ML021010511

Tennessee Valley Authority'S Response in Opposition to NRC Staff Motion in Limine to Exclude the Testimony and Summary of Analyses of Carey L. Peters

ML021010511
Person / Time
Site:	Browns Ferry, Watts Bar, Sequoyah
Issue date:	04/08/2002
From:	Fine T Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
Byrdsong A
References
+adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, RAS 4272
Download: ML021010511 (35)

Text

epA-5 /-/,? -7,P-DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 2002 APR 10 AM IO: 16

FCF I ,toL rTARY RULEMAKINGS AND ADJUDICATIONS STAFF IN THE MATTER OF ) Docket Nos. 50-390-CivP;

) 50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY ) 50-259-CivP; 50-260-CivP;

) 50-296-CivP

)

(Watts Bar Nuclear Plant, Unit 1; ) ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2; )

Browns Ferry Nuclear Plant, ) EA 99-234 Units 1, 2, & 3)

TENNESSEE VALLEY AUTHORITY'S RESPONSE IN OPPOSITION TO NRC STAFF MOTION IN LIMINE TO EXCLUDE THE TESTIMONY AND

SUMMARY

OF ANALYSES OF CAREY L. PETERS The Nuclear Regulatory Commission (NRC) Staff has filed a motion in limine to exclude the testimony and statistical analysis of Carey L. Peters. The NRC Staff argues that " [t]he Board should exclude the testimony of Peters as well as his report because they are irrelevant to the matters at issue in this proceeding and they are unreliable evidence" (Mot. at 2).1 This contention has no merit.

Before addressing the NRC Staff's substantive reasons advanced in its motion, it suggests that Tennessee Valley Authority's (TVA) witness list was deficient because it "did not specify the nature of Peters' knowledge and testimony" (Mot. at 1).

This is incorrect. TVA's witness list fully complied with paragraph 5 of the Board's January 30, 2002, third preheating conference order in that TVA filed a list of its proposed witnesses on March 29, 2002. The order does not specify that either party was required to "specify the nature" of the proposed testimony of their witnesses.

1 TVA will cite to the Staff's motion "Mot. at __." Copies of the Peters' resume and report are attached hereto as exhibits A and B, respectively.

I 12mp/lace S-:c/c- D o/

scV- og.

The NRC Staff seeks to blame TVA for its failure to request during the five-month discovery period the identity of the witnesses, including any expert witness such as Peters, whom TVA intended to use at the hearing in this proceeding. 2 The NRC Staff does not point to any provisions in the Board's rules or prior orders requiring TVA to produce such information in the event NRC Staff fails to request it. Simply, had it requested the identity of Peters and the nature of his intended testimony in any of its three separate sets of interrogatories, TVA would have provided that information.3 The NRC Staffs substantive arguments fare no better. The basis of the NRC Staff's claim in this proceeding is that TVA violated 10 C.F.R. § 50.7 (2001) by "retaliating against Gary Fiser for engaging in protected activities" (Mot. at 1).

Specifically, one of its claims is that the Selection Review Board (SRB) that interviewed Fiser for the PWR Chemistry Manager position was not neutral because two of the three members-John Corey and Charles Kent-were aware of his protected activity. The facts are undisputed that the third SRB member-Heyward (Rick)

Rogers-was unaware of Fiser's protected activity at the time of his interview.

Peters performed a statistical analysis of the ratings that the three SRB members gave the three top applicants, including Fiser, and determined that Rogers' 2 As set forth in the Board's first, second, and third prehearing conference orders, discovery began on August 13, 2001, and ended on January 22, 2002.

3 The NRC Staff also claims that, "[i]n its document list, TVA included a number of documents which it had not previously provided to the Nuclear Regulatory (NRC)

Staff during discovery" (Mot. at 1). The NRC Staff dances close to the line of truth.

While these documents might not have been provided during discovery, the NRC Staff conveniently chooses not to inform the Board that it did not request such documents during discovery, and TVA had no obligation, without a discovery request from the NRC Staff, to produce them.

2

ratings of Fiser were statistically significantly lower than Corey's and Kent's. 4 Based on his findings, Peters concludes that "the results clearly and strongly indicate that the ratings Fiser received were most likely not lower because Corey and Kent knew he was involved in a protected activity" (ex. B at 2; emphasis in original). The NRC Staff claims that this evidence is irrelevant.

However, controlling Sixth Circuit precedent considers such evidence "compelling." See TVA v. Frady, 134 F.3d 372 (table), No. 96-3831, 1998 WL 25003, at **5 (6th Cir. Jan. 12, 1998):

We also note that one of the two decision makers on each selection committee was a union representative, rather than a representa-tive of TVA. Frady never alleged, and the Secretary never found, that there was any reason why the union representatives would discriminate against Frady. Thus, it is significant that the TVA and union representa-tives ranked Frady at about the same level, as he concedes. (J.A.

at 487). This appears to us compelling evidence that the TVA repre-sentatives were not biased by Plaintiffsprotected activity. Moreover, the fact that the union representatives gave Plaintiff a relatively low ranking indicates that they too believed there was a legitimate reason for not selecting him. 5 Not unlike the union representatives in Frady, Rogers had no reason to discriminate against Fiser due to his protected status because Rogers was unaware of Fiser's pro-tected activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)

(noting alleged discriminating official could not have taken action against employee because of her protected activity where "there is no indication that Rice even knew about the right-to-sue letter when she proposed transferring respondent"); McKenzie v.

BellSouth Telecomm., Inc., 219 F.3d 508, 518 (6th Cir. 2000) ("McKenzie has alleged 4 The SRB also interviewed candidates for the related position of BWR Chemistry Manager position. Fiser chose not to apply for this job. The PWR and BWR positions were awarded to the two candidates who were rated the highest by the SRB.

5 Copies of unreported decisions are attached; emphasis added unless otherwise noted.

3

no evidence that supports that her employer, BellSouth, was aware of her protected activity"). And the NRC Staff does not suggest any such reason in its motion. This "compelling evidence" is not only relevant but also admissible under 10 C.F.R.

§ 2.743(c) (2001) as well as Rules 401 and 402 of the Federal Rules of Evidence.

Specifically, the Supreme Court has decided that an employer may, by use of statistics, rebut a claim of intentional discrimination. See Furnco Constr.

Corp. v. Waters, 438 U.S. 567 (1978):

[T]he employer must be allowed some latitude to introduce evidence which bears on his motive. Proof that his work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided. We cannot say that such proof would have absolutely no probative value in determining whether the otherwise unexplained rejection of the minority applicants was discriminatorily motivated [438 U.S. at 580].

See also Cross v. United States Postal Serv., 639 F.2d 409, 414 (8th Cir. 1981)

(noting "it is true that statistical evidence of a nondiscriminatory hiring pattern has some relevance in negating an inference of discriminatory motive").

Despite the relevance of the Peters' testimony and Report, the NRC Staff argues that this evidence should be excluded because Peters does not have "per-sonal knowledge of the process used by [SRB]" (Mot. at 2). The NRC Staff misreads Rule 602 of the Federal Rules of Evidence (Mot. at 2-3). Rule 602 states that "[a]

witness may not testify to a matter unless . . . the witness has personal knowledge of the matter." The "matter" about which TVA will have Peters testify is his statistical analysis of the ratings of the SRB members and the preparation of his report, not the SRB process. Having personal knowledge of his own analysis as well as the report that he prepared, Peters is competent to testify about the opinions set out in his Report.

4

See Rule 601, Fed. R. Evid. The NRC Staff's contention to the contrary simply is a red herring. 6 Nor does the subjective nature of the SRB interview process lend credence to NRC Staff's contention that this evidence should be excluded (Mot. at 2-4).

While Peters' statistical analysis is an objective measure of whether the ratings of the three SRB members were influenced by bias, it confirms that bias did not play a part in the ratings because Rogers-the member of the SRB who had no knowledge of Fiser's protected activity-rated Fiser "significantly lower" than Corey and Kent, as noted in Peters' report (ex. B at 2). As the Sixth Circuit opined in Frady, this evidence shows that Rogers, like Corey and Kent, "believed there was a legitimate reason for not selecting him." 1998 WL 25003, at **5.

