Opinion
00-CV-1161.
March 31, 2004
LAURA L. SPRING, ESQ., SONNEBORN, SPRING, O'SULLIVAN ZENZEL, P.C., Syracuse, NY, Attorneys for Plaintiff.
MAIREAD E. CONNOR, ESQ., CHAMBERLAIN, D'AMANDA, OPPENHEIMER GREENFIELD, International Brotherhood of Electrical Workers and J.J. Barry as President of the International Brotherhood of Electrical Workers, Syracuse, NY, Attorneys for Defendants.
KENNETH L. WAGNER, ESQ., NATHANIEL LAMBRIGHT, ESQ., JODI P. GOLDMAN, ESQ., BLITMAN KING, LLP, Syracuse, NY, Attorneys for IBEW Local 43.
JAN S. KUBLICK, ESQ., McMAHON, KUBLICK, MCGINTY SMITH P.C., Burns Electric Co. and Ridley Electric, Syracuse, NY, Attorneys for Defendants.
ROBERT F. SILKEY, ESQ., MENTER, RUDIN TRIVELPIECE, P.C., Syracuse Merit Electric, Inc., Syracuse, NY, Attorneys for Defendant.
MEMORANDUM DECISION AND ORDER
BACKGROUND
Plaintiff has been a member of Local 43 ("the Union") since 1967 and a journeyman electrician since 1970. (Complaint ¶ 22). In June 1997, the Union entered a collective bargaining agreement with the Finger Lakes N.Y. Chapter of the National Electrical Contractors Association, Inc. ("Finger Lakes NECA") (Complaint ¶ 25). The formal name of ths contract was the Inside Construction Agreement ("the IC" or "the IC Agreement"), and it was applicable from June 1, 1997 through May 31, 2000. Electrical contractors are bound by the conditions of the collective bargaining agreement either by being a member of the Finger Lakes NECA or by signing a letter of assent agreeing to be bound by the terms of the agreement. The collective bargaining agreement recognizes the Union "as sole and exclusive representative of all . . . employees performing work within the jurisdiction of [Local 43] for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment." (Pltf.'s Ex. D at § 2.06). Under the terms of collective bargaining agreement, the Union runs an exclusive hiring hall that refers union members for employment with signatory electrical contractors. (Complaint ¶ 24, Pltf.'s Ex. D at Article IV). Plaintiff has obtained employment through the Union hiring hall. (Complaint ¶¶ 24).
The collective bargaining agreement contains a referral procedure for applicants seeking work with contractors that entered the agreement. The procedure establishes a preferential order for the referral of applicants through four separate Group Lists. Applicants classification to a specific Group is determined by whether they have journeyman status (have completed five years of apprenticeship training), their experience in the trade, and their residency in the geographic area constituting the normal labor market.
Group I are journeymen who are residents of the geographical area covered by the contract and who have worked at least one year in the last four in the geographical area.
Group II are journeymen who do not meet the residency and work requirements.
Group III are applicants who do not have any journeymen status but do meet the residency and work requirements.
Group IV are everyone else who has worked at least one year in the electrical trade.
Applicants are placed on the list in chronological order. Employees from Group I who have been on the list for the longest time are given preference to be hired first until the Group List is exhausted. The selection process follows this procedure from Group II to Group IV.
Before 1998, a contractor seeking to hire an electrical worker would telephone the Union for the next available applicant from the group referral lists. Applicants were allowed to limit their eligibility for work to certain counties within the Union's fairly large territory. Those who did, would be contacted by the Union only if the contractor's work site was in one of the acceptable counties. An applicant was also allowed to refuse two job referrals before being placed at the end of the Group List. If an applicant refused a referral, the next applicant on the list would be contacted and offered the referral.
In October 1998, this process was changed and improved by the Union. In the new system, the Union makes a daily telephone recording containing the particulars of upcoming jobs for which employers will need workers. An interested applicant indicates his interest in a certain job and the Union's referral agent refers the desired number of applicants in the order they appear on the pending out of work list.
