“[E]xpert testimony is admissible only if it is both relevant and reliable.”
How later courts described this case
- “[E]xpert testimony is admissible only if it is both relevant and reliable.”
- holding that similarly situated means employees with the same position, qualifications, and pay rate
- including statistics in list of evidence available to plaintiff to show pretext
- recognizing Teamsters framework as applicable in ™“‘pattern and practice’ suit[s] by the government,” and in “private class action[s]”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT March 25, 2022
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION Nathan Ochsner, Clerk
RAYMOND PICKNEY and §
DAVID FREZEL, §
§
Plaintiffs, §
§
v. § CIVIL ACTION NO. H-18-4545
§
DIAMOND OFFSHORE SERVICES §
LIMITED, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
Plaintiffs, Raymond Pickney (“Pickney”) and David Frezel
(“Frezel), bring this action against defendant, Diamond Offshore
Services Limited (“DOSL”), for engaging in employment
discrimination in violation of 42 U.S.C. § 1981, and Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.
(“Title VII”). Pending before the court are Defendant [DOSL]’s
Final Trial Plan & Objection to Plaintiffs’ Initial Trial Plan
(Docket Entry No. 192); Plaintiffs’ Final Trial Plan; Objections to
[DOSL]’s Final Trial Plan; and Response to [DOSL]’s Objections to
Plaintiffs’ Initial Trial Plan (Docket Entry No. 193); and
Plaintiffs’ Objections to Defendant’s Second Amended Trial Exhibit
List (Docket Entry No. 196). Also pending before the court is
DOSL’s request to exclude Plaintiffs’ statistical evidence asserted
in Defendant’s Motion in Limine (Docket Entry No. 161),1 which the
1Defendant’s Memorandum in Support of Its Motion in Limine,
Docket Entry No. 161-1, pp. 17-21 ¶ XIII. Page numbers for docket
(continued...)
court denied at Docket Call on October 8, 2021, stating that “I’ll
rule at trial after I determine what predicate has been laid to
support the testimony.”2 At a previous Docket Call held on June
11, 2021, the court denied Defendant’s Motion to Exclude Report and
Testimony of Plaintiff’s Proposed Expert, N. Shirlene Pearson,
Ph.D., stating
I’ve read the motion, the response, and the reply. I
have some observations and then I’m going to rule.
My normal practice is to rule on motions to exclude
or to strike expert testimony during the trial because
experts frequently modify their opinions. And at trial,
the party offering the expert may often establish a more
extensive predicate for the expert’s testimony.
Moreover, the context in which the testimony is offered
is often necessary for the Court to understand and rule
effectively on the issues.
However, in this case, because it looks like the
expert’s testimony was basically the primary evidence to
support the plaintiff’s case, I carefully reviewed the
testimony under the prevailing Daubert standards.
It is the Court’s preliminary determination that
Dr. Pearson is certainly qualified. Her testimony would
be relevant, assuming that the facts stated by plaintiffs
are the correct facts; i.e., that there was one reduction
in force covering a number of years.
But in order for the Court to determine what the
correct facts are, I have to hear evidence to determine
whether the factual predicate for the expert’s testimony
are correct or not. In other words, in order to
determine whether the expert’s opinions are reliable, I
need to resolve fact issues that can only be resolved at
trial.
1(...continued)
entries in the record refer to the pagination inserted at the top
of the page by the court’s electronic filing system.
2Transcript of October 8, 2021, Docket Call, Docket Entry
No. 181, pp. 4:10-12.
So, I’m going to deny the motion to strike the
report and testimony of Dr. Pearson.
I am somewhat skeptical about whether there were one
or more than one reductions in force. But we’ll leave
that for trial.3
This Memorandum Opinion and Order is intended to further
address the admissibility of Dr. Pearson’s report and testimony,
and other issues of law and evidence raised in the parties’
pretrial filings that will necessarily impact the amount of time
that the court, the parties, and the witnesses will need for
trial.4 Other issues to be addressed include: (1) whether
Plaintiff Pickney exhausted administrative remedies with respect to
his Title VII disparate impact claim; (2) evidentiary matters
pertaining to Plaintiffs’ disparate treatment claims; and (3) a
timing order for trial.5
3Transcript of June 11, 2021, Docket Call, Docket Entry
No. 174, pp. 3:5-4:13.
4See Defendant Diamond Offshore Services Limited’s Final Trial
Plan & Objection to Plaintiffs’ Initial Trial Plan, Docket Entry
No. 192, p. 3 (“As stated in Diamond’s Initial Trial Plan (Document
No. 187) and further explained below, Diamond has two different
time estimates at this stage — one estimate total 1275 minutes
(21.25 hours), and the second estimate total 2140 minutes (35.6
hours). These different estimates derive, in large part, from the
open question of whether Plaintiffs’ ‘single reduction-in-force
theory’ will be permitted at trial. . . . If that theory — which
Diamond denies — were to be permitted, Diamond’s total estimate of
2140 minutes (35.6 hours) applies; otherwise, Diamond’s total
estimate of 1275 minutes (21.25 hours) applies.”).
5Joint Pre-Trial Order, Docket Entry No. 162, pp. 9-10.
-3-
Plaintiffs, Pickney and Frezel — both of whom are African-
American — were employed by DOSL as Safety Department
Representatives (“SDRs”). DOSL employed Pickney as a SDR from May
4, 1996, until May 6, 2016; and employed Frezel as a SDR from May
14, 2012, until August 12, 2015. Plaintiffs contend that DOSL
violated their rights under 42 U.S.C. § 1981 by discharging them
because of their race — African-American — while retaining less
tenured, less experienced, and lower-rated white SDRs as part of a
single, continuing reduction-in-force (“RIF”) that lasted for four
years from 2014 through 2017. Pickney also contends that DOSL
violated his rights under Title VII by discharging him as a result
of a neutral policy or practice that had a discriminatory impact on
other African-American SDRs, and that DOSL violated his rights
under 42 U.S.C. § 1981 and Title VII by failing to rehire him in
retaliation for filing a complaint with the United States Equal
Employment Opportunity Commission (“EEOC”), and for filing this
lawsuit. Plaintiffs contend that DOSL’s racially biased actions
have caused them substantial economic and non-economic damages.
DOSL denies that it discriminated against Plaintiffs because
of their race in violation of either § 1981 or Title VII, and
denies that it retaliated against Pickney for filing an EEOC charge
or this lawsuit. DOSL contends that the decline in oil prices
6The factual background is based on the Statement of the Case
in the Joint Pre-Trial Order, Docket Entry No. 162, pp. 2-4;
Defendant’s Memorandum of Law, Docket Entry No. 166; and
Plaintiffs’ Trial Memorandum, Docket Entry No. 167.
economic downturn in the oil industry, which caused a downturn in
its business and a reduction in the number of offshore oil rigs in
operation. DOSL contends that the reduction in the number of
offshore oil rigs in operation necessitated multiple reductions in
offshore personnel over a six-year period, and that it discharged
Frezel and Pickney in separate RIFs that occurred in in 2015 and
2016, respectively. DOSL contends that its RIFs were not based on
race, and that many white and other non-African American SDRs were
affected, including the white SDR who was assigned to the same rig
as Pickney when his employment ended in May of 2016. DOSL contends
that the economy-driven RIFs during which Plaintiffs were
discharged are legitimate, nondiscriminatory reasons for these
employment actions, and that consequently Plaintiffs are not
entitled to any of the relief they are seeking in this lawsuit.
DOSL contends that Pickney’s disparate impact claim is not
actionable because he failed to exhaust his administrative remedies
for this claim.
DOSL denies that it retaliated against Pickney for engaging in
activity protected by 42 U.S.C. § 1981 or Title VII, and denies
that it has any obligation to offer employment to any individual
who does not actively seek or reapply for employment for an open
position. DOSL contends that Pickney has failed to identify any
specific open position for which he applied, was qualified, and
denied, and that any staffing decision had nothing to do with his
filing of an EEOC charge or this lawsuit.
II. Pickney Failed to Exhaust Administrative Remedies
for His Disparate Impact Claim
DOSL has long argued that Pickney’s disparate impact claim is
barred for failure to exhaust administrative remedies.’ Pickney
argues that he has exhausted administrative remedies with respect
to his disparate impact claim.*® The Joint Pre-Trial Order states
that this issue is a contested issue of law.’
