Testimony of Finance Expert Witness Limited Because It Is Based on the Assumption That Economic Damages Are Inclusive of Lost Wages
Posted on July 18, 2024 by Expert Witness Profiler
Plaintiff, Paul Sullivan was employed as a GSI Analyst II in the City’s Public Works Department. His employment was terminated as part of a reduction in force (“RIF”).
During a restructuring of the Public Works Department, which led to the RIF, the City eliminated both of its GIS Analyst II positions, one of which was Sullivan’s. It also created a GIS Analyst III position, which was filled by another employee on August 12, 2019, several months before the RIF. On October 2, 2019, Sullivan asked his direct supervisor to consider him for the GIS Analyst III position. He was informed that there was no open GIS Analyst III position at that time. Sullivan sued the City, alleging that he was terminated in retaliation for engaging in alleged protected activity in violation of the Family Medical Leave Act and the Fair Claims Act.
Sullivan designated Andrew Dakers as an expert witness to testify regarding his economic damages and lost earnings.
The City filed a motion to exclude portions of Dakers’ opinions because they were based on the incorrect assumptions that Sullivan asserted a failure-to-promote claim, that Sullivan would have been promoted to the GIS Analyst III position, and that Sullivan would have received the highest listed salary for the GIS Analyst III position.
Finance Expert Witness
Andrew Dakers is a financial professional with more than twenty years of experience in financial analysis, budgeting, forecasting, project and company assessment, and leading cross-functional teams.
Dakers has a Bachelor of Science in Economics from Carnegie Mellon University and a Master of Business Administration from Yale. Although not currently a practicing or licensed accountant, Dakers successfully passed the Certified Public Accountant examination. Having spent his career in the world of finance, Dakers’ has now begun a new practice providing expert testimony related to employment damages.
Discussion by the Court
Dakers was asked to calculate the financial impact of Sullivan’s alleged wrongful termination under three scenarios. First, Dakers was to assume that Sullivan was promoted to the GIS Analyst III position and was paid at the maximum salary of the published salary range for the position, with annual raises based on the anticipated inflation rate. Second, he was to make the same assumption, but without annual raises. And, third, he was to assume that Sullivan would receive the same salary and fringe benefits that he would have received without termination.
Dakers’ calculations based on the wages for a GIS Analyst III are not based on sufficient facts or data
First, the City argued that Dakers’ calculations were not based on sufficient facts or data because Sullivan did not plead a claim for failure to promote. In his deposition, Dakers testified that he assumed that Sullivan asserted a failure-to-promote claim. He further testified that that would make a difference in his calculations because he could not base his calculations on a similarly-situated position if Sullivan did not assert failure to promote.
The Court rejected Dakers’ calculations based on the wages for a GIS
Analyst III because Dakers testified that he would not have used the wages for a GIS Analyst III as part of his damages calculations if he had known Sullivan did not allege a failure-to-promote claim.
Dakers’ report provided no basis for asserting that Sullivan was likely to receive a promotion for a position that was not open at the time of his termination
Second, the City argued that Dakers’ calculations were not based on sufficient facts or data because, at the time that Sullivan sought the GIS Analyst III position, there were no openings. Dakers testified that the damages calculation based on the GIS Analyst III position would only be applicable if this was a position that Plaintiff “was most likely to move into.” But the evidentiary record established that, at the time of Sullivan’s termination, there was no open GIS Analyst III position. And Dakers admitted that, without the likelihood of this promotion at the time, there was no basis for the assumption that Plaintiff’s damages would include lost wages for the position.
Dakers’ use of the maximum salary for the GSI Analyst III position is based on evidence in the record
Third, the City argued that Dakers’ calculations were not based on sufficient facts or data because Dakers had no basis to choose the highest salary in the range for the GIS Analyst III position. When he was terminated, Sullivan’s salary was $57,700. The listed salary range for the GIS Analyst III position was between $50,201 and $72,720. Dakers testified that he chose the highest amount in that range for his calculations because Sullivan was later rehired in a different department at a salary exceeding the maximum for the GSI Analyst III position.
The Court held that Dakers’ use of the maximum salary for the GSI Analyst III position was based on evidence in the record and objections to those calculations go to the weight, not the admissibility, of his damages calculations.
Held
The Court granted in part and denied in part Defendant City of Dallas’ motion to exclude portions of Andrew Dakers’ expert report.
Key Takeaway:
- Since Sullivan did not plead a claim for failure to promote, the Court rejected Dakers’ calculations based on the wages for a GIS Analyst III because Dakers testified that he would not have used the wages for a GIS Analyst III as part of his damages calculations had he known that Sullivan did not allege a failure-to-promote claim.
- Dakers testified that the damages calculation based on the GIS Analyst III position would only be applicable if this was a position that Plaintiff “was most likely to move into” but at the time of Sullivan’s termination, there was no open GIS Analyst III position.
Case Details:
| Case Caption: | Sullivan V. City Of Dallas, Texas |
| Docket Number: | 3:21cv915 |
| Court: | United States District Court, Texas Northern |
| Order Date: | July 15, 2024 |