NRC Staff makes multiple assertions about alleged weaknesses in Peters' report-the supposed failures to take into consideration (1) the subjective nature of the interviews, (2) the nature of the interview questions, (3) the purported positive basis that Corey and Kent may have had for the other two top candidates, and (4) the fact that the SRB did not have a member who favored Fiser. These are attacks on the factual basis of Peters' proposed testimony and opinions (Mot. at passim). However, as the Sixth Circuit makes clear, mere possible "weaknesses in the factual basis of an expert witness' opinion . . . bear on the weight of the evidence rather than on its admissibility." United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993).

Put another way, the Sixth Circuit states that the alleged "incomplete bases for the expert testimony are subject to the crucible of cross examination and affect the weight 6 In any event, Rule 703 of the Federal Rules of Evidence provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." In other words, personal knowledge of the underlying facts or data forming the basis of an expert's opinion is not a requirement for his or her testimony to be relevant as well as admissible.

5

properly given . . . evidence, not the admissibility of such information at trial."

Laski v. Bellwood, 132 F.3d 33 (table), No. 96-2188, 1997 WL 764416, **4 (6th Cir.

Nov. 26, 1997).7 Under Frady, the Peters evidence is both "compelling" and relevant; therefore, as the trier of fact, the Board must determine, after cross examination, the proper weight to be accorded to the Peters evidence. Again, the Sixth Circuit makes this point clear:

The Federal Rules of Evidence allow an expert great liberty in determining the basis of his opinions and whether an expert opinion should be accepted as having an adequate basis is a matter for the trier of fact to decide. See Mannino v. InternationalMfg. Co., 650 F.2d 846, 853 (6th Cir. 1981). Because Fish's testimony was clearly relevant to the issue at trial and did have some factual basis, it was admissible [United States v. L.E. Cooke Co., 991 F.2d at 342].

The NRC Staff next argues that Peters' testimony and report are unreliable because he conducted his analysis six years after the SRB interviews (Mot.

at 2-3). To the contrary, Peters conducted a purely statistical correlation of the ratings of the three SRB members, and such ratings have not changed since they were given and will not change over time. Consequently, had Peters performed the statistical analysis six years ago, the results set out in Peters' report would have been exactly the same. The motion identifies no statute, regulation, or case law requiring TVA to con-duct an analysis of the SRB ratings six years ago. Simply, the timing of the prepara-tion of the statistical analysis does not make this proof unreliable under 10 C.F.R.

§ 2.743(c), and the NRC Staff's hyperbole to the contrary does not make it so.

7 The NRC Staff also suggests that Peters' status as a TVA employee cuts against qualifying him as an expert ( Mot. at 3). Of course, Peters' qualifications, as set out in his resume (ex. A), are the key elements in determining whether he qualifies as an expert, not his employment status.

6

Based on the foregoing reasons and authorities, the NRC Staff's motion in limine to exclude Peters' testimony and his report should be denied.

Respectfully submitted, April 8, 2002 Maureen H. Dunn General Counsel Office of the General Counsel Tennessee Valley Authority Brent R. Marquand 400 West Summit Hill Drive Senior Litigation Attorney Knoxville, Tennessee 37902-1401 Facsimile 865-632-6718 Of Counsel: Thomas F. Fine David A. Repka, Esq. Assistant General Counsel Winston & Strawn Telephone 865-632-2061 1400 L Street, NW Washington, D.C. 20005 Attorneys for TVA 003693609 7

CERTIFICATE OF SERVICE I hereby certify that the foregoing response to NRC Staff's motion in limine to exclude the testimony and summary of analyses of Carey L. Peters have been served by overnight messenger on the Board members and NRC Staff and by regular mail on the other persons listed below. Copies of the response, less the attachments which are being sent either by overnight or regular mail, have also been sent by e-mail to those persons listed below with e-mail addresses.

Administrative Judge Administrative Judge Charles Bechhoefer, Chairman Richard F. Cole U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, Maryland 20852-2738 Rockville, Maryland 20852-2738 e-mail address: cxb2@nrc.gov e-mail address: rfcl@nrc.gov Administrative Judge Dennis C. Dambly, Esq.

Ann Marshall Young Jennifer M. Euchner, Esq.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Two White Flint North One White Flint North 11545 Rockville Pike 11555 Rockville Pike Rockville, Maryland 20852-2738 Rockville, Maryland 20852-2738 e-mail address: amy@nrc.gov e-mail address: dcdinrc.gov e-mail address: jme@nrc.gov Office of Commission Appellate Adjudication Mr. William D. Travers U.S. Nuclear Regulatory Commission Executive Director of Operations One White Flint North U.S. Nuclear Regulatory Commission 11555 Rockville Pike One White Flint North Rockville, Maryland 20852-2738 11555 Rockville Pike Rockville, Maryland 20852-2738 This 8th day of April, 2 0 0 2, 8

Carey L. Peters, Ph.D.

The Tennessee Valley Authority (TVA) 400 West Summit Hill Drive, East Tower 8C Knoxville, Tennessee 37902 865/632-3039

• clpeters@tva.gov Education Doctor of Philosophy (May 1997)

The University of Tennessee, Knoxville, Tennessee Major: Industrial/Organizational Psychology. GPA: 3.94/4.0 Master of Arts (May 1988)

The University of Nebraska, Lincoln, Nebraska Major: Educational Psychology with an emphasis in counseling. GPA: 4.0/4.0 Bachelor of Science (August 1984)

Taylor University, Upland, Indiana Major: Social Work. GPA: 3.45/4.0 Associate of Arts (August 1982)

Hesston College, Hesston, Kansas Major: Social Work. GPA: 3.7/4.0 Professional Experience The Tennessee Valley Authority (TVA) February 1997 - present Program Manager

• Present during organization-wide televised broadcasts on human resource topics

• Design and implement large-scale organization change workshops and HR processes

• Serve on numerous HR strategic planning teams

• Evaluate, redesign, and manage the company-wide 360-Degree Feedback program

• Facilitate numerous training sessions

• Develop and manage all performance appraisal processes

• Design and write training materials and technical reports

• Coordinate activities with all levels of employees throughout the company

• Consult on career development and succession planning programs

• Design and implement employee selection systems General Teaching (periodic assignments)* January 1986 - present Instructor

• Invited to serve as guest lecturer for various college level courses

• Present workshops on issues pertaining to management and human resource development

• Taught a Graduate Record Examination (GRE) test preparation course

• Counseled students concerning vocational interests Exhibit A FB 000001

Carey L. Peters, page 2 L. M. Berry & Company May 1995 - July 1996 Trainer

• Conducted training sessions for managers and employees on issues surrounding their transition to a team-based organization

• Researched, wrote, and edited training modules on topics such as mentoring, time management, team development, giving and receiving feedback, leadership, and individual development

• Participated on a consulting team to deliver services to the organization

• Discussed organizational issues and problems with the company's management Tennessee Assessment Center (periodic projects) July 1994 - October 1995 Assessor

• Served as an assessment center rater for managerial and executive job candidates

• Wrote feedback reports for participants

• Received extensive training in assessment center behavioral dimensions and rating procedures

• Participated in consensus team meetings to finalize evaluations Personnel Assessment Systems (periodic projects) June 1994 - February 1995 Assessor

• Assessed the performance of government employees via assessment center exercises

• Wrote developmental feedback reports for participants

• Attended extensive training workshops on assessment center procedures

• Participated in consensus team meetings to finalize participant ratings Wallace Hardware August 1993 - March 1995 Organizational Consultant

• Proposed and acquired a contract to assess 175 employees

• Consulted with the President and vice-presidents of the company to design and implement a developmental employee assessment program

• Conducted individual assessments consisting of personality, vocational interest, and cognitive ability measures and two structured interviews

• Wrote extensive developmental feedback reports on all employees assessed

• Designed and presented numerous feedback workshops for company employees

• Generated numerous additional requests for services (e.g., additional developmental assessments, performance appraisal system design, sales training, team building, and organizational climate feedback)

FB 000002

Carey L. Peters, page 3 University of Tennessee Statistics Laboratory August 1993 - May 1994 Graduate Teaching Assistant

• Taught weekly laboratory sections for two different graduate statistics courses

• Explained the material to students and reviewed homework with them

• Provided tutoring assistance outside of regular class hours

• Graded all tests and assigned course grades Tennessee Government (periodic projects) July 1993 - January 1997 Executive Institute Trainer and Group Facilitator

• Supervised colleagues selected to help conduct training sessions

• Instructed executives regarding team dynamics, work performance, and individual personality issues

• Lead group discussions concerning team development and interpersonal interaction

• Observed, evaluated, and offered feedback to individuals and teams regarding their job-related behaviors Management Development Center (periodic projects) January 1993 - January 1997 Trainer and Group Facilitator

• Conducted training workshops

• Facilitated group discussions concerning team processes, group problem-solving, and interpersonal relationships

• Interpreted personality profiles

• Provided feedback on team performance and individual personality variables National Institute of Mental September 1992 - January 1997 Health Research Grant Graduate Research Assistant

• Served on a federally funded grant designed to examine the organizational climate and culture of government agencies

• Worked on a cross-discipline organizational development team focused on conceptualizing and implementing an "ideal" organizational culture

• Developed and administered organizational climate and culture surveys for various social service agencies

• Collected data through extensive personal contacts with subjects in the field Analyzed data and made written and oral presentations of the research findings FB 000003

Carey L. Peters, page 4 Pilot Oil Management Chair of August 1992 - May 1995 Excellence Research Team Research Team Member

• Participated in the development of a new technique called "conditional reasoning" designed to measure achievement motivation, human reliability, and aggression

• Attended weekly meetings to examine the role of personality variables in work behavior

• Discussed improved methods of gaining insight into individual personality Texas Christian University (TCU) March 1989 - August 1995 Assistant Director of Admission and Field Representative

• Served as Assistant Director of Admission until beginning doctoral work in 1992

• Supervised and refined the administration of over two million dollars in academic scholarships

• Managed approximately 20 student assistants

• Recruited students via individual interviews and follow-up contacts with prospective students and their families

• Gave informational presentations to groups of prospective students and their families

• Evaluated applications and worked on a committee to make admission decisions University of Nebraska July 1988 - March 1989 Admission Counselor

• Performed public relations work for the Office of Admission

• Conducted over 150 presentations for prospective students and their families

• Initiated and completed a study on the campus visitation program FB 000004

Carey L. Peters, page 5 Graduate Courses Master of Arts Doctor of Philosophy

• College Student Development

• Ethics for Psychology

• College Student Personnel

• Industrial Psychology

• Counseling Practicum

• Leadership

• Counseling Theories & Interventions

• Linear Structural Equations (LISREL)

• Educational & Psychological Measurement

• Multivariate Statistics

• Field Placement (applied counseling position)

• Organizational Psychology

• Human Cognition & Instruction

• Performance Appraisal

• Occupational & Vocational Psychology

• Personality

• Physiological Psychology

• Personnel Selection

• Social & Group Psychology

• Psychometrics

• Statistical Methods

• Research Methods

• Statistics Computer Lab

• Teams

• Univariate Statistics Honors and Activities

• Social Science Research Institute dissertation grant ($5,000)

• National Association for College Admission Counseling grant ($2,140)

• Graduate College Travel Grant ($650)

• American Psychological Society dissertation grant ($250)

• "Outstanding Newcomer, 1991" Texas Association for College Admission Counseling

• Mensa

• Honor roll in college

• Student government

• President and emcee of church class

• Big Brothers/Big Sisters

• Adjunct faculty at Tusculum College Professional Affiliations

• Academy of Management

• American Psychological Association

• Society for Human Resource Management

• Society for Industrial and Organizational Psychology FB 000005

Carey L. Peters, page 6 Research Martin, L. M., Peters, C. L., Bailey, J. W., & Glisson, C. G. (1996). The role of psychosocial functioning in case management recommendations for children entering state custody. National Institute of Mental Health grant report.

Martin, L. M., Peters, C. L., & Glisson, C. (1998). Factors affecting case management recommendations for children entering state custody. Social Service Review, December 1998, 521-544.

Peters, C. L. (1990). Tips for an effective campus visitation day program. Journal of College Admissions. 129, 25-29.

Peters, C. L. (1993). Goal setting theory: A direct test of the moderating effects of expectancy and commitment. Paper presented at the annual meeting of the Industrial/Organizational Psychology and Organizational Behavior Graduate Student Conference, Toronto, Ontario, Canada.

Peters, C. L. (1995). Motivational distortion scales: An examination of their use (and potential misuse). Paper presented during a poster session at the annual meeting of the Academy of Management, Vancouver, British Columbia, Canada.

Peters, C. L. (1997). Human resource practices in college admission offices. (National Association for College Admission Counseling Monograph Series). Alexandria, VA.

Peters, C. L. (1997). Motivation for group membership: Three perspectives. Paper accepted for a poster session at the annual meeting of the Academy of Management, Boston, MA.

Peters, C. L. (1997). Psychologically oriented human resource practices and organizational effectiveness. Paper accepted for a poster session at the annual meeting of the American Psychological Association, Chicago, IL.

Peters, C. L. (1999). Human resource practices and organizational effectiveness:

A test of three perspectives on strengthening the relationship. Submitted for publication.

Peters, C. L. (1999). 360-Degree Feedback: Keys for Implementing a Successful Program. Proposal accepted for presentation at the annual meeting of the Society for Human Resource Management, June 25-28, 2000, Las Vegas, NV.

Peters, C. L., & Brown, R. G. (1991). The relationship of high school involvement, high school population size, and gender to college students' self-efficacy beliefs. College Student Journal. 25. 473-481.

FB 000006

Carey L. Peters, page 7 Peters, C. L., Maetzke, S. M., Adams, D. M., & Bryant, S. B. (1998). The optimal number of response options: A neglected consideration in questionnaire design. Best Paper Proceedings at the annual meeting for the Academy of Management, San Diego, CA.

Peters, C. L., Maetzke, S. M., Adams, D. M., & Bryant, S. B. (1999). The optimal number of response options: A neglected consideration in questionnaire design. Conditionally accepted by Psychological Methods.

Peters, C. L., Maetzke, S. B., & Baugous, A. M. (1999). How many response options in questionnaire design: 5. 7. or 9? Paper submitted for presentation at the annual meeting of the American Psychological Association, August 4-8, 2000, Washington, D.C.

Peters, C. L., Yates, J. L., & Glisson, C. G. (1997). The influence of organizational culture on iob satisfaction and burnout. Paper presented during a poster session at the annual meeting of the Society for Industrial and Organizational Psychology, St. Louis, MO.

Peters, C. L., Yates, J. L., & Glisson, C. G. (1997). The influence of organizational culture on job satisfaction and burnout. National Institute of Mental Health grant report.

FB 000007

Summary of Analyses: Likelihood of Negative Interview Bias Against Employee Involved in a Protected Activity Carey L. Peters, Ph. D.

Compensation and HR Planning March 2002 I received interview ratings data from Brent Marquand, TVA Office of the General Counsel, containing ratings from three raters (Corey, Kent, and Rogers) on three candidates (Candidate A, Candidate B, and Fiser). Each rater rated each candidate on each of nine interview questions for a total of 81 data points (3 x 3 x 9).

As a first step in analyzing the data, an analysis of variance (ANOVA) was conducted to test for differences between raters in the ratings they gave the candidates. The results were significant (a < .05), indicating that there was a statistically significant difference between the three raters. However, an ANOVA alone-does not indicate where the significant differences lie (i.e., which.rater was different from which other rater(s)). Post hoc analyses were conducted, to further explore exactly where the significant differences occurred. These analyses showed that the ratings Corey gave (x = 8.46) were significantly higher than the ratings Rogers gave (x = 7.52, p < .05).

An ANOVA was also conducted to test for differences between candidates, inrthe, ratings they received. The results were significant (e < .05). Post hoc analyses'.

showed that Candidate A (x = 8.73) and Candidate B (x = 8.72) received, :

and significantly higher (2 < .05) ratings than Fiser (x = 6.70). Plots I and WI Graphs I and 11illustrate these findings.

The primary question was addressed next: Did raters' knowledge of candidates' involvement in a protected activity (IPA) negatively bias their ratings against such candidates? To do this, the data were averaged across Corey and Kent to create a category called 'knew of involvement in a protected activity." Second, the data were averaged across Candidate A and Candidate B to create a.group called 'not involved in a protected activity." The result was a 2 x 2 matrix representing answers to the interview questions. One axis of the matrix represented knew of involvement in a protected activity vs. Rogers andthe other axis represented not involved in a protected activity vs. Fiser.