‘See Defendant’s Motion to Strike Plaintiff’s Ostensible First
and Second Amended Complaints, and Authorities in Support, Docket
Entry No. 26, pp. 1, 4-8; Defendants’ Opposition to Plaintiff’s
Motion for Leave to File Third Amended Complaint, and Authorities
in Support, Docket Entry No. 36 (reiterating arguments in Docket
Entry No. 26); Defendants’ Objections to Magistrate Judge’s Order
Granting Plaintiff’s Motion for Leave to File Third Amended
Complaint, Docket Entry No. 44, pp. 12-26; Defendants’ Reply to
Plaintiff’s Response to Defendants’ Objections to Magistrate
Judge’s Order, Docket Entry No. 47, pp. 2-8; Joint Pre-Trial Order,
Docket Entry No. 162, pp. 6-7; Defendant’s Memorandum of Law,
Docket Entry No. 166, pp. 14-19.
*See Plaintiff’s Reply to Diamond’s Opposition to Plaintiff’s
Motion for Leave to File Third Amended Complaint, Docket Entry
No. 37, pp. 2-14. See also Transcript of April 22, 2019, Motion
Hearing, Docket Entry No. 41, pp. 3:12-14:25. Anticipating that
Defendants’ would assert this argument, Pickney preemptively
asserted that “any such argument would itself be futile because
Pickney[] is not amending his Complaint to assert a Title VII
disparate impact claim: . . . Pickney’s Original Complaint already
includes such a claim.” Plaintiff’s Motion for Leave to File Third
Amended Complaint, Docket Entry No. 32, p. 14. The court has
reviewed the Original Complaint, Docket Entry No. 1, however, and
concludes that it only alleges a claim for disparate treatment.
Plaintiffs’ Trial Memorandum, Docket Entry No. 167, p. 12 n. 5,
asserts that “the United States Magistrate Judge and this Court
implicitly held in denying [DOSL’s] Motion to Strike Plaintiffs’
Third Amended Complaint (Dkt. 26), [that] Pickney exhausted his
Title VII administrative remedies with respect to both disparate
treatment and disparate impact race discrimination. See Dkts. 39,
48.” But because the court’s prior ruling merely granted the
Plaintiffs’ motion to file a Third Amended Complaint, it did not
resolve the exhaustion issue regarding the disparate impact claim.
°See Joint Pre-Trial Order, Docket Entry No. 162, p. 9 (under
(continued...)
-6-
A. Applicable Law
Unlike disparate treatment discrimination, which involves an
employment action that intentionally treats an individual employee
worse than other employees because of a protected characteristic,
e.g., race; disparate impact discrimination involves an employment
practice or policy that is facially neutral but, in fact, has a
disproportionately adverse effect on a protected group. Pacheco v.
Mineta, 448 F.3d 783, 787 (5th Cir.), cert. denied, 127 S. Ct. 299
(2006). A plaintiff alleging a claim for disparate impact “must
show (1) a facially neutral policy; (2) that, in fact, has a
disproportionately adverse effect on a protected class.” Id. at
791. See also McClain v. Lufkin Industries, Inc., 519 F.3d 264,
275 (5th Cir.), cert. denied, 129 S. Ct. 198 (2008) (citing Watson
v. Fort Worth Bank and Trust, 108 S. Ct. 2777, 2788 (1988)). “A
neutral employment policy is the cornerstone of any EEO[C]
disparate-impact investigation, since the EEO[C] must evaluate both
the policy’s effects on protected classes and any business
justifications for the policy.” Pacheco, 448 F.3d at 792. A
charge that complains of only past incidents of disparate treatment
and does not identify a neutral employment policy does not exhaust
a disparate impact claim. Id.
°(...continued)
heading “Contested Issues of Law” is “Whether Plaintiff Raymond
Pickney exhausted administrative remedies with respect to his claim
of disparate impact under Title VII of the Civil Rights Act”).
-7-
Title VII precludes an employee from bringing a lawsuit
against its employer without first exhausting the administrative
remedies available. McClain, 519 F.3d at 273. To exhaust Title
VII remedies, the plaintiff must: (1) file a discrimination charge
with the EEOC; and (2) the EEOC must conclude their investigative
efforts. Id. “The exhaustion requirement must be construed
liberally to aid the unsophisticated pro se claimant.” Gordon v.
Peters, 489 F.Supp.2d 729, 731 (S.D. Tex. 2007), aff’d No. O7-
20477, 2008 WL 162866 (Sth Cir. January 16, 2008) (citation
omitted). The charge need not be specific or establish a prima
facie case. Pacheco, 448 F.3d at 792. Nonetheless, courts must
keep in mind that one of Title VII’s primary purposes is to trigger
the investigatory and conciliatory process of the EEOC in an effort
to achieve non-judicial resolution of employment discrimination
claims. Id. at 788-89. Claims alleged in the charge, or those
that could have reasonably grown out of the charge, will be
considered exhausted. Id. at 789. In making the exhaustion
determination, courts engage in a fact-intensive analysis and look
beyond the four corners of the charging document. McClain, 519
F.3d at 273 (citation omitted). The scope of the EEOC
investigation is pertinent to the court’s exhaustion inquiry. Id.
at 274 (citation omitted).
-~g-
B. Application of the Law to the Parties’ Contentions
In this case only an EEOC investigation into disparate
treatment would have reasonably grown out of Pickney’s EEOC charge.
The charge of discrimination that Pickney filed on August 27, 2016,
stated:
I began my employment with the above Respondent in
May 1996 most recently as Safety Dept. Representative.
On May 6, 2016 I was subjected to a lay-off initially by
Tim Gibson (Director of Safety) and later by Gaby Ortiz
(Human Resources). The company employees over 500
persons.
According to Aaron Sobel (V.P. Human Resources) I
could not be re-assigned because the operators who are
our clients do no want them to change out any personnel
and a change of personnel could upset our clients.
I believe I have been discriminated against based on
my race (Black) in violation of Title VII of the Civil
Rights Act of 1964 as amended in that on May 16, 2016 I
contacted Aaron Sobel about my lay off after 20 years
with the company. I stated that I had not been treated
fairly in accordance with Diamond Equal Employment
Opportunity Policy. The next day Mr. Sobel stated that
he reviewed the decision process that was used to
determine my lay off and he agrees with it. I was laid
off while employees (w) [sic] with less experience were
retained specifically Michael Mura.10
This charge is analogous to the charge at issue in Pacheco,
448 F.3d at 783. In Pacheco the plaintiff complained of racial
discrimination at work, and brought claims premised on disparate
treatment and disparate impact theories. 448 F.3d at 786-87. The
Fifth Circuit affirmed the district court’s dismissal of the
10Charge of Discrimination, Exhibit 1 to Defendant’s Motion to
Strike Plaintiff’s Ostensible First and Second Amended Complaints,
and Authorities in Support, Docket Entry No. 26-1, p. 1.
-9-
plaintiff’s disparate impact claim after finding that a disparate
impact investigation could not have reasonably grown from the
plaintiff’s charge because: (1) the charge facially alleged
disparate treatment; (2) the charge failed to identify a neutral
employment policy; and (3) the charge alleged only past incidents
of disparate treatment. Id. at 792.
Applying the Pacheco reasoning to the present case yields the
same result. Here, as in Pacheco, Pickney’s charge facially
alleges only disparate treatment, i.e., Pickney alleges that he was
laid off while employees with less experience were retained. More
importantly, although Pickney states that he was not treated fairly
in accordance with Defendant’s Equal Employment Opportunity Policy,
Pickney fails to identify, either directly or indirectly, a neutral
employment policy that had a disproportionate impact on other
African-Americans as opposed to on him individually. See McClain,
519 F.3d at 275 (finding allegation that “[r]espondent has
similarly discriminated against other black African Americans”
satisfied the exhaustion requirement). Accordingly, a disparate
impact investigation could not have reasonably been expected to
grow out of Pickney’s charge.
Nevertheless, citing Federal Express Corp. v. Holowecki, 128
S. Ct. 1147 (2008), and Patton v. Jacobs Engineering Group, Inc.,
874 F.3d 437 (5th Cir. 2017), Pickney argues that when deciding
whether he exhausted administrative remedies for a disparate impact
-10-
claim, the court should consider not only the charge of
discrimination that he filed on August 27, 2016, but also the
unsworn pre-charge email that he submitted to the EEOC on August 2,
2016, which he argues constitutes part of his charge.11 Moreover,
citing the position statement that Defendants submitted to the EEOC
on October 21, 2016, which defended their RIF decision-making
process as legal, and the response that he submitted the same day,
Pickney also argues that the scope of the EEOC’s investigation
encompassed disparate impact.12
In certain circumstances, courts have considered other
documents as part of a formal EEOC charge. In Holowecki, 128 S.
