                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 13-2365


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                  Plaintiff - Appellant,

            v.

FREEMAN,

                  Defendant – Appellee,

            and

THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

                  Intervenor.

--------------------------

PACIFIC LEGAL FOUNDATION; EQUAL EMPLOYMENT ADVISORY COUNCIL;
NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS
LEGAL CENTER; RETAIL LITIGATION CENTER; CHAMBER OF COMMERCE
OF THE UNITED STATES OF AMERICA,

                  Amici Supporting Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:09-cv-02573-RWT)


Argued:    October 29, 2014               Decided:   February 20, 2015


Before GREGORY, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion,
in which Judge Agee and Judge Diaz joined.   Judge Agee wrote a
separate concurring opinion.


ARGUED: Anne Noel Occhialino, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.            Donald R.
Livingston, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington,
D.C., for Appellee. ON BRIEF: P. David Lopez, General Counsel,
Lorraine C. Davis, Acting Associate General Counsel, Jennifer S.
Goldstein,   U.S.   EQUAL   EMPLOYMENT    OPPORTUNITY  COMMISSION,
Washington, D.C., for Appellant.       W. Randolph Teslik, Hyland
Hunt, John T. Koerner, AKIN GUMP STRAUSS HAUER & FELD LLP,
Washington, D.C., for Appellee.     Meriem L. Hubbard, Joshua P.
Thompson, Jonathan W. Williams, PACIFIC LEGAL FOUNDATION,
Sacramento, California, for Amicus Pacific Legal Foundation.
Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF
INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington,
D.C., for Amicus National Federal of Independent Business Small
Business Legal Center.    Rae T. Vann, NORRIS, TYSSE, LAMPLEY &
LAKIS, LLP, Washington, D.C., for Amicus Equal Employment
Advisory Council.    Deborah R. White, RETAIL LITIGATION CENTER,
INC., Arlington, Virginia, for Amicus Retail Litigation Center.
Rachel L. Brand, Steven P. Lehotsky, NATIONAL CHAMBER LITIGATION
CENTER, INC., Washington, D.C.; Eric S. Dreiband, Emily J.
Kennedy, JONES DAY, Washington, D.C., for Amicus Chamber of
Commerce of the United States of America.




                                2
GREGORY, Circuit Judge:

      In 2001, Freeman began conducting background checks on its

job     applicants,        which       the        Equal      Employment      Opportunity

Commission (“EEOC”) alleges had an unlawful disparate impact on

black   and    male      job   applicants.             The   district     court    granted

summary judgment to Freeman after excluding the EEOC’s expert

testimony     as    unreliable     under       Federal        Rule   of   Evidence      702.

Without    this     testimony,     the       district        court   found   the   agency

failed to establish a prima facie case of discrimination.                                For

the reasons below, we affirm the district court’s exclusion of

the EEOC’s expert testimony and grant of summary judgment to

Freeman.



                                             I.

      Freeman       is     a    provider          of      integrated      services       for

expositions, conventions, and corporate events, with offices in

major cities throughout the United States.                      In 2001, the company

commenced      background       checks       of     job      applicants’     credit      and

criminal    justice       histories.         Criminal        background      checks     were

required      for   all    applicants,        and      credit    history     checks     for

“credit sensitive” positions involving money handling or access

to    sensitive     financial      information.                Freeman’s     credit      and

criminal      background       check    policies        excluded     applicants       whose

histories      revealed        certain       prohibited         criteria.          If    an

                                              3
applicant’s history included one of the listed criteria, like a

conviction for a crime of violence, the applicant was not hired. 1

Freeman modified these criteria on July 20, 2006, and again on

August    11,    2011,   after        which    it    no    longer    conducted     credit

checks.

