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Haydar v. Amazon Corporate, LLC

United States District Court, E.D. Michigan, Southern Division

October 10, 2019

ABDULLAH HAYDAR, Plaintiff,
v.
AMAZON CORPORATE, LLC, GARRET GAW, PETER FARICY, and JOEL MOSBY, Defendants.

          Stephanie Dawkins Davis, Magistrate Judge

          OPINION AND ORDER GRANTING IN PART DEFENDANT'S MOTION TO EXCLUDE REPORTS AND TESTIMONY OF DONNA BLANCERO [114]

          LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE

         In 2015, Abdullah Haydar was terminated from his position as a senior manager at Amazon Corporate, LLC. The reasons for Haydar's termination are disputed.

         According to Haydar, one significant reason was because he is of Syrian descent and is Muslim. Haydar alleges that Peter Faricy, effectively the head of Amazon's “Marketplace” division at the time, “made references to you people, to you people need to learn how to treat your wives better, those types of comments repeatedly, . . . in reference to me uniquely differently than other people. He did not [even] make such comments about [non-Syrian, non-Muslim] people . . . who went through ugly divorces and whatnot.” (R. 68, PageID.6327.) Although Haydar was two management levels below Faricy, Haydar believes that Faricy's view of him affected how his direct supervisors (and others under Faricy) viewed him.

         For its part, Amazon maintains that Haydar's national origin and religion had nothing to do with his firing. From the company's perspective, Haydar was terminated because he did not comply with several of the company's 14 leadership principles.

         In a lengthy opinion, this Court explained that the evidence is not one-sided, and so a jury must decide if Haydar's or Amazon's view of the facts is correct. See generally Haydar v. Amazon Corp., LLC, No. 2:16-CV-13662, 2018 WL 4282777 (E.D. Mich. Sept. 7, 2018) (denying summary judgment on Haydar's claims of national origin and religious discrimination).

         At the upcoming trial, Haydar hopes that the opinions of Donna Marie Blancero, Ph.D., will help the jury see things from his perspective. Among other things, Blancero intends to testify about bias against Muslims, unconscious bias, the difference between diversity and inclusion in the workplace, proper procedures for investigating an employee's complaint, and the pitfalls of using “360 feedback” to evaluate an employee. (See ECF No. 114, PageID.11538-11546.)

         Amazon does not think the jury should hear from Blancero. To be more specific, Amazon asks this Court to take up its gatekeeper role under Federal Rule of Evidence 702 and preclude Blancero's testimony and expert reports. Amazon argues Blancero is not qualified to give opinions on some issues, that her opinions are based on insufficient data, and that her opinions are based on a flawed methodology. (See ECF No. 114, PageID.11515.)

         In large part, the Court agrees with Amazon.

         I.

         While this opinion is largely dedicated to specifics, the Court begins with two general observations that form a backdrop.

         The first is that nothing in this opinion should be construed as a critique of Blancero's credentials. To the contrary, Blancero is quite accomplished. She holds a doctorate from Cornell, with a major emphasis in human-resource management and minor emphases in organizational behavior and labor relations. (ECF No. 114, PageID.11553.) Blancero is an adjunct associate professor in management at Bentley University and also serves as the interim dean of business and the interim dean of the McCallum Graduate School. (See id.) One of the courses Blancero teaches at Bentley is about managing diversity in the workplace. (ECF No. 114, PageID.11538.) She has “published over 35 papers/chapters, and [is] a national speaker on issues of diversity.” (Id.) Blancero's credentials are not on trial here.

         But those credentials have led the Court to a second general observation: the two reports Blancero prepared in this case are not the paradigm of what Rule 702 requires. In several places in her reports, Blancero makes broad generalizations based on limited data. It also appears that some of her conclusions are based on portions of the record favoring Haydar even though other, less-favorable portions of the record could have altered the conclusions. And at some points, Blancero does not bring her knowledge of the field to bear, instead relying on articles outside her expertise to make a point. Also, the overall organization of Blancero's reports is difficult to follow. It is difficult for the Court to discern whether she is offering any opinions or simply intends to provide the jury with general principles. All of this contributes to the general concern the Court has in allowing Blancero to testify to everything in her reports.

         II.

         Along with those two general observations, the law completes the backdrop for analyzing Blancero's specific findings.