Ct. at 1163, the Supreme Court found that a detailed and verified
intake questionnaire constituted a charge under the ADEA because it
contained all of the necessary information on an EEOC charge form,
it was sworn, and it asked the EEOC to take action. In Patton, 874
F.3d at 443, the Fifth Circuit found that the plaintiff’s “intake
questionnaire should be construed as part of the EEOC charge”
because it was filed “together with his formal charge,” the charge
form directed complainants to “attach extra sheet(s) . . . [i]f
11See Plaintiff’s Response to Diamond’s Objections to
Magistrate Judge Johnson’s Order Regarding Plaintiff’s Motion for
Leave to File Third Amended Complaint, Docket Entry No. 45, p. 24
n. 4 (arguing that “under Holowecki and Patton, Pickney’s August 2,
2016 email — which he submitted in response to the EEOC’s express
request for information to ‘assist [the EEOC] in completing the
Charge’ — must be considered part of his Charge”).
12Id. at 25-26.
-11-
additional paper is needed,” and the EEOC investigation “clearly
encompassed” the claim at issue. However, this is not always the
case. In Ernst v. Methodist Hospital System, 1 F.4th 333, 338 (5th
Cir. 2021), the plaintiff alleged only race discrimination in his
EEOC charge, but included additional allegations of sex
discrimination and retaliation in his EEOC intake questionnaire.
The Fifth Circuit held that the plaintiff failed to exhaust his
administrative remedies with respect to the allegations of sex
discrimination and retaliation because the questionnaire was not
verified and because plaintiff’s employer did not receive notice of
the additional allegations during the EEOC investigation. Id. at
339. The court reached a similar conclusion in McLeod v. Floor &
Decor Outlets of America, Inc., No. 3:20-cv-3134-E, 2021 WL 2515750
(N.D. Tex. June 18, 2021). In McLeod, more than three (3) weeks
before filing a formal EEOC Charge of Discrimination, the plaintiff
filled out an online inquiry information form with the EEOC, which
was neither sworn nor supported by an unsworn declaration.
Although the inquiry form mentioned retaliation and sex
discrimination, because the EEOC Charge alleged only sex
discrimination, the court held “that McLeod’s unverified inquiry
information form does not qualify as a charge and thus McLeod has
failed to exhaust her administrative remedies regarding her Title
VII retaliation claim.” Id. at *2.
-12-
Here, Pickney did not submit an EEOC intake questionnaire, and
his August 2, 2016, pre-charge email to the EEOC was neither sworn
nor attached to his sworn charge.13 Thus, the August 2, 2016, email
cannot be considered either a charge of discrimination under
Holowecki or a part of Pickney’s charge under Patton. Moreover,
even if the August 2, 2016, email were considered to be a part of
Pickney’s charge, that email fails to allege any facts that could
reasonably be expected to have triggered an investigation of a
neutral policy that had a disparate impact on African-Americans,
thereby exhausting administrative remedies with respect to a
disparate impact claim. Instead, the email described when and how
Pickney learned that he would be discharged, his request to be
reassigned to another rig, and the reason he was told for why he
would not be reassigned to another rig. The email also listed “all
[SDRs] like [Pickney] who were working on rigs which the job ended
and were granted the opportunity to be re-assigned to another
vessel compared to [Pickney] who was laid off.”14 The facts stated
in the August 2, 2016, email would and did lead to an investigation
of disparate treatment, but could not reasonably have been expected
to trigger an investigation of disparate impact.
13See Exhibit 2 to Declaration of Raymond Pickney, Docket Entry
No. 45-1, pp. 8-11.
14Id. at 10.
-13-
Moreover, despite Pickney’s argument to the contrary, he has
failed to cite evidence showing that the scope of the EEOC’s
investigation that grew out of his charge actually encompassed
race-based disparate impact discrimination. Pickney argues that
[t]hroughout its “position statement,” Diamond repeatedly
attempted to defend its purportedly neutral RIF decision-
making “policy” as “lawful.” Specifically, Diamond
asserted:
It is not Company policy to displace employees
on other operational rigs to create openings
for employees assigned to rigs with expired
contracts. . .
As noted above, it is not Company policy to
displace employees on other operational rights
to create openings for employees assigned to
rights with expired contracts. This policy is
lawful . . .
[I]t is not Company policy to displace
employees on other operational rigs to create
openings for employees assigned to rigs with
expired contracts.
. . .
Diamond’s extensive effort in its EEOC “position
statement” to defend its purportedly neutral RIF
decision-making “policy” as “lawful” constitutes evidence
that the scope of Pickney’s Charge encompassed a claim
for Title VII disparate impact discrimination. See
Patton, 874 F.3d at 425 (5th Cir. 2017) (Plaintiff
exhausted administrative remedies regarding his ADA
reasonable accommodation claim, where the employer’s
position statement denied that the plaintiff made any
request for reasonable accommodation and responded to a
question regarding reasonable accommodation).
Furthermore, in its October 21, 2016 EEOC “position
statement,” Diamond — through its counsel — denied that
its RIF “was conducted . . . in a discriminatory manner.”
. . . Diamond’s contention that its RIF was not conducted
in “a discriminatory manner” — which Diamond
-14-
differentiated from “discriminatory intent” (i.e.,
disparate treatment) — demonstrates that it understood
that Pickney’s Charge encompassed a claim for disparate
impact discrimination.15
Pickney also argues that
[i]n his rebuttal to Diamond’s “position statement,”
Pickney once again identified Diamond’s purportedly
neutral decision-making policy that caused his
termination: namely, that Diamond laid-off [SDRs] when
the vessel/rig to which they were assigned ceased
operations because its contract ended. Additionally,
Pickney identified one other African-American employee
(Wayne Johnson) who was terminated during the RIF.16
Pickney does not cite and the court has not found any case
holding that a respondent’s use of the phrase “discriminatory
manner” is sufficient to exhaust a claim for disparate impact in a
case such as this where the charge alleges only disparate treatment
involving a single complainant. Nor has Pickney cited any evidence
showing that the EEOC actually investigated a claim of disparate
impact in this case. Because Pickney did not complain of disparate
impact in his charge of discrimination, because the communications
that Pickney sent to the EEOC on August 2, 2016, and October 21,
2016, cannot be considered part of his charge, and because Pickney
does not cite evidence showing that the EEOC investigated a
15Plaintiff’s Response to Defendant’s Objections, Docket Entry
No. 45, pp. 26-27 (quoting Defendants’ October 21, 2016, Position
Statement to the EEOC, Exhibit 4 to Pickney Declaration, Docket
Entry No. 45-1, pp. 15-19, esp. pp. 16-18).
16Id. at 27 (citing Exhibit 5 to Pickney Declaration, Docket
Entry No. 45-1, pp. 21-22).
-15-
disparate impact claim in his case, Pickney failed to exhaust his
administrative remedies with respect to disparate impact. See
McClain, 519 F.3d at 273 (“Courts should not condone lawsuits that
exceed the scope of EEOC exhaustion, because doing so would thwart
the administrative process and peremptorily substitute litigation
for conciliation.”). Accordingly, Pickney’s disparate impact claim
should be dismissed without prejudice. See Martin K. Eby
Construction Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464,
467, n. 5 (5th Cir. 2004) (“When a district court dismisses a claim
. . . for failure to exhaust administrative remedies, the dismissal
is without prejudice to the claimant’s right to return to court
after it has exhausted its administrative remedies.”).
III. Plaintiffs’ Disparate Treatment Claims
Both Plaintiffs assert claims of race-based disparate
treatment under 42 U.S.C. § 1981, and Pickney has also asserted a
claim of race-based disparate treatment under Title VII.17
Plaintiffs contend that they were both discharged during a single,
continuing RIF while less qualified white SDRs were retained.18
17Joint Pre-Trial Order, Docket Entry No. 162, pp. 1-2.
18Id. at 5; Plaintiffs’ Trial Memorandum, Docket Entry No. 167,
pp. 7-8.
-16-
A. Applicable Law
“Claims of racial discrimination brought under § 1981 are
governed by the same evidentiary framework applicable to claims of
employment discrimination brought under Title VII.” LaPierre v.
Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996). The
evidentiary framework for Title VII claims was established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817
(1973). Within that framework plaintiffs bear the initial burden
of proving a prima facie case of discrimination. Id. at 1824.