     In 2008, after an applicant who was denied a position filed

a charge of discrimination, the EEOC began an investigation of

Freeman’s       credit   check       policy.         On    September    25,   2008,      it

notified    Freeman      it    was    expanding       this    investigation        to   the

criminal background check policy.                    On March 27, 2009, the EEOC

issued a letter of determination finding Freeman’s use of credit

and criminal checks violated Title VII.

     After       conciliation         failed,       the    EEOC     filed   suit    under

Sections    706    and   707     of    Title      VII. 2     42   U.S.C.    §§ 2000e-5,

2000e-6.     It alleged Freeman’s criminal checks had a disparate




     1
       Freeman required a form authorizing a background search to
be completed with each job application, which, according to a
company handbook, Freeman thought would “deter individuals with
negative information from applying.”    However, the checks were
not conducted until after a conditional offer of employment had
been made.   It appears most criteria, as well as making false
statements   on   the    job  application,   led   to   automatic
disqualification.     But, Freeman usually gave applicants a
reasonable amount of time to resolve outstanding arrest warrants
before rescinding an offer.
     2
       The Office of Personnel Management intervened in the case
to protect the confidentiality of information related to federal
government background investigations, which Freeman sought.


                                              4
impact on black and male job applicants, 3 and that the credit

checks had a disparate impact on black job applicants.                         The

district court subsequently limited the class of applicants on

behalf of which the EEOC could seek relief to those individuals

affected by criminal checks from November 30, 2007 to July 12,

2012, and those affected by credit checks from March 23, 2007 to

August 11, 2011.

      The   case    proceeded    to     discovery.       The    EEOC   produced   a

report      by      Kevin     Murphy,         an   industrial/organizational

psychologist, and one by Beth Huebner, an associate professor of

criminology,       which    purported    to    replicate       Murphy’s   results.

Then, eight days after its expert disclosure deadline, the EEOC

produced an amended report from Murphy with slightly altered

calculations.       Freeman moved to exclude Murphy’s and Huebner’s

reports and also moved for summary judgment.                      In response to

Freeman’s motion to exclude, the EEOC filed a new declaration

and supplemental report from Murphy, with revised calculations

and the results from his analysis of a new, expanded database.

The EEOC also moved to file a sur-reply, and while that motion

was   pending,     served    Freeman     yet   another     supplemental     expert


      3
       The EEOC’s complaint originally alleged the checks also
had a disparate impact on Hispanics. After its expert found no
statistically significant effect on Hispanic applicants, the
parties jointly dismissed the EEOC’s claim that the criminal
checks discriminated against this class.


                                         5
report from Murphy, as well as a supplemental report by Huebner,

which the agency sought to introduce at the summary judgment

hearing on June 19, 2013.

       The district court denied the EEOC’s motion for leave to

file       a    sur-reply      and    granted       Freeman’s     motion        to    exclude

Murphy’s        testimony       on     the    basis     that     it   was       “rife     with

analytical          errors”    and    “completely       unreliable”        under      Federal

Rule of Evidence 702.                 The court granted Freeman’s motion for

summary judgment.             The EEOC timely appealed.



                                              II.

       Federal Rule of Evidence 702 governs the admissibility of

expert evidence.             Expert testimony under Rule 702 is admissible

if     it      “rests   on     a     reliable       foundation    and      is    relevant.”

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th Cir.

1999) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141

(1999)).         In determining reliability, a district court exercises

a special gatekeeping obligation.                     See Kumho, 526 U.S. at 147.

It possesses “broad latitude” to take into account any “factors

bearing        on    validity      that      the    court   finds     to    be       useful.” 4


       4
        These factors may include “whether the reasoning                                    or
methodology underlying the expert’s opinion has been or could                               be
tested; whether the reasoning or methodology has been subject                               to
peer review and publication; the known or potential rate                                    of
error; and the level of acceptance of the reasoning                                         or
(Continued)
                                                6
Westberry,     178     F.3d     at       261.            The     scope    of     the     court’s

gatekeeping        inquiry    will        depend         upon     the    particular       expert

testimony and facts of the case.                     See Kumho, 526 U.S. at 150.