         Under Federal Rule of Evidence 702, this Court may permit opinion testimony only if the opinion witness is “qualified as an expert.” And even if Blancero is so qualified, any opinion she tells the jury must help the jury decide the disputed issues in the case, must be “based on sufficient facts or data, ” must be “the product of reliable principles and methods, ” and must be the result of reliably applying “the principles and methods to the facts of the case.” Fed.R.Evid. 702. Experts are permitted to educate a jury about general principles without applying those principles to the facts of the case. See Fed.R.Evid. 702 advisory committee's note to 2000 amendment. Rule 702 grants this Court considerable discretion to allow or exclude opinion testimony. See Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002) (“[W]e will reverse a district court only where we are left with a definite and firm conviction that it committed a clear error of judgment.”).

         III.

         Now to the specifics. The Court will walk through Blancero's January 2018 report[1] section-by-section, explaining why some parts of the report clear Rule 702's bar to admissibility and why others do not. (The Court takes the “Introduction” section last, as Blancero testified that it was effectively a summary of her report. (ECF No. 114, PageID.11756.))

         A.

         In the “Diversity and Inclusion” section of her report, Blancero defines stereotyping and confirmation bias. (Report at 2.)

         In this Court's view, the concept of stereotypes is within the knowledge of the typical juror. So there is no reason for Blancero to offer testimony on this topic. See United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016) (“A district court may commit manifest error by admitting expert testimony where . . . the . . . testimony is not beyond the ken of the average juror.” (internal quotation marks and alterations omitted)).

         As for confirmation bias, Blancero states that “confirmation bias is when one searches for data to support one's preexisting beliefs.” (Report at 2.) She further states, “These type[s] of cognitive biases appear[] to be occurring in this case. Based on the facts of this case, Mr. Haydar was stereotyped in a negative manner and his supervisors searched for subjective data to support a poor evaluation rather than depending on the very clear objective data.” (Id.) “This, ” Blancero continues, “is a classic example of confirmation bias.” (Id.)

         Blancero's application of the theory of confirmation bias to this case is not based on an adequate factual foundation. As the parties are aware, the Court has reviewed a large portion of the discovery in this case, including the depositions of Haydar's supervisors, Garret Gaw and Joel Mosby. The Court recalls nothing-and Haydar has not pointed to anything-indicating that Gaw or Mosby (as opposed to Faricy) held any stereotypes about Muslims or Syrians, let alone that they searched for data on Haydar that fit their stereotypes of Muslims or Syrians. As such, Blancero's vague reference to “the facts of this case” does not support her statement that Haydar's “supervisors searched for subjective data to support a poor evaluation.” (Report at 2.) And to the extent that she intended to limit this to Faricy, the report in no way makes that clear. Further, Blancero faults Haydar's supervisors for not relying on “very clear objective data, ” but then she cites a line from an email that appears to be Gaw's subjective assessment. (Id.) Moreover-and this is something of a repeat theme in the report-Blancero ignores the fact that under Amazon's rating system, objective performance, growth potential, and leadership were each assessed separately. See Haydar, 2018 WL 4282777, at *1-2 (describing how three separate metrics contribute to an overall rating). So Gaw and Mosby were not permitted to rely solely on “very clear objective data” in assessing Haydar's leadership.

         Thus, Blancero will not be permitted to testify to the findings in the “Diversity and Inclusion” of her report.

         B.

         In the next section of her report, titled “Treatment of Mr. Haydar and Subsequent Investigation, ” Blancero indicates that Amazon's human resources department did not conduct a proper investigation into Haydar's complaint of mistreatment by his supervisors. (Report at 3.)

         The Court hesitates to permit this testimony. It is problematic that Blancero critiques Anne DeCleene's HR investigation into Haydar's internal complaints but did not even read her rather-lengthy and rather-detailed report. (See ECF No. 114, PageID.11655, 11767.) But, perhaps, Blancero does not take issue with how DeCleene conducted her investigation generally, but how DeCleene (or others in HR) investigated national-origin or religious bias specifically. (See Report at 3 (“When the investigation took place, . . . it appears that she did not investigate based on bias related to . . . nationality or religion.”); see also ECF No. 114, PageID.11653, 11752-11753.) To the extent that Blancero's expertise allows her to reliably say that when an employee mentions “bias, ” standard human-resources protocol is to investigate bias against the employee's protected characteristics, Blancero may testify as such. (As this Court previously explained, the record is mixed on whether Haydar told human resources about national-origin or religious bias or used the term “bias” in a more amorphous manner. See Haydar, 2018 WL 4282777, at *9.) The Court will determine at trial whether Haydar lays the proper foundation for Blancero to testify about how human-resources departments should investigate a claim of “bias.”

