Maldonado v. Federal Express Corporation

MOTION Memorandum of Law in Support of Defendant's Motion to Exclude Testimony and Expert Report of Lisa Fontes

D.V.I.April 29, 2019

1 IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX NATACHA MALDONADO, ) Plaintiff, ) v. ) Case. No. 1:17-CV-39 ) FEDERAL EXPRESS CORPORATION, ) Defendant. ) ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO EXCLUDE TESTIMONY AND EXPERT REPORT OF LISA FONTES Defendant Federal Express Corporation (“FedEx”), pursuant to LR 7.1 and the Scheduling Order submits this memorandum of law to support its motion to exclude the testimony and expert report of Lisa Fontes, Ph.D. I. INTRODUCTION As articulated in its summary judgment papers the fundamental issue before the court is whether FedEx, an employer, may discharge an employee (Plaintiff) for admitted acts of workplace violence. See Doc. 118 (Motion and Memorandum), Doc. 119 (Material Statement of Facts). During an investigation before her termination, Plaintiff admitted to FedEx’s security and human resources personnel she engaged in acts of workplace violence against another employee (her manager). FedEx terminated Plaintiff because of the workplace violence. During her deposition in this matter, she again admitted to having engaged in acts of workplace violence leading to her termination. Lacking any qualifications, reliability and relevance to the dispute to assist the jury, Plaintiff’s “expert” in this matter is at best an attempt to subvert the role of the jury and rule of law, and at worst is a fraud. One of the fundamental reason for Plaintiff’s termination Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 1 of 20 2 was workplace violence and the so-called “expert” (1) has no scholarly publications, and to the extent she published anything, none of them were subject to peer review; (2) admits that workplace violence is not her expertise; and (3) has no knowledge of FedEx’s workplace violence policy, training or application. II. PRELIMINARY STATEMENT Lisa Fontes (Fontes) lacks any relevant specialty expertise that would allow her to testify as an expert. Fontes’ reasoning and methodology underlying her testimony/report is not sufficiently reliable, and both the reasoning and methodology cannot be properly applied to the facts in issue. Her testimony will not assist the jury. Fontes lacks even the most basic knowledge regarding sexual harassment in the workplace or workplace violence, and the actions taken by FedEx. Further, she brings no scientifically based object standards to evaluate FedEx’s response and the investigative efforts taken. Fontes’ report and testimony invades the province of the jury because she makes speculative conclusions and credibility determinations clearly reserved for the jury. Adequacy of the investigation and FedEx’s actions can and should only be determined by the jury. III. STATEMENT OF UNDISPUTED FACTS A. General Qualifications of Fontes 1. Fontes is a full time professor and researcher at the University of Massachusetts Amherst (UM Amherst). Lisa Fontes Deposition (Fontes Dep.) 65:2-7; 79:22-24. 2. Fontes was retained to issue an opinion on three major areas: (1) what is workplace sexual harassment; (2) is there evidence of sexual harassment by Maldonado’s manager and did FedEx fulfill its responsibility to its employees and Maldonado; and (3) what is coercive control Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 2 of 20 3 and what circumstances is coercive control relevant to workplace sexual harassment. Fontes Dep. 10:14-11:3, 14:6-21; Attachment C, Fontes Dep. Exhibit 3, Fontes Report. 3. For the past 9.5 years, Fontes conducted on-line lectures in an adult degree program for the University without Walls at UM Amherst (Fontes Dep. 11:13-14; 12:10-23-24) teaching framework of understanding and writing about experiences, and advising the students in the adult degree program. Fontes Dep. 13:19-21. 4. Fontes real interest and dedication is child sexual abuse, and cultural issues in child sexual abuse, which then lead to other forms of violence such as child physical abuse, drug and alcohol abuse, violence against women. Fontes Dep. 40:9-16. 5. Fontes considers herself an expert in cultural issues in family life, violence against women in a range of settings, intimate partner violence, coercive control, child sex abuse, child physical abuse, qualitative research, and interviewing. Fontes Dep. 40: 9-17. 