plaintiff had never been a supervisor and was one of seven Construction Advisors and one Senior Construction Advisor on staff in 1991, none of whom was promoted as a result of the reorganization.
II. Motion in Limine
A. Statistical Report of Mr. Jay K. Jarrell
Plaintiff seeks to admit evidence at trial in the form of a report by Mr. Jay K. Jarrell, who is an "Accredited Personnel Diplomate" and "Certified Personnel Consultant." Mr. Jarrell's report is based on various URA internal personnel documents, including URA regulations, the URA Affirmative Action Program, job descriptions, payroll records, and summaries of personnel actions. In his report, Mr. Jarrell "noted 62 personnel actions between January 15, 1988 and June 1, 1993 that involved more than a simple grade or title change." Plaintiff's Motion for Leave to Amend Pretrial Statement at 4. We are not told what the personnel actions were.
Mr. Jarrell reported the following observations: (1) in 51 of the 62 actions, the "chosen" candidate -- we are not told for what candidates were chosen, but we assume they were chosen for promotions -- was under age 40; (2) in 9 of the 51 cases, there were unchosen candidates who were over age 40, but in 34 other cases the ages of the unchosen candidates were not known (Mr. Jarrell does not indicate the ages of the candidates in the 8 remaining cases); and (3) in 24 actions involving jobs at grade level 7 or above, all of the chosen candidates were under age 40; Mr. Jarrell was not able to determine if there were any candidates over age 40 in 20 of these 24 cases.
Mr. Jarrell admits that in most of the 62 actions, he was unable to determine whether there were any candidates over age 40. Thus, he referred to demographic data of Allegheny County, Pennsylvania, which indicate persons age 40 and older outnumber those between ages 20 and 39 by roughly 3 to 2. His conclusion was that the defendant therefore must have refused to promote candidates over age 40.
Mr. Jarrell readily concedes in his report that he could not tell whether there even were candidates over age 40 available in most of the 62 "personnel actions." Thus, we do not know whether the defendant promoted under-40s because those were the only candidates available. Nor do we know if any over-40 candidates were offered, but declined, promotions. And because we are not told what personnel actions Mr. Jarrell had in mind, we do not know whether they were promotions from entry level positions which, we assume, ordinarily go to younger workers. Finally, the leap to Allegheny County census data to infer that many over-40s were passed over for promotion is simply too attenuated to be of any value. At a minimum, statistical comparison must be between the age composition of the at-issue jobs and the age composition of the qualified population in the relevant labor market. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (10th Cir. 1993). Allowing the broad and meaningless comparison that plaintiff seeks would require an employer to consult the latest census data before each managerial decision. We do not read the ADEA to require this.
We note that Mr. Jarrell apparently has no education or background in the social science of statistics in order to qualify as an expert. And he has offered no semblance of statistical analysis that would breathe life into his bare numbers. In short, plaintiff has failed to indicate how defendant's promotion practices lead to a result different from a simply random promotion practice. See, e.g., Hazelwood School District v. United States, 433 U.S. 299, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977); Wingfield v. United Technologies Corp., 678 F. Supp. 973 (D. Conn. 1988) (holding that expert statistical interpretation, including standard deviation analysis, is required to admit statistical conclusions).
Accordingly, we cannot admit the plaintiff's proffered evidence. Our conclusion is reinforced by the recent Opinion of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 509 U.S. , 113 S. Ct. 2786 (1993), wherein the court reminded us that the Federal Rules of Evidence assign to the trial judge, as a "gatekeeper," the "task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id. at , 113 S. Ct. at 2799
Under Federal Rule of Evidence 403, relevant evidence is inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." Plaintiff's attempt at statistical evidence is deficient because it fails to correlate, in any mathematically meaningful way, the defendant's personnel decisions with employee ages. Plaintiff's meaningless statistics therefore present the dangers of misleading and confusing the jury, as well as unfairly prejudicing the defendant, with respect to defendant's conduct.
B. Evidentiary Presumption Regarding Destruction of Records
In accordance with the ADEA, the defendant retained the personnel records of both the plaintiff and the person who received the promotions sought by the plaintiff. Pursuant to its practice initiated in 1991, defendant did destroy personnel records older than one year. According to plaintiff, this violated the ADEA, and he therefore asks us to instruct the jury that it should presume that the defendant passed over candidates over the age of 40 in each instance where personnel records were destroyed. Specifically, plaintiff cites a section of the ADEA's companion regulation:
When an enforcement action is commenced under section 7 of the [ADEA] regarding a particular applicant or employee, the [Equal Employment Opportunity Commission] or its authorized representative shall require the employer to retain any record required to be kept under paragraph (b)(1) or (2) of this sect ion which is relative to such action until the final disposition thereof.
29 C.F.R. § 1627.3(b)(3) (emphasis added). This regulation, according to the plaintiff, essentially requires employers to retain all personnel records of all employees during any period when any discrimination charge is pending against that employer. Thus, because in this case the defendant has been under pending discrimination charges since 1991, the plaintiff argues that the defendant "has been under a continuing obligation to maintain all applications for the positions it has filled since 1991 and prior." Brief in Support of Motion in Limine at .
Defendant responds that an evidentiary-presumption instruction is not proper where the destruction of records was not in violation of any law or regulation. Defendant's Brief in Opposition to Motion in Limine at 3. Defendant construes the "relative to" language to mean that the retained records only must relate to the individual's charge of discrimination and others who applied for the same position. Defendant refers us to a definition of "relevant to" that is applicable in Title VII cases:
The term "personnel records relevant to the charge," for example, would include personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected.