Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Equal Employment Opportunity Commission v. Texas Roadhouse, Inc.

United States District Court, D. Massachusetts

October 19, 2016

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
TEXAS ROADHOUSE, INC., TEXAS ROADHOUSE HOLDINGS LLC AND TEXAS ROADHOUSE MANAGEMENT CORP., d/b/a TEXAS ROADHOUSE, Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Equal Employment Opportunity Commission (“EEOC”) has filed this lawsuit against Defendants Texas Roadhouse, Inc., Texas Roadhouse Holdings LLC and Texas Roadhouse Management Corp. (collectively, “Texas Roadhouse”) alleging a pattern or practice of age discrimination under the Age Discrimination in Employment Act (“ADEA”). The EEOC alleges that between 2007 and 2014, Texas Roadhouse engaged in a pattern or practice of discrimination by which its standard operating procedure was to discriminate against individuals over age 40- the protected age group (“PAG”)-for front-of-house (“FOH”) positions nationwide. D. 35 ¶¶ 26-28. As explained below, the Court ALLOWS in part and DENIES in part Texas Roadhouse's motion to strike the reports and anticipated testimony of Dr. David L. Crawford, D. 584, DENIES EEOC's motion to strike portions of the expert report and proffered testimony of Dr. Ali Saad, D. 593, DENIES EEOC's motion to strike expert report and proposed testimony of Dr. Eric Dunleavy, D. 600, and DENIES Texas Roadhouse's motion for summary judgment, D. 587.

         II. Standard of Review

         A. Motion to Strike Expert Testimony

         Pursuant to Fed.R.Evid. 702, a qualified expert witness can testify “in the form of an opinion, or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (quoting Fed.R.Evid. 702). This rule “assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Cipollone v. Yale Indus. Prod., Inc., 202 F.3d 376, 380 (1st Cir. 2000) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). “[T]he district court must perform [this] gatekeeping function by preliminarily assessing ‘whether the reasoning or methodology is . . . valid and . . . properly can be applied to the facts in issue'” by examining multiple factors through a flexible, case-specific inquiry. Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 80-81 (1st Cir. 2002) (quoting Daubert, 509 U.S. at 592-93). Ultimately, the purpose of the inquiry is “to determine whether the testimony of the expert would be helpful to the jury.” Cipollone, 202 F.3d at 380. As long as the expert's testimony is found to rest upon reliable grounds, “the traditional and appropriate means of attacking shaky but admissible evidence” is through “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011) (quoting Daubert, 590 U.S. at 590).

         B. Motion for Summary Judgment

         The Court will grant summary judgment when there is no genuine dispute on any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “An issue is genuine if ‘it may reasonably be resolved in favor of either party' at trial, and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.'” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations omitted). The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.” Rosciti v. Ins. Co. of Pa., 659 F.3d 92, 96 (1st Cir. 2011) (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). If the moving party meets this burden, then the non-movant must “with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “The test is whether, as to each essential element, there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (internal quotation mark and citation omitted). In deciding a summary judgment motion, the Court views the record in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). This standard is no different in a pattern-or-practice discrimination case.

         III. Factual Background

         The following facts are drawn from the parties' statements of material facts, D. 589, D. 616, D. 617, D. 644, and supporting documents and are undisputed unless otherwise noted.

         A. The Texas Roadhouse Corporate Structure

         As of December 30, 2014, Texas Roadhouse owned and operated 368 Texas Roadhouse restaurant locations and franchised another 79 restaurants. D. 617 ¶ 2; D. 644 ¶ 2. Its founder, chairman and CEO is W. Kent Taylor (“Taylor”). Id.

         The “Support Center, ” Texas Roadhouse's headquarters, D. 589 ¶ 5; D. 616 ¶ 5; D. 617 ¶ 10; D. 644 ¶ 10, dispatches the Market Partners, the Regional Market Partners, Training Managers and Regional Human Resources and Marketing employees to its locations all over the country. D. 617 ¶¶ 10-11; D. 644 ¶¶ 10-11.