6. Fontes is not a licensed psychologist (Fontes Dep. 47:17-18), nor has she worked as a clinical psychologist, counselor, any psychotherapist or treat patients. Attachment A, Fontes Dep. 49:10-18. 7. Fontes’ lacks any peer-reviewed publication regarding coercive control, sexual harassment, or workplace violence. Fontes Dep. 57:1-6; Attachment B, Fontes Dep. Exhibit 1, Curriculum Vitae (CV). 8. Fontes’ peer reviewed publications relate solely to child sex abuse, child abuse, multicultural issues of child abuse, marital violence, and research regarding violence against women. Fontes Dep. 57: Attachment B, Fontes Dep. Exhibit 1, CV. 9. The books published by Fontes are not academically peer reviewed the same as journal publications. Fontes Dep. 54:6-10. Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 3 of 20 4 B. None of Fontes’ work is related to the matters in this case. 10. Fontes has authored four “expert” reports (not including this matter) regarding coercive control, and none of the four reports involve sexual harassment in the workplace (Attachment A, Fontes Dep. 75:17-25) or workplace violence. Fontes Dep. 76:1-4. 11. Fontes testified very narrowly once, using hypotheticals, and was not accepted as an expert. Fontes Dep. 66:12-16; 82:13-16. 12. Fontes’ report was not accepted into evidence Attachment A, Fontes Dep. 67: 20-21. 13. Fontes’ second report regarding coercive control arose out of a post-nuptial agreement executed by a wife in a marital dispute involving a jointly owned marital business. Fontes Dep.71:4-8; 72:3-7. 14. Two of her four reports relate to immigration matters regarding coercive control in human trafficking and u-visas. Fontes Dep. 76:10-23. 15. Fontes has never testified as an expert in any criminal matters. Fontes Dep. 81:18-23. 16. Fontes conducted no research, training, or investigations regarding sexual harassment in the workplace, which is also evident in her report. Fontes Dep. 95:17-25; 110:11-13; 199:1-4; 21414-18; Attachment C, Fontes Dep, Exhibit 3, Fontes Report. 17. Fontes conducted no studies on coercive control, and only relies upon her reading of the literature regarding coercive control. Fontes Dep. 120: 11-17. 18. U.S. courts do not recognize coercive control as a criminal charge. Fontes Dep. 203:14-16. 19. Fontes used no control methodology in her two interviews with Plaintiff that would allow her to convert the information into quantitative measures and specifically stated that she does not do that “kind of research.” Fontes Dep. 121:13-22; 122:10-17. Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 4 of 20 5 20. Fontes admits she does not know the obligations of an employer regarding sexual harassment in the workplace. Fontes Dep. 215:17-20. 21. Fontes lacks any knowledge regarding FedEx Policies, did not read the FedEx Anti- Harassment policy, Acceptable Conduct Policy or the Workplace Violence Policy, and does not know who makes the determinations or enforces the policies. Fontes Dep. 107:13-19; 110:1-4. C. Fontes’ Report 22. Fontes relies upon two conversations of less than two hours total with Plaintiff, and the documents presented to her from Plaintiff’s counsel; however, she cannot recall if she reviewed every document, the content of some documents, or which depositions she read. Fontes Dep. 102:14-25; 103:1-7; Attachment C, Fontes Dep. Exhibit 3, Fontes Report. 23. Fontes has no research or information she relied upon in forming her opinion that FedEx never adequately investigated the allegations of sexual harassment and did not take appropriate measures under its policy. Fontes Dep. 188:1-10. 24. Fontes did not review FedEx’s anti-harassment policy. Fontes Dep. 109:23-25; 110:1- 6. 25. Fontes conducted no research focused on workplace violence, nor has she investigated exclusively workplace violence. Fontes Dep. 96:1-12; 199:5-12. 26. Fontes admits that workplace violence is not the center of her expertise, especially as it relates to threats at work or disruptive behavior. Fontes Dep. 200:18-2; 201: 12-19. 27. Fontes lacks knowledge regarding FedEx’s Workplace Violence Policy and does not know who makes determinations and enforces the policy. Fontes Dep. 107:13-25; 108:1-3. Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 5 of 20 6 28. Fontes training regarding sexual harassment and bullying consist of one three-hour obligatory faculty training session conducted by UM Amherst 2017-2018 academic year. Fontes Dep. 85:18-23. 29. Fontes reviewed none of the FedEx harassment training, nor was she aware of the reporting mechanisms in place at FedEx regarding reporting harassment. Fontes Dep. 195:4-17; 196:6-14. 