Several negotiated exceptions to the referral system permits an employee to be selected or rejected by an employer "out of turn" from the Group Lists. Section 5.15 of the 1997 Agreement allows employers to request particular applicants for their "special skills and abilities." Section 2.10 of the 1997 IC Agreement provides that on all jobs requiring five or more journeymen, at least every fifth journeyman shall be fifty years of age or older provided that they are available. Section 5.03 affords the employer the right to reject an applicant from employment. Under Section 2.05, an employer has the right to select the foreman of his own choosing. Plaintiff asserts that 'the effect of these [two] provisions . . . is to allow [Local 43] and the electrical contractors . . . to undermine the fairness of the referral procedure and to discriminate against members on the basis of age. (Complaint ¶ 30).
For more than a decade, the Union has responded to competitive pressure from the non-unionized portion of the construction industry and sought to expand its markets. As part of this endeavor, the Union has operated a Work Recovery Program ("the Program") since the early 1990s. One facet of this developing program has been to recruit non-union contractors and their employees by permitting an intermediate wage rate commensurate with the training and experience of the non-union contractors' employees. This relief attracts contractors who would probably otherwise remain non-signatory to the labor agreements. It also furnishes a career ladder for their employees who wish to receive further training en route to becoming journeymen electricians.
Consequently, for several years prior to 1997, in select instances, the Union recruited previously non-union contractors by classifying their electricians as B Wiremen, whose wage rate would be lower than the applicable journeyman wage rate. This informal practice by the Union was subsequently formalized with the guidance of a pattern agreement produced by the International Union. In May 1997, an Addendum was added to the 1997 IC Agreement called Intermediate Journeymen Addendum. ("the IJ").
Continuing the practice involving B Wiremen, the IJ Addendum's purpose was to provide a uniform means by which the quality, experienced open-shop electrician could move into the organized industry, and to furnish an avenue to maintain employment for those quality employees who are not selected for independent apprentice programs and would otherwise remain open-shop employees, establish a wage scale and benefits which will be competitive with the open shop in the commercial retail electrical construction market, and provide electrical employees with potential and experience an avenue to becoming journeymen.
Under the IJ Addendum, electricians who have been working for non-union contractors would be allowed to become Intermediate Journeymen when those contractors become signatories of the IC Agreement. To qualify as an Intermediate Journeyman, the worker continued to need a minimum of five years of electrical experience. Employees who received Intermediate Journeymen status may be used only on non-residential and non-public jobs.
The Work Recovery Fund is another part of the Work Recovery Program. Since the early 1990s, the Union has maintained a fund to assist signatory contractors in bidding successfully on targeted construction projects that would likely otherwise be awarded to nonunion contractors. Essentially, a contractor is reimbursed for the difference (or a portion thereof) between the wage rate under the labor agreement and the wage rate of its nonunionized competitions. The central purpose of the Work Recovery Fund is to encourage non-union contractors to become Union contractors and to obtain certain employment for Journeymen.
Plaintiff claims that the defendants engaged in unlawful discriminatory practices relating to his employment through patterns and practices of failing, because of his age, to refer him for employment to positions for which he was fully qualified, by permitting electrical contractors to request younger workers in preference to older workers, to layoff older workers before younger workers, by negotiation and administering a collective bargaining agreement that enabled the union and electrical contractors to discriminate on the basis of age, and by retaliating against him for attempting to oppose these discriminatory practices. (Complaint ¶ 35).
On March 3, 1997, plaintiff filed a grievance against several electrical contractors asserting that they were laying off employees based on age. Plaintiff was represented by Local 43. After his grievance was rejected, plaintiff maintains that Local 43 removed him from the referral list for a period of time in retaliation for filing his grievance. (Complaint ¶ 35).
On November 17, 1997, plaintiff filed an age discrimination complaint with the New York State Division of Human Rights ("NYSDHR") naming Local 43, Finger Lakes NECA and fourteen electrical contractors as respondents. The complaint was also filed with the Equal Employment Opportunity Commission ("EEOC") pursuant to a work sharing agreement between the EEOC and the NYSDHR. An amended complaint filed on January 22, 1998, named Local 43, Finger Lakes NECA, and three electrical contractors as respondents. On May 4, 2000, plaintiff was issued a right-to-sue letter by the EEOC. The right-to-sue letter adopted the finding by the NYSDHR that there was no probable cause to believe that Local 43 discriminated against plaintiff because of his age. (Defs.' Ex. D). This action was commenced on July 28, 2000 when plaintiff filed a complaint alleging violations of the Age Discrimination in Employment ("ADA") 29 U.S.C. § 621 et. seq., and New York Executive Law § 296 et seq. The complaint seeks doubled compensatory damages, injunctive relief, costs and attorneys' fees.