         Each individual Texas Roadhouse restaurant generally has one salaried Service Manager (“SM”) with primary responsibility for managing FOH operations, one salaried Kitchen Manager (“KM”) with primary responsibility for managing back-of-the-house (“BOH”) operations and one Managing Partner with primary responsibility for the day-to-day operations of the entire restaurant.[1] D. 589 ¶¶ 16-17; D. 616 ¶¶ 16-17; D. 617 ¶ 9; D. 644 ¶ 9. The Managing Partner is the overall manager for a single restaurant location. D. 589 ¶ 16; D. 616 ¶ 16. Managing Partners must follow Texas Roadhouse recipes and conform to the company guidelines and policies. D. 617 ¶ 6; D. 644 ¶ 6; D. 618-20 at 99-100.

         Texas Roadhouse restaurants are grouped into “markets” of up to fifteen restaurants per market, each of which is assigned to a Market Partner. D. 589 ¶ 18; D. 616 ¶ 18. Each Market Partner supervises the operation of all of the restaurants in his market and is responsible for ensuring adherence to all aspects of the Texas Roadhouse concept, strategy and standards of quality, which includes weekly visits and oversight of the hiring and development of each restaurant's management team. D. 589 ¶¶ 18-19; D. 616 ¶¶ 18-19; D. 617 ¶ 12; D. 644 ¶ 12; D. 618-10 at 5-6; D. 618-26 at 30-31. Market Partner duties generally include overseeing the operations of the restaurant locations, hiring and developing each restaurant's management team, overseeing the hiring of staff lower-level managerial positions in the restaurants alongside one of the Support Center's Field Support Staffing Manager and are generally on-site during hiring for a new store opening. D. 617 ¶¶ 12-13, 15-16; D. 644 ¶¶ 12-13, 15-16; D. 618-21 at 11-12. Each Market Partner's job includes ensuring that the Managing Partners are focused on and executing the company-wide operational goals, including training and employee image. D. 589 ¶ 14; D. 616 ¶ 14; D. 617 ¶¶ 3, 5; D. 644 ¶¶ 3, 5. A Market Partner has the authority to fire a Managing Partner for bad performance or not adhering to company standards. D. 617 ¶ 14; D. 644 ¶ 14. Market Partners themselves can be terminated for failing to follow the directions and policies of the company. D. 617 ¶ 23; D. 644 ¶ 23.

         A set of markets are further grouped into regions, each assigned to a Regional Market Partner. D. 589 ¶ 20; 616 ¶ 20. Regional Market Partners supervise Market Partners. D. 589 ¶ 21; D. 616 ¶ 21; D. 617 ¶ 21; D. 644 ¶ 21. One aspect of the Regional Market Partners' job is to ensure that Managing Partners are executing the company's overall operational goals, including training and employee image. D. 617 ¶¶ 3, 5; D. 644 ¶¶ 3, 5. The majority of Regional Market Partners make visits to restaurants to observe what is going on in each restaurant. D. 617 ¶ 22; D. 644 ¶ 22.

         Steve Ortiz (“Ortiz”) was the former Chief Operating Officer of Texas Roadhouse. D. 617 ¶ 24; D. 644 ¶ 24. In his role, he supervised all of the employees in operations including all of the Managing Partners, Market Partners, Regional Partners and the Vice President of Training, Juanita Coleman. Id. Ortiz reported to the CEO, Taylor. D. 617 ¶ 27; D. 644 ¶ 27. During the 2007 to 2014 period, Ortiz was responsible for building the Texas Roadhouse brand, which included training and supervising the Managing Partners, Market Partners and Regional Market Partners. D. 618-4 at 10; D. 618-20 at 31-32; D. 618-21 at 17. In addition to Ortiz, Taylor was a hands-on CEO who visits at least three to four Texas Roadhouse locations per month and provides feedback on a variety of issues he identifies at those restaurants directly to Managing Partners and Market Partners. D. 617 ¶¶ 31-35; D. 644 ¶¶ 31-35. Beyond Ortiz and Taylor, Training Managers conduct regular visits to their assigned restaurants and human resources staff conduct “culture checks” at store locations when a particular restaurant has received complaints or when a Market Partner requests such a check. D. 617 ¶¶ 43-44; D. 644 ¶¶ 43-44.