      We    review    a    district        court’s         decision       to     admit    or    to

exclude     expert     evidence          for    an       abuse     of    discretion.           See

Westberry,     178    F.3d    at     261.            A    district       court      abuses     its

discretion     if    it    relies        on     an       error    of    law    or    a   clearly

erroneous factual finding.                     See id.           We reverse the district

court only if we have “a definite and firm conviction that the

court      below    committed        a    clear          error     of    judgment        in    the

conclusion it reached upon a weighing of the relevant factors.”

Id. (quoting Wilson v. Volkswagen of Am., Inc., 561 F.2d 494,

506 (4th Cir. 1977)).

                                                A.

      The district court identified an alarming number of errors

and     analytical        fallacies        in        Murphy’s       reports,        making      it

impossible to rely on any of his conclusions.                             Freeman provided

the EEOC with complete background check logs for hundreds, if

not thousands, of applicants who Murphy did not include in his

database of fewer than 2,014 background checks conducted largely

before October 14, 2008.                 J.A. 1061.             Only 19 post-October 14,



methodology by the relevant professional community.” Westberry,
178 F.3d at 261 n.1 (citing Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 593-94 (1993)).


                                                7
2008 applicants were included in Murphy’s database, all but one

of   whom    failed     the   checks.      J.A.    1063.       However,     Freeman,

through its background check vendor, “conducted more than 1,500

criminal     background       investigations      and   more    than    300   credit

investigations on applicants between October 15, 2008 to August

31, 2011” with Freeman producing in discovery “race and gender

information for hundreds of these applicants.”                         J.A. 461-62.

Murphy furthermore omitted data from half of Freeman’s branch

offices.         This is despite the fact that he did not seek to

utilize      a   sample   size    from    the     relevant     time    period,   but

purported        to   analyze    all     background     checks    with      verified

outcomes.

      Most troubling, the district court found a “mind-boggling”

number      of   errors   and    unexplained       discrepancies       in   Murphy’s

database.        For example, looking at a subset of 41 individuals

for whom the EEOC is seeking back pay, 29 had at least one error

or omission.          Seven were missing from the database altogether.

Seven were listed in the database without a race code, “one was

incorrectly coded as passing the criminal background check, two

were incorrectly coded as failing the criminal background check,

one ha[d] an incorrect race code, five ha[d] incorrect gender

codes, nine [we]re listed twice and double-counted in Murphy’s

results, and three who failed the credit check [we]re not coded

with a credit check result.”             J.A. 1064.      The EEOC claims these

                                          8
errors were present in the original data, a contention dispelled

by comparing the information from the discovery materials to

Murphy’s database.       It was in fact Murphy who introduced these

errors into his own analysis. 5

       The EEOC also contends that Murphy fixed any errors in his

analysis     in   subsequently-filed,        supplemental     reports.         The

district court examined a third report by Murphy 6 and found that

he did not make certain corrections to his database, despite

claims of doing so.          Contrary to his assertions, Murphy did not

change     “incorrect   coding      of   race   and     pass/fail   status     for

several individuals.”         J.A. 1065.     The district court also found

that   Murphy     “managed    to   introduce    fresh    errors   into   his   new

analysis,” like double-counting applicants who had failed their

background checks. 7         Id.    And Murphy’s new, expanded database


       5
       Although Murphy contends that any errors in the data were
in the discovery materials from Freeman, we do not discern any
clear error by the district court in making this factual
finding.
       6
        The EEOC proffered a fourth report by Murphy at the
summary judgment hearing, but did not attach it to the agency’s
earlier motion to file a sur-reply.      The district court also
found the EEOC never properly offered Huebner’s supplemental
report.   The court declined to allow the EEOC to file a sur-
reply, and we therefore find that neither Murphy’s fourth report
nor Huebner’s supplemental report are part of the record.
       7
       The district court also held that Murphy’s third and
fourth reports were not proper supplements under Federal Rule of
Civil Procedure 26(e), but were “poorly disguised attempts to
counter Defendant’s arguments with new expert analyses.”      We
agree that EEOC cannot use Rule 26(e) as a “loophole . . . [to]
(Continued)
                                         9
still omitted hundreds of applicants for whom Freeman produced

complete information in discovery.