Currently, four motions are before the court. There are three motions for summary judgment by the defendants, one by Local 43, one by Syracuse Electric, Inc. and the other by Burns Electric Co., Inc. and Ridley Electric. Plaintiff has moved in limine to preclude the testimony of defendants' expert witness. Opposition to each of these motions has been made by the respective parties.
The complaint in this action was previously dismissed by this court as to defendants International Brotherhood of Electrical Workers, its President J.J. Barry and the Finger Lakes N.Y. Chapter of the National Electrical Contractors Association, Inc., by the granting of their motions for judgment on the pleadings.
DISCUSSION
Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded . . . as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catreet, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). In determining whether there is a genuine issue of material fact a court must resolve all ambiguities and draw inferences against the moving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) ( per curiam). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations or statements in affidavits. The disputed issues of fact must be supported by evidence that "could not lead a rational trier of fact to find for the non-moving party." Mashusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nor will factual disputes that are irrelevant to the disposition of the suit under governing law preclude any entry of summary judgment.Anderson, 477 U.S. at 247, 106 S.Ct. at 2505.
A plaintiff may not avoid summary judgment by simply declaring that state of mind is at issue. Meire v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("[t]he summary judgment rule would be rendered sterile. . . . if the mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion."). Summary judgment applies no less to Title VII cases than the commercial case or other area of litigation, id, and plaintiff must still offer "concrete evidence from which a reasonable juror could return a verdict in [her] favor."Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
The elements of a prima facie case in the context of union job referral are (1) plaintiff is a member of the protected class; (2) he is qualified for the jobs being referred, which includes being qualified under legitimate union rules to appear in the "out of work book"; and (3) he was not referred for jobs consistent with legitimate union rules, or that other, younger union members, were referred inconsistent with those rules.Williams v. Leigh Valley Carpenters Union, 1992 WL 247292, * 3 (E.D. Pa. 1992), aff'd., 993 F.2d 880 (3d Cir.), cert. denied, 510 U.S. 573, 114 S.Ct. 205, 126 L.Ed.2d 162 (1993).
Plaintiff is presenting a claim for disparate impact in the instant case. Disparate impact involves employment practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business reasons, proof of discriminatory motive is not required under a disparate impact theory. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 5, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 316 (1977).
The burden of showing is on the plaintiff to show the facially neutral employment practice or policy that impacts a protected group and cannot be justified by a business necessity. Lowe v. Comack Union School District, 886 F.2d 1364, 1370 (2d Cir. 1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). Once the plaintiff has identified the employment practice or policy used by the defendants, "the plaintiff must demonstrate that the practice in question has caused the exclusion of applicants for jobs or promotion because of their membership in a protected group. Id. Statistics may be used to show causation. Smith v. Zerox Corporation, 196 F.3d 358, 365 (2d Cir. 1999). The correct population must be identified and analyzed. Id. The Supreme Court has approved a case by case approach to statistical analysis because statistics come in infinite variety and . . . their usefulness depends on all the surrounding facts and circumstances. In International Brotherhood of Teamsters, 431 U.S. at 340, 97 S.Ct. 1843.
In Watson v. Fort Worth Bank Trust, 487 U.S. 977, 995, the Supreme Court found that in disparate impact cases, "statistical disparities must be sufficiently substantial to raise such an inference of causation. Plaintiff must show disparate impact, not that the defendant Union's practice has caused discriminatory treatment. In a disparate impact case, plaintiff's statistics must raise an inference of discrimination. Hogan v. Rose, 109 F. Supp.2d 99, 104 (N.D.N.Y. 2000).
Plaintiff's expert, Dr. Allan Mazur, has been a professor in the Maxwell School of Syracuse University since 1971. He was previously on the faculties of Stanford University and MIT, and worked for four years in the aerospace industry as an engineer. He often taught graduate and undergraduate courses in statistics and quantitative methods.
In 1969, he received a Ph. D. in sociology from Johns Hopkins University, an M.S. in engineering from UCLA in 1964, and a B.S. in physics from the Illinois Institute of Technology in 1961. He has been a Fellow of the American Association for the Advancement of Science since 1992, a member of Committee B on Professional Ethics of the (National) American Association of University Professors from 1990 to 2002, and has been listed in Who's Who in America since 1982. In 2000-01 he was Gilbert White Fellow at Resources for the Future, Washington, D.C.