         B. Texas Roadhouse Training

         As mentioned, Texas Roadhouse has a company-wide set of “operational goals” that include “training” and “employee image.” D. 617 ¶ 3; D. 644 ¶ 3. Texas Roadhouse has devoted resources to recruiting and training managers and hourly employees and its trainings include teaching managers on hiring for their store locations. D. 617 ¶ 48; D. 644 ¶ 48. Texas Roadhouse provides ten to twelve months of training to new Managing Partners which includes four months in the Manager in Training (“MIT”) program and attending the Legendary Learning and MP101 programs at the Support Center that includes receiving “Kent's Top Ten, ” a document written by Taylor that instructs managers about the mood, look and character of Texas Roadhouse restaurants. D. 617 ¶¶ 49, 54; D. 644 ¶¶ 49, 54. The Legendary Learning program is a five-day program where Managing Partners, service managers, kitchen managers and others are taught Texas Roadhouse's operational goals and the company's culture. D. 617 ¶ 55; D. 644 ¶ 55. Texas Roadhouse further trains managers in training centers-store locations with management teams that train new managers-across the country in the MIT program before sending managers to their assigned locations. D. 617 ¶¶ 57-58; D. 644 ¶¶ 57-58. When new managers complete their training, Texas Roadhouse confirms that each person has the knowledge and ability to be a manager according to criteria in the Texas Roadhouse MIT Workbook. D. 617 ¶ 60; D. 644 ¶ 60. Texas Roadhouse expects Managing Partners to operate his or her location in a manner consistent with the training provided. D. 617 ¶ 52; D. 644 ¶ 52.

         As part of their overall training, Managing Partners receive training on how to hire for different positions including FOH positions comprised of hosts, servers, server assistants and bussers and bartenders. D. 589 ¶ 58; D. 616 ¶ 58; D. 617 ¶ 61; D. 644 ¶ 61. Managers in training are validated on legendary hiring, behavioral interviewing and “hiring for Image and Heart.” D. 617 ¶ 62; D. 644 ¶ 62. Texas Roadhouse also provided interviewing and hiring handouts to all attendees of Legendary Learning and Service Manager University. D. 617 ¶ 63; D. 644 ¶ 63. Texas Roadhouse also provides hiring training to managers at Market meetings. D. 617 ¶ 64; D. 644 ¶ 64. Texas Roadhouse believes it is important that all Texas Roadhouse managers with hiring responsibility receive and apply consistent hiring practices. D. 617 ¶¶ 66-68; D. 644 ¶¶ 66-68.

         At some point throughout this training, Texas Roadhouse provides managers with at least some training concerning anti-discrimination laws. D. 589 ¶ 35; D. 616 ¶ 35. In addition, the Texas Roadhouse Interviewing and Hiring Guide for managers also provides examples of improper questions based upon age. D. 589 ¶ 50; D. 616 ¶ 50.

         C. Texas Roadhouse's Management of Hiring

         The People Department has developed the Company's Equal Employment Opportunity Policy and Harassment and Discrimination Policy, D. 589 ¶ 23; D. 616 ¶ 23, and Texas Roadhouse has published written non-discrimination policies in various documents made available to its employees, D. 589 ¶¶ 25, 29; D. 616 ¶¶ 25, 29. Company template applications also include language that indicates age discrimination is prohibited and that the company is an equal opportunity employer. D. 589 ¶ 31, 33; D. 616 ¶ 31, 33.

         Texas Roadhouse believes that hiring for FOH positions is important because those positions are a reflection of the company's brand and culture. D. 617 ¶ 78; D. 644 ¶ 78. In its goals and training, Texas Roadhouse emphasizes that a key to success at each store location was focusing on image which includes hosts who are happy and attractive, bartenders who are all-American types and servers who are great looking, although the parties dispute the exact contours of this “image.” D. 617 ¶¶ 80-81; D. 644 ¶¶ 80-81. Hiring poor image employees could result in a Managing Partner receiving a 30-day notice, a precursor to termination. D. 617 ¶ 84; D. 644 ¶ 84.

         While the parties dispute the extent of top-down control over hiring by Texas Roadhouse, both sides agree that there is some deviation in practice as to hiring practices at the local level. For instance, Managing Partners at the local restaurant level do not consider applications for uniform periods of time such that applications may be considered anywhere between five days to a year depending on the particular Managing Partner. D. 589 ¶ 67; D. 616 ¶ 67. In addition, different Managing Partners may use different criteria to hire a server as opposed to a host, or a server assistant or a bartender. D. 589 ¶ 69; D. 616 ¶ 69.