30. Fontes in her report specifically states that she will apply her knowledge of sexual harassment and coercive control to the “Maldonado/Camacho situation at FedEx.” Attachment C, Exhibit 3, Fontes Report, at p. 9. 31. Fontes concedes she was in a coercive control relationship and could not define what safeguards she relied upon to prevent bias in making her analysis in this matter, other than she “knows how to distinguish her experience from that of another person. Fontes Dep. 125:21- 25; 126:1-15. 32. Fontes’ expert report does not account for Plaintiff reporting her allegations to HR, followed by the immediate suspension of the alleged harasser, and was investigated by investigators outside of St. Croix . Fontes Dep. 117:17-20; 119:11-25. 33. Fontes disregards in her report the sworn testimony by Plaintiff and her multiple statements, wherein Plaintiff admitted that she engaged and consented to the four year relationship with her manager. Fontes Dep.158: 7-8. 34. Fontes did not question Plaintiff about why she did not use the FedEx reporting tools to report the conduct and allegations of Dean Camacho and opined that the question seemed irrelevant. Fontes Dep. 164: 10-22; 165:3-9. Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 6 of 20 7 35. Fontes disregards in her testimony and report that Plaintiff admitted to engaging in workplace violence at FedEx when she was involved in an altercation with her manager and threw a cell phone at her manager. Fontes Dep. Dep. 83:24-10. 36. Fontes disregards that Plaintiff’s admitted aggressive behavior was one of the reasons Plaintiff saw a therapist, and may have been the aggressor in the relationship with her manager. Fontes Dep. 131: 9-15; 176:23-25; 177: 1-17. 37. Fontes takes issue with the initial investigation by FedEx, which was for workplace violence and then a second investigation for sexual harassment and opines, “it seems to me” FedEx never adequately investigated the allegations of sexual harassment. Fontes Dep. 212:4-10; 212: 22-25; 213: 1-2, 20-22; Attachment C, Fontes Dep. Exhibit 3, Fontes Report, at p. 23. 38. Fontes formed an opinion regarding the atmosphere at the St. Croix office without visiting the office of speaking with anyone who worked there with the exception of Plaintiff. Fontes Dep. 136:3-11; 194:8-17; 195:2-11. 39. Fontes did not speak with any members of Plaintiff’s family, was not concerned with questions regarding Plaintiff’s family dynamic or that Plaintiff was living with the father of her older children while engaging in a relationship with Dean Camacho. Fontes Dep. 131: 2-5; 208:12- 25; 209:1-9, 14-21. 40. Fontes acknowledges that the investigation into the sexual harassment occurred. Fontes Dep. 224: 18-25; Attachment C, Fontes Dep. Exhibit 3, Fontes Report. 41. Fontes disagreed with Plaintiff’s interview conducted by HR advisor Vanessa Hulett, in the harassment investigation, yet had no recollection of how long Hulett spent with Plaintiff. Fontes Dep. 213: 3-25. Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 7 of 20 8 III. LAW AND ARGUMENT A. Overview of Rule 702 and Daubert requirements. The Supreme Court clarified that Rule 702 requires district courts to perform a critical "gatekeeping" function concerning the admissibility of all expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). District courts are "charged with screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the issue at hand." Id. The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Rule 702 has been interpreted as having three major requirements: the witness must be an expert; (2) the procedures and methods used must be reliable; and (3) the testimony must fit the factual dispute at issue so that it will assist the jury. Anders v. Puerto Rican Cars, Inc., No. CIV.A. 04-0036, 2009 WL 3007367, at *3–4 (D.V.I. Sept. 15, 2009), aff'd, 409 F. App'x 539 (3d Cir. 2011), citing Daubert, 509 U.S. at 591; United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985). On the first requirement, there is no articulated test, or set of standards, for qualifying a witness as an expert and this determination is left to the discretion of the trial judge. Government v. Olivera, 1971 U.S. Dist. LEXIS 5090, 8 V.I. 602, 606 (D.V.I.1971). To meet the qualifications as expert, an expert must “possess specialized expertise.” In re Catalyst Litig., No. SX-05-CV- 799, 2010 WL 4721333, at *3 (V.I. Super. July 2, 2010), citing Schneider ex rel. Estate of Schneider, 320 F.3d at 404. Factors to