He is the author and co-author of five books and over 159 articles on professional topics, many involving quantitative data. His substantive interests are sociology of science, technology and environment, biosociology, and research methods.
His opinions in this case are based on statistical analysis of employment data provided to him by the defendants, and on his knowledge arising from his professional experience and university teaching and research. He has not testified as an expert at trial in the preceding four years.
Dr. Mazuer's analysis is limited to the journeymen workers ("JWs") (plaintiff's classification) who worked during the period 1995-97. Results for any given year are based on JWs who worked those years (about 500 each year). JWs (as of the 2002 classification) working in 1995-97 ranged in age from 19 to 65 years of age at that time, the median age was 36. Forty-six percent were 40 years of age or older. JWs composed about fifty-six of the membership of Local 43. There work is partly seasonal with most work in late summer and least in the winter.
A variety of Dr. Mazuer's analyses show that older JWs in Local 43 work fewer hours than younger JWs. There appears to be a two tier pattern of age discrimination, with a drop in average hours occurring when workers reach their early 40s. Part of the difference seems to be attributable to higher lay off rate among older workers.
Indications of age discrimination appear for each of the contractors. Defendant Burns favored younger JWs by hiring them disproportionately to their representation in Local 43, as did defendant Ridley to a lesser degree. Defendant Merit showed no age discrimination in hiring. Once JWs were hired, all three defendant contractors gave substantially more hours of work to those under 40 than those 40 and older.
The question arises whether JWs voluntarily work fewer hours with advancing age, in which case there would be no age discrimination. For several reasons, this seems to be an insufficient explanation for observed trends. Those workers were operating at an income that usually does not afford the luxury of voluntary work withdrawal from paid employment. Furthermore, the "two tier" structure of age discrimination shows a fairly abrupt falloff in working hours when JWs reach their early 40s, and then not greatly thereafter; this does not fit the assumption of continuous disengagement from work with increasing age. It is implausible that the disproportionately low hiring of older JWs by Burns, and to a lesser extent by Ridley, reflects a voluntary option of the workers. It is a further stretch to assume the relatively frequent layoffs experienced by older JWS are the result of their own choice.
Dr. Mazur's opinions have demonstrated an inference of age discrimination and has set forth sufficient statistical evidence to support plaintiff's claim.
Plaintiff has made a motion in limine precluding the testimony of defendants' expert William Shields, Ph. D. Federal district courts have the power to exclude evidence in limine pursuant to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 463, 83 L. ED.2d 443 (1984). The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Id. A motion in limine should be granted only if the evidence sought to be excluded is clearly inadmissible on all potential grounds. Baxter Diagnostics, Inc. v. Novatek Medical, Inc., 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998). A court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from that which was contained in the defendant's proffer." Luce, 469 U.S. at 41, 105 S.Ct. at 40.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise.
The Rule makes clear that there are two prerequisites that must be met before the testimony of the expert witness can be admitted into evidence. First, the trial court must insure that the witness is properly qualified as an expert to testify on matters that are scientific, technical or specialized in nature. Jazmin Campbell v. Metropolitan Property Casualty Insurance Company, 239 F.3d 179, 183 (2d Cir. 2001) ("preliminary assessment is whether the reasoning or methodology underlying the testimony is scientifically valid."), and second, the trial court must determine that the expert's testimony "'will assist the trier of fact to understand the evidence or determine a fact in issue.'"Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
In Daubert, the Supreme Court recognized that Rule 702 intends to relax "the traditional barriers to 'opinion testimony,'" thus "reinforcing the idea that there should be a presumption of admissibility" of expert testimony. Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995) (citing Daubert, 509 U.S. 588, 113 S.Ct. 2786). Daubert set forth several factors to assist trial courts in assessing the reliability of expert testimony, they include, (1) whether a theory or technique can be or has been tested; (2) whether a theory has been subjected to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation, and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. Daubert, 509 U.S. 592-94, 113 S.Ct. 2786. The opinion made clear, however, that these factors do not constitute a "definite checklist or test." 509 U.S. at 593, 1113 S.Ct. 2786. As the Supreme Court has stated "[t]he factors in Daubert may or may not be pertinent in assessing reliability depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Khumo Tire Company v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "The fourDaubert factors do not constitute a definitive check list but must be tailored to the facts of the particular case." Johnson Electric North America, Inc. v. Mabuchi Motor America Corporation, 103 F. Supp.2d 268, 282 (S.D.N.Y. 2000). "The decision to admit expert testimony under Rule 702 of the Federal Rules of Evidence is left to the broad discretion of the district court and will be sustained unless manifestly erroneous." United States v. Tapia-Ortiz, 23 F.3d 738, 749 (2d Cir. 1994).