       The    sheer    number      of    mistakes      and    omissions         in    Murphy’s

analysis         renders    it    “outside     the    range       where    experts         might

reasonably         differ.”       Kumho,      526    U.S.    at   153.          We   therefore

cannot       say     the    district        court     abused       its     discretion        in

ultimately excluding Murphy’s expert testimony as unreliable.



                                              III.

       We affirm the district court’s grant of summary judgment 8 to

Freeman solely on the basis that the district court did not

abuse      its     discretion      in    excluding     EEOC’s          expert    reports     as

unreliable under Rule 702.                  We decline to consider whether the

district court erred in limiting the time period in which the

EEOC       could    seek    relief,      as    any    error       in    this     regard     was

inconsequential            in    light   of     Murphy’s      pervasive          errors      and

utterly      unreliable         analysis.       We   decline       to    reach       any   other

issues in the district court’s opinion.

                                                                                      AFFIRMED




revise [its] disclosures in light of [Freeman’s] challenges to
the analysis and conclusions therein.”    Luke v. Family Care &
Urgent Med. Clinics, 323 F. App’x 496, 500 (9th Cir. 2009).
       8
       We emphasize that by our disposition we express no opinion
on the merits of the EEOC’s claims.


                                               10
AGEE, Circuit Judge, concurring:

     Although       I    concur     in   Judge       Gregory’s         opinion,      I     write

separately to address my concern with the EEOC’s disappointing

litigation    conduct.           The     Commission’s           work    of    serving         “the

public interest” is jeopardized by the kind of missteps that

occurred here.          Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318,

326 (1980).     And it troubles me that the Commission continues to

proffer    expert       testimony      from    a    witness      whose       work    has      been

roundly rejected in our sister circuits for similar deficiencies

to those we observe here.                It is my hope that the agency will

reconsider    pursuing       a    course      that       does   not    serve    it       or    the

public interest well.



                                              I.

     As in other cases, the EEOC proffered expert testimony to

establish the alleged disparate impact of Freeman’s background

check   policies.          Yet    the    expert      testimony         here    was    fatally

flawed in multiple respects.

                                              A.

     The district court used harsh words to describe the work of

the EEOC’s “expert,” Kevin R. Murphy.                           The court found that

Murphy’s     reports        contained         a      “plethora”          of     “analytical

fallacies,”     reflected           “cherry-picked”              data,        produced         “a

meaningless,    skewed      statistic,”            and    included      a    “mind-boggling

                                              11
number of errors.”     EEOC v. Freeman, 961 F. Supp. 2d 783, 793-96

(D.   Md.   2013).     Even   when       Murphy    submitted      late-in-the-day

amendments, he still relied upon “a skewed database plagued by

material    fallacies.”       Id.   at    796.      The    slapdash      nature   of

Murphy’s work convinced the district court that the EEOC had

only a “theory in search of facts to support it.”                 Id. at 803.

      The   majority   opinion      rightly       agrees   with    the    district

court’s view, as Murphy’s work simply did not meet the standards

for expert testimony that Federal Rule of Evidence 702 provides.

But this was not a close question, and three problems merit

special recognition.

      First, courts often caution experts against drawing broad

conclusions from incomplete data.                 In Lilly v. Harris-Teeter

Supermarket, 720 F.2d 326 (4th Cir. 1983), for instance, this

Court criticized an expert for using data from only a limited

set of relevant locations and years to draw conclusions about a

much broader class.       See id. at 337 (“The first problem with

this data, however, is that its scope -- covering the stores and

warehouse for only 1976 and only the stores for 1975 -- is

insufficient to prove discrimination from 1974 through 1978.”);

see also EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1195 (4th Cir.

