Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

Plaintiff Amanda Benson, a female firefighter/EMT, has initiated legal proceedings alleging violations of her civil rights against multiple defendants, including the City of Lincoln, Nebraska, various city officials, and personnel from Lincoln Fire and Rescue (LFR). Benson was hired by LFR as a Firefighter/EMT on July 1, 2013, and was permanently assigned to Station 8 and the Engine 8 crew for C shift on October 15, 2014. Subsequently, she became Acting Captain on Engine 1 at Station 1 and later Acting Captain of Truck 1 at the same station. 

Benson contends that she experienced sexual discrimination, harassment, and retaliation throughout her tenure with LFR. The alleged mistreatment were largely linked to conduct attributed to Captain Shawn Mahler, who was the leader of the Truck crew at Station 8. She formally lodged complaints with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, and with the federal Equal Employment Opportunity Commission (EEOC) on October 14, 2020. Notably, many of Benson’s claims regarding discrimination, harassment, and retaliation are tied to Captain Mahler’s actions. 

A significant incident occurred on April 26, 2021, during which LFR responded to a warehouse fire involving both Benson’s crew in Truck 1 and Mahler’s crew in Truck 8. Benson asserts that Mahler abandoned her during this event, posing a potential threat to her and her crew’s safety. On May 5, 2021, Benson reported the incident and lodged a formal complaint with her superiors at LFR, contending that Mahler’s actions during the warehouse fire could have potentially killed or seriously injured her and her team. 

Following an internal investigation, Fire Chief David Engler, who is not a party to this litigation, concluded that Benson’s allegations against Mahler were false and that her behavior amounted to obstructing LFR’s operations and casting discredit on the department. Consequently, Engler found “good cause” for her dismissal. 

Benson disputed the findings of the internal investigation and commenced legal action by filing her original Complaint in Lancaster County, Nebraska’s District Court on July 6, 2018. The defendants opted to remove the case to federal court. However, her Fourth Amended Complaint, submitted on November 11, 2021, stands as her current operative pleading. 

In her Fourth Amended Complaint, Benson asserts eight distinct causes of action. Her primary claims include allegations of a sexually hostile work environment, retaliatory harassment, sexual discrimination, and retaliation, with some claims brought under the Nebraska Fair Employment Practice Act (NFEPA) and others under Title VII of the Federal Civil Rights Act. Furthermore, she alleges violations of the Equal Protection Clause of the United States Constitution against both the City of Lincoln and individual defendants. 

The Defendants countered by jointly filing an Answer on December 6, 2021, wherein they denied Benson’s claims and put forth various affirmative defenses. A subsequent court ruling addressed a Motion for Partial Summary Judgment by Benson and a Motion for Summary Judgment by the defendants. The court denied Benson’s motion concerning certain affirmative defenses and rejected the defendants’ motion for summary judgment regarding all claims detailed in Benson’s Fourth Amended Complaint. Benson offered the testimony of a forensic psychiatry expert and employment law expert to substantiate its claims of employment discrimination, harassment, and retaliation. As discussed below, the Court excluded the testimony of the employment law expert but admitted the testimony of the forensic psychiatry expert.

Forensic Psychiatry and Employment Law Expert Witness

Defendant filed successive Daubert motions to exclude the testimony of Benson’s experts Dr. Christiane Tellefsen, M.D. and Amy Johanna Oppenheimer J.D., B.A. 

Dr. Christiane Tellefsen is a board-certified general and forensic psychiatrist, retained to provide opinions regarding Amanda’s medical diagnoses, causation, and damages. 

Amy Oppenheimer is an attorney retained to offer expert opinions on the acceptable human resources practices of employers in response to complaints of workplace discrimination, harassment, and retaliation and whether Defendants’ actions with respect to Benson met the standard of care. 

Discussion by the Court 

Dr. Christiane Tellefsen

Dr. Christiane Tellefsen was retained by Benson to opine on whether or not Benson had an disorder and if she did, Tellefsen was required to assess the possible effects it could have on Benson’s employment at the Lincoln Fire Department in Lincoln, Nebraska. Tellefsen was of the opinion that Benson had major depressive tendencies which exacerbated her PTSD symptoms resulting from her employment at the Lincoln Fire Department and that the nature of her condition was chronic which necessitated ongoing treatment. 

