United States Court of Appeals
For the First Circuit
No. 08-1685
LAURIE CHADWICK,
Plaintiff, Appellant,
v.
WELLPOINT, INC.; ANTHEM HEALTH PLANS OF MAINE, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
and García-Gregory,* District Judge.
David W. Webbert with whom Matthew S. Keegan and Johnson &
Webbert, LLP, were on brief for appellant.
Margaret Coughlin LePage with whom Katharine I. Rand,
William P. Saxe, and Pierce Atwood LLP were on brief for
appellees.
Rae T. Vann and Norris, Tysse, Lampley & Lakis, LLP, on
brief for amicus curiae Equal Employment Advisory Council.
March 26, 2009
*
Of the District of Puerto Rico, sitting by designation.
STAHL, Circuit Judge. Laurie Chadwick brought a claim of
sex discrimination under Title VII, 42 U.S.C. §§ 2000e et seq.,
against WellPoint, Inc. and Anthem Health Plans of Maine, Inc.
(collectively, "WellPoint"), after she was denied a promotion.1
She alleged that her employer failed to promote her because of a
sex-based stereotype that women who are mothers, particularly of
young children, neglect their jobs in favor of their presumed
childcare responsibilities. Having carefully reviewed the record,
we are convinced that the district court erred in granting summary
judgment in favor of WellPoint and therefore reverse and remand for
further proceedings. As to the second issue presented on appeal,
we find that the district court did not abuse its discretion by
excluding the expert testimony proffered by Chadwick.
I. Background
It is elementary that at summary judgment a court must
view the record in the light most favorable to the nonmoving party
and draw all reasonable inferences in favor of the same. See,
e.g., Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004). We
emphasize this basic rule here because the district court's grant
of summary judgment was due in part to a misapplication of this
1
She also brought a parallel claim under the Maine Human
Rights Act, 5 M.R.S. §§ 4551-4634.
-2-
rule. Thus, we relate the factual basis for Chadwick's claim
against WellPoint with this dictate in mind.2
Chadwick was a long-time employee of WellPoint, an
insurance company, in its Maine office. She was hired by WellPoint
in 1997, and was promoted in 1999 to the position of "Recovery
Specialist II," which involved the pursuit of overpayment claims
and claims for reimbursement from third parties. In 2006,
encouraged by her supervisor, she applied for a promotion to a
management position entitled "Recovery Specialist Lead" or "Team
Lead." In this position, the successful candidate would be
responsible for the recovery function for the region encompassing
Maine, New Hampshire, and Connecticut. Because Chadwick was
already performing several of the responsibilities of the Team Lead
position and based on her supervisor's comments, Chadwick believed
she was the frontrunner for the position. In addition, on her most
recent performance evaluation in 2005, she had received excellent
reviews, scoring a 4.40 out of a possible 5.00 points.
There were two finalists for the Team Lead position,
Chadwick and another in-house candidate, Donna Ouelette. While
Chadwick had held the Recovery Specialist II position for seven
2
WellPoint contests several of the factual allegations and
inferences put forth by Chadwick, but we must take Chadwick's well-
supported version of events as true as we weigh the motion for
summary judgment. WellPoint may succeed in painting a different
picture of the promotion decision for a jury, but that possibility
does not impact our decision here.
-3-
years, Ouelette had only been promoted to that position about a
year earlier. In addition, Ouelette had scored lower than
Chadwick, though satisfactorily, on her most recent performance
review, receiving a 3.84 out of a possible 5.0 points.
Three managers interviewed the two finalists: Linda
Brink, who had previously supervised and worked closely with
Chadwick; Dawn Leno, the Director of Recovery; and Nanci Miller,
Chadwick's immediate supervisor. Nanci Miller was the ultimate
decisionmaker for the promotion but she considered input from Brink
and Leno in reaching her decision. Based on her own perceptions
and those of Brink and Leno, Miller graded Ouelette's interview
performance higher than Chadwick's. Miller subsequently offered
the promotion to Ouelette over Chadwick.
