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U.S. Equal Employment Opportunity Commission v. MJC, Inc.

United States District Court, D. Hawaii

July 9, 2019



          Susan Oki Mollway United States District Judge.


         Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”) seeks to bar an opinion and testimony by David Fram, an expert offered by Defendants MJC, Inc. and GAC Auto Group, Inc. dba Cutter Mazda of Honolulu (collectively, “Defendants”). ECF No. 120. In this employment discrimination case, Fram proposes to opine on whether Defendants complied with the Americans with Disabilities Act (“ADA”). The court grants the motion, concluding that Fram's opinion and testimony go to legal issues, have not been shown to be reliable and relevant, and go to Defendants' intent.

         II. BACKGROUND.

         The EEOC is suing Defendants under the ADA for allegedly refusing to hire Ryan Vicari on the basis of his hearing disability. ECF No. 27. The EEOC seeks, among other things, “punitive damages for [Defendants'] malicious and/or reckless conduct.” Id., PageID # 223.

         On April 12, 2019, Defendants disclosed that they intended to call Fram as an expert witness at trial. ECF No. 120-2, PageID # 1729. Attached to this disclosure was Fram's report dated April 11, 2019. See Id. at 1731-34.

         The report explains that, from 1991 to 1996, Fram was a Policy Attorney for the EEOC in Washington, D.C., where he “supervised and consulted with EEOC investigators and EEOC attorneys during the investigation and resolution of all forms of discrimination complaints, including ADA complaints.” Id. at 1731. Since 1996, Fram has been the Director of ADA Services for the National Employment Law Institute, a nonprofit educational organization focused on employment law issues. Id. Fram states that he has “spoken extensively around the country concerning ADA issues” and has “trained tens of thousands of HR professionals, attorneys, and others.” Id. at 1732.

         Fram was retained to opine on “whether Cutter Mazda of Honolulu's treatment of Ryan Vicari during his interview for employment with Cutter was consistent with the industry training I provide on what is required during an interview of a job applicant in order to comply with the ADA standard of care.” Id. The report explains, “This is relevant because [the EEOC] has alleged that the employer's conduct fell below the standard of care and was ‘malicious' and/or ‘reckless.'” Id. Fram states that he reviewed briefing, deposition excerpts, and “EEOC regulations, and formal and informal guidance regarding the ADA, as well as federal Court of Appeals cases and U.S. Supreme Court cases on the ADA.” Id.

         The report summarizes Fram's opinion as follows:

Employers are Permitted, But Not Required, to Ask Applicants to Describe/Demonstrate Performance When a Known Disability Would Reasonably Interfere with a Job.
In the EEOC Preemployment Enforcement Guidance, which I wrote when I was employed by the EEOC's Office of Legal Counsel, the Commission stated that an “employer may ask applicants to describe how they would perform any or all job functions, as long as all applicants in the job category are asked to do this.” The Commission went one step further, allowing for certain disparate treatment in limited circumstances. In this regard, the Commission stated that, “[w]hen an employer could reasonably believe that an applicant will not be able to perform a job function because of a known disability, the employer may ask that particular applicant to describe or demonstrate how s/he would perform the function. An applicant's disability would be a ‘known disability' either because it is obvious (for example, the applicant uses a wheelchair), or because the applicant has voluntarily disclosed that s/he has a hidden disability.” The Commission specifically allowed employers to engage in this disparate treatment in response to employers' concerns that requiring only particular applicants to describe/demonstrate would be illegal under the ADA. Importantly, although the Commission allowed for this disparate treatment, it did not require it.
I train employers, employees, and their respective representatives on what I believe are the ADA's “legal” requirements and also what I believe to be “best practices.” On issues like those raised in this case, I would train employers that there is no legal obligation to make further inquiries during an interview if an applicant discloses a hidden disability that the employer reasonably believes would interfere with safe performance of job functions. Likewise, I would train an applicant that there is no legal obligation to explain to the employer how s/he could safely perform the job if the employer raises safety concerns.
From a “best practices” perspective, I would train employers that, when an applicant discloses such a disability, I believe it is a best practice to ask the applicant to describe how s/he would safely perform the job. I would also train an applicant that, in circumstances where an employer has raised safety concerns, the applicant should, as a best practice, proactively explain to the employer how s/he could safely perform the job.
In this case, it appears that neither party engaged in what I train to be the best practices. However, neither party engaged in conduct that falls below the ADA standard of care according to my training in regard[] to the legal obligations of applicants and employers and, moreover, would not be conduct that is “malicious” or “reckless.”

Id. at 1733.


         The party submitting opinions of an expert has the burden of demonstrating the admissibility of those opinions. Lust By & Through Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996) (“It is the proponent of the expert who has the burden of proving admissibility.”).

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony and states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and ...

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