Dr. Tellefsen reviewed the report of a neuropsychological evaluation conducted by Defendants’ expert Dr. Robert George Arias, Ph.D. and on her second report dated December 10, 2020 opined that Dr. Arias’ report was inconsistent with Benson’s history and treatment and the symptoms of personality disorder listed by him were either incorrect, such as pill abuse, or more fully consistent with her PTSD. Dr. Tellefsen opined that Benson relapsed into her depressive tendencies and anger issues stemming from her abusive childhood as a result of her situational stress at the Fire Department. She also attributed  Benson’s physical problems resulting from her work related injuries and her loss of relationships to situational work-related stress. 

Defendants have not challenged the qualifications of Expert Tellefsen but have instead questioned the relevance of Tellefsen’s testimony contending it was of little assistance to the trier of fact. Expert Tellefsen has not elaborated which aspect of Benson’s employment exacerbated her mental health problems or how discrimination, retaliation or harassment worsened her mental health condition and not workplace stressors common to all firefighters.  

But the Court however held that Tellefsen’s opinions were suggestive of Benson’s deteriorating mental health being linked to the discrimination, retaliation and harassment she was subjected to at her workplace instead of workplace stressors common to all firefighters because Tellefsen had acknowledged, especially in her deposition, that despite the existence of both sources of stress, Benson was able to cope successfully with the common stressors.  

Defendants also contended that Tellefsen’s testimony lacked a reliable methodological basis considering her diagnosis of the sources of Benson’s mental health issues was not based on verifiable test results or scientific testing. For instance, Tellefsen by her own admission had ceased to use the Minnesota Multiphasic Personality Inventory (MMPI). 

The Court noted that Tellefsen’s forensic methodology of conducting a psychiatric examination was universally recognized in the psychiatric community as a reliable method for differential diagnosis and causation analysis. Besides, the Court was of the opinion that the jury should take into account the sufficiency and validity of the reasons that Tellefsen stated for precluding the use of MMPI instead of rejecting her testimony for not using that one particular diagnostic tool. The Court admitted the testimony of Expert Tellefsen but nevertheless permitted the defense to pursue the issue through means of cross examination. 

 Amy Oppenheimer

Oppenheimer is an attorney not licensed in Nebraska who was retained by Benson as a human resources expert to review the Defendant’s human resource practices with regard to allegations of discrimination, harassment and retaliation. Oppenheimer was tasked with opining on typical and acceptable human resource practice with regard to responding to and investigating complaints of employment discrimination.  

Oppenheimer listed multiple flaws and deficiencies in the Defendant’s response to and investigation of Benson’s workplace discrimination, harassment and retaliation claims and concluded that Defendant’s termination of Benson was wrongful. 

The Court held that Oppenheimer’s opinions were of no assistance to the trier of fact. The Court does not question the reliability of Oppenheimer’s testimony or her qualifications but held that Oppenheimer opined on matters of law which invaded the province of the Court such as her testimony on the acceptable human resource practices Defendant was supposed to follow to conduct its investigation of Benson’s claims seeks to define the “standard of care” followed by the Defendants by something other than this Court’s statement of the applicable law. Moreover, the testimony by Oppenheimer about reasonable investigation techniques that Defendants could have employed does not properly demonstrate the inadequacy of the investigation techniques Defendants did use. 

Held 

The Court denied the Defendants’ Daubert motion to exclude the testimony of Plaintiff’s expert Tellefsen but granted the Defendants’ Daubert motion to exclude the Testimony of Plaintiff’s expert Oppenheimer. Since the issues involved in this case are yet to be resolved, the outcome of the case remains to be seen. 

Key Takeaways: 

1. Legal Conclusions: The expert is not allowed to invade the jury and the Court’s province by drawing conclusions as to matters of law. Oppenheimer in the instant case sought to define the “standard of care” by something other than the Court’s statement of the applicable law which served as basis to exclude her testimony. 

2. Reliability of the testimony: Defendant sought to exclude the testimony of expert Tellefsen primarily because she precluded the usage of MMPI, a standardized diagnostic tool which did not warrant exclusion as was held by the Court because the Defendant was required to look into the sufficiency and validity of the reasons Tellefsen cited for excluding MMPI.