At the time of the promotion decision, Chadwick was the
mother of an eleven-year-old son and six-year-old triplets in
kindergarten. There is no allegation, insinuation, or for that
matter evidence that Chadwick's work performance was negatively
impacted by any childcare responsibilities she may have had.
Indeed, Miller, the decisionmaker, did not know that Chadwick was
the mother of young triplets until shortly before the promotion
decision was made. Apparently, Chadwick's husband, the primary
caretaker for the children, stayed home with them during the day
while Chadwick worked. He also worked off-hour shifts, presumably
nights and weekends, when Chadwick was at home with the children.
-4-
During the same period, Chadwick was also taking one course a
semester at the University of Southern Maine.
Chadwick alleges that WellPoint denied her the promotion
based on the sex-based stereotype that mothers, particularly those
with young children, neglect their work duties in favor of their
presumed childcare obligations. To support this claim, Chadwick
points to the fact that she was significantly more qualified3 for
the promotion than was Ouelette, and also highlights three
statements made by management around the time of the promotion
decision.
First, on May 9, 2006, two months before the decision was
reached, Miller, the decisionmaker, found out that Chadwick had
three six-year-old children (in addition to an eleven-year-old
son). Miller sent an email to Chadwick stating, "Oh my -- I did
not know you had triplets. Bless you!"
Second, during Chadwick's interview with Brink, her
former supervisor, she was asked how she would respond if an
associate did not complete a project on time. Unhappy with
Chadwick's answer, Brink replied, "Laurie, you are a mother[.]
[W]ould you let your kids off the hook that easy if they made a
mess in [their] room[?] [W]ould you clean it or hold them
accountable?"
3
It is a fair inference that Chadwick's qualifications
significantly outweighed those of Ouelette. Whether a finder of
fact would so conclude is a question for another day.
-5-
Third, and most important, when Miller informed Chadwick
that she did not get the promotion, Miller explained:
It was nothing you did or didn't do. It was
just that you're going to school, you have the
kids and you just have a lot on your plate right
now.
In the same conversation, Miller said that, "if [the three
interviewers] were in your position, they would feel overwhelmed."
Finally, Miller also told Chadwick that, "there would be something
better down the road," and that Chadwick would look back and say
"it's a good thing that that opportunity didn't work out because
I'm happier with this down the road."
In her deposition, Miller said that she decided not to
promote Chadwick because she interviewed poorly, and that she
(Miller) only told Chadwick that she had "too much on her plate" in
an ill-advised attempt to soften the blow. In addition, in its
brief, WellPoint makes much of its assertion that Ouelette was
apparently the mother of two children, ages nine and fourteen.
However, unlike the district court, we do not give weight to this
assertion.4
4
WellPoint's assertion that Ouelette was a mother of two does
not receive weight in our assessment of the summary judgment motion
for several reasons. First, it is not at all clear that this is
relevant for our analysis, as the Supreme Court has emphasized that
"[t]he principal focus of [Title VII] is the protection of the
individual employee, rather than the protection of the minority
group as a whole." Connecticut v. Teal, 457 U.S. 440, 453-54
(1982). In other words, discrimination against one employee cannot
be remedied solely by nondiscrimination against another employee in
-6-
Procedurally, WellPoint moved for summary judgment
following discovery. A magistrate judge recommended the motion be
granted, and the district court, in a separate opinion, agreed.
The district court concluded that Chadwick's claim could not
proceed to a jury because "[n]othing in Miller's words show[ed]
that" Chadwick was not promoted because of her sex, nor was there
a "general atmosphere" of sex-based assumptions in the workplace.
Chadwick v. WellPoint, Inc., 550 F. Supp. 2d 140, 147 (D. Me.
2008). Chadwick now appeals.