To establish a prima facie case of intentional
discrimination in a reduction-in-force case, a plaintiff
must establish the following elements: (1) he is a member
of a protected group; (2) he was adversely affected by
the employer’s decision; (3) he was qualified to assume
another position at the time of discharge; and (4) there
is sufficient evidence, either circumstantial or direct,
from which a fact finder may reasonably conclude that the
employer intended to discriminate in reaching the adverse
employment action, or others who were not members of the
protected class remained in similar positions.
Ortiz v. Shaw Group, Inc., 250 F. App’x 603, 606 (5th Cir. 2007)
(per curiam) (quoting Nichols v. Loral Vought Systems Corp., 81
F.3d 38, 41 (5th Cir. 1996) and Amburgey v. Corhart Refractories
Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991)).
If the plaintiff successfully establishes his prima facie
case and creates a rebuttable presumption of
discrimination, then the employer must assert a
legitimate, nondiscriminatory reason for the employment
action.
Id. (citing Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir.
1999)).
-17-
dains icsrsiumei noaft ifoanc tf a“lelist ahseird e(,1 )a ntdh atth et hpel adienfteinfdfa nmtu’sst rceraesaotne
is not true, but is instead a pretext for discrimination
(pretext alternative); or (2) that the defendant’s
reason, while true, is only one of the reasons for its
conduct, and another motivating factor is the plaintiff’s
protected characteristic (mixed-motive alternative).” .
. . If the plaintiff shows that the illegal
discrimination was a motivating factor, then the
defendant may respond with evidence that the same
employment decision would have occurred regardless of
discriminatory animus.
Id. (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004)).
Acknowledging that this is the framework for establishing
discrimination in a RIF case, Plaintiffs state that
Pickney will establish a prima facie case of racially
disparate treatment under Title VII: 1) he is a member of
a protected group (African-American); 2) Diamond
terminated him; 3) he was a highly qualified SDR; and
4) Diamond retained white SDR[]s after terminating him.
Diamond will argue that it had a legitimate, non-
discriminatory reason for terminating Frezel, Pickney,
and the other four African-American SDR[s].
. . . Pickney will establish that Diamond’s
proffered reason is a pretext or “mixed motive” for race
discrimination.19
Although at trial the ultimate question will be whether the
Defendant took the adverse employment actions at issue because of
the Plaintiffs’ protected status, because the McDonnell Douglas
burden-shifting framework applies in summary judgment and directed
verdict situations, see Kanida v. Gulf Coast Medical Personal LP,
363 F.3d 568, 575 (5th Cir. 2004), that framework guides the
court’s resolution of the parties’ evidentiary disputes.
19Plaintiffs’ Trial Memorandum, Docket Entry No. 167, p. 13.
B. Application of the Law to the Parties Contentions
1. Plaintiffs May Present Evidence Intended to Prove that
They were Discharged in a Single, Continuing RIF
Plaintiffs contend that they were discharged along with DOSL’s
four other African-American SDRs during a single, continuing RIF
that transpired between 2014 and 2017. Plaintiffs contend that
while DOSL discharged one-hundred percent of its African-American
SDRs during this period, DOSL discharged only twenty-six percent of
its white SDRs,20 and that “[t]his gross racial statistical
disparity is no accident: it resulted from [DOSL]’s top Safety and
Human Resources’ officials’ disparate treatment of its African-
American SDRs.”21
DOSL denies Plaintiffs’ claims of race discrimination, and
contends that it discharged Pickney and Frezel in different RIFs
that occurred approximately one year apart that were necessitated
by an unprecedented downturn in the oil industry that began in
2014.22 Characterizing Plaintiffs’ theory of a single, continuing
RIF as a “fallacy,” DOSL contends that over the course of an
approximately six-year period it conducted multiple RIFs of SDRs,
i.e., each time that one of its oil rigs lost its contract. DOSL
20Plaintiffs’ Trial Memorandum, Docket Entry No. 167, p. 1.
21Id. at 2. See also Joint Pre-Trial Order, Docket Entry
No. 162, pp. 8 (Pickney) and 9 (Frezel).
22See Joint Pre-Trial Order, Docket Entry No. 162, pp. 3, 6.
-19-
contends that the Plaintiffs were discharged in RIFs that occurred
in 2015 and 2016, those RIFs were legitimate, non-discriminatory
reasons for discharging the plaintiffs, and the discharge decisions
had nothing to do with Plaintiffs’ race.*°
The concept of a continuing RIF is recognized in Fifth Circuit
case law cited by Plaintiffs and elsewhere. See Rhodes □□□
Guiberson Oil Tools, 39 F.3d 537, (5th Cir. 1994) (referencing a
“continuing reduction-in-force (RIF)” pursuant to which layoffs
occurred in 1984, 1985, and 1986), rev’d, 75 F.3d 989 (5th Cir.
1996) (en banc); Zuniga v. Boeing co., 133 F. App’x 570, 580 (10th
Cir. 2005), cert. denied, 126 S. Ct. 1051 (2006) (“The employees
were all terminated or selected for the RIF within a year as part
of a continuing RIF; .. .”). See also Garig v. N.L. Industries,
Inc., 671 F.Supp. 1460, 1461 (S.D. Tex. 1985), aff’d 792 F.2d 1120
(Sth Cir. 1986) (“The defendant is an oil service company. In
See Defendant’s Motion to Exclude Report and Testimony of
Plaintiffs’ Proposed Expert, N. Shirlene Pearson, Ph.D. (“DOSL’s
Motion to Exclude”), Docket Entry No. 143, pp. 7, 13-21;
Defendant’s Reply to Plaintiffs’ Response to Diamond Offshore
Services Limited’s Motion to Exclude Report and Testimony of
N. Shirlene Pearson, Ph.D. (“Defendant’s Reply in Support of Motion
to Exclude Pearson”), Docket Entry No.150, pp. 7-14; Defendant’s
Memorandum of Law, Docket Entry No. 166, p. 3. See also
Defendants’ Opposition to Plaintiffs’ First Motion to Compel,
Docket Entry No. 29, p. 4 (contending that “there were multiple
independent RIFs during the five-year period from 2014-2019,
including separate reductions every time a different operating rig
went off contract and stopped working;” and that “this case arises
out of a single RIF on a single rig affecting only two Safety
Representatives”).
-?0-
1982, it began to feel the effects of a general downturn in the oil
industry. Responding to economic pressure, the defendant began a
reduction in force that was continuing at the time of trial.”).
Neither party has cited — and the court has not found — any
case that addresses and resolves the specific conflict at issue
here, i.e., whether the plaintiffs were discharged during a single,
continuing RIF that lasted for a number of years as Plaintiffs
argue; or whether the plaintiffs were discharged in separate,
distinct RIFs that occurred when each of the oil rigs to which they
were assigned lost their contracts and were taken out of service,
as DOSL argues. The pretrial materials identify this issue as both
a contested issue of fact and a contested issue of law.24 The court
views this issue as a mixed question of law and fact.25
Accordingly, Plaintiffs will be allowed to present evidence capable
of proving their theory that they were discharged as part of a
single, continuing RIF.
24See Joint Pre-Trial Order, Docket Entry No. 162, p. 8 (under
the heading “Contested Issues of Fact” is “Whether DOSL terminated
Plaintiff Raymond Pickney as part of a single, continuing [RIF]”);
p. 9 (“Whether DOSL terminated Plaintiff David Frezel as part of a
single, continuing [RIF]; and under the heading “Contested Issues
of Law” is “Whether DOSL terminated Plaintiff Raymond Pickney as
part of single, continuing [RIF]”); and p. 11 (also under the
heading “Contested Issues of Law” is “Whether DOSL terminated
Plaintiff David Frezel as part of a single, continuing [RIF]”).
25See Transcript of June 11, 2021, Docket Call, Docket Entry
No. 174, pp. 3:21-4:13.
-21-
2. Plaintiffs May Present Evidence Intended to Prove That
They Are Similarly Situated to DOSL’s Other SDRs
Defendant seeks to exclude “evidence of any kind regarding
other SDRs who are not similarly situated to either Plaintiff.”26
At Docket Call held on October 8, 2021, the court denied this
request as “too broad.”27 Plaintiffs seek to compare themselves
both to DOSL’s other African-American SDRs, who Plaintiffs allege
were all discriminatorily discharged in a single, continuing RIF,
and to white SDRs, who Plaintiffs allege were treated more
favorably in the RIF.28 DOSL contends that Plaintiffs were
similarly situated with — and can only be compared to — SDRs who
worked on the same oil rig as Plaintiffs when the Plaintiffs were
26Defendant’s Memorandum in Support of Its Motion in Limine,
Docket Entry No. 161-1, p. 25 ¶ XVII.
