On August 24, 2015, Derek M. Richter filed a lawsuit against the City of Commerce City, Colorado, and three individuals—Troy Smith, David Cubbage, and Karen Stevens—alleging violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Richter alleged that the defendants discriminated and retaliated against him because of his military service in the Colorado Army National Guard and the associated absences from work.
The defendants responded by denying the allegations and asserting several affirmative defenses, including that their actions were based on legitimate, non-retaliatory, and non-discriminatory reasons. The case proceeded through discovery and pretrial motions.
During the pretrial phase, the defendants disclosed Charles T. Passaglia, Esq., as an expert on USERRA-related matters. On March 25, 2016, Richter moved to exclude Passaglia’s testimony under Federal Rule of Evidence 702. Richter argued that Passaglia’s proposed opinions amounted to improper legal conclusions and that his qualifications and methodology did not meet the required standards for expert testimony.
The court reviewed the applicable legal standards for admissibility under Rule 702, emphasizing that experts must provide testimony that helps the jury understand evidence or determine facts in issue. The court noted that expert witnesses may not define legal standards or instruct the jury on what result to reach. Expert testimony must be based on sufficient facts, use reliable methods, and apply those methods to the case facts in a reliable manner.
The court examined six separate opinions offered by Passaglia and determined that each one improperly applied the law to the facts or usurped the role of the jury and court.
In the first opinion, Passaglia asserted that Commerce City had been more generous than USERRA required and more generous than other employers. The court found that this opinion was based on facts that could be presented by city employees and involved legal conclusions about the employer’s obligations.
In the second opinion, Passaglia stated that the denial of a more desirable shift assignment did not violate USERRA. The court found that this conclusion involved legal analysis and comparisons to case law, making it inadmissible.
In the third opinion, Passaglia asserted that Stevens and Cubbage were not employers under USERRA. The court determined that this was a legal conclusion based on facts that the jury should assess, and that it inappropriately directed the legal framework of the case.
In the fourth opinion, Passaglia opined that a fitness-for-duty exam required of Richter did not violate USERRA. The court rejected this opinion, stating it did not assist the jury in understanding the policies and instead applied legal conclusions to disputed facts.
The fifth and sixth opinions addressed Richter’s exclusion from the promotion process to commander and sergeant, respectively. In both instances, Passaglia concluded that the decisions were not motivated by Richter’s military service. The court found these opinions to be inadmissible because they applied law to fact and commented on the credibility and weight of the evidence.
The court ruled that none of the six opinions offered by Passaglia could be presented to the jury as expert testimony. The court emphasized that while much of the content could be presented through lay witnesses, such as human resources or management personnel, it could not be offered in the form of expert legal conclusions.
If your employer denied you a promotion, altered your schedule, or retaliated against you because of your military service, Whitcomb, Selinsky PC handles cases under the Uniformed Services Employment and Reemployment Rights Act. Reach out to schedule a consultation and learn how our team can assist with your claim.