II. Discussion
1. Summary Judgement Motion
We review the district court's grant of summary judgment
de novo. Whitman v. Miles, 387 F.3d 68, 70 (1st Cir. 2004).
Summary judgment is granted where "there is no genuine issue as to
any material fact and . . . the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if
"the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Importantly, as we explained above, we view
that same group. See, e.g., Brown v. Henderson, 257 F.3d 246, 252
(2d Cir. 2001). Second, the record does not support the inference
that WellPoint knew of Ouelette's status as a mother of two
children, while it is uncontested that WellPoint knew of Chadwick's
children. Third, the stereotype that Chadwick complains of would
arguably be more strongly held as to a mother of four children,
three of whom were only six years old, than as to a mother of two
older children.
-7-
the summary judgment record in the light most favorable to the
nonmoving party, here Chadwick, and also draw all reasonable
inferences in her favor. Flowers, 359 F.3d at 29.
a. Legal Background
Title VII of the Civil Rights Act of 1964 prohibits
discrimination based on sex. 42 U.S.C. § 2000e-2(a). Notably, the
Act does not prohibit discrimination based on caregiving
responsibility.5 Chadwick's claim can be characterized as a "sex
plus" claim. This denomination refers to the situation where "an
employer classifies employees on the basis of sex plus another
characteristic." 1 Barbara Lindemann & Paul Grossman, Employment
Discrimination Law 456 (3d ed. 1996) (emphasis in original). The
terminology may be a bit misleading, however, because the "plus"
does not mean that more than simple sex discrimination must be
alleged; rather, it describes the case where "not all members of a
disfavored class are discriminated against." Back v. Hastings on
Hudson Union Free Sch. Dist., 36 F.3d 107, 118 (2d Cir. 2004). In
other words, "[i]n such cases the employer does not discriminate
against the class of men or women as a whole but rather treats
differently a subclass of men or women." Lindemann, 456. Here,
Chadwick alleges that the subclass being discriminated against
based on sex is women with children, particularly young children.
5
However, the Act does prohibit discrimination based on
"pregnancy, childbirth, or related medical conditions." 42 U.S.C.
§ 2000e(k). These grounds are not at issue in this case.
-8-
Ultimately, regardless of the label given to the claim, the simple
question posed by sex discrimination suits is whether the employer
took an adverse employment action at least in part because of an
employee's sex. See 42 U.S.C. § 2000e-2(m) ("[A]n unlawful
employment practice is established when the complaining party
demonstrates that . . . sex . . . was a motivating factor for any
employment practice, even though other factors also motivated the
practice.") (emphasis added).
The type of discrimination Chadwick alleges involves
stereotyping based on sex. The Supreme Court identified sex-based
stereotyping as an impermissible form of discrimination in Price
Waterhouse. There, a woman was denied partnership at the
accounting firm for which she worked and was told by the
partnership that she was too aggressive and macho, should attend a
charm school, and should dress and behave more femininely. Price
Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989). The Supreme Court
held that such remarks were evidence of sex-based stereotyping,
which in turn suggested that sex discrimination was the cause of
the failure to promote. Id. at 251. The Court pointedly said,
"[W]e are beyond the day when an employer could evaluate employees
by assuming or insisting that they matched the stereotype
associated with their group." Id.
The Supreme Court and several circuits, including this
one, have had occasion to confirm that the assumption that a woman
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will perform her job less well due to her presumed family
obligations is a form of sex-stereotyping and that adverse job
actions on that basis constitute sex discrimination. See Nevada
Dep't of Human Res. v. Hibbs, 538 U.S. 721, 730 (2003); Back, 365
F.3d at 120 (identifying sex-stereotyping where employer stated
that a woman could not "be a good mother" and work long hours, and
that a woman "would not show the same level of commitment . . .
because [she] had little ones at home"); Lust v. Sealy, Inc., 383
F.3d 580, 583 (7th Cir. 2004) (sex-stereotyping found where
decisionmaker admitted he didn't promote plaintiff "because she had
children and he didn't think she'd want to relocate her family,
though she hadn't told him that"); Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (finding proof
of sex-based discriminatory animus where direct supervisor
questioned "whether [the plaintiff] would be able to manage her
work and family responsibilities"); Sheehan v. Donlen Corp., 173
F.3d 1039, 1045 (7th Cir. 1999) (in a Pregnancy Discrimination Act
case, finding direct evidence of discrimination where supervisor
told employee "that she was being fired so that she could 'spend
more time at home with her children'" because statement "invoked
widely understood stereotypes the meaning of which is hard to
mistake").
