=d1432013-316f-4227-9bcc-18298ec20304&amp;pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A6CWN-7J63-RS23-J3FG-00000-00&amp;pdsourcegroupingtype=G&amp;pdcontentcomponentid=6419&amp;pdalertresultid=7537103191&amp;pdalertprofileid=d599ede3-33ef-46eb-b395-fa3e430f93b4&amp;pdmfid=1000516&amp;pdisurlapi=true#)in Department of Commerce’s policies and the applicable Equal Employment Opportunity (EEO) laws.”

##### **Helpfulness to the Trier of Fact**

The Court held that the issue is not whether NOAA followed best practices but rather whether it followed its own policies, and whether its stated reasons for its actions were honest or the product of discrimination or retaliation. For the same reasons, Diamond’s opinions regarding adherence to industry standards and her suggestion of a lengthier progressive discipline process would not be helpful to the trier of fact. Moreover, NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

NOAA also argued that Diamond’s opinions about why the agency placed Stepien on administrative leave and requested a supplemental investigation are speculative and must therefore be excluded. Diamond opined during her deposition that NOAA might have (1) extended Stepien’s leave to create an opportunity for her to engage in further misconduct, (2) obtained a supplemental report from the investigators for improper reasons, and (3) added a broad conduct unbecoming allegation because the agency was not confident that other charges would be sustained.

However, Diamond conceded that she had not seen any evidence to support her theory regarding the supplemental report and was speculating regarding the inclusion of the conduct unbecoming charge. The Court ruled that her “unsubstantiated speculation and subjective beliefs” do not equate to the specialized knowledge required for admissibility under Rule 702.

##### **Legal Conclusions**

NOAA argued that Diamond’s opinions regarding retaliation go to the ultimate issue, which is the province of the trier of fact. Diamond’s report opined: “For most human resource professionals, the decision to discipline Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable EEO laws.”

Stepien argued that those statements do not “offer opinions that state whether Defendant retaliated or discriminated against Stepien,” but they are opinions on that front. The Court excluded those opinions as improper legal conclusions.

One issue remained: NOAA argued that Diamond cannot base her opinions on evidence that Stepien allegedly “misappropriated” from NOAA. Stepien sought to strike that argument and the corresponding declaration paragraphs that addressed it. The Court found that Diamond’s non-investigation-related opinions were inadmissible for other reasons and declared the issue moot for purposes of this motion but added that it may be renewed in an appropriate motion in limine.

## **Held**

The Court granted in part and denied in part Stepien’s motion to exclude the testimony of Erick West, and granted NOAA’s motion to exclude certain testimony of Deborah Diamond.

## **Key Takeaway:**

The Court ruled that West’s opinions regarding the “average duration of unemployment” for other workers and “what specific jobs are “commensurate with Stepien’s education and employment history” were inadmissible because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

Diamond stated that the agency “did not follow some of its own policies and generally accepted standards when investigating and resolving Stepien’s EEO and 955 complaints, administering discipline in a constructive, progressive, consistent and timely manner, or following the rules for placing Stepien on extended administrative leave.” The Court held that NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

## **Case Details:**

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