27Transcript of October 8, 2021, Docket Call, Docket Entry
No. 181, p. 4:22-23.
28See Plaintiffs’ Trial Memorandum, Docket Entry No. 167,
pp. 3-6. See also Joint Pre-Trial Order, Docket Entry No. 162,
p. 10 (under the heading “Contested Issues of Law” is “Whether, for
the purpose of Plaintiff Raymond Pickney’s disparate treatment . .
. claim[], he is similarly situated to and can compare himself to
SDRs with varying qualifications and credentials, who worked on
different rigs for different companies at different times in
different locations around the world, including those whose
employment was terminated due to different reductions in force
occurring at different times since 2014.”), and pp. 11-12 (posing
the same question with respect to Plaintiff Frezel); and
Plaintiffs’ Final Trial Plan; Objections to [DOSL]’s Final Trial
Plan; and Response to [DOSL]’s Objections to Plaintiffs’ Initial
Trial Plan, Docket Entry No. 193, p. 8 (arguing that “Mssrs.
Bellow, May, Thomas, and Thompson are similarly situated to the
Plaintiffs — having held the same position and having been
supervised and terminated by [DOSL’s] HSE department. Therefore,
Plaintiffs should be allowed to adduce their testimony.”).
-22-
discharged.** DOSL cites a number of cases, which it argues show
that the Fifth Circuit and other courts have rejected similar
efforts of plaintiffs to compare themselves to others who were not
affected by the same RIF, who worked on different rigs, or who
otherwise were not similarly situated.*° See e.g., Gilbert v. Big
Brothers Big Sisters of America, Inc., 262 F. Supp. 3d 402, 408-09,
414-15 (N.D. Tex. 2017) (cited for rejecting plaintiff’s effort to
use statistical data from RIFs that did not involve her and that
were separate from the decision to eliminate her position,
nothwithstanding that all the terminations were due to the
company’s dire financial situation); Ellison v. Patterson-UTI
Drilling Co., LLC, Civil Action No. V-08-67, 2009 WL 3247193, *9
(S.D. Tex. September 23, 2009) (cited for holding as too broad,
plaintiff’s request for discovery of all discrimination charges on
all rigs, and for concluding that “if employment decisions are made
by one office for the entire company, the request is limited to
complaints involving rigs where Plaintiff worked”); and Lee v.
Kansas City Southern Railway Co., 574 F.3d 253, 259 (5th Cir. 2009)
“°See Defendant’s Memorandum of Law, Docket Entry No. 166,
pe. 7-8 (arguing that Plaintiffs can only compare themselves to
SDRs who are similarly situated or proper comparators for their
race discrimination claims). See also Defendants’ Opposition to
Plaintiffs’ First Motion to Compel, Docket Entry No. 29, p. 3
(“Only Safety Representatives on the Ocean Ambassador at the time
of the RIF at issue are proper comparators and relevant for
discovery in this case.”).
“See Defendants’ Opposition to Plaintiffs’ First Motion to
Compel, Docket Entry No. 29, pp. 4-5.
-2?3-
(cited for its statement that employees “who were the subject of
adverse actions too remote in time from that taken against the
plaintiff generally will not be deemed similarly situated”).
In Lee the Fifth Circuit stated that
we require that an employee who proffers a fellow
employee as a comparator demonstrate that the employment
actions at issue were taken “under nearly identical
circumstances.” The employment actions being compared
will be deemed to have been taken under nearly identical
circumstances when the employees being compared held the
same job or responsibilities, shared the same supervisor
or had their employment status determined by the same
person, and have essentially comparable violation
histories. And, critically, the plaintiff’s conduct that
drew the adverse employment decision must have been
“nearly identical” to that of the proffered comparator
who allegedly drew dissimilar employment decisions.
Id. at 260 (quoting Little v. Republic Refining Co., Ltd., 924 F.2d
93, 97 (5th Cir. 1991)). See also Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 405-06 (5th Cir. 1999) (holding that
similarly situated means employees with the same position,
qualifications, and pay rate). Although the pretrial materials
identify this issue as a question of law,31 the court views this
issue as a mixed question of law and fact. Because the cases that
31See Joint Pre-Trial Order, Docket Entry No. 162, p. 10 (under
the heading “Contested Issues of Law” is “Whether, for the purpose
of Plaintiff Raymond Pickney’s disparate treatment . . . claim[],
he is similarly situated to and can compare himself to SDRs with
varying qualifications and credentials, who worked on different
rigs for different companies at different times in different
locations around the world, including those whose employment was
terminated at different times in different locations around the
world . . .”), and pp. 11-12 (posing the same question with respect
to Plaintiff Frezel).
-24-
similarly situated to SDRs who were assigned to the same rigs and
discharged at the same time turn on unique facts, these cases
support the court’s conclusion that whether Plaintiffs are
similarly situated to DOSL’s other SDRs is a mixed question of law
and fact. Accordingly, Plaintiffs may present evidence intended to
prove that they are similarly situated under the criteria described
above, both to other African-American SDRs, who they contend were
discharged in the same, continuing RIF, and to other white SDRs,
who they contend were retained.
3. Plaintiffs May Present “Me-Too” Evidence Only If They
First Prove that They are Similarly Situated to Their
“Me-Too” Witnesses
Defendants seek to exclude “me-too” testimony from the other
four African-American SDRs, who Plaintiffs contend DOSL discharged
during the alleged single, continuing RIF,32 i.e., Allen Below, Otis
Thompson, Brandon Thomas, and Douglas Tyrone May, all of whom
appear as witnesses in Plaintiffs’ Final Trial Plan.33 DOSL argues
32See Defendant [DOSL]’s Final Trial Plan & Objections to
Plaintiffs’ Initial Trial Plan, Docket Entry No. 192, pp. 1-2. See
also Defendants’ Memorandum in Support of Its Motion in Limine,
Docket Entry No. 161-1, pp. 23-24 ¶ XVI; and Defendant’s Memorandum
of Law, Docket Entry No. 166, pp. 9-10 (arguing that “Plaintiffs
[c]an [o]nly [c]ompare [t]hemselves to SDRs [w]ho [a]re [s]imilarly
[s]ituated or [p]roper [c]omparators for their [r]ace
[d]iscrimination [c]laims”).
33See Plaintiffs’ Initial Trial Plan, Docket Entry No. 188,
pp. 2-3; and Plaintiffs’ Final Trial Plan; Objections to [DOSL]’s
Final Trial Plan, and Response to [DOSL]’s Objections to
Plaintiffs’ Initial Trial Plan, pp. 1 and 3, Docket Entry No. 193,
(continued...)
that to the extent the testimony of these witnesses will elicit
information regarding their own alleged experiences with DOSL,
including their discharge from different rigs at different times,
that testimony is irrelevant and prejudicial.34 At Docket Call held
on October 8, 2021, the court granted DOSL’s request to exclude
this “me-too” evidence “as to the claims of Thompson and Thomas to
the extent that they are prohibited from testifying about their own
claims, which were dismissed, and . . . limit[ed] the testimony of
other SDRS called to testify, except to the extent that they have
personal knowledge [of Plaintiffs’ individual experiences].”35 The
court also granted DOSL’s request to exclude any references to
complaints or claims made by Douglas Tyrone May as irrelevant and
prejudicial because he worked for Diamond Offshore Management
Company, a separate entity from DOSL.36
33(...continued)
pp. 2 and 10 (listing as witness the other African-American SDRs
alleged to be similarly situated and, therefore, proper
comparators, to Plaintiffs).
34Defendant’s Memorandum in Support of Motion in Limine, Docket
Entry No. 161-1, p. 25 ¶ XVI.
35Id. at 24; and Transcript of October 8, 2021, Docket Call,
Docket Entry No. 181, p. 4:15-21.
36See Defendant’s Memorandum in Support of Its Motion in
Limine, Docket Entry No. 161-1, pp. 27-28 ¶ XXII; and Transcript of
October 8, 2021, Docket Call, Docket Entry No. 181, p. 4:25. See
also [DOSL]’ Final Trial Plan Objections to Plaintiffs’ Initial
Trial Plan, Docket Entry No. 192, pp. 1-2 (objecting to the
testimony of former employees who did not work together with
Plaintiffs or lack personal knowledge of Plaintiffs’ discharges).