In its 2003 decision in Hibbs, the Supreme Court took
judicial notice of the stereotype that women, not men, are
-10-
responsible for family caregiving. The Court noted that the Family
Medical Leave Act (FMLA) was enacted by Congress because,
"stereotype-based beliefs about the allocation of family duties
remained firmly rooted [in society]." Hibbs, 538 U.S. at 730. The
Court acknowledged the "pervasive sex-role stereotype that caring
for family members is women's work." Id. at 731. It explained
that Congress created the FMLA's gender-neutral twelve-week leave
program in order to "attack the formerly state-sanctioned
stereotype that only women are responsible for family caregiving,
thereby reducing employers' incentives to engage in discrimination
by basing hiring and promotion decisions on stereotypes." Id. at
737.
In the simplest terms, these cases stand for the
proposition that unlawful sex discrimination occurs when an
employer takes an adverse job action on the assumption that a
woman, because she is a woman, will neglect her job
responsibilities in favor of her presumed childcare
responsibilities. It is undoubtedly true that if the work
performance of a woman (or a man, for that matter) actually suffers
due to childcare responsibilities (or due to any other personal
obligation or interest), an employer is free to respond
accordingly, at least without incurring liability under Title VII.
However, an employer is not free to assume that a woman, because
she is a woman, will necessarily be a poor worker because of family
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responsibilities. The essence of Title VII in this context is that
women have the right to prove their mettle in the work arena
without the burden of stereotypes regarding whether they can
fulfill their responsibilities.
b. Chadwick's Claim
We turn now to the specific facts of Chadwick's claim,
mindful that we are judging merely the claim's viability under
summary judgment, rather than as to ultimate liability. Chadwick
presses her claim under two separate, though related, theories.
She puts forth a "mixed motives" claim, under Desert Palace, Inc.
v. Costa, 539 U.S. 90 (2003),6 and a traditional discrimination
claim under the familiar McDonnell Douglas burden shifting scheme.7
Our decision here, however, is not dependent on analyzing
Chadwick's claim under each of these theories,8 because under both
6
In Desert Palace, the Supreme Court concluded in light of the
Civil Rights Act of 1991 that direct evidence of discrimination is
not required in order to get a mixed-motives jury instruction. 539
U.S. at 101.
7
Originally established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the framework requires a plaintiff to present
a prima facie case of discrimination. The burden of production
then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse job action. Finally, the
plaintiff must prove that the proffered reason is actually a
pretext and the true reason for the job action is discrimination.
See, e.g., Santiago-Ramos, 217 F.3d at 54.
8
The Desert Palace decision has proved ripe terrain for
scholarly debate over how that decision interacts with the
McDonnell Douglas framework. See, e.g., Jamie Darin Prenkert, "The
Role of Second-Order Uniformity in Disparate Treatment Law:
McDonnell Douglas's Longevity and the Mixed-Motives Mess," 45 Am.
-12-
approaches, "plaintiffs must present enough evidence to permit a
finding that there was differential treatment in an employment
action and that the adverse employment decision was caused at least
in part by a forbidden type of bias." Hillstrom, 354 F.3d at 31
(discussing the "interaction between Desert Palace and McDonnell
Douglas").