1981)     (deeming   expert    evidence       unreliable       where      it   drew

conclusions about seven-year period from only one of those seven

years).     The principle espoused in Lilly derives from a common-

                                         12
sense idea: expert work should not be considered “[w]hen the

assumptions made by [the] expert are not based on fact.”                            Tyger

Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137, 144 (4th Cir.

1994).

     Yet as the majority notes, Murphy made the very mistake

identified    in     Lilly:       he   omitted       important       information     from

relevant    periods       and    locations.          The    EEOC     challenged    credit

check policies beginning in late March 2007 and ending in early

August     2011;     its        criminal-background-check              claims     spanned

November 30, 2007 to the present.                   For reasons unknown, Murphy’s

data included barely any information on applicants after mid-

October    2008     --    ignoring        at    least      two-and-a-half       years   of

relevant    and    available       data    for      each    claim.      By    arbitrarily

putting aside those years, Murphy ignored 300 credit checks and

1,500 criminal background checks.                    Indeed, Murphy even ignored

applicant data on persons that the EEOC identified as purported

victims.          Worse    still,      Murphy        ignored       relevant     criminal

background    check        data    from        21   of     Freeman’s     39     different

locations.

     Neither Murphy nor the agency explained these omissions.

Although the EEOC speculates that Freeman produced incomplete

data, the record says differently.                   Among other things, Freeman

produced applicant logs, datasheets, and background check forms

that Murphy could have used to compile relevant information.

                                               13
Thus, as the majority indicates, the district court’s finding

that Freeman presented more than sufficient data is far from

clearly erroneous.   For his part, Murphy insisted that there was

no need to look at more of the available information regardless

of relevance.   Yet he never explained why his model incorporated

enough observations to ensure a valid statistical result. 1

     Second, courts have consistently excluded expert testimony

that “cherry-picks” relevant data.     See, e.g., Bricklayers &

Trowel Trades Int’l Pension Fund v. Credit Suisse Secs. (USA)

L.L.C, 752 F.3d 82, 92 (1st Cir. 2014); Greater New Orleans Fair

Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d

1078, 1086 (D.C. Cir. 2011); Barber v. United Airlines, Inc., 17


     1
       Experts may use appropriate sampling methods to draw
conclusions. But determining an appropriate sample size can be
a “tricky” question in statistics, Am. Honda Motor Co., Inc. v.
Allen, 600 F.3d 813, 818 (7th Cir. 2010) (per curiam), and
Murphy never engaged with it.      Some evidence suggests that
Murphy used a convenience sample –- that is, he used only the
information that was readily at hand.          See J.A. 797-98
(indicating that Murphy analyzed only data that was entirely
complete without the need for supplementation); see also
Freeman, 961 F. Supp. 2d at 794 (“Murphy instead relied almost
entirely on the two Excel spreadsheets in creating his
database”).   Although convenience samples are “easy to take,”
they “may suffer from serious bias.”     David H. Kaye & David
Freeman, Reference Guide on Statistics in Reference Manual on
Scientific Evidence 83, 162 (Fed. Judicial Ctr. 2d ed. 2000).
Murphy was no stranger to having courts reject his work for
improper sampling.    See EEOC v. Kaplan Higher Learning Educ.
Corp., No. 1:10 CV 2882, 2013 WL 322116, at *11 (N.D. Ohio Jan.
28, 2013) (criticizing Murphy for failing to explain why his
selective use of data did not “skew the sample”), aff’d 748 F.3d
749 (6th Cir. 2014).


                                14
F. App’x 433, 437 (7th Cir. 2001); Fail-Safe, LLC v. A.O. Smith

Corp., 744 F. Supp. 2d 870, 891 (E.D. Wis. 2010); In re Bextra &

Celebrex Mktg.      Sales      Practices        &   Prod.   Liab.    Litig.,    524    F.

