The U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s award of summary judgment in EEOC v. Freeman.  The district court “granted summary judgment to Freeman after excluding the EEOC’s expert testimony as unreliable under [the] Federal Rule of Evidence…Without this testimony, the district court found the agency failed to establish a prima facie case of discrimination.”  EEOC v. Freeman,  No. 13-2365  U.S.C.A. (4th Cir.), Slip Op., 1.  The appeals court found that “[t]he sheer number of mistakes and omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ.’ We therefore cannot say the district court abused its discretion in ultimately excluding Murphy’s expert testimony as unreliable.”  Id., 10. 

The opinion was unanimous and written by Judge Roger L. Gregory, joined by Judges G. Steven Agee and Albert Diaz.  Judge Diaz wrote a concurring opinion highly critical of the EEOC.

Judge Agee received a recess appointment from President Clinton in December 2000 and was nominated again in 2001 by President George W. Bush.  Judge Agee was appointed by President George W. Bush.  Judge Diaz was appointed by President Obama.  In concurrence, Judge Diaz said:

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. 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. 

Id., 11 (citations omitted).  He added that “[t]he 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 discharge the responsibilities delegated to it or face the consequences for failing to do so.”  Id., 22.