In the opinion below, the district court acknowledged two
important pieces of the puzzle. First, it found that sex-based
stereotypes regarding women, families, and work are alive and well
in our society. Chadwick, 550 F. Supp. 2d at 146. Second, it
concluded that the statements made to Chadwick were based on "an
assumption or generalization about the demands of continuing
education coupled with child rearing responsibilities." Id. Yet
the district court granted summary judgment to WellPoint because,
as the court explained, Miller did not explicitly say that
Chadwick's sex was the basis for her assumption that Chadwick would
not be able to handle the demands of work and home. Id. at 147.
The district court complained that the decisionmaker "[did] not
refer explicitly to women," id. at 146, and that "nothing in
Miller's words," id. at 147, showed that the decision was based on
Bus. L. J. 511, 512-15 (2008) (collecting commentaries). Suffice
it to say that the two decisions have not been definitively
disentangled or reconciled, though we have noted that "the Supreme
Court used the McDonnell Douglas framework without commentary in a
post-Desert Palace case." Hillstrom v. Best Western TLC Hotel, 354
F.3d 27, 31 n.3 (1st Cir. 2003).
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"a stereotype about female caregivers, not about caregivers
generally," id. Presumably, the district court was looking for
Miller to say explicitly that she thought Chadwick would be
overwhelmed because she is a woman with kids, rather than, as
Miller actually said, "you have the kids." But this critique is
not an adequate basis upon which to grant summary judgment in this
case.
A plaintiff is entitled to prove discrimination by
circumstantial evidence alone. See 42 U.S.C. § 2000e-2(m)
(requiring a plaintiff merely to "demonstrate[]" that an employer
used a forbidden consideration as a motivating factor with respect
to an employment decision); Desert Palace, 539 U.S. at 98-99
(holding in the mixed-motives context that Title VII "does not
mention, much less require, that a plaintiff make a heightened
showing through direct evidence"); Thomas v. Eastman Kodak Co., 183
F.3d 38, 58 (1st Cir. 1999) (finding that under a direct evidence
requirement, "the McDonnell Douglas / Burdine framework would no
longer serve the purpose for which it was designed: allowing
plaintiffs to prove discrimination by circumstantial evidence").
In Thomas, a case involving race discrimination, we rejected the
district court's requirement that in order to survive summary
judgment a plaintiff must allege "at least one piece of evidence
that explicitly referred to the plaintiff's membership in a
protected class." Id. at 57 (quoting Thomas v. Eastman Kodak Co.,
-14-
18 F. Supp. 2d. 129, 137 (D. Mass. 1998)). Instead, we concluded
that "[t]here can be no rigid requirement that plaintiffs introduce
a separate 'plus' factor, such as a negative employment comment
about the plaintiff's protected class, in order to prove
discrimination." Id. at 58.
We apply this same lesson to Chadwick's claim. We reject
the district court's requirement that Miller's words explicitly
indicate that Chadwick's sex was the basis for Miller's assumption
about Chadwick's inability to balance work and home. To require
such an explicit reference (presumably use of the phrase "because
you are a woman," or something similar) to survive summary judgment
would undermine the concept of proof by circumstantial evidence,9
and would make it exceedingly difficult to prove most sex
discrimination cases today. See id. at 58 n.12 (use of
circumstantial proof of discrimination "is all the more important
now than it was when McDonnell Douglas was written, since 'smoking
gun' evidence is 'rarely found in today's sophisticated employment
world'") (citing Hodgens v. General Dynamics Corp., 144 F.3d 151,
171 n.13 (1st Cir. 1998)).
9
We note that circumstantial evidence is not necessarily less
probative than direct evidence. See Desert Palace, 539 U.S. at 100
("The reason for treating circumstantial and direct evidence alike
is both clear and deep rooted: 'Circumstantial evidence is not only
sufficient, but may also be more certain, satisfying and persuasive
than direct evidence.'") (quoting Rogers v. Missouri Pacific R.
Co., 352 U.S. 500, 508 n.17 (1957)).