A one-way.ANOVA was conducted to test for main effects. Results were significant (E < .05) and consistent with previous analyses. Raters who kne'6of candidates' IPA status gave significantly higher ratings than the rater who had no knowledg. of IPA status (Rogers). And, candidates who were not IPA received significantjy higher ratings than the candidate who was IPA (Fiser).

Because the results from the one-way ANOVA were significant, a test for an interaction was conducted to answer the key question about whether knowledge FB 000008 Exhibit B -

-  : :1

I of IPA may have negatively biased ratings against the IPA candidate. A test for an interaction examines factors that moderate the main effects. In other words, the presence of an interaction can highlight the conditions under which the main effects occur and provide a more specific explanation of the overall main effects of the ANOVA.

In this situation, the interaction was used to test whether Fiser's low ratings were contingent on raters' knowledge of IPA. These results were significant and show that ratings were lowest when the rater did not know of candidates' IPA. In other words, Fiser's low ratings were due in large part to Rogers, the only rater who did not know of Fiser's IPA status. The raters who knew of Fiser's IPA status gave him higher ratings than Rogers. The results can be restated from the standpoint of the raters. The overall higher ratings given by the raters who knew of Fiser's IPA status were due in large part to the ratings they gave to Fiser, which were significantly higherthan the ratings Rogers gave Fiser. Plots Ill and IVillustrate these findings.

As a follow-up, one-way ANOVAs were conducted to test for differences between raters for Fiser only and for differences between candidates for Rogers only. Both ANOVAs were significant (p < .05). Post hoc analyses sh6wed;thaV Fiser (x,= 5.67) received significantly lower ratings than Candidate A (x = 8.56) and Candidate B (x = 8.33, p < .05) when considering only ratings from Rogers.

Post hoc analyses showed that Rogers (x = 5.67) gave significantly lower, ratings than Corey (x = 7.31) and Kent (x = 7.11, p <.05) when considering only ratirngs, received by Fiser.

Correlations between the three raters were all significant (p <.05), indicating strong consistency in their ratings.

In conclusion, the results of all analyses were very consistent with each other.

Taken together, the results clearly and strongly indicate that the ratings Fiser received were most likely not lower because Corey and Kent knew he was involved in a protected activity.

FB 000009 2

Plot 1: Rater by Candidate

.939 Candidate

• Canldaw A,!

a. F.

856 8 33

~0 C

--- I --- 41

,I I

\

04fl I Ioor Rater FB 000010 cO I Page 1

Plot II: Candidate by Rater ERater

• corey KeMn

• Row DotLines Show Mans 8.58 833 Ca

'I

• II

, -IN A Candldate Fls.

Candidate FB 000011 COZ Page 1

Graph 1: Average Ratings for Raters 8.6 8.4 8.2 8.0 7.8 7.6 0) mr 7.4 Corey Kent Rogers Rater FB 000012 Page 1

Graph II: Average Ratings for Candidates 90 M8 7 87 8.5-8.0 7.5 -

7.0 6.5 CZ 0~ 6.0 Candidate A Candidate B Fiser Candidate FB 000013 Page 1

Plot Ill: Knew by Involvement

/8.87 A." Involved in protected activity?

I Fiser (yes)

--- Others (no)

C c 7.21 4-9 .00-I\ //5.87 Otes (Y..) Rog,,s (no)

Knew of involvement in protected activity?

FB 000014 C193 Page 1

Plot IV: Involvement by Knew Knew of involvement In protected activity?

- Rogers (no) t--- Other (yes) 800O 0I

\

0 I

\ 867 Oma's (no) Fir (ys)

Involved in protected activity?

FB 000015 Cot Page 1

July 18, 1996 SELECTION REVIEW BOARD RESULTS PWR CHEMISTRY PROGRAM MANAGER (VPA 10703)

Charles Kent H.R. (Rick) Rogers John Corey Candidate Candidate Fiser Candidate Candidate Fiser Question Candidate Candidate Fiser B A B A No. B A 8 9 7.5 8 9 5 I 10 8.5 7 7 8 9 7 9 9 5 2 9 8.7 8.5 9 7 9 8 5 7 10 8.5 7.5 8 9 7 8 8 7 9 9.5 9 7.8 8.5 8.5 7 8 9 6 11 9.5 9 7 9 9.5 7.5 8 9 6 12 9 9 7.5 8.5 9 6 8 8 5 15 10 8.5 7 8.5 8 7 8 8 5 16 8.5 8 7 9 9.5 8 9 9 7 17 9 9 8 78.2 65.8 76 80.5 64 75 77 51 Subtotal: 84.5

-n Candidate B Gary Fiser w Total Score: Candidate A 0 235.7 235.5 180.8 0

0 0

0)

134 F.3d 372 (Table) Page 1 Unpublished Disposition (Cite as: 134 F.3d 372, 1998 WL 25003 (6th Cir.))

C NOTICE: THIS IS AN UNPUBLISHED OPINION. is not supported by substantial evidence. We, therefore, REVERSE that decision.

(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in I. Facts the Federal Reporter. Use FI CTA6 Rule 28 and Fl CTA6 IOP 206 for rules regarding the citation of Plaintiff Frady was employed by TVA from 1978 unpublished opinions.) until 1992. From 1983 on, he worked as a nuclear inspector at the Sequoyah and Watts Bar nuclear United States Court of Appeals, Sixth Circuit. plants. While working as an inspector, he raised safety concerns with the NRC and TVA management TENNESSEE VALLEY AUTHORITY, Petitioner, on several occasions. In December 1990, Frady V. received notice that he would be terminated due to a Randolph FRADY, United States Department of reduction in force. In response, Frady filed a Labor, Respondents. complaint under the ERA. The complaint resulted in a settlement agreement which extended Frady' s No. 96-3831. employment with TVA until January 1992. As part of that agreement, Frady was placed in the Employee Jan. 12, 1998. Transition Program from June 1991 until his termination. The program allowed him to seek a Before: RYAN, SUHRHEINRICH, and COLE, new position within TVA, which he did. However, Circuit Judges. Frady was not selected for any of the positions he applied for, and he filed ERA complaints challenging PER CURIAM. these non- selections.

• • 1 This appeal arises from claims by Randolph After an investigation by the DOL's Wage and Hour Frady under the whistleblower protection provision Division found no merit to Frady's complaints, he of the Energy Reorganization Act of 1974(ERA), as filed a request for a hearing. An administrative law amended, 42 U.S.C. § 5851 (1988), which prohibits judge (hereinafter AU), charged with making licensees of the Nuclear Regulatory Commission recommendations to the Secretary, conducted the (NRC) from discriminating against employees who hearing and thereafter dismissed eight of the fourteen engage in protected activity, such as identifying allegations upon TVA's motion for summary nuclear safety concerns or making complaints under judgment. The AU issued a written opinion the ERA. Pursuant to the ERA, Plaintiff Frady filed discussing the remaining six allegations and complaints with the U.S. Department of Labor recommended that they all be decided in TVA's (DOL), alleging that his non-selection for fourteen favor. The Secretary adopted the AU's different positions was the result of unlawful recommendations concerning the eight dismissed retaliation for his protected activities while working allegations and three of the six allegations decided on as a nuclear inspector for Defendant Tennessee the merits, but found for Frady on the remaining Valley Authority (TVA). The case ultimately three allegations, which are the only ones contested reached the Secretary of Labor (hereinafter here. While on remand to the AU for Secretary), who found for Plaintiff with regard to determination of Plaintiffs remedy, the parties three of the fourteen allegations. reached agreement on the appropriate remedy, contingent upon this appeal. The resulting "Joint Petitioner TVA appeals the Secretary's decision for Stipulation" was recommended for approval by the Plaintiff on those three allegations. The issues AU, and the Administrative Review Board of the raised by Petitioner on appeal ask whether "the DOL issued an order approving it.

Secretary was arbitrary and capricious in disregarding the AU's credibility determinations," **2 Two of the three contested allegations concern and whether his "decision was supported by Frady's application for machinist trainee positions at substantial evidence." We find that the Secretary's both the Watts Bar and Sequoyah nuclear plants, as decision with regard to the three contested allegations well as for a steamfitter trainee position at Sequoyah.