-26-
Plaintiffs may present “me-too” evidence only if they first
establish a requisite predicate by showing that their witnesses are
Similarly situated to the Plaintiffs. See Wyvill v. United
Companies Life Insurance Co., 212 F.3d 296 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1081 (2001). Wyvill was an age discrimination
case in which the Fifth Circuit reversed a jury verdict for two
plaintiffs on their disparate treatment claims based in improperly
admitted evidence from individuals who were not proper comparators.
Citing Mooney v. Aramco Services Co., 54 F.3d 1207, 1221 (5th Cir.
1995), the Fifth Circuit explained that
[t]his court and others have held that testimony from
former employees who had different supervisors than the
plaintiff, who worked in different parts of the
employer’s company, or whose terminations were removed in
time from the plaintiff’s termination cannot be probative
of whether age was a determinative factor in the
plaintiff’s discharge.
Wyvill, 212 F.3d at 302. If, however, Plaintiffs are able to
present evidence proving that other discharged African-American
SDRs are similarly situated to Plaintiffs, then they are proper
comparators whose “me-too” testimony is admissible as it would be
probative of whether an unlawful motive was a factor in the
Plaintiffs’ discharge.*’ See Alaniz v. Zamora-Quezada, 591 F.3d
761, 774-75 (5th Cir. 2009) (District Court did not err in allowing
non-party employees to testify about the employer’s alleged sex
discrimination against them because such testimony was relevant to
the plaintiffs proving the employer’s discriminatory acts reflected
"See Defendant’s Memorandum in Support of Its Motion in
Limine, Docket Entry No. 161-1, p. 23.
-27-
a “plan, motive, knowledge, and absence of mistake or accident.”);
Hitt v. Connell, 301 F.3d 240, 249-50 (5th Cir. 2002) (District
Court did not err in allowing non-party employees to testify about
the employer’s discrimination and retaliation against them because
such testimony was relevant to the plaintiff proving the employer’s
motive in discharging him).
4. Plaintiffs May Present Statistical Evidence, Including
Expert Evidence, Only If They Present Other Evidence of
Racially Discriminatory Disparate Treatment
Asserting that DOSL discharged one-hundred percent of its
African-American SDRs, and discharged only 26% of its white SDRs,
despite white SDRs comprising 66% of the SDR workforce,38 Plaintiffs
contend that “[t]his gross racial statistical disparity is no
accident: it resulted from [DOSL]’s top Safety and Human Resources’
officials’ disparate treatment of its African-American SDRs.”39
Plaintiffs contend that “[o]ther trial evidence will confirm that
this gross racial statistical disparity was not the result of
random chance but, rather, was caused by [DOSL]’s disparate
treatment of the African-American SDR[]s,”40 and that other evidence
will establish that
! During the RIF, [DOSL] preserved the employment of
numerous white SDR[]s by paying their salaries
38Plaintiffs’ Trial Memorandum, Docket Entry No. 167, pp. 1-2.
39Id. at 2.
40Id.
-28-
through various off-rig (“extra”) payroll accounts.
[DOSL] did not assign any African-American SDR to
such “extra” accounts during the RIF[;]
! During the RIF, [DOSL] preserved the employment of
numerous white SDR[]s by re-assigning them and
“bumping” (i.e. terminating or otherwise removing
from rigs) SDR[]s with less tenure and/or lower
performance assessment scores. [DOSL] failed to
“bump” in favor of any of the six African-American
SDR[]s[; and]
! During the RIF, [DOSL] re-assigned white SDR[]s to
non-SDR positions in order to preserve their
employment. [DOSL] failed to re-assign any African-
American SDR to non-SDR positions.41
Citing Federal Rules of Evidence 401,42 402,43 and 403,44 and
EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1185-86 (5th Cir.
1996), DOSL argues that “Plaintiffs should not be permitted to
present statistical evidence to support their disparate treatment
41Id. at 5-6.
42Rule 401 states that “[e]vidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in
determining the action.”
43Rule 402 states that “[r]elevant evidence is admissible
unless [the Constitution, a federal statute, the Federal Rules of
Evidence, or a rule prescribed by the Supreme Court] provides
otherwise.”
44Rule 403 serves as an exception to the admissibility of
relevant evidence. It states that “[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” “A district court ‘has
broad discretion to weigh the relevance, probative value, and
prejudice of the evidence in determining its admissibility under
Rule 403.’” French v. Allstate Indemnity Co., 637 F.3d 571, 578
(5th Cir.), cert. denied, 132 S. Ct. 420 (2011) (citation omitted).
-29-
claims.”45 Acknowledging that “statistical evidence may in certain
unusual cases be used to bolster an individual claim of disparate
treatment,”46 DOSL argues that “[t]his is not the unusual case of
disparate treatment where statistical evidence should be allowed.”47
DOSL argues that Plaintiffs’ statistical evidence should be
excluded for purposes of establishing their disparate treatment
claims because
[n]either Plaintiff has any evidence of race
discrimination other than the (inadmissible) raw
statistics or what they intend to offer or characterize
as statistical evidence. Without more, they cannot use
such numbers, even in the form of proper statistical
analysis, to support their disparate treatment claims.
Plaintiffs have never alleged, identified, or disclosed
in discovery any evidence whatsoever of disparate
treatment based on race other than their observations
about raw numbers or what they present as “statistical”
evidence. Therefore, Plaintiffs should be precluded from
using such “statistics” when there is no other evidence
that they are bolstering. . .48
(a) Statistical Evidence is Permissible If Accompanied
by Other Evidence of Disparate Treatment
In Plemer v. Parsons–Gilbane, 713 F.2d 1127, 1137 (5th Cir.
1983), the Fifth Circuit held that “[a]n employee may use
statistics to show that an employer’s justification for a
45Defendant’s Memorandum in Support of Its Motion in Limine,
Docket Entry No. 161-1, p. 17.
46Id.
47Id.
48Id. at 18.
-30-
discriminatory act is pretext.” See also McDonnell Douglas, 93
S. Ct. at 1825-26 (including statistics in list of evidence
available to plaintiff to show pretext). The Fifth Circuit has
stated that
gross statistical disparities resulting from a reduction
in force or similar evidence may be probative of
discriminatory intent, motive or purpose. Such
statistics might in an unusual case provide adequate
circumstantial evidence that an individual employee was
discharged as part of a larger pattern of layoffs
targeting older employees. This is not to say that such
statistics are enough to rebut a valid, nondiscriminatory
reason for discharging a particular employee. Generally,
they are not, because under the McDonnell Douglas Title
VII framework, a judge and now perhaps, a jury would have
to consider not just the employee’s prima facie case, but
also the employer’s articulated nondiscriminatory reason
for its conduct with respect to the employee. The
employee would then be attempting to prove the employer’s
reason was a pretext; proof of pretext, hence of
discriminatory intent, by statistics alone would be a
challenging endeavor.
Walther v. Lone Star Gas Co., 977 F.2d 161, 162 (5th Cir. 1992)
(per curiam). “While Walther explains that generalized statistical
evidence will rarely rebut a particularized nondiscriminatory
rationale, statistical evidence may be probative of pretext in
limited circumstances,” Texas Instruments, 100 F.3d at 1185, and
“[t]he probative value of statistical evidence ultimately depends
on all the surrounding facts, circumstances, and other evidence of
discrimination.” Id. (citing International Brotherhood □□
Teamsters v. United States, 97 S. Ct. 1843, 1856-57 (1977)). In
Texas Instruments the Fifth Circuit explained that statistical
evidence is only probative of intent when combined with other
-31-
evidence specifically rebutting the defendant’s legitimate,
nondiscriminatory reasons. Id. (“Because the EEOC’s statistics do
not even purport to analyze the facts concerning individual
supervisors, the statistics are impotent, without more, to rebut
[defendant’s] particularized reasons for the termination of the Six
Supervisors.”). See also Deloach v. Delchamps, Inc., 897 F.2d
815, 820 (5th Cir. 1990) (statistical evidence is probative only
when coupled with other evidence contradicting employer’s
legitimate, non-discriminatory reasons of the adverse action).
Thus, if as Plaintiffs contend, they can present evidence other
than statistics, from which a reasonable jury could infer that DOSL
intentionally discriminated against them because of their race by
subjecting them to disparate treatment, Plaintiffs may use
statistical evidence to rebut DOSL’s non-discriminatory reasons for
their discharge.