         Also in this section of her report, Blancero indicates that Amazon's investigation did not follow industry standards for investigations into employee complaints (e.g., “procedural fairness rules”). The Court will permit Blancero to offer this background information to the jury. It appears that Blancero has sufficient education and experience to testify about proper internal investigations. (See ECF No. 114, PageID.11684; ECF No. 114, PageID.11763-11767 (“Q. [Y]ou have a Ph.D. in these kinds of [internal] investigations. Is that correct? A. Well, my Ph.D. is in human resources but my dissertation was on investigations, yes, and procedural fairness of investigations.”).) But the Court will not permit Blancero to opine on whether DeCleene's investigation met industry standards (again, Blancero did not read DeCleene's report (ECF No. 114, PageID.11655, 11767)). Instead, from the general standards Blancero provides, the jury will evaluate for itself the quality of Amazon's investigation into Haydar's complaint. See Fed.R.Evid. 702 advisory committee's note to 2000 amendment (“[I]t might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case.”).

         In short, assuming proper foundation, Blancero may testify to the highlighted portions of the section titled “Treatment of Mr. Haydar and Subsequent Investigation.” (See Appendix.)

         C.

         In the “Culture of Lack of Inclusion” section of her report, Blancero introduces the concept of unconscious (i.e., implicit) bias.

         To better understand this section of Blancero's report, some background is helpful. The term “unconscious bias” captures the concept that a person holds a bias (positive or negative) toward a group of people but is unaware that he holds that bias. See (Report at 5); United States v. Robinson, 872 F.3d 760, 785 (6th Cir. 2017) (Donald, J., concurring in part and dissenting in part) (“Perhaps the most disturbing aspect of implicit bias is that it operates outside of a person's conscious intent. Such biases often conflict with one's consciously-held, egalitarian values, and indeed are more predictive of our conduct than are those explicitly-held values.”). Research indicates that everyone has some unconscious biases (see Report at 4), in part because “implicit biases allow individuals to efficiently categorize their experiences, and these categories allow people to easily understand and interact with their world, ” Robinson, 872 F.3d at 785.

         With that background, Blancero's opinion is more readily understood. Her report states, “In Mr. Haydar's case, it is quite reasonable to come to the conclusion that there is implicit bias given the climate and tone of Mr. Faricy. Based on this I believe we can say that that bias manifested itself in the poor treatment towards Mr. Haydar and, perhaps more importantly, his subsequent termination.” (Report at 3.) Effectively, then, Blancero opines that Faricy and perhaps others who evaluated Haydar were, unknown to them, negatively biased against Muslims or Syrians and that those biases contributed to Haydar's negative feedback, performance reviews, and termination.

         Although the logic of this section of the report is somewhat difficult to follow, it appears that Blancero reaches her conclusion that unconscious bias played a role in Haydar's treatment as follows. Blancero begins with the premise that “there is implicit bias against Muslims today.” (Report at 3.) Then, relying on a paper by researchers at the University of Maryland, Blancero states that an organization's climate for racial bias influences the organization's ratings of job applicants. (Id.) She says that she can “extrapolate” from this study “a similar climate for religious bias.” (Id.) Blancero then attempts to establish that there was a “climate for discrimination” or bias against Haydar. (Id.) In support of this premise, Blancero says that Faricy perpetuated a culture of “white males” and that the climate was not inclusive of those who did not fit the white-male profile. (Report at 4.) Blancero then faults Faricy for, on the one hand, testifying that he went to a training on unconscious bias, but, on the other hand, testifying in a way that, in Blancero's opinion, revealed “no such awareness of his own biases.” (Id.) Specifically, the report characterizes Faricy's testimony as suggesting that he or Amazon was “colorblind.” (Id.) The problem with this, says Blancero, is that it misunderstands that biases can be unconscious. (Id.) Blancero maintains that the colorblind concept also reduces engagement by minorities and increases minorities' perception that their white colleagues are biased. (Id.)