Supp. 2d 1166, 1176-77 (N.D. Cal. 2007).                     “Cherry-picking” data

is essentially the converse of omitting it: just as omitting

data might distort the result by overlooking unfavorable data,

cherry-picking data produces a misleadingly favorable result by

looking only to “good” outcomes.

       Murphy undeniably “cherry-picked.”                   The very few pieces of

post-October-2008       data    that       Murphy     included      consisted    of    19

applicants.     Of those 19, one was a double-counted applicant,

one was a “fail” miscoded as a “pass,” and the remaining were

all “fails” under one or the other (or both) checks.                        This 100%

failure rate among the 19 post-October-2008 applicants wildly

varies from the 3.5% failure rate for criminal checks and 9.9%

failure rate for credit checks reflected in the rest of the

data.     See J.A. 326 (noting that “the likelihood of failing

either [check] is low”).            Thus, not only was Murphy capriciously

selective in his use of post-October-2008 data, but the high

number   of   “fails”    among      his    few      selections   suggests       that   he

fully    intended   to      skew     the     results.         The    district     court

certainly     thought    so,       terming       Murphy’s     work    “an   egregious

example of scientific dishonesty.”                  Freeman, 961 F. Supp. 2d at

792.

                                           15
       Finally,    Murphy’s      analysis       contained   many    obvious   errors

and mistakes, and these “factual deficiencies” further evidence

his    “faulty     methods      and    lack   of   investigation.”        Brown   v.

Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 773 (7th Cir.

2014); see also Dart v. Kitchens Bros. Mfg. Co., 253 F. App’x

395, 399 (5th Cir. 2007) (noting that “basic mathematical errors

and flaws in methodology” were appropriate reasons to exclude an

expert); cf. Overton v. City of Austin, 871 F.2d 529, 539 (5th

Cir. 1989) (per curiam) (“[A] trial court should not ignore the

imperfections      of     the   data    used[.]”).      For    example,   Murphy’s

initial statistical analysis was filled with basic arithmetic

mistakes.        Even once those fundamental errors were corrected,

problems lingered.           Murphy excluded applicants with known race

and    gender      information,          inaccurately       claiming    incomplete

information.       He miscoded criminal and credit check outcomes, as

well   as   race    and    gender      information.     And    he   double-counted

other applicants.          As the majority recounts, within a sample of

41 known “victims” in Murphy’s database, 29 of those 41 (or more

than 70%) had errors or omissions.

       In sum, Murphy’s work was riddled with fundamental errors,

mistakes, and misrepresentations.                  I certainly agree with the

majority’s determination that the district court appropriately

excluded Murphy’s evidence.



                                           16
                                         B.

      These problems would be troubling enough standing alone,

but   they    are   even    more   disquieting     in   the   context    of   what

appears to be a pattern of suspect work from Murphy.

      EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th

Cir. 2014), provides only the most recent example.                  There, the

EEOC sought to use Murphy’s testimony to challenge an employer’s

use of credit checks, just as it did here. 2             A panel of the Sixth

Circuit,      however,     unanimously    affirmed      the   district   court’s

decision to exclude Murphy’s determinations.                  Like his work in

this case, Murphy’s analysis in Kaplan was filled with errors;

among other things, he again “overrepresented ‘fails’ generally”

and   again     drew     conclusions    from   a   skewed,     unrepresentative

sample.      Id. at 752, 754.          When the defendant in Kaplan noted

several such problems, Murphy responded by filing a series of

late reports attempting to repair his earlier ones –- much as he

did in this case. 3        The Sixth Circuit held that, despite Murphy’s


      2
       In Kaplan, “the EEOC sued the defendants for using the
same type of background check that the EEOC itself uses.”    748
F.3d at 750. The EEOC’s claim here is largely the same. Still,
the irony of that course is not the subject of this appeal,
which focuses only upon the actions that the agency undertook in
presenting its case.
      3
       In the present case, Murphy submitted additional reports
right up to the day of the summary judgment hearing.      As the
majority notes, the district court correctly saw these last-
minute changes for what they were: “poorly disguised attempts to
(Continued)
                                         17
eleventh-hour         effort     to    patch    his       mistakes,        his    methodology