(b) Plaintiffs May Present Expert Evidence of Statistics
Asserting that “Dr. N. Shirlene Pearson — the former Director
of S[outhern] M[ethodist] U[niversity]’s Center for Statistical
Consulting and Research and a recognized statistical expert — has
analyzed DOSL’s SDR RIF data — data that [DOSL] created and
tendered to the Plaintiffs in discovery,”49 Plaintiffs contend that
Dr. Pearson will testify that this data reflects an
overwhelming statistical correlation between [DOSL]’s
49Plaintiffs’ Trial Memorandum, Docket Entry No. 167, pp. 3-4.
-32-
Specifically, Dr. Pearson will testify that, under the
peer-reviewed “Fisher Exact Test,” the likelihood that
[DOSL]’s gaping Black/White SDR RIF disparity is the
result of random chance — rather than race discrimination
is .2%.50
DOSL argues that
[f]or the reasons set forth in Defendant’s Motion to
Exclude Expert Report and Testimony of Plaintiffs’
Proposed Expert, N. Shirlene Pearson, Ph.D. ®. Docs. 143,
150), Plaintiffs’ expert should not be permitted to
testify in this case regarding her statistical analysis
because it is irrelevant, unreliable, and inadmissible.51
Citing Federal Rule of Evidence 702, and the Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.
Ct. 2786 (1993), DOSL contends that
Dr. Pearson’s analysis is . . . fundamentally flawed
because it lacks sufficient or accurate facts or data, is
not the product of reliable principles and methods, and
is not the result of reliable application of principles
and methods to the facts of the case.52
Rule 702 allows expert testimony to be admitted that assists
the trier of fact to understand the evidence or determine a fact in
issue. Rule 702 states that
[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;
50Id. at 4.
51Defendant’s Defendant’s Memorandum in Support of Its Motion
in Limine, Docket Entry No. 161-1, p. 21.
52DOSL’s Motion to Exclude, Docket Entry No. 143, pp. 5, 10.
(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 methods to the facts of the case.
When asked to do so, a district court must make a preliminary
determination as to whether the requirements of Rule 702 are
satisfied with respect to a particular expert’s proposed testimony.
See Daubert, 113 S. Ct. at 2796 (citing Fed. R. Evid. 104(a) (“The
court must decide any preliminary question about whether a witness
is qualified, . . . or evidence is admissible.”). Courts act as
gatekeepers of expert testimony “to make certain that an expert,
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field.” Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167, 1176
(1999). The party offering the expert’s testimony bears the burden
of proving by a preponderance of the evidence that: (1) the expert
is qualified; (2) the testimony is relevant to an issue in the
case; and (3) the testimony is reliable. Daubert, 113 S. Ct. at
2794. See also Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244
(5th Cir. 2002) (“[E]xpert testimony is admissible only if it is
both relevant and reliable.”).
To be qualified an expert “witness must have such knowledge or
experience in [his] field or calling as to make it appear that his
-34-
opinion or inference will probably aid the trier in his search for
truth.” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004),
cert. denied, 126 S. Ct. 1022 (2006) (quoting United States v.
Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)). To be relevant the
reasoning or methodology underlying the expert’s testimony must be
applicable to the facts in issue. See Curtis v. M&S Petroleum,
Inc., 174 F.3d 661, 668 (5th Cir. 1999) (citing Daubert, 113 S. Ct.
at 2796). To be reliable the reasoning or methodology underlying
the expert’s testimony must be scientifically valid. id. “The
proponent need not prove to the judge that the expert’s testimony
is correct, but she must prove by a preponderance of the evidence
that the testimony is reliable.” Moore v. Ashland Chemical, Inc.,
151 F.3d 269, 276 (5th Cir. 1998) (en banc), cert. denied, 119 S.
Ct. 1454 (1999). See also Guy v. Crown Equipment Corp., 394 F.3d
320, 325 (5th Cir. 2004) (“Although the Daubert analysis is applied
to ensure expert witnesses have employed reliable principles and
methods in reaching their conclusions, the test does not judge the
expert’s conclusions themselves.”).
The Fifth Circuit has recognized that Daubert articulated a
non-exclusive, list of flexible criteria for determining
reliability, including:
(1) whether the expert’s theory can be or has been
tested; (2) whether the theory has been subject to peer
review and publication; (3) the known or potential rate
of error of a technique or theory when applied; (4) the
existence and maintenance of standards and controls; and
(5) the degree to which the technique or theory has been
generally accepted in the scientific community.
~35-
Moore, 151 F.3d at 275 (citing Daubert, 113 S. Ct. at 2796-97).
Not all of the factors will necessarily apply to every expert’s
testimony. See Watkins v. Telsmith, Inc., 121 F.3d 984, 9390-91
(Sth Cir. 1997). The court should first decide whether the factors
mentioned in Daubert apply, and then consider whether other factors
not mentioned in Daubert are relevant to the case. See Black v.
Food Lion, Inc., 171 F.3d 308, 310-12 (5th Cir. 1999).
(1) Dr. Pearson is Qualified
DOSL does not challenge Dr. Pearson’s qualifications,
training, or experience to provide statistical evidence stemming
from its decision to discharge the Plaintiffs. The curriculum
vitae attached as Exhibit 1 to her report shows that she has worked
as a professional statistician in both industry and academia for
over 40 years, that she has authored or contributed to numerous
reports and articles, and that she has previously served as an
expert witness.”
(2) Dr. Pearson’s Evidence is Relevant’ and
Reliable
“[E]xpert testimony is admissible only if it is both relevant
and reliable.” Pipitone, 288 F.3d at 244. DOSL argues that
Plaintiffs’ Response to Diamond Offshore Services
Limited’s Motion to Exclude Report and Testimony of N. Shirlene
Pearson, Ph.D. (“Response to DOSL’s Motion to Exclude”), Docket
Entry No. 145, pp. 16-17 (citing Exhibits 1 and 2 to Amended Report
of N. Shirlene Pearson, Ph.D., Docket Entry No. 145-1, pp. 8-13).
~36-
Dr. Pearson’s statistical evidence is neither relevant nor reliable
and thus, inadmissible, because it is based on unsubstantiated
assertions and insufficient and erroneous data, and because it
fails to properly apply a scientifically valid methodology to the
facts of the case. DOSL argues that Dr. Pearson’s evidence is
unreliable because her analysis hinges on the “one RIF fallacy”
based not on data and documents provided to her but, instead, on a
representation from Plaintiffs’ counsel. DOSL argues that
Dr. Pearson’s statistical evidence is irrelevant because she makes
the methodological mistake of treating all SDRs as equally at risk
of RIF irrespective of relevant facts, and she improperly analyzes
the data as if there was a single RIF during a time period selected
by Plaintiffs’ counsel that biases her results.54 Citing Dr.
Pearson’s deposition testimony, DOSL argues that
[a]lthough the evidence demonstrates that there were
numerous RIFs conducted at [DOSL] over at least a five-
year period, contrary to the “one RIF” fallacy on which
Dr. Pearson relied and which is outside her own
experience as an expert, Dr. Pearson did not structure
her analysis by pooling or grouping data by rig or by
RIF, and does not know whether the results of her
analysis would have been different had she done so.55
Citing the report that Dr. Pearson filed in Davis v. City of
Dallas, No. 308-CV-1123-B, 2009 WL 8584568 (N.D. Tex. July 28,
2009), on behalf of the defendant, in which she criticized the
plaintiff’s expert for “lack of analysis that takes into account
54DOSL’s Motion to Exclude, Docket Entry No. 143, pp. 13-21.
55Id. at 17.
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that four different appraisal instruments were used” as part of an
employee appraisal process, DOSL argues that
[i]n Davis, unlike here, she performed an analysis on
subgroups or pools of data that accounted for relevant
factual differences to correct the opposing expert’s
analysis that she found lacking. In fact, that approach
is analogous to that Donald R. Deere, Ph.D., [DOSL]’s
statistical expert, notes she should have used in this
case, showing that her contrary analysis is unreliable
and irrelevant.56
DOSL notes that
Dr. Deere corrects Dr. Pearson’s data errors and
methodological failure to account for assigned rigs and
RIF dates, noting that (1) there are 48 RIFs of SDRs in
the data used by Dr. Pearson as corrected; (2) the
“multiple pools approach is analogous to the Mantel
Haenszel approach used by Dr. Pearson in her prior
report” in Davis, and that (3) under this approach “there
is not a statistically significant difference between the
actual RIFs of African-American [SDRs] and the RIFs
expected form a race-neutral process.”57
Although “expert testimony that relies on ‘completely
unsubstantiated factual assertions’ is inadmissible,” Moore v.