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Instead of adopting a "mechanical formula," as the
district court below proposed, we conduct a "case-by-case analysis"
and consider the individual facts of Chadwick's claim. Thomas, 183
F.3d at 58. Given what we know about societal stereotypes
regarding working women with children, we conclude that a jury
could reasonably determine that a sex-based stereotype was behind
Miller's explanation to Chadwick that, "It was nothing you did or
didn't do. It was just that you're going to school, you have the
kids and you just have a lot on your plate right now."
Particularly telling is Miller's comment that, "It was nothing you
did or didn't do." After all, the essence of employment
discrimination is penalizing a worker not for something she did but
for something she simply is. A reasonable jury could infer from
Miller's explanation that Chadwick wasn't denied the promotion
because of her work performance or her interview performance but
because Miller and others assumed that as a woman with four young
children, Chadwick would not give her all to her job.
This inference is supported by several facts. First, the
decisionmaker learned of Chadwick's three six-year-olds just two
months before she denied Chadwick the promotion. The young age and
unusually high number of children would have been more likely to
draw the decisionmaker's attention and strengthen any sex-based
concern she had that a woman with young children would be a poor
worker.
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Second, the decisionmaker's reaction upon learning of
Chadwick's three small children was, "Bless you!" This statement
is susceptible to various interpretations, but a jury could
reasonably conclude that Miller meant that she felt badly for
Chadwick because her life must have been so difficult as the mother
of three young children.10 This conclusion could be bolstered by
Miller's later explanation to Chadwick that the WellPoint
interviewers, all female, would feel "overwhelmed" if they were in
Chadwick's position.
Third, because a plaintiff alleging discrimination
infrequently has direct evidence of bias, the discrimination can
"be proven through the elimination of other plausible non-
discriminatory reasons until the most plausible reason remaining is
discrimination." Thomas, 183 F.3d at 61; see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 ("Proof that the
defendant's explanation is unworthy of credence is simply one form
of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive."). In Chadwick's
case, Miller explained the non-promotion in one way to Chadwick
(that she had too much on her plate with her kids and school) and
10
The district court erred by concluding that the "Bless you!"
comment was conclusively "a friendly exclamation." This is a
factual conclusion that a judge at summary judgment is not free to
make. A jury could agree with Chadwick's view that Miller's
comment suggested pity rather than respect. Therefore, at summary
judgment, we must draw this inference in Chadwick's favor.
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in a very different way in her deposition (that Chadwick had
performed poorly in her interviews). A jury could reasonably
question the veracity of this second explanation given that
Chadwick was an in-house, long-time employee who had worked closely
with her interviewers, had received stellar performance reviews,
and was already performing some of the key tasks of the Team Lead
position. A jury could rightly question whether brief interviews11
would actually trump Chadwick's apparently weighty qualifications,
or whether, given the other circumstantial evidence discussed
above, Chadwick was really passed over because of sex-based
stereotypes.
In sum, we find that Chadwick has put forth sufficient
evidence of discrimination that a reasonable jury could conclude
that the promotion denial was more probably than not caused by
discrimination. We do not opine on the ultimate balance of the
evidence in this case. We only conclude that Chadwick has
presented sufficient evidence of sex-based stereotyping to have her
day in court. Given the common stereotype about the job
performance of women with children and given the surrounding
11
Defendants' brief makes much of its assertion that "it is
undisputed that plaintiff did not perform well in her interviews."
First, such a sweeping statement is not supported by the summary
judgment record, viewed as it must be in the light most favorable
to Chadwick. Second, at summary judgment we do not decide which
explanation for the non-promotion is most convincing, but only
whether Chadwick has presented sufficient evidence regarding her
explanation. See Thomas, 183 F.3d at 61.
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circumstantial evidence presented by Chadwick, we believe that a
reasonable jury could find that WellPoint would not have denied a
promotion to a similarly qualified man because he had "too much on
his plate" and would be "overwhelmed" by the new job, given "the
kids" and his schooling. See Hibbs, 538 U.S. at 736 ("Stereotypes
about women's domestic roles are reinforced by parallel stereotypes
presuming a lack of domestic responsibilities for men.").