         D. The Experts' Statistical Analysis

         Over the course of 2007 to 2014, there were 181, 583 FOH hires across the relevant Texas Roadhouse locations, 1.62% of which were FOH hires of those individuals over age 40 (the PAG hires). D. 617 ¶ 144; D. 644 ¶ 144. For each of the four FOH positions, the percent of PAG hires were: 1.49% for servers; 1.85% for server assistants; 0.28% for hosts; and 3.08% for bartenders. Id. For most of this time period, Texas Roadhouse predominantly accepted paper applications; halfway through 2013, Texas Roadhouse predominantly used electronic applications it received through the website Snagajob. D. 617 ¶ 147; D. 644 ¶ 147.

         The parties each offer statistical analysis from their own experts and dispute the reliability and admissibility of the other experts (as discussed below when addressing their respective Daubert motions). The EEOC's expert, Dr. David Crawford (“Crawford”) applied statistical tests to each position for each store-year for which he had sufficient data against three different benchmarks, census data, paper applications and electronic applications.[2] D. 617 ¶ 150; D. 644 ¶ 150. As a result, he concluded that if hiring had been age-neutral, the probability of the aforementioned PAG hire rate results for each position would be equivalent of more than seven standard deviations (i.e. a likelihood of more than 1 in 781, 000, 000, 000). D. 617 ¶ 150; D. 644 ¶ 150. Even after Crawford revised his calculations, his results were still statistically significant at greater than seven standard deviations. D. 617 ¶ 151; D. 644 ¶ 151. Using the census benchmark data, Crawford also calculated shortfalls[3] in the number of PAG individuals who would have been hired if there had been age-neutral hiring. D. 617 ¶ 154; D. 644 ¶ 154. As a result, he found that the total shortfalls for servers, server assistants, hosts and bartenders were 14, 604; 10, 477; 4, 685; and 260, respectively. D. 617 ¶ 154; D. 644 ¶ 154.

         Crawford additionally concluded that when considering position-specific comparisons of hires to the paper application benchmark, there were shortfalls in PAG hiring of 95.6%, 97.4% and 90.0% of the store-years for servers, hosts and server assistants. D. 617 ¶ 159; D. 644 ¶ 159; D. 622-20 at 3-5; D. 586-4 ¶¶ 22, 23. He further found that the probability of those results are less than 1 in 781, 000, 000, 000 for servers, 1 in 7, 048, 151, 460 for hosts and 1 in 93 for server assistants if there were a process of age-neutral hiring. D. 617 ¶ 159; D. 644 ¶ 159; D. 586-3 ¶ 22; D. 586-4 ¶ 22. Crawford also found shortfalls when comparing the PAG hires for FOH positions when compared against electronic Snagajob applications; he specifically found shortfalls in 83.5% of the store-years tested and stated that the probability of those results being generated by an age-neutral hiring process is less than 1 in 781, 000, 000, 000. D. 617 ¶ 160; D 644 ¶ 160; D. 586-2 ¶ 82(a).

         Texas Roadhouse's expert, Saad, explained some drawbacks and errors in Crawford's analysis, including frailties in Crawford's calculations due to store-by-store variations and his use of external census data instead of the applicant flow data otherwise available through the paper and electronic applications. See, e.g., D. 595-2 ¶¶ 9-13, 36-42, 48-49, 58-60, 66, 73-74. Saad also formulated an alternative statistical analysis that utilizes the theory of “duration dependence” and applied that theory to the application data using a Cox proportional hazard ratio. See id. ¶¶ 84-96, 103-04, 107-08. After applying this analysis-which he said more properly accounted for distinctions between the under 40 and over 40 applicant pools-Saad found that there was no statistically significant shortfall across the entire eight-year period and that the years of 2007, 2008, 2013, and 2014 had significant surpluses in PAG hiring. Id. ¶¶ 104-118.