be used in determining expertise qualifications include: education, practical experience, study, research, and general background. Id. “At a minimum, a proffered expert witness ... must possess skill or knowledge greater than the average layman.” Gov't of V.I. v. Sampson, 94 F. Supp. 2d 639, 646 (D.V.I. 2000), quoting Aloe Coal Co., 816 F.2d Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 8 of 20 9 at 114, quoted in Waldorf, 142 F.3d at 625. See Asplundh Mfg. Div. v. Benton Harbor Engineering, 57 F.3d 1190 (3d. Cir.1995) (if a witness seeks to offer an opinion on a subject that calls for expertise he does not possess, the opinion is not one that would be either rational or helpful). Reliability is the second requirement for an expert witness. An expert's testimony is admissible if the process or technique the expert used in formulating the opinion is reliable. Daubert, 509 U.S. at 592. A district court should consider several factors in evaluating whether a particular scientific methodology is reliable, including the testability of the expert's hypothesis, whether the methodology has been subjected to peer review and publication, the frequency by which the methodology leads to erroneous results, the existence and maintenance of standards controlling the technique's operation, and whether the methodology has been generally accepted in the scientific community. Daubert, 509 U.S. at 592-594; see also United States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985) (in addition to the Daubert factors, a district court should also consider whether a method produces testable hypotheses; the existence of standards controlling the technique's operation; the degree to which the expert testifying is qualified; the relationship of a technique to more established modes of scientific analysis; and the non-judicial uses to which the scientific technique are put). A district court should consider these factors and any others that are relevant. In RE Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3rd Cir. 1994). Equally important, the trial judge must ensure that any and all expert testimony or evidence admitted is not only relevant, but reliable. Downing, 753 F.2d at 1237. Besides reliability, Rule 702 requires that the expert's testimony must assist the trier of fact. Admissibility depends in part on the proffered connection between the research or test result to be presented and particular disputed factual issues. Downing, 753 F.2d at 1237. Expert testimony is only helpful to the trier of fact if it addresses factual issues implicated by the facts of Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 9 of 20 10 the particular case. Anders v. Puerto Rican Cars, Inc., No. CIV.A. 04-0036, 2009 WL 3007367, at *4–5 (D.V.I. Sept. 15, 2009), aff'd, 409 F. App'x 539 (3d Cir. 2011), citing Daubert, 509 U.S. at 591-595. Here, Fontes’ testimony and the report do not meet the trilogy of restrictions placed by Rule 702 on expert testimony: qualification, reliability, and fit the factual dispute to assist the jury and should be excluded. See, In re Catalyst Litig., No. SX-05-CV-799, 2010 WL 4721333, at *2 (V.I. Super. July 2, 2010) quoting, Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003) (noting that Federal Rule of Evidence 702 was amended to include this trilogy and referring to Brown v. Southeastern Pa. Transp. Auth. (Paoli II ), 35 F.3d 717 at 741–743 (3d Cir.1994). B. The Expert Report, Testimony and Opinions of Lisa Fontes fail to meet the requirements mandated by Fed. R. Evid. Rule 702 and Daubert. 1. Fontes lacks the qualifications to be considered an expert under Rule 702 and Daubert. Before an expert witness may offer an opinion under Rule 702, she must first be qualified by virtue of a specialized expertise. In re Paoli R.R. Yard PCB Litig., 35 F.3d at 741. In Waldorf v. Shuta, 142 F.3d 601 (3d Cir. 1998), the court found, "at a minimum, a proffered expert witness . . . must possess skill or knowledge greater than the average layman. . . ." Id. at 625. Fontes lacks the qualifications to testify as an expert. Fontes considers herself an expert in cultural issues in family life, violence against women in a range of settings, intimate partner violence, coercive control, child sex abuse, child physical abuse, qualitative research, and interviewing. SOF1 ¶ 5. Fonte’s real interest is in child sexual abuse, and cultural issues in child 1 Throughout this memorandum SOF refers to the specified paragraphs in FedEx’s Statement of Facts set forth herein. Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 10 of 20 11 sexual abuse which then lead to other forms of violence such as child physical abuse, drug and alcohol abuse, violence against women. SOF ¶ 4. Now, her focus includes coercive control, which has not been recognized as a criminal charge in the US. SOF ¶¶ 10, 18. However, Fontes’ lacks any specialized knowledge regarding coercive control. This is evidenced by: (1) Lack of peer reviewed publication regarding coercive control, sexual harassment, or workplace violence. SOF ¶ 8 ; (2) Fontes’s knowledge of coercive control comes solely from her extensive reading about the subject. SOF ¶ 17 ; and (3) Fontes has conducted no research of her own or developed any quantitative data, since she does not do that kind of research. SOF ¶ 19. Despite authoring four reports (not including this matter) regarding coercive control, none of the four reports involve workplace violence or sexual harassment in the workplace SOF ¶ 10. The other reports relate to a postnuptial agreement and to two immigration matters. SOF ¶¶ 13-14. Further, Fontes lacks any specialized expertise in sexual harassment and workplace violence. This is evidenced by: (1) Fontes lack of knowledge regarding an employer’s obligations regarding sexual harassment in the workplace. SOF ¶ 20; (2) Fontes conducted no research or investigations regarding sexual harassment in the workplace SOF ¶ 16; (3) Fontes conducted no research focused on workplace violence, nor has she investigated exclusively on workplace violence SOF ¶ 25; (4) Fontes admits that workplace violence is not the center of her expertise as it relates to threats at work or disruptive behavior SOF ¶ 26; and (5) Fontes has no research or information she relied upon in forming her opinion that FedEx did not adequately investigate the allegations of sexual harassment. SOF ¶ 27. Fontes describes her training to include bullying, which was part of her annual training from her employer. SOF ¶ 28. This is not workplace violence. Notably, Fontes provided no training to a corporation or business regarding workplace violence, nor has she participated in any investigations regarding workplace violence. SOF ¶ 25. Most important is Fontes’ admission that workplace violence is not the center of her expertise as it relates to threats at work or disruptive Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 11 of 20 12 behavior. SOF ¶ 26. This is interesting since this matter involves the termination of Plaintiff’s employment due to her admittedly engaging in workplace violence. See Doc. 1(Complaint). Fontes has received limited training in sexual harassment, which was also limited to her annual obligatory training provided by her employer, which was not TitleVII. SOF ¶ 28. Fontes identifies no other specific training regarding sexual harassment in the workplace that she has received. SOF ¶ 28. Again, Fontes has provided no training to a corporation or business regarding sexual harassment, nor has she participated in any investigations regarding workplace sexual harassment. SOF ¶ 16. Her report is a rendition of the history and facts surrounding sexual harassment in the workplace and is not reflective of any specialized training or knowledge of Fontes regarding this topic. Or even any specifics regarding FedEx’s policies or training regarding sexual harassment and workplace violence. Ultimately, Fontes lacks any specialized knowledge regarding workplace violence, sexual harassment in the workplace and coercive control that exceeds what a layperson would know Fontes should not be deemed an expert and both her testimony and report should be excluded. 2. Fontes’ report lacks reliability in reaching her conclusions. As to the reliability of the expert and report, courts look to these factors: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3rd Cir. 2000), citing Daubert at 597, Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 12 of 20 13 United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742 n. 8. In Oddi, admissibility depends in part upon "the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case," meaning the test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct. Rather, the test is whether the "particular opinion is based on valid reasoning and reliable methodology." Oddi, 234 F.3d 145-146, citing Kannankeril v. Terminix International Inc., 128 F.3d 802, 806 (3d Cir. 1997). Conclusions and methodology are not entirely distinct from one another. General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) A court "must examine the expert's conclusions in order to determine whether they could reliably flow from the facts known to the expert and the methodology used." Heller v. Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir. 1999). "A court may conclude that there is simply too great a gap between the data and the opinion proffered." Joiner, 522 U.S. at 146. Fontes’ report and testimony lacks reliability because there is simply too great of a gap from the information regarding the facts in this matter and the opinion offered by Fontes. Fontes performed no research and utilized no methodology in reaching her opinions. SOF ¶¶ 17, 19. She admittedly does not do that “kind of research” where she reduces facts and findings to quantitative data. SOF ¶ 19. Fontes concedes that her knowledge regarding coercive control is from her “extensive reading,” and not independent research. SOF ¶ 17. The lack of independent research means all her opinions are simply based on bias. Fontes concedes she herself was in a coercive control relationship but could not define what safeguards she relied upon to prevent bias in making her analysis in this matter, other than she “knows how to distinguish her experience from that of Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 13 of 20 14 another person.” SOF ¶ 31. Fontes’ testimony and report are not based on sufficient facts or data that is the product of reliable principles that can be reliably applied to the facts in this case. The is also a lack of reliability for Fontes’ opinions regarding sexual harassment and workplace violence as evidenced by her lack of work in this area and her reliance upon the history of and published work of other researchers. SOF ¶ 16. Although retained to expertly opine on what is workplace sexual harassment, whether there was evidence of sexual harassment, and whether FedEx fulfilled its responsibility as an employer to protect its employees from sexual harassment, Fontes admits that she does not know the standard for an employer’s obligations regarding sexual harassment. SOF ¶ 20. Fontes also admits that she has, never conducted training in any corporate or business setting for sexual harassment, or participated in an investigation of sexual harassment in a corporate or business setting. SOF ¶ 16. Fontes puts much of her focus upon the interview conducted by FedEx HR advisor Vanessa Hulett in determining that the investigation was inadequate. SOF ¶ 41. More important, Fontes lacks any knowledge regarding FedEx policies, and Fontes failed to recognize the importance that FedEx promptly removed the alleged harasser from the workplace within hours from the initial report from Plaintiff. SOF ¶ 32. However, Fontes does not describe any specifics of how she reached her conclusions except her own speculation and the limited communication with Plaintiff and whatever documents she reviewed. Fontes’ reasoning and methodology underlying her testimony and her report is not scientifically valid or sufficiently reliable, since Fontes did not rely or assert reliance upon any valid methodology. Fontes lacked knowledge regarding not only FedEx policies, and admittedly lacks expertise regarding workplace violence. SOF ¶ 26. Fontes has not conducted any workplace investigations or sexual harassment investigations or training. SOF ¶ 25. Without any basis or methodology of Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 14 of 20 15 how she reached her conclusion that FedEx failed to adequately investigate the allegations raised by Plaintiff, Fontes opines that “it seems to me” the FedEx never adequately investigated the allegations of sexual harassment. SOF ¶ 37. An “expert” rendering “expert” opinions on the deficiencies of an employer’s investigation, when the “expert” does not have all the facts renders any opinions on the subject inadmissible. In Arjangrad v. JPMorgan Chase Bank, N.A., 2012 U.S. Dist. LEXIS 71745 (D. Ore. May 23, 2012), plaintiff brought a lawsuit alleging national origin, race, and sex discrimination. The court granted defendant’s motion to exclude plaintiff’s expert testimony from Paul Buchanan, Esq. Buchanan offered testimony concerning "the adequacy of JPMorgan Chase's [ ] investigation/response to the complaints of discrimination" that plaintiff made during her employment. Id. *2. Buchanan concluded that defendant’s response to [plaintiff’s] . . . complaints of discrimination was "inadequate" for several reasons. Buchanan reached these conclusions based on a review of