“flunked” every test used to assess expert reliability.                                  Id. at

752.    After cataloguing a variety of flaws in Murphy’s analysis,

the Sixth Circuit concluded that Murphy’s testimony amounted to

“a homemade methodology, crafted by a witness with no particular

expertise       to    craft      it,    administered            by     persons        with     no

particular expertise to administer it, tested by no one, and

accepted       only   by   the    witness      himself.”             Id.    at   754.        That

account describes the EEOC’s expert evidence in this case to a

tee.

       Murphy’s       flawed     approach      is       not   just    a    recent     problem.

Over    a   decade     ago,      in   Cooper       v.    Southern      Co.,      Murphy      drew

different but no less severe criticism.                        See 390 F.3d 695 (11th

Cir. 2004), overruled in part by Ash v. Tyson Foods, Inc., 564

U.S.   454,     456-57     (2006)      (per    curiam).         The        Eleventh      Circuit

concluded a report from Murphy served only to “recapitulate[]

the    basic    allegations       of    the    plaintiffs        in       the    guise    of   an

expert report.”         Id. at 716 n.10.            Indeed, his report lacked any



counter   [Freeman]’s arguments  with  new   expert  analyses.”
Freeman, 961 F. Supp. 2d at 797. The EEOC nevertheless insists
that the tardy reports were merely supplements.      But “[t]o
construe Rule 26(e) supplementation to apply whenever a party
wants to bolster or submit additional expert opinions would
wreak havoc in docket control and amount to unlimited expert
opinion preparation.”  Campbell v. United States, 470 F. App’x
153, 157 (4th Cir. 2012) (quotation marks and alterations
omitted).


                                              18
“statistical evidence to substantiate [its] broad claims.”                               Id.

Thus, the report and the “sweeping conclusions” within it were

“of extremely limited use.”            Id.

      Other recent cases provide additional examples of Murphy’s

lax attitude towards scientific rigor.                        In Boelk v. AT & T

Teleholdings, Inc., No. 12–cv–40–bbc, 2013 WL 3777251 (W.D. Wis.

July 19, 2013), for example, Murphy attempted to offer an expert

opinion    premised        on      “common        sense,”     “obvious[ness],”           and

“foreseeab[ility].”          Id. at *8.             Unsurprisingly, the district

court held that such testimony was “not the appropriate subject

of expert testimony” and did not create a genuine dispute of

material fact at summary judgment.                     Id.        Echoing a familiar

theme,    the    court     dubbed    Murphy’s       testimony      “too       general    and

speculative to be useful.”                  Id.     The Second Circuit too has

rejected        Murphy’s     conclusions,           holding       that        Murphy     had

incorrectly        accused        another     expert        of     making       unfounded

assumptions in her report.              See M.O.C.H.A. Soc’y, Inc. v. City

of Buffalo, 689 F.3d 263, 278-79 (2d Cir. 2012).



                                            II.

      Despite Murphy’s record of slipshod work, faulty analysis,

and statistical sleight of hand, the EEOC continues on appeal to

defend his testimony.             Conceding that Murphy’s report was not an

“A+   report,”     the     EEOC    nevertheless       says       that    it    meets    some

                                             19
indeterminate threshold of reliability.                       In doing so, however,

the Commission advances positions that are not grounded in law.

Most troubling is its view that problems in an expert’s data are

an inappropriate reason to exclude that expert.