         E. Purported Anecdotes of Discrimination and Non-Discrimination

         In addition to the statistical analysis upon which it relies to show discriminatory intent, the EEOC also relies upon direct or circumstantial evidence that age bias undergirded a nationwide discriminatory hiring practice at Texas Roadhouse. This evidence includes images of young-looking people used in management training, the “Examiner” and other written materials distributed to managers and the cover sheet used for some applications. See, e.g., D. 616 ¶¶ 93, 95, 99, 106; D. 644 ¶ 93, 95, 99, 106. It also includes testimony from a Texas Roadhouse trainer and service manager regarding the image for which Texas Roadhouse hired and testimony from individuals over 40 who unsuccessfully applied for FOH positions and heard age-related comments made during their interviews. See, e.g., D. 617 ¶¶ 170, 175, 176; D. 644 ¶¶ 170, 175, 176.

         By contrast, Texas Roadhouse presents declarations from 372 Managing Partners who attest that they understood that Texas Roadhouse maintained non-discrimination policies that prohibited age discrimination and that they were not aware of any company practices to refuse to hire PAG applications for FOH positions. D. 589 ¶¶ 70, 73; D. 616 ¶¶ 70, 73. In addition, roughly 45 Market Partners and Regional Market Partners have filed declarations stating that they understand that Texas Roadhouse maintains non-discriminatory policies that prohibit against age discrimination in hiring and that they were not part of any practice at Texas Roadhouse to discourage or reject PAG applicants from FOH positions. D. 589 ¶ 75; D. 616 ¶ 75. Finally, 234 workers age 40 and over who were hired for FOH positions at Texas Roadhouse declare that they have never witnessed or experienced any age discrimination. D. 589 ¶¶ 140, 142; D. 616 ¶¶ 140, 142.

         IV. Procedural History

         In March 2009, the EEOC initiated an agency charge of age discrimination against Texas Roadhouse. D. 589 ¶ 108; D. 616 ¶ 108. The EEOC then instituted this action on September 30, 2011. D. 1. On August 2, 2016, Texas Roadhouse moved for summary judgment. D. 587. Texas Roadhouse also moved to strike the reports and testimony of the EEOC's expert, Crawford. D. 584. The EEOC filed a motion to strike portions of the expert report and proffered testimony of Texas Roadhouse's expert, Saad, D. 593, and also moved to strike the expert report and proposed testimony of Texas Roadhouse's other expert, Dr. Eric Dunleavy (“Dunleavy”), D. 600. The Court heard the parties on the pending motions on October 5, 2016 and took these matters under advisement. D. 648.

         V. Motions to Strike Expert Testimony

         A. Texas Roadhouse's Motion to Strike Crawford's Proffered Opinion

         1. Use of Census Data Benchmarks

         To determine whether the Texas Roadhouse hiring decisions were age-neutral, Crawford, an economist engaged by the EEOC, analyzed the rates of actual PAG hires at Texas Roadhouse, D. 586-2 ¶¶ 14-17, 20, against three different sets of data: (1) census data for occupation codes similar but not exactly matched to those of FOH positions at Texas Roadhouse, id. ¶¶ 14, 29; D. 586-9; (2) the Snagajob electronic applicant pool used by Texas Roadhouse, D. 586-2 ¶¶ 14, 32; and (3) a random sample of the unsuccessful paper applications produced by Texas Roadhouse, id. ¶¶ 14, 43, 49. In so doing, Crawford analyzed the comparisons across the three different benchmarks to assess the likelihood that age-neutral hiring would have resulted in the number of actual PAG hires given the pool. Id. ¶¶ 56-60. In his analysis, he presents his findings for each of the individual FOH positions at issue as well as aggregated findings based upon all FOH positions combined. Id. ¶ 60.

         Texas Roadhouse now moves to strike Crawford's opinions and proffered testimony.[4] D. 584. Texas Roadhouse initially argues that this opinion should be struck because Crawford's use of census data as a proxy is not reliable under Fed.R.Evid. 702 given the breadth and variety of service jobs reflected in census data that exceeds that of the four FOH categories. D. 585 at 9-16. Texas Roadhouse first maintains that the census data is unreliable because it contains an overbroad range of food service workers at varying types of establishments that is not equivalent to FOH positions at Texas Roadhouse. D. 585 at 12-14. Here, the census data upon which Crawford relies is not general census data but instead age distribution data from the EEO Tabulation of census data for particular occupations in particular geographic areas. D. 586-2 ¶ 28. Namely, Crawford relied upon age distribution data for the job categories of (1) waiters and waitresses; (2) other food preparation and serving related workers; (3) hosts and hostesses; and (4) bartender categories within the EEO Tabulation information which he further broke down by geographic region corresponding to each Texas Roadhouse location. Id. ¶¶ 28-31. Crawford compared data on actual PAG hires at Texas Roadhouse against this census data that includes those coded as waiters and waitresses, other food preparation and serving related workers, hosts and hostesses, and bartenders. Id. These categories include a variety of jobs outside of the FOH positions and from restaurant positions including cafeteria workers, maître d's, and lunchroom aides as well as establishments dissimilar to Texas Roadhouse like luxury restaurants and hospital cafeterias. D. 586-9; D. 586-1 at 49-54.