documents provided to him by plaintiff’s counsel and conversations with that counsel. Id. *4-5. The court ruled that Buchanan’s testimony is unreliable and conclusions are irrelevant. Id. *8. As to qualifications, the court ruled that Buchanan clearly lacked qualifications as an expert on defendant’s discrimination investigation, since his only experience with defendant’s investigation practices and policy consists of reading the policy in the preparation of his report. Id. *9 citing to Parton v. United Parcel Serv., No. 1:02-cv-2008-WSD, 2005 WL 5974445, at *4 (N.D. Ga. Aug. 2, 2005) (expert who merely read a large company's discipline policy, but did not assist in development or revision of that policy, apply the policy, or perform any research or investigation of the policy's application, was not qualified to testify about the company's disciplinary practices). Buchanan never performed an investigation for the exact type of employer Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 15 of 20 16 at issue— a bank or a business as large as Chase — and has never been employed in an HR department only go to the weight of his potential testimony. Id.*12. This Court should find Fontes’ testimony and report unreliable for these reasons. Additionally, Fontes does not consider or cite to other alternative or potential causes regarding the issues in either her testimony or her report. In United States v. Fleet Mgmt., 332 Fed. Appx. 753 (3rd Cir. March 23, 2009), a whistleblower case, the Third Circuit concluded that the district court’s exclusion of the expert’s opinion after conducting the Daubert hearing was persuasive and correct, and “wholeheartedly adopt its reasoning and conclusion.” Id. 754. In affirming, and noting the defects with the expert report, the court found (1) the expert report does not refer at all to alternative causes, and instead recites what the expert learned upon his inspection, and “[n]owhere in the report does [the expert] address other potential causes[,]” Id. 755; (2) did not offer any proof “as to why he objectively and systematically rejected [alternative causes],” Id.; and (3) “we believe that an expert's investigation requires inquiry and actual investigation, not a determination based solely on what the expert is told[,]” Id. 756. In conclusion the court summarized: Instead, [the expert] accepted the cause that was consistent with the what the whistleblower . . . , told him. He did not conduct a "differential diagnosis." Therefore, he failed to follow the reliable methodology that he urges as the basis for the admissibility of his opinion, and his opinion could thus be excluded. The District Court so held, and we agree. Id. 756. This is exactly the situation before the Court. Fontes spent less than two hours total time talking with Plaintiff and reviewed at least some documents provided by Plaintiff’s counsel before rendering her opinion. SOF ¶ 22. She admittedly did not talk with anyone from FedEx, did not review the anti-harassment policy, did not talk with any of Plaintiff’s family members, and was not interested in any information regarding family dynamics or Plaintiff’s counseling for agression Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 16 of 20 17 that occurred during her relationship with Dean Camacho. SOF ¶¶ 24, 38-39. Fontes would not consider the consensual nature of the relationship Plaintiff had with Dean Camacho, the alleged harasser, for four years. SOF ¶ 33. Discounted the possibility that Plaintiff’s relationship with Dean Camacho, was a relationship that went bad, that Plaintiff may be the aggressor, and Plaintiff knew of FedEx’s policies and had availed herself of them before. SOF ¶ 36. Fontes completely discounted alternative possibilities and factors in rendering her opinion. As detailed above, Fontes’ reasoning and methodology underlying her testimony is not sufficiently reliable, since Fontes did not rely upon any valid methodology or reasoning in reaching her opinions. 3. Fontes’report and testimony does not assist the jury and invades the province of the jury and her opinions and testimony are only guesses and speculation. It is well settled that an expert may not "merely tell the jury what result to reach." Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). An expert may not testify that certain conduct did or did not violate the law. In re Titanium Dioxide Antitrust Litig., 2013 U.S. Dist. LEXIS 62394, at *4 (D. Md. May 1, 2013). Expert testimony that usurps either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it by definition does not aid the jury in deciding; rather, it undertakes to tell the jury what result to reach, and attempts to substitute the expert's judgment for the jury's. Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005). The testimony offered by Fontes is not helpful to a jury, and not relevant, since her opinions and testimony addresses issue within the common knowledge of the average layperson. A jury can accomplish the same analysis on FedEx’s policy, implementation of its policy and investigation without Fontes’ “expert” opinions on the adequacy of implementing its policy and investigation. If allowed to testify, she would present prejudicial and erroneous statements of law Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 17 of 20 18 since she lacks even the most basic information regarding workplace sexual harassment and admittedly lacks knowledge regarding an employer’s obligation when allegations of workplace harassment are raised. SOF ¶ 20. Fontes admits to lack of experience regarding threats and disruptive behavior, the very essence of the allegations in this matter. SOF ¶ 26. Fontes’ opinions have no basis in fact and she failed to consider the criteria relied upon in sexual harassment investigations, such as prompt investigation, prompt remedial action, and investigation by nonbiased parties. SOF ¶¶ 32, 35, 41. Fontes was not even aware there were two separate investigations. SOF ¶. Likewise, she disregards Plaintiff’s repeated admissions she engaged in a consensual relationship with Dean Camacho. SOF ¶ 33. Fontes disagreed with the focus of the FedEx investigation, which initially started with the workplace violence and then moved to sexual harassment investigation after, Plaintiff raised allegations of harassment. SOF ¶ 37. Fontes places weight on her belief that the investigation was flawed because of the interview conducted by HR Advisor Vanessa Hulett. SOF ¶ 41. This opinion is not helpful to a jury because her opinion is nothing more than argument attacking the credibility of Ms. Hulett. In Bracey v. Jolley, 2012 U.S. Dist. LEXIS 192276 (N.D. Ga. August 3, 2012), the court precluded expert testimony by an “expert” who was to testify that defendants' investigation was incompetent. Defendants challenged the opinion that one defendant became irritated with plaintiff because of plaintiff’s numerous requests for an incident report. In precluding the testimony, the court ruled in part because the expert personally did not know of facts, he could not testify regarding those facts. Id. * 15. Regarding expert opinions, the law is clear that an opinion that is speculative or conjectural does not satisfy Rule 702. See Daubert, 509 U.S. at 590 ("'[K]knowledge connotes more than subjective belief or unsupported speculation.") "[P]roffered expert testimony should be excluded Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 18 of 20 19 if it is speculative or conjectural." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008). IV. CONCLUSION As detailed hereinabove, Fontes testimony and opinions do not meet the admissibility requirements governed by Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert and both should be excluded. WHEREFORE, for the reasons articulated herein FedEx requests that the Court exclude the expert report and testimony of Lisa Fontes. Dated this 29th day of April 2019. Respectfully submitted, By: s/Charles E. Engeman___________ Charles E. Engeman (V.I. Bar No. 498) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The Tunick Building, Suite 201 1336 Beltjen Road St. Thomas, VI 00802-4701 Telephone: (340) 714-1235 charles.engeman@ogletreedeakins.com AND s/ Frederick L. Douglas Frederick L. Douglas (admitted pro hac vice) s/ Robbin Wilson Hutton Robbin Wilson Hutton (admitted pro hac vice) s/ Brandie N. Smith Brandie N. Smith (admitted pro hac vice) Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, TN 38125 ATTORNEYS FOR DEFENDANT Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 19 of 20 20 CERTIFICATE OF SERVICE I hereby certify that I have served via ECF a true and correct copy of FedEx Corporation’s Memorandum of Law in Support of Motion to Exclude Testimony of Lisa Fontes this 29th day of April 2019. Lee J. Rohn, Esq. Mary Faith Carpenter, Esq. Lee J. Rohn and Associates, LLC 1101 King Street Christiansted, St. Croix, VI 00820-4933 By: s/Charles E. Engeman__________ Counsel for Defendant Doc. no. 1335912 Case: 1:17-cv-00039-WAL-GWC Document #: 126 Filed: 04/29/19 Page 20 of 20