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Applicants for each of these three positions were quotes omitted); accord Curran v. Dept. of the considered by a different three-person committee, Treasury, 714 F.2d 913, 915 (9th Cir.1983) (

consisting of a TVA representative, a member of the "Special deference is to be given the AL's credibility applicable union, and Kevin Green, a human judgments"). Given the conflicts in this case resources manager for TVA. The TVA and union between the conclusions of the ALJ and the representatives were charged with ranking the Secretary, we must examine the record with applicants and making the hiring decisions, while particular scrutiny. Tel Data, 90 F.3d at 1198.

Green was assigned to be a facilitator. Each of the committees ranked Frady below the applicants who **3 The law governing Frady's proof of his claims were ultimately selected. The third contested was carefully laid out by the Secretary:

allegation concerns Frady's application for a quality a complainant ... must first make a prima facie control inspector position at the Sequoyah facility. case of retaliatory action by the [defendant], by Shortly after the vacancy for this position was establishing that he engaged in protected activity, announced, a staffing study conducted by an outside that he was subject to adverse action, and that the consultant recommended that staffing levels at the [defendant] was aware of the protected activity facility be reduced. Roy Lumpkin, Frady's former when it took the adverse action. Additionally, a supervisor and the supervisor for the open position, complainant must present evidence sufficient to ultimately decided to cancel the vacancy without raise the inference that the protected activity was hiring anyone for it. the likely reason for the adverse action. If a complainant succeeds in establishing the foregoing, II. Applicable Law the [defendant] must produce evidence of a legitimate, nondiscriminatory reason for the We review the Secretary's decision to ensure that it adverse action. The complainant bears the is not "arbitrary, capricious, an abuse of discretion, ultimate burden of persuading that the [defendant's]

or otherwise not in accordance with law." Ohio v. proffered reasons ... are a pretext for Ruckelshaus, 776 F.2d 1333, 1339 (6th Cir.1985) discrimination. At all times, the complainant (quoting 5 U.S.C. § 706(2)(A)(Administrative bears the burden of establishing by a Procedure Act)). As part of our review, "we must preponderance of the evidence that the adverse determine whether [the decision] is supported by action was in retaliation for protected activity.

substantial evidence, which is 'such relevant evidence Frady v. Tennessee Valley Authority, Nos.

as a reasonable mind might accept as adequate to 92-ERA-19 & 92-ERA-34, slip op. at 5-6 (Secretary support a conclusion.' " Moon v. TransportDrivers, of Labor Oct. 23, 1995) (citations omitted)

Inc., 836 F.2d 226, 229 (6th Cir.1987) (quoting (hereinafter Secretary's Opinion); accord Moon, 836 Richardson v. Perales, 402 U.S. 389. 401 (1971)). F.2d at 229. The Secretary went on to state that, as The substantial evidence standard requires us to part of the establishment of a prima facie case, consider evidence in the record that is contrary to the "Frady must establish that he was qualified for such Secretary's findings and conclusions. Tel Data Corp. position; that, despite his qualifications, he was

v. National Labor Relations Bd., 90 F.3d 1195, 1198 rejected; and that TVA continued to seek and/or (6th Cir. 1996). select similarly qualified applicants." Secretary's Opinion at 18 (adopted from McDonnell Douglas Although the ALJ only recommends a decision, the Corp. v. Green, 411 U.S. 792, 802 (1973)). The evidentiary support for the Secretary's conclusions Secretary concluded that, for each of the three "may be diminished, however, when the contested allegations, Frady established all the administrative law judge has drawn different elements of a prima facie case discussed above and conclusions." National Labor Relations Bd. v. met his ultimate burden of proving that TVA's Brown-Graves Lumber Co., 949 F.2d 194, 196-97 proffered reasons for its personnel decisions were a (6th Cir.1991). In particular, this court "will not pretext for retaliation.

normally disturb the credibility assessments of ... an administrative law judge, who has observed the III. Trainee Positions demeanor of the witnesses." Litton Microwave Cooking Prods. Div., Litton Sys., Inc., 868 F.2d Two of the three contested allegations involve the 854, 857 (6th Cir.1989) (reversing National Labor machinist and steamfitter trainee positions. The Relations Board, which declined to follow ALT's record -contains little to support the Secretary's recommendation to dismiss complaint) (internal finding that Plaintiff established a prima facie case of Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

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retaliation with regard to these positions. As to the Secretary discussed several evidentiary reasons why knowledge element of a prima facie case, we agree he reached this conclusion, id. at 26-31, but none of with the ALU's finding that there is no evidence that them amount to substantial evidence.

members of the selection committees knew about Plaintiff's protected activity, including his earlier The most direct reason cited by the Secretary was ERA complaint. (J.A. at 73). As to the inference that he did "not find the testimony indicating that the element of a prima facie case, the Secretary found selectees ... were found by each committee to be that Plaintiff "established an inference of retaliatory better qualified than Frady based on their 'hands on' motive based on temporal proximity." Secretary's experience to be persuasive." Id. at 26. In reaching Opinion at 24. Where adverse employment action this conclusion, the Secretary did not give any follows rapidly after protected activity, common deference, as required, to the AL's implicit finding sense and case law allows an inference of a causal that this testimony was credible. Moreover, the connection. See Moon v. Transport Drivers, Inc., Secretary substituted his judgment for that of the 836 F.2d 226, 229 (6th Cir.1987) (stating, in a case selection committees at an inappropriate level of where the plaintiff was fired less than two weeks detail, when he determined that Frady's experience after making a complaint, that "the proximity in time using calibration tools and building a log home was between protected activity and adverse employment equivalent to other applicants' experience with action may give rise to an inference of a causal automobile engines and heating and air-conditioning connection"). However, because seven or eight equipment. Id. at 20-21.

months elapsed between Frady's most recent protected activity, namely the filing of the earlier The other reasons cited by the Secretary for his ERA complaint, and the decisions by the selections conclusion that Frady proved pretext are speculative committees, the Secretary's inference is a weak one. at best. For example, the Secretary concludes that

[FN1] "other candidates could have been 'primed' in advance to assist them in answering the standard FNI. The Secretary chose to determine temporal questions that were asked of each applicant." The proximity based on Frady reaching a settlement Secretary bases this hypothesis solely on committee agreement with TVA in June 1991, two or three member Green's off-hand comment during his months before his non-selection by the committees. testimony that "I have no knowledge that [the We believe that the date of the complaint, January candidate] was primed or anything." Id. at 27-28.

1991, is the more appropriate date to use, because The Secretary also cites, as evidence of pretext, that

1) unlike a settlement agreement, a complaint is clearly a protected activity under the ERA, and 2) eleven of the eighteen applicants selected by the common sense dictates that employees are much committees were from outside TVA, despite a TVA more likely to be retaliated against for filing a policy of filling vacancies from within the ranks of complaint against their employer than for resolving TVA employees. Id. at 29. However, the Secretary the dispute with their employer by reaching a fails to explain how discrimination against Frady can settlement agreement. explain more than one of the eleven selections from outside TVA.

• • 4 Even if we were to overlook the scarcity of evidence supporting the knowledge and inference As further evidence of pretext, the Secretary cites elements of Plaintiffs prima facie case, we would still the fact that TVA "relied almost entirely on be forced to conclude that the Secretary's decision [committee member] Green's testimony concerning regarding the trainee positions was not supported by the relevant qualifications.'" Id. at 30. The substantial evidence. Assuming arguendo that Secretary concludes that this indicates that Green was Plaintiff established a prima facie case, Defendant less than honest when he indicated that he was a must produce evidence of a legitimate, facilitator on the selection committees, rather than a nondiscriminatory reason for the non-selection. The decision maker. Even if we ignore the problems Secretary conceded that Defendant met this burden of with citing a defendant's strategy as evidence of a production by presenting testimony that the people witness's credibility, Defendant's reliance on Green's selected for the trainee positions had qualifications testimony about qualifications can be explained by superior to those of Plaintiff. Secretary's Opinion at the fact that Green was the personnel representative

24. However, the Secretary found that Plaintiff met on the committees and was the only person to serve his ultimate burden of proving that this legitimate on all the relevant selection committees.