         This contention, however, does not warrant exclusion of Crawford's opinion. Even when statistical analysis has involved general population census data to show discriminatory intent, it has not been precluded on Fed.R.Evid. 702 grounds. See E.E.O.C. v. FAPS, Inc., No. 10-cv-3095-JAP DEA, 2014 WL 4798802, at *5-*6 (D.N.J. Sept. 26, 2014) (admitting expert who relied upon local labor market data to examine race discrimination in hiring over Daubert challenge to the reliability of his conclusions); see also Pina v. City of E. Providence, 492 F.Supp. 1240, 1245-46 (D.R.I. 1980) (concluding that plaintiffs established a prima facie case after presenting statistical evidence that compared “the percentage of ranked minorities and the percentage of minorities in the general population” because “the skill involved . . . is one that the general population may possess”). Here, the subset of census data was more particularized than general population census information, i.e. figures of persons worked in similar food service positions and were closer, if not perfectly aligned, with FOH positions. Although not perfect, reliance upon this census data is a reliable proxy where, as both parties acknowledge, the actual Texas Roadhouse application data for years 2007 to 2013 is not complete. D. 586-2 ¶¶ 33, 44; D. 617 ¶¶ 188, 190, 193; D. 644 ¶¶ 188, 190, 193; see FAPS, Inc., 2014 WL 4798802, at *5-*6 (admitting the opinion of statistical expert who relied upon local labor market census data because that expert did not find the applicant flow data to be reliable or complete). Finally, failing to use a perfect set of variables that incorporates all relevant factors or excludes all potentially irrelevant variables is not a means for rejecting an expert's analysis. See Flebotte v. Dow Jones & Co., No. 97-cv-30117-FHF, 2000 WL 35539238, at *4 (D. Mass. Dec. 6, 2000); McMillan v. Massachusetts Soc. for Prevention of Cruelty to Animals, 140 F.3d 288, 302 (1st Cir. 1998). This is because statistical “analyses are admissible even in disparate treatment cases unless they are so incomplete as to be inadmissible as irrelevant.” McMillan, 140 F.3d at 303 (internal quotation marks and citations omitted). That is not the case here. Any concerns raised by overbroad census data go to weight, not admissibility. Currier v. United Techs. Corp., 393 F.3d 246, 250-252 (1st Cir. 2004).

         This reasoning applies with equal force to Texas Roadhouse's argument that Crawford's opinion should be excluded because the census data does not reliably estimate the actual PAG applicant pool for any given year. D. 585 at 10. Here, Texas Roadhouse emphasizes that for the year 2014, the calculations of PAG applicants based upon the complete Snagajob data differs from the PAG proportions resulting from the census data. D. 585 at 10-11; see D. 586-1 at 56-59. It is undisputed that for 2014, the one year for which there is complete applicant pool data, D. 589 ¶ 101; D. 616 ¶ 101, the estimated applicant figures of 17.7% or 18.5% based upon the census data is substantially higher than the 3.7% representing the applicant pool, a figure based upon the actual Snagajob data, D. 586-1 at 58-59; D. 586-6 at 120-121. That is, the census data calculation may overstate the actual shortfall percentage. D. 585 at 11; D. 586-1 at 58-59. Even when considered with Texas Roadhouse's other critiques, this argument also does not warrant exclusion of Crawford's opinion. First, the 2014 data may not be indicative of the applicant pools for the rest of the liability period. See E.E.O.C. v. Am. Nat. Bank, 652 F.2d 1176, 1195-97 (4th Cir. 1981) (explaining that “[a]pplicant flow data limited to one out of seven relevant years cannot be held to rebut a prima facie case based upon gross disparities”). Second, complete applicant pool data is not available for all of 2007 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.