International Paint, L.L.C., 547 F. App’x 513, 515 (5th Cir. 2013)
(per curiam), for the reasons stated in § III.B.1-2, above, the
court has already concluded that whether the Plaintiffs and the
four other discharged African-American SDRS were discharged during
a single, continuing RIF, as Plaintiffs argue, or whether they were
discharged in as many as 48 separate RIFs, as DOSL argues, and
whether Plaintiffs are similarly situated to other SDRs who were
56Id. at 19.
57Id. n. 10 (quoting Expert Report of Donald R. Deere, Ph.D.,
Exhibit K to DOSL’s Motion to Exclude, Docket Entry No. 143-11).
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not discharged, are contested issues of law and fact. If the
evidence presented at trial proves that Plaintiffs and the four
other African-American SDRs were all discharged in a single,
continuing RIF, and that Plaintiffs are similarly situated to white
SDRs who were not discharged, then Dr. Pearson’s evidence, which
treats all SDRs as equally at risk during a single, continuing RIF,
would be relevant, reliable, and admissible.
Moreover, DOSL’s argument that Dr. Pearson’s evidence is
irrelevant and unreliable because it failed to pool or group data
by rig or by the multiple RIFs that DOSL contends occurred does not
challenge Dr. Pearson’s calculations or methodology, i.e., her use
of the “Fisher Exact Test” to determine whether there is a
statistically significant difference in DOSL’s treatment of African
American SDRs. Instead, DOSL’s argument challenges the basis of
Dr. Pearson’s opinions and the variables used in her calculations.
If Dr. Pearson missed important facts or variables, that oversight
can be addressed during cross-examination, and as such, goes to the
weight — not to the admissibility — of her opinions. See Puga v.
RCX Solutions, Inc., 922 F.3d 285, 294 (5th Cir. 2019) (“As a
general rule, questions relating to the bases and sources of an
expert’s opinion affect the weight to be assigned that opinion
rather than its admissibility.”)(citing Rock v. Arkansas, 107 S.
Ct. 2704, 2714 (1987)). If Plaintiffs present evidence other than
statistics to prove their disparate treatment claim, then
Plaintiffs will be allowed to present Dr. Pearson’s statistical
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evidence to the jury because the reasoning and methodology
underlying it are both applicable to the facts in issue, and
scientifically valid. See Curtis, 174 F.3d at 668 (citing Daubert,
113 S. Ct. at 2796). See also Puga, 922 F.3d at 294 (“Particularly
in a jury trial setting, the court’s role under Rule 702 is not to
weigh the expert testimony to the point of supplanting the jury’s
fact-finding role — the court’s role is limited to ensuring that
the evidence in dispute is at least sufficiently reliable and
relevant to the issue so that it is appropriate for the jury’s
consideration.”).
5. Plaintiffs’ May Not Present Pattern-and-Practice Evidence
DOSL has long argued that Plaintiffs cannot assert a pattern-
or-practice claim arising from their discharges in a RIF under the
circumstances at issue in this case.” A “pattern or practice”
claim is not a separate and distinct cause of action under Title
VII, but is another method of proving disparate treatment. See
Mooney, 54 F.3d at 1219. The pattern and practice mode of proof
for race discrimination claims was recognized in Teamsters, 9/7
S. Ct. at 1866-67. The pattern or practice mode of proof requires
*8See Defendants’ Motion to Strike Plaintiff’s Ostensible First
and Second Amended Complaints, and Authorities in Support, Docket
Entry No. 26, pp. 2, and 5-7 (arguing that it would be futile to
allow leave to amend to add, inter alia, a purported new pattern or
practice claim because the pattern-or-practice method of proving
discrimination is not available in a private, non-class action);
Defendants’ Opposition to Plaintiffs’ First Motion to Compel,
Docket Entry No. 29, p. 7 n. 6; Defendant’s Memorandum in Support
of Its Motion in Limine, Docket Entry No. 161-1, po. 21-22 4 XIV.
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establishing “by a preponderance of the evidence that racial
discrimination was the company’s standard operating procedure [-—]
the regular rather than the unusual practice.” Id. 1855.
While neither the Supreme Court nor the Fifth Circuit has
explicitly stated that the pattern and practice method of proof may
never be used in private, non-class suits, other courts have
reached this conclusion. See Celestine v. Petroleos de Venezuella
SA, 266 F.3d 343, 355-56 (5th Cir. 2001) (citing cases). Moreover,
in Celestine the Fifth Circuit held that
[g]iven the nature and purpose of the pattern and
practice method of proof, this Court’s precedents, and
the precedents of other circuits, the district court did
not err in refusing the apply the Teamsters method of
proof as an independent method of proof to the
appellants’ individual claims in lieu of the McDonnell
Douglas method at the summary judgment stage.
Id. at 356. See also Scarlett v. Seaboard Coast Line Railroad Co.,
676 F.2d 1043, 1053 (5th Cir. 1982) (recognizing Teamsters framework
as applicable in ™“‘pattern and practice’ suit[s] by the
government,” and in “private class action[s]”); Rogers v. Pearland
Independent School District, 827 F.3d 403, 408 (5th Cir. 2016),
cert. denied, 137 S. Ct. 820 (2017) (observing that “the pattern-
or-practice method of proving discrimination is unavailable in
private, non-class action”). Because this is neither a government
action nor a class action but, instead, a private action in which
Plaintiffs assert only their own individual claims of race
discrimination, Plaintiffs may not present evidence or argument
that DOSL engaged in a pattern-or-practice of race discrimination.
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IV. Timing Order
The court has considered the estimated time for trial. The
parties have previously estimated that the entire jury trial would
require approximately nine to ten days. Plaintiffs now estimate
40.00 hours of court time for their portion of the case,59 and
Defendant now estimates 35.6 hours of court time for its portion of
the case.60 The parties’ estimates, especially those of Plaintiffs’
counsel, are not reasonable. Based on the court’s evaluation of
the case and the estimates provided by counsel, Plaintiffs will be
allocated a total of 15 hours of evidence, and Defendant will be
allocated a total of 15 hours of evidence. Because the court’s
familiarity with the case indicates that these time allocations are
liberal, they will be reduced if the court perceives counsel to be
wasting court time.
V. Conclusions and Order
For the reasons stated in § II, above, there will be no trial
on Pickney’s disparate impact claim because Pickney failed to
exhaust administrative remedies for that claim. Accordingly,
Pickney’s disparate impact claim is DISMISSED WITHOUT PREJUDICE.
59See Plaintiffs’ Final Trial Plan; Objections to Diamond’s
Final Trial Plan; and Response to Diamond’s Objections to
Plaintiffs’ Initial Trial Plan, Docket Entry No. 193, p. 6.
60See Defendant Diamond Offshore Services Limited’s Final Trial
Plan & Objection to Plaintiffs’ Initial Trial Plan, Docket Entry
No. 192, pp. 3 and 6.
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For the reasons stated in § III, above, the court ORDERS that
! Plaintiffs may present evidence intended to prove
they were discharged in a single, continuing RIF;
! Plaintiffs may present evidence intended to prove
they are similarly situated to DOSL’s other SDRs;
! Plaintiffs may present “me-too” evidence only if
they first prove that they are similarly situated
to their “me-too” witnesses;
! Plaintiffs may present statistical evidence,
including expert evidence, only if they first
present other evidence of racially discriminatory
disparate treatment;
! Plaintiffs may not present evidence or argument
that DOSL engaged in a pattern-and-practice of race
discrimination.
For the reasons stated in § IV, above, the court hereby ORDERS
that the parties be allocated the following time:
! Plaintiffs are allocated a total of 15 hours of
evidence;
! Defendant is allocated a total of 15 hours of
evidence.
The court will rule on the admissibility of exhibits when they
are offered into evidence at trial.
Jury selection will begin on April 4, 2022, at 1:00 p.m. in
Courtroom 9B, Federal Courthouse, 515 Rusk Street, Houston, Texas.
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Jury questionnaires will be available in the courtroom at
12:00 noon for review by counsel.
The court will voir dire the jury panel. Counsel for the
Plaintiffs will be allowed ten (10) minutes for additional
questions to the jury panel; and counsel for the Defendant will be
allowed ten (10) minutes for additional questions to the jury
panel. The parties may submit proposed questions for the jury
panel.
Counsel for the Plaintiffs will be allowed ten (10) minutes
for opening statement; and counsel for the Defendant will be
allowed ten (10) minutes for opening statement.
Plaintiffs should be prepared to call witnesses on the
afternoon of April 4, 2022.
The court will not revisit any of the rulings in this
Memorandum Opinion and Order before trial.
SIGNED at Houston, Texas, on this pa of March, 2022.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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