The Second Circuit has adopted a rather broad standard for the admissibility of expert witness testimony. In Boucher v. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) ( per curiam), the court stated that although expert testimony should be excluded if it is speculative or conjectural, or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith, or to be in essence an apple and orange comparison, other contentions that the assumptions are unfounded go to the weight, not admissibility, of the testimony. Where a purported expert does not meet the requirements of the Federal Rules of Evidence and Daubert, the expert's testimony will be found inadmissible. Cayuga Indian Nation of New York v. Pataki, 83 F. Supp.2d 318 (N.D.N.Y. 2000). The Daubert factors nevertheless may still remain useful in assessing reliability.Id.
Defendants' expert William Shields, PhD submits his expert report based on the information supplied to him by the Union. Dr. Shields received an appointment as an assistant professor at the State University of New York College of Environmental Science and Forestry in 1979, and is now a full professor of biology at this institution. He received his Ph. D. in 1979 and his MS in zoology in 1976 from Ohio State University, his AB in biology was obtained at Rutgers University in 1974. His research and teaching include the general fields of evolutionary biology, animal behavior, genetics, and forensic biology and especially DNA typing. He has authored or coauthored over forty publications including two books and papers on the proper use of statistics to test hypotheses. Proper research and statistical analysis are part of the content of his research as well as the teaching of both undergraduate and graduate students.
Dr. Shields has been qualified as an expert on statistical issues in both federal and state courts in over fifty cases, and has never been rejected as an expert when his statistical analyses were offered as evidence to the court.
Plaintiff contends that Dr. Shield's testimony should be disregarded on two grounds. First, he improperly enlarged the pool of Local 43 members for his analysis to include not only workers in plaintiff's classification called Journeymen Workers ("JWs"), but other classifications of union members irrelevant to this case. He also sporadically excluded some other special classes of union members, thereby making it difficult to determine when he included classes and when he did not. His analysis is lacking because of his misspecification of the relevant population.
Plaintiff claims the Dr. Shield's inclusion of Locals other than Local 43 is also irrelevant. Dr. Shields inclusion of Locals 328 and 181 have no probative value and are irrelevant because he has a population which is inconsistent with the facts of the case. The methodology he used to reach his conclusions is errant because by enlarging the population with irrelevant people you largely remove the age effect.
Second, Dr. Shields admits that he did not have access to all the information from data contractors and never did any analysis of that data. Consequently, any conclusions he made concerning the defendant contractors is completely unreliable and lacks proper foundation.
In his affidavit replying to these allegations, Dr. Shields sets forth the procedures he used in reaching his conclusions.
The data provided to him by the Union had records of monthly hours of electrical industrial employees for the time period 1995-1997, and information about the original union affiliation of the employee and their job classifications. Also included, was a pension file noting the hours worked per month and per year by employees throughout their careers. This data was the same as that provided to plaintiff's expert by the Union.
Dr. Shields used the statistical tools of regression analysis, analysis of variance ("ANOVA"), and descriptive statistics. ANOVA, and descriptive statistics are techniques that may be tested and subjected to peer review. His report hypothesized that there was a pattern of differences in the hours worked by employees that can be associated with their age in a manner consistent with the conclusion that discrimination based on age had taken place. In addition to analyzing the hypothesis of the JW classification only, the statistical analysis tested additional classifications of workers in the data that had work patterns substantially similar to those of the plaintiff. Part of the analysis included classifications other than JWs because determining whether age discrimination occurred necessitates that similar classes of workers be tested. As an example, the hypotheses were tested on the Journeyman Wiremen ("JW2") and the Intermediate Journeymen ("IJ") categories.
Separate and distinct statistical regressions and descriptions were performed for the data that included evaluations of: (1) part of the same classifications used by plaintiff's expert; (2) the classifications used by plaintiff's expert; and (3) additional classifications of workers not used by him. This analysis thus tested the same data base, part of the same data base and a larger data base than the one used by plaintiff's expert.