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• • 5 Finally, the Secretary cites evidence "that Frady canceled. Id. at 36 n. 26. Second, Roy Lumpkin, was the subject of a considerable degree of animus the manager who canceled the vacancy, moved to an from supervisory personnel ... at TVA" Id. at 31. unrelated position four months before the inspectors However, the Secretary cites no evidence that the returned, (J.A. at 600), and was uninvolved in their animus was due to Frady's protected activity. In return. Third, the two inspectors returned based on fact, there is evidence pointing in the opposite settlement agreements, whereas Plaintiff sought the direction. For example, TVA employee Michael position through regular application channels. [FN2]

Miller, a witness vouched for by Frady, (J.A. at For all these reasons, Plaintiff cannot show that he 492-93), attributed the animus from one supervisor to was treated any differently than similarly qualified personality conflicts rather than Frady's candidates. See White v. General Motors Corp.

whistleblowing. (J.A. at 662-4). Without evidence Inc., 908 F.2d 669, 671 (10th Cir.1990) ("to that the animus was based on protected activity, the maintain an action for wrongful discharge, animus does not suggest retaliation for such activity. [plaintiffs] must demonstrate that they were treated differently because of their whistleblowing activity").

We also note that one of the two decision makers on each selection committee was a union representative, FN2. Plaintiff's earlier settlement agreement rather than a representative of TVA. Frady never guaranteed only that he would be placed in the alleged, and the Secretary never found, that the there Employee Transition Program.

was any reason why the union representatives would discriminate against Frady. Thus, it is significant **6 The Secretary also concludes that Plaintiff met that the TVA and union representatives ranked Frady the prima facie requirement of raising an inference at about the same level, as he concedes. (J.A. at that his protected activity was the likely reason for 487). This appears to us to be compelling evidence the adverse action, namely the vacancy cancellation.

that the TVA representatives were not biased by The Secretary bases this conclusion on two factors.

Plaintiffs protected activity. Moreover, the fact that One factor is the temporal proximity between the the union representatives gave Plaintiff a relatively cancellation and Frady's protected activity.

low ranking indicates that they too believed there was Secretary's Opinion at 38. However, as discussed a legitimate reason for not selecting him. with regard to the trainee positions, the Secretary's inference based on temporal proximity is a weak one, For all the reason discussed above, we conclude that because seven months elapsed between Frady' s the Secretary's decision regarding the machinist and earlier ERA complaint and the cancellation of the steamfitter trainee positions is not supported by vacancy. 'The second factor cited by the Secretary is substantial evidence. his "conclu[sion] that Lumpkin strongly suspected, if he did not have certain knowledge, that Frady had IV. Quality Control Inspector Position applied for the position." Id. This is by no means a forgone conclusion, given that Lumpkin canceled the One of the three contested allegations involves a vacancy before he received the applications from quality control inspector position at the Sequoyah Human Resources. Yet the Secretary explicitly facility. Unlike the trainee positions, this position bases his conclusion on the following summary of was canceled rather than being filled by other Lumpkin's testimony: "although [Lumpkin] was applicants. However, after Roy Lumpkin canceled unsure whether he had been told ... that Frady had the inspector vacancy, two inspectors "returned to applied for the job, he was 'reasonably certain if their positions as nuclear inspectors at the Sequoyah [Frady] wanted the inspector job at Sequoyah, he plant pursuant to the terms of a settlement would have applied.' " Id. We fail to see how this agreement. " Secretary's Opinion at 36. The testimony leads to the conclusion that Lumpkin Secretary, therefore, "conclude[d] that TVA, in strongly suspected or knew for sure that Frady had effect, filled the announced nuclear inspector vacancy applied.

with similarly qualified candidates," thus establishing one element of a prima facie case. Id. In summary, substantial evidence is lacking with regard to at least two elements of a prima facie case We find, however, that this conclusion is not of retaliation involving the canceled inspector supported by substantial evidence for a number of position. Plaintiff cannot show that the canceled reasons. First, the two inspectors returned to their vacancy was filled with similarly qualified positions almost a year after the vacancy was candidates, and the Secretary's finding that Plaintiff Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

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successfully raised an inference of discrimination (6th Cir. 1987), which Plaintiff failed to do here.

lacks adequate support. We conclude, therefore, that the Secretary's decision regarding the inspector V. Conclusion position fails to meet the substantial evidence standard. In addition, we note that the consultant's The Secretary's decision for Plaintiff with regard to study, which recommended a reduction in staff, each of the three contested allegations is unsupported appears to be the legitimate reason for the by substantial evidence. We, therefore, REVERSE cancellation, as Defendant contends. However, we that decision and VACATE the orders of the need not reach this issue, because a defendant's Secretary and Administrative Review Board. The obligation to proffer a legitimate reason for an Secretary's decision for Defendant regarding adverse employment decision is not triggered until a Plaintiff's other eleven allegations is undisturbed.

prima facie case of discrimination is established, Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 END OF DOCUMENT Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works

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H NOTICE: THIS IS AN UNPUBLISHED OPINION. Ltd., rear-ended a vehicle driven by David Laski in Wayne County, Michigan. Although Bellwood was (The Court's decision is referenced in a "Table of traveling 40 miles per hour shortly before the Decisions Without Reported Opinions" appearing in accident, and although both cars were rendered the Federal Reporter. Use FT CTA6 Rule 28 and FI inoperable as a result of the collision, neither man CTA6 IOP 206 for rules regarding the citation of required immediate hospitalization or other medical unpublished opinions.) attention. The next day, however, Laski sought treatment from his family physician for back pain United States Court of Appeals, Sixth Circuit. incurred from the accident. In the ensuing weeks, neither that care-giver nor a neurologist detected any David E. LASKI, Plaintiff-Appellant, abnormalities with the plaintiff's skeletal system. A V. magnetic resonance imaging test (MRI) performed on Reginald W. BELLWOOD and General Motors of November 1, 1 993, also revealed that Laski's spinal Canada, Ltd., Defendants-Appellees. discs were normal as of that date.

No. 96-2188. Despite these medical findings, Laski continued to complain of back pain and sought treatment from Nov. 26, 1997. other physicians and therapists. Those professionals, however, never concluded that Laski ON APPEAL FROM THE UNITED STATES was disabled or that he was even significantly DISTRICT COURT FOR THE EASTERN impaired in carrying out daily activities.

DISTRICT OF MICHIGAN.

In July or August 1 994, one year after the car Before: CONTIE, DAUGHTREY, AND COLE, accident with Bellwood, the plaintiff allegedly Circuit Judges. exacerbated his back injury lifting bags of ice. He further aggrivated that injury during a seven-hour car PER CURIAM. trip later in August. A second MRI of Laski's spine in September 1994 showed for the first time a bulge

• • 1 The plaintiff-appellant, David E. Laski, appeals in a disc of the lower back. After continuing to from the ruling of the district court granting the complain of severe pain, Laski then underwent defendants, Reginald Bellwood and General Motors steroid injections and physical therapy in an effort to of Canada, Ltd., judgment as a matter of law on alleviate the discomfort. Nevertheless, while Laski's claim for non-economic damages resulting applying for membership in a health club in from an automobile accident. The plaintiff contends December 1994, Laski did not mention that he was that the district judge erred in not allowing Laski's then being treated by back pain specialists.

experts to testify concerning the cause of his injuries, and further insists that the district court mistakenly Finally, in January 1 996, the plaintiff traveled to granted the defendants judgment as a matter of law. Minnesota for surgery to remove the bulging disc Because we find that Laski's expert witnesses should and to fuse corresponding discs. Laski thereafter have been allowed to testify before the jury informed his surgeon of a May 1996 automobile concerning causation, and because the failure to accident in which the plaintiff was involved, but allow such testimony affected the plaintiff's failed to tell him or any prior care-giver of two other substantial right to present his case, we conclude that minor accidents in which he had been involved the district court's judgment must be reversed in part before September 1 993. Laski also did not inform and that the case must be remanded for a new trial. his treating physicians about earlier treatments for depression, about his membership in a health club, or PROCEDURAL AND FACTUAL BACKGROUND about chiropractic spinal adjustments he had received after the September 1993 mishap. Furthermore, the Shortly before 10:00 p.m. on September 16, 1993, plaintiff admitted that he did not mention a history of Reginald Bellwood, a Canadian citizen driving a back pain on his in-patient history form when company car owned by General Motors of Canada, initially visiting a Michigan rehabilitation center Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

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despite having complained of back pain as early as 1 back injury. This court reviews a district court 991 after being injured in a bar fight. decision regarding admission of expert testimony only for an abuse of discretion. United States v.