         One broken link in this chain of reasoning is the premise that Faricy perpetuated a culture of “white males” and that the climate was not inclusive of those who did not fit the white-male profile. It appears that Blancero's opinion about the culture that Faricy perpetuated-in an organization with thousands of employees-is based on her review of Faricy's treatment of Haydar standing alone (e.g., Faricy's “you people” comments) and Faricy's treatment of Haydar relative to Faricy's treatment of Stefan Haney, a white man at one management level higher than Haydar's. (See Report at 3 (stating that Faricy mocked Haydar about how he treated his wife); Id. at 6-7 (quoting Faricy's comments about Haney); Id. at 8 (comparing Haney's and Haydar's behavior and asserting disparate treatment); ECF No. 114, PageID.11757.) But, in this Court's view, how Faricy treated two people is an insufficient factual basis to infer that Faricy perpetuated a white-male culture. Again, thousands of Amazonians-of various races, nationalities, and religions- were under Faricy's branch of the Amazon organization chart. Yet Blancero never went onsite to observe the ranks under Faricy. Blancero never interviewed any of Faricy's direct reports. Blancero never read DeCleene's interviews of some of Faricy's direct reports. And Blancero never compared, in aggregate, the evaluations of whites and non-whites (otherwise similarly situated) who worked under Faricy. So Blancero lacks the factual basis to opine that Faricy perpetuated a culture favoring white men and a climate that was not inclusive of non-white men.

         And even setting aside the specific reasoning set out in the report, the Court is not convinced that the concept of unconscious bias would help the jury decide the key issue of intentional discrimination in this case. The jury will hear about Faricy's “you people” comments. And the jury will be able to compare how Faricy (and others) viewed the leadership deficiencies of non-Muslims and non-Syrians (e.g., Haney) and how they viewed Haydar's leadership deficiencies. From that evidence, a jury is fully capable of inferring that Faricy or others were (or were not) biased against Muslims or Syrians. With case-specific evidence, the jury does not need to base a finding of negative biases on the general concept that all people hold some type of unconscious bias. See E.E.O.C. v. Wal-Mart Stores, Inc., No. 6:01-CV-339-KKC, 2010 WL 583681, at *4 (E.D. Ky. Feb. 16, 2010) (“The burden . . . is on the plaintiff to prove that intentional discrimination occurred at this particular distribution center, not just that gender stereotyping or intentional discrimination is prevalent in the world.”).

         Worse, introducing the concept of unconscious bias based on inadequate data and analysis runs the risk of unfairly tilting the scales in Haydar's favor. See Fed.R.Civ.P. 403. Aside from comments about and treatment of Haydar (and, again, a jury can draw its own inferences from that evidence), Blancero has little evidence that those who provided feedback or evaluated Haydar held unconscious, negative biases toward Muslims or Syrians. She does not have the results of any implicit-association test, she did not observe the workplace, and she did not conduct any type of statistical analysis suggesting hidden bias. So apart from Haydar's situation, Blancero has little to infer that those who assessed Haydar's leadership held a negative, unconscious bias toward Syrians or Muslims. And Blancero has even less to infer that Haydar's evaluators acted on any unconscious bias that they might have had. See Jones v. Nat'l Council of Young Men's Christian Ass'ns of the U.S., 34 F.Supp.3d 896, 900 (N.D.Ill. 2014) (finding plaintiffs had not established a “logical connection” between the mere existence of unconscious bias and “the results of employment decisions made by supervisors and managers who are armed with abundant data and are personally invested in the results of the process”); Childers v. Trustees of the Univ. of Pennsylvania, No. 14-2439, 2016 WL 1086669, at *5-6 (E.D. Pa. Mar. 21, 2016). So there is weak foundation for Blancero to infer that unconscious bias played a significant role in Haydar's termination. (See ECF No. 114, PageID.11678-11679 (testifying that it was “likely” but not “reasonably certain” that negative, unconscious biases affected Haydar's evaluations).) Yet if the jury were to hear that every person holds some type of unconscious bias, it may well leap to concluding that Haydar's negative feedback was tainted by an unconscious bias against Muslims or Syrians. Given the weak foundation, that would be undue advantage.

         In short, the Court will not permit Blancero to recount to the jury the general concept of unconscious bias or the role it might have played in ...


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