2. Expert Testimony
Chadwick also appeals the district court's exclusion of
her proffered expert testimony. Chadwick proposed testimony from
Dr. Mary Still, a Ph.D. in Sociology and a post-doctoral research
fellow at Cornell University, with expertise in employment
discrimination and sex-based stereotypes in the workplace. In her
deposition, Dr. Still offered her opinion on the prevalence and
taxonomy of sex-stereotype employment discrimination. She also
opined on how the comments and behaviors of the WellPoint
supervisors were consistent with larger societal patterns and
concluded that certain comments were likely based on sex
stereotyping about the roles of men and women.
The district court excluded Dr. Still's testimony because
"[t]he expert, whatever her professional credentials, is not
competent to testify about what these supervisors meant,
consciously or unconsciously, in using certain words." Chadwick,
550 F. Supp. 2d at 147 (emphasis in original).
-19-
Federal Rule of Evidence 702 makes admissible expert
testimony that will "assist the trier of fact to understand the
evidence or to determine a fact in issue." An expert witness "is
permitted wide latitude to offer opinions, including those that are
not based on firsthand knowledge or observation." Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). While
we interpret Rule 702 "liberally in favor of the admission of
expert testimony," Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st
Cir. 2006), we also review a district court's ruling on
admissibility of such testimony only for abuse of discretion, Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). We do not find such
abuse here.12
In effect, the district court believed that there was a
mismatch between the expert's knowledge and qualifications and her
ability to helpfully opine on the specifics of this case. See
Levin, 459 F.3d at 78-79. The court below emphasized particularly
that Dr. Still's apparent lack of familiarity with the details of
12
The exclusion of the expert testimony does not impact our
conclusion on the summary judgment motion. We reached that
decision without reliance on any testimony proposed by Dr. Still.
See Back, 365 F.3d at 120 ("[I]t takes no special training to
discern stereotyping in the view that a woman cannot 'be a good
mother' and have a job that requires long hours.") (citing Price
Waterhouse, 490 U.S. at 256 ("[I]t takes no special training to
discern sex stereotyping in a description of an aggressive female
employee as requiring 'a course in charm school.'")).
-20-
this case rendered her testimony unhelpful to a trier of fact.13
We find no abuse of discretion in this conclusion.14
III. Conclusion
For the foregoing reasons, we REVERSE the entry of
summary judgment, AFFIRM the exclusion of the expert testimony, and
REMAND for further proceedings consistent with this opinion. Costs
to the appellant.
13
For example, the district court pointed out that the expert
had not read Miller's deposition and was not familiar with Miller's
background.
14
Plaintiff, of course, is correct that sociological testimony
of the sort offered here was taken into account by the Supreme
Court in the landmark sex-stereotyping case Price Waterhouse. In
that case, a social psychologist testified that "the partnership
selection process at Price Waterhouse was likely influenced by sex
stereotyping." 490 U.S. at 235. The expert offered her opinion on
the likelihood that various partners' comments had been based on
sex stereotypes, though she did not personally know the partners.
The Court noted, "Fiske based her opinion on a review of the
submitted comments, explaining that it was commonly accepted
practice for social psychologists to reach this kind of conclusion
without having met any of the people involved in the decisionmaking
process." Id. at 236. In the instant case, we do not take the
district court's exclusion of Dr. Still's testimony as a
repudiation of the admissibility of all sociological expert
testimony in this area of the law, which would seemingly run
counter to the Supreme Court's view. Rather, we understand the
district court to have concluded that Dr. Still could not offer
information helpful to a trier of fact due to her particular lack
of familiarity with the details of this case.
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Chadwick v. WellPoint, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2009-03-26
Citations: 561 F.3d 38
Copy Citations