• • 2 Within one year of the accident, Laski filed suit Jones, 107 F.3d 1147, 1151 (6th Cir.), cert. denied.

in Michigan state court, alleging that the defendants' 117 S.Ct. 2527 (1997). Moreover, that discretion negligence resulted in injuries to "his body, neck, has been broadly construed and will be sustained back, left wrist, and jaw." The defendants removed "unless manifestly erroneous." United States v.

the action to federal district court and then filed Bonds, 12 F.3d 540, 554 (6th Cir. 1 993) (quoting motions in limine to exclude testimony from the United States v. Green, 548 F.2d 1261, 1268 (6th plaintiff's witnesses "concerning accident severity Cir. 1977)).

and the speed of Reginald Bellwood's vehicle" and "auto accident injury causation opinions/testimony by Federal Rules of Evidence 702 and 703 govern the plaintiff's dentist and physicians." Both motions admissibility of expert testimony in federal court.

were granted. [FN1] Pursuant to Rule 702:

If scientific, technical, or other specialized FN1 Laski does not challenge on appeal the district knowledge will assist the trier of fact to understand court's ruling concerning the motion in limine the evidence or to determine a fact in issue, a regarding restriction of testimony about the severity witness qualified as an expert by knowledge, skill, of the accident or the speed of Bellwood's vehicle. experience, training, or education, may testify Thus, no further discussion of that motion is thereto in the form of an opinion or otherwise.

warranted. Rule 703 further describes the acceptable bases for the expert testimony. The rule states:

At the close of all the proof, the defendants moved The facts or data in the particular case upon which for judgment in their favor as a matter of law. They an expert bases an opinion or inference may be argued that, even viewing the evidence presented in those perceived by or made known to the expert at the light most favorable to the plaintiff, Laski had or before the hearing. If of a type reasonably failed to introduce testimony that the September 16, relied upon by experts in the particular field in 1993, accident was the cause of his back problems. forming opinions or inferences upon the subject, The defendants further contended that Laski had the facts or data need not be admissible in failed to establish that the back pain was a "serious evidence.

impairment of a body function." The district court took the motion under advisement and submitted the **3 After the Supreme Court's decision in Daubert case to the jury. After deliberating, the jury ruled in v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 favor of the defendants, finding that the defendants' (1993), federal courts have recognized the " 'liberal negligence was not the cause of Laski's injuries. thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to The court then revisited the motion for judgment as "opinion testimony." ' " Id. at 588 (citing Beech a matter of law and Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)).

The district court, however, adopting the position of concurred in the jury's verdict. In her order the defendants in this matter, denied the plaintiff full granting the motion, the district judge noted a lack of examination of his experts on the issue of injury evidence that the accident caused the plaintiff's causation because those witnesses were "only" injuries and the improbability that a reasonable jury medical specialists and not experts in biomechanics could view Laski's injury as rising to the level of a or accident reconstruction.

"serious impairment of a body function." From those findings, the plaintiff now appeals. Requiring such specialization thwarts the goals and purposes of the Federal Rules. Our sister circuits DISCUSSION have recognized as much. In DaSilva v. American A. Exclusion of Testimony of Plaintiff's Expert Brands, Inc., 845 F.2d 356, 361 (1st Cir.1988), for Witnesses example, the court rejected a suggestion that a mechanical engineer was not qualified to render an In his first appellate issue, Laski contends that the opinion on the safety design of a machine because he district court erred in restricting his-medical experts had no design experience with it. Instead, the court from testifying concerning the cause of the plaintiff's allowed the expert testimony so as not to require, in Copr. C) West 2002 No Claim to Orig. U.S. Govt. Works

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essence, "that the only experts who could testify to restrict the expert testimony of the plaintiff's regarding a machine are those who have an interest witnesses is justified because the witnesses' lack of in defending its design." Id. See also Doe v. Cutter knowledge of the circumstances of the accident and Biological. Inc., 971 F.2d 375, 385 (9th Cir.1992) of Laski's prior medical history would render such

( "courts impose no requirement that an expert be a opinions unreliable. It is uncontroverted that some specialist in a given field"). More recently, the of the plaintiff's experts were not familiar with Third Circuit forcefully held in Holbrook v. Lykes details of the collision, and that the witnesses also Bros. S.S. Co., Inc. 80 F.3d 777, 782 (3d Cir. 1996), were not aware of automobile accidents involving that a district court abuses its discretion in excluding Laski both before and after the crash in September expert testimony "simply because the trial court does 1993. Those same physicians further were not privy not deem the proposed expert to be the best qualified to portions of the personal medical history of the or because the proposed expert does not have the plaintiff detailing Laski's earlier complaints of back specialization that the court considers most pain resulting from a bar fight, his treatment for appropriate." (Citing In re Paoli R.R. Yard PCB depression, and prior chiropractic manipulation.

Litig., 916 F.2d 829, 856 (3d Cir.1990)).

Without question, ignorance of such important In this case, the plaintiff sought to offer evidence factors casts the validity of the opinion testimony of from treating physicians who examined Laski in the the plaintiff's experts on injury causation into weeks, months, and years after his accident with considerable doubt. Medical diagnoses and Bellwood. Although those witnesses admittedly treatments are, however, commonly and were not experts in biomechanics or accident appropriately made without the luxury of detailed reconstruction, they were licensed physicians trained medical histories. Opinions rendered on questions of to recognize catalysts of physical discomfort and health, possible causes of maladies, and their injury in order to treat patients properly. Their treatments are, nevertheless, still routinely offered in opinions that the plaintiff's condition resulted from federal courts pursuant to the standards of Federal the accident that is the subject of this lawsuit clearly Rules of Evidence 702 and 703. In those instances, could shed light on a determinative issue facing the as in this case, the incomplete bases for the expert jury and assist the trier of fact in its ultimate testimony are subject to the crucible of cross-decision. Not being both physicians and accident examination and affect the weight properly given to reconstructionists and not being eyewitnesses to the the scientific or medical evidence, not the accident itself, the plaintiff's proposed experts could admissibility of such information at trial. [FN21 not definitively link Laski's back injury to the September 16, 1993 accident. Such certitude is not FN2. The defendants rely upon this court's recent required by the Federal Rules of Evidence, however. opinion in Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299 (6th Cir.1997), for the proposition that Laski' s treating physicians could offer relevant less than complete knowledge of a person's medical opinions on the cause of the injury based upon condition renders an expert's testimony regarding scientific evidence that was beyond the ken of injury causation unreliable and, therefore, average jurors. Under such circumstances, the inadmissible. In Smelser, however, the expert district court should have allowed the testimony of attempting to determine the cause of an injury was the plaintiff's experts and erred in failing to do so on not a physician familiar with making such the basis of those witnesses' lack of expertise in the determinations in the absence of some relevant specialized fields of biomechanics and accident information, but rather, a biomechanic untrained in medical science. The incomplete picture of the reconstruction. plaintiff portrayed in Smelser was thus much more critical than the situation present in this case.

• • 4 The relaxation of admission standards does not Interestingly, this court's discussion of limits of mean, however, that federal district courts no longer permissible testimony by Smelser's biomechanics serve a legitimate function in controlling the conduct expert also weakens considerably the force of the of a trial. As stated by the Supreme Court in defendants' arguments here that biomechanical or Daubert, "under the Rules the trial judge must ensure accident reconstruction testimony was essential to that any and all scientific testimony or evidence the injury causation issue.

admitted is not only relevant, but reliable." Daubert, 509 U.S. 589. The district court correctly recognized that the plaintiff's expert witnesses could have been In this case, the defendants contend that the decision specialists in fields more germane to the ultimate Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

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inquiry in the lawsuit, and could have been better court. Engebretsen v. FairchildAircraft Corp., 21 informed by Laski about the plaintiff's medical F.3d 721, 726 (6th Cir.1994). Consequently, this history. The failure to meet those expectations, court does not weigh the evidence or evaluate the however, does not compromise the experts' ability to credibility of witnesses, but rather views the evidence satisfy the threshold requirements of relevance and in the light most favorable to the non-moving party, reliability of expert testimony. The Federal Rules of giving that party the benefit of all reasonable Evidence do not mandate that litigants offer only the inferences. Wayne v. Village of Sebring, 36 F.3d best, the most relevant, and the most reliable expert 517, 525 (6th Cir.1994) "Only when it is clear that witnesses at trial. We conclude that the district reasonable people could come to but one conclusion court erred in this matter in holding Laski to just from the evidence should a court grant a motion for such an impossible standard. directed verdict." Hill v. Mcintyre, 884 F.2d 271, 274 (6th Cir. 1989) (citation omitted).