       Evidence       is    admissible     only   if    “it    rests    on     a    reliable

foundation.”          Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597

(1993).       Thus, the trial court must probe the reliability and

relevance of expert testimony any time “such testimony’s factual

basis,       data,     principles,       methods,      or    their     application         are

sufficiently          called     into     question.”           Kumho     Tire       Co.    v.

Carmichael, 526 U.S. 137, 149 (1999).                       Federal Rule of Evidence

702 likewise directs courts to verify that expert testimony is

“based on sufficient facts or data.”                    See Fed. R. Evid. 702(b).

“A   court      may    conclude       that   there      is    simply     too       great   an

analytical gap between the data and the opinion offered,” and

accordingly choose to exclude the opinion.                        Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997).

       The     EEOC,       however,     ignores   this       threshold       analysis      by

contending that the issue of the reliability of an expert’s data

is always a question of fact for the jury, except perhaps in

some     theoretical,          rare     case.       See,      e.g.,     Reply       Br.     15

(“[P]urported flaws in Murphy’s analyses concerned data . . .

and therefore concerned weight/credibility issues for trial, not

admissibility.”).              The    agency’s    contention         ignores       Daubert’s

                                             20
instruction that the district court must act as a gatekeeper.

Moreover, no court has accepted the agency’s argument.                              Rather,

courts widely agree that “trial judges may evaluate the data

offered to support an expert’s bottom-line opinions to determine

if   that   data    provides     adequate       support     to    mark    the   expert’s

testimony     as    reliable.”      Milward        v.    Acuity    Specialty         Prods.

Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011) (quotation marks and

alteration omitted); accord Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247, 276 (3d Cir. 2014); In re TMI Litig., 193 F.3d

613, 697 (3d Cir. 1999); United States v. City of Miami, 115

F.3d 870, 873 (11th Cir. 1997).                  The EEOC’s contention was not

simply      meritless,     but     unsupported           and      without       a     legal

foundation.



                                   *   *     *    *

      The EEOC wields significant power, some of which stems from

the agency’s broad discretion to investigate, conciliate, and

enforce,    and    some   of   which   derives          from   public     actions      that

exert influence outside the courtroom. The Commission’s actions

can be also expected to have broader consequences than those of

an   ordinary      litigant    given   the       “vast    disparity       of    resources

between the government and private litigants.”                           EEOC v. Great

Steaks, Inc., 667 F.3d 510, 519 (4th Cir. 2012).



                                           21
       In    deciding       when    to     act,      the     Commission      must       balance

sometimes-competing          responsibilities.                On     the    one   hand,    the

agency      must    serve    the     employee’s         interest      by    preventing      an

employer     from    “engaging       in     any      unlawful       employment      practice”

under Title VII.            42 U.S.C. § 2000e-5(a).                  On the other hand,

“the EEOC owes duties to employers as well: a duty reasonably to

investigate charges, a duty to conciliate in good faith, and a

duty to cease enforcement attempts after learning that an action

lacks merit.”          EEOC v. Argo Distrib., LLC, 555 F.3d 462, 473

(5th Cir. 2009).            That the EEOC failed in the exercise of this

second duty in the case now before us would be restating the

obvious.

       The EEOC must be constantly vigilant that it does not abuse

the power conferred upon it by Congress, as its “significant

resources,     authority,          and    discretion”        will     affect      all    “those

outside      parties    they       investigate          or   sue.”         EEOC   v.    Propak

Logistics, Inc., 746 F.3d 145, 156 (4th Cir. 2014) (Wilkinson,

J., concurring).            Government “has a more unfettered hand over

those it either serves or investigates, and it is thus incumbent

upon     public     officials,           high     and      petty,     to    maintain      some

appreciation for the extent of the burden that their actions may

impose.”      Id.      The Commission’s conduct in this case suggests

that its exercise of vigilance has been lacking.                            It would serve

the agency well in the future to reconsider how it might better

                                                22
discharge   the   responsibilities    delegated   to   it   or   face   the

consequences for failing to do so.




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