In addition to testing the hypothesis on the data set's classification, the hypothesis was further tested by analyzing subgroups within these classifications in order to observe how sensitive the relationship between the age and hours worked was relative to potential confounding variables. These tests were done because the presence of a statistical relationship could depend on which smaller subgroup is included or excluded. These subgroups were made up of employees who were once affiliated with Local 43, Local 181 and Local 328 prior to the latter merging into the present union.
Based on these analysis of the Union data, no evidence of a discriminatory association between ages and hours worked. The analysis showed that any relationship between age and hours worked that appeared in the regressions and descriptive statistics was due to the presence of employees who were formerly affiliated with Local 328. Due to the fact that the hours worked by members of the different subgroups were dissimilar, and the ages of the members of the subgroups were also dissimilar, the pooling of the subgroups together for the statistical analysis produced an unauthentic association between ages and hours worked.
The results illustrated that the mild statistical association between age and hours disappeared when membership in the former Local 328 is controlled for. This was true for the analysis of the I J category and for the larger statistical test performed with the additional categories of workers.
Local 328 was originally located in the Oswego, New York area, and Local 43 was located in the Syracuse, New York area. The modest statistical association could be explained by the fact that after the merger of these unions into the current Union, the original workers of Local 328 chose to work fewer hours than those members who were formerly affiliated with Local 43. This may have occurred due to commuting distances or other individual exigencies within the two subgroups. When analyzed together, individuals over forty years of age worked more hours on average than younger individuals in two of the three original Locals (43 and 328), while in the other Local (181), the trend was inverted, although none of the differences were statistically significant. Additional testing (2-way ANOVA) indicated that age was not a significant factor while original Local membership was significantly associated with hours worked by wiremen. This led to the conclusion that there was no real association between hours worked and age, per se.
Dr. Shields did not have access to all of the data from individual defendant contractors analyzed by plaintiff's expert because the data was in paper form and did not have the time required to make a proper similar analysis. He does note in his report, however, that plaintiff's expert's results and conclusions rest on the frequency of young or old workers in the JW class (606). When the age distribution of the larger and more complete data set (938), it showed that 40.3% of the Union's members were classified as old (over 40 years of age) in 1996, and 59.7% as young (under 40 years of age). This reduction in the true proportion of older workers in the Union seriously undercuts plaintiff's expert's conclusions, because based on them, he would conclude that defendant contractor Merit hires older workers at a higher frequency than expected, defendant contractor Ridley hires members of each age class at the expected frequency rate, and defendant contractor Burns hires older workers at less than the expected frequency. This type of pattern could be expected to take place for many reasons, including chance, other than age discrimination by either defendants Burns or Merit.
The Supreme Court has held that Federal Rule of Evidence 702 places a special duty upon a trial judge to "ensure that any and all scientific testimony . . . is not only relevant, but reliable." Judges must assume this gatekeeping role by examining proffered expert testimony to decide "whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93.
Dr. Shields' credentials clearly qualify him as uniquely suited to testify as an expert in the field of statistical evidence, and the ANOVA methodology he employed in making his analyses and forming his expert opinion is well established as reliable.Johnson Electric North America, Inc., 103 F. Supp at 282. His testimony will be admitted by the court.
It is obvious that there is a serious conflict in the experts' required statistical evidence as to which is the correct sized labor pool to use in reaching their conclusions, and summary judgment is not possible in such a situation. An occurrence of experts disagreement and is readily understandable.
A given data set can be viewed from more than one perspective, and can be represented by a model in more than one way. Quite commonly, no unique model stands out as true and correct; justifying so strong a conclusion might require a depth of knowledge that is simply lacking. So it is not unusual for a given data set to be analyzed in several apparently reasonable ways. Falise v. American Tobacco Company, 258 F. Supp.2d 63, 67 (E.D.N.Y. 2000).
The proposed testimony of the opposing experts in this case is reliable. It will be presented with the assistance of charts that will enable the jury to understand the testimony to evaluate the credibility of the experts, and to determine the probative force of their statistical models. The principals and methodology used are capable of evaluation by a lay jury. 258 F. Supp.2d 63, 66 (E.D.N.Y. 2000).
Accordingly, Defendants' summary judgment motions and plaintiff's motion in limine are DENIED. IT IS SO ORDERED