The defendants argue that any error committed by the district court in not admitting the expert Pursuant to applicable Michigan law, recovery is testimony was harmless because the plaintiff's expert available for non-economic damages traceable to an witnesses were able to convey to the jury in isolated automobile accident only if the plaintiff "has suffered portions of their testimony their belief that the death, serious impairment of body function, or September 1 993 accident caused Laski' s injury. permanent serious disfigurement." M.C.L.A. § For instance, Dr. Elkiss, Laski's neurologist, 500.3135(1). [FN3] In granting the defendants' testified in his deposition that he could attribute the motion for judgment as a matter of law in this case, plaintiff's pain to a specific traumatic event because, the district court effectively ruled that the plaintiff "as the man described it to [Elkiss], he did not have a introduced no evidence from which a reasonable jury problem. He had an accident. And right after the could conclude that Laski's back injury caused either accident he had a problem." Dr. Morton, a a "serious impairment of body function" or physician retained by Laski's insurance company, "permanent serious disfigurement."

stated that "based upon that history, his clinical exam, which means what I saw, his diagnostic FN3. M.C.L.A. § 500.3135 was amended studies, I felt that his symptoms were most likely subsequent to the filing of this lawsuit. See Mich.

related from the auto accident." Finally, deposition Pub. Act 1995, No. 222, § 1, eff. Mar. 28, 1996.

The wording of § 500.3135(1) in both the new testimony from Dr. Burton, the plaintiff's version of the statute and in the version in effect neurologist, indicated that he found Laski's injuries previously is, however, identical.

were "consistent with one serious and significant traumatic injury to a normal disc." 1. Serious Impairment of Body Function

• • 5 Although those discrete pieces of opinion In considering whether the statutory threshold injury testimony were placed before the jury, the plaintiff's requirement has been met to recover non-economic expert witnesses were willing and able to expound damages in a Michigan tort action, the plaintiff must upon and clarify that information for the fact-finders.

establish both that a body function was impaired due Because the jury later determined that the plaintiff's to the collision with Bellwood and that the proof did not establish that Bellwood's actions caused impairment was serious. DiFranco v. Pickard, 398 the contested injury, we are unable to say that N.W.2d 896, 901 (Mich.1986). Before this court, eliciting the physician's opinions in greater detail would not have precipitated a different result. For the defendants insist that neither prong of the test has that reason, we do not believe the district court's been met--that Laski cannot prove the accident at restriction on the plaintiff's expert witnesses' issue caused his injuries and that he cannot prove that testimony can be considered harmless. the alleged injuries seriously impaired any body function.

B. Grant of Judgment for the Defendants as a Matter of Law The question of causation has previously been addressed in this opinion. As stated above, Laski's Laski next submits that the district court also erred effort to establish the necessary causal relationship in granting the defendants' motion for judgment as a between the accident and his injury was significantly matter of law. This court reviews such a grant hampered by the district court's decision not to allow under the same standard employed by the district the plaintiff's medical experts to testify about the Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

132 F.3d 33 (Table) Page 5 (Cite as: 132 F.3d 33, 1997 WL 764416, **5 (6th Cir.(Mich.)))

cause of his injury. Because Laski's attempt to returned a verdict in favor of Bellwood and General present his case to the jury was thus fatally Motors of Canada, Ltd. The verdict returned by the handicapped by al court ruling, his failure to jury, however was not a finding that Laski had not establish positively the connection between the proven serious impairment of a body function, but tortious action of the defendants and his injury should rather a finding that the plaintiff had not established not be held against him. that the accident with Bellwood caused the back injury ultimately necessitating corrective surgery.

• • 6 The defendants also argue that the alleged injury Again, given the fact that the district court refused to suffered by the plaintiff cannot, as a matter of law, allow expert testimony from the plaintiff's witnesses constitute a serious impairment of body function. regarding causation, such a jury finding is hardly The "serious impairment of body function" threshold surprising. Were such evidence admitted, however, was enacted by the Michigan legislature to "eliminate and were the plaintiff able to establish the necessary suits based on clearly minor injuries." DiFranco, causal connection between the accident and the 398 N.W.2d at 911. Nevertheless, while that injury, a far different result might be reached.

threshold is significant, it is not extraordinarily high.

Id. The Michigan Supreme Court has directed that a 2. Permanent Serious Disfigurement determination of whether an injury seriously impairs a body function should focus upon "the extent of the A plaintiff injured in a tort action may also recover impairment, the particular body function impaired, non-economic damages in Michigan by proving that the length of time the impairment lasted, the permanent serious disfigurement resulted from the treatment required to correct the impairment, and any automobile accident. M.C.L.A. § 500.3515(1).

other relevant factors." Id. at 915. To be Laski attempts to take advantage of this alternative considered serious, however, an impairment need not method of compensation by arguing that the surgical be permanent. Id. scar on his back constitutes the type of disfigurement envisioned by the statute. In any event, he contends Laski adduced evidence that he began to suffer back that a legitimate jury issue was presented by his stiffness and pain almost immediately after the testimony about the scar and that, consequently, accident. In fact, he visited his family physician the judgment as a matter of law on this claim was day following the collision and continued to seek inappropriate.

medical relief for the alleged pain for more than two years. As a result, he has been forced to abandon **7 The appellate record in this case contains many of the activities he previously enjoyed and, pictures of the scar left from the plaintiff's back perhaps most important, underwent potentially surgery. While the defendants do not argue that the dangerous injections for pain relief and submitted to scar is not permanent or that it is not technically a disc surgery under general anesthesia. As the disfigurement, they and the district court agreed that Michigan Supreme Court concluded in DiFranco, no reasonable jury could, under the facts of this case,

"[a]n impairment which can only be corrected by consider it a "serious" disfigurement. We also surgery may be more serious than one that can be agree. Were the plaintiff a male swimwear or remedied by bed rest." Id. at 914. underwear model who spent many of his waking hours baring his back to the public at his waistline, a If the plaintiff is able to overcome the causation fact-finder could possibly consider the scar a "serious hurdle that was raised inappropriately high by the disfigurement." Given the facts, however, that district court's evidentiary rulings in this matter, a Laski is a cellular phone sales representative and that reasonable jury could come to more than one the scar is almost always covered by clothing, that conclusion when considering whether such evidence reminder of a prior surgery cannot be considered a establishes a serious impairment of body function. "permanent serious disfigurement." The district Faced with such a situation, therefore, a district court court did not err in granting the defendants judgment commits error in directing a verdict for one litigant as a matter of law on this discrete issue.

or another.

CONCLUSION Before this court, the defendants contend that Laski's challenge to the judgment as a matter of law A district judge has broad discretion in controlling on this basis is moot because the plaintiff's evidence the admission of expert testimony during a trial.

was submitted to the jury and that deliberative body That discretion may be abused, however, by

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132 F.3d 33 (Table) Page 6 (Cite as: 132 F.3d 33, 1997 WL 764416, **7 (6th Cir.(Mich.)))

rendering a "manifestly erroneous" decision on the severity of the injury suffered by the plaintiff regarding admissibility. Unfortunatefy, the district would be presented. Consequently, we hold hold court abused its discretion in this case by refusing to that the district court erred in granting the defendants allow Laski's medical experts to offer their opinions judgment as a matter of law on that prong of Laski's on the cause of the plaintiff's injury. The court's case.

requirement that such experts be trained in biomechanics or accident reconstruction improperly We further hold, however, that the plaintiff has restricted the plaintiff's ability to present his case to failed to present evidence from which a reasonable the jury and is diametrically opposed to the thrust of jury could determine that Laski' s surgical scar the Federal Rules of Evidence and Supreme Court constitutes a permanent serious disfigurement. The decisions interpreting them that set a lower threshold district court thus appropriately granted judgment as for admission of expert testimony. a matter of law to the defendants on this issue.

As a result of the district court's error in this regard, For these reasons, we conclude that the judgment of Laski was also unnecessarily hindered in his effort to establish serious impairment of a body function as a the district court be REVERSED in part and the case result of the defendants' tortious actions. If the REMANDED for a new trial.

appropriate causal connection could be established through expert testimony, a legitimate jury question END OF DOCUMENT Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works