UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Karen Cook

v. Civil No. 06-cv-58-JD

Opinion No. 2007 DNH 127

CTC Communications Corp.

O R D E R

Karen Cook brings claims against her former employer, CTC

Communications Corp., alleging that she was discharged in

retaliation for her concerns that CTC was not in compliance with

the requirements of the Fair Labor Standards Act, the Uniformed

Services Employment and Reemployment Rights Act, and the Family

and Medical Leave Act. CTC moves to exclude the testimony of

Cook's expert witness, Julie Moore. Cook moves to exclude the

testimony of CTC's expert witness, Michael Losey.

Background

Cook was a human resources manager at CTC. Her supervisor

was Tracy Bradstreet, the vice president of human resources. Ray

Allieri was chief executive officer of the company, and Jim

Prenetta was general counsel. Cook believed that Bradstreet was

not following legal requirements in human resources decisions and

that Bradstreet was angry at her for raising issues about

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compliance. Bradstreet found Cook difficult as an employee and

believed that Cook was angry, critical, and agitated. 

After Bradstreet complained to Allieri about Cook and Cook

complained to Allieri about Bradstreet, Allieri directed Prenetta

to investigate the complaints. Based on his investigation,

Prenetta recommended that Cook's employment be terminated because

of her negative relationship with other employees in the human

resources department. Bradstreet was also terminated, based on

poor performance.

Cook retained Julie Moore as an expert witness to support

her retaliation claims. According to the information submitted,

Julie Moore is a lawyer who practiced in the area of employment

law for fifteen years and then founded Employment Practices Group

"to focus on risk-management strategies for employers." (doc.

65, ex. 3). "She consults and advises on employment law issues;

conducts investigations into alleged harassment and misconduct;

drafts policies, procedures and handbooks, defends employers and

management representatives before state and federal

administrative agencies; represents individuals in certain

workplace situations; and otherwise assists and counsels

employers on harassment, discrimination, ADA, FMLA, diversity and

other workplace issues." Id. Moore also has served as an expert

witness "in various litigation matters."

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Michael Losey was an executive with Ford Motor Company and

Sperry Corporation. In 1990, he became president and CEO of the

Society for Human Resources Management and has now retired from

that position. Since his retirement, Losey "has been consulting

in the HR and association management professions, as well as

teaching and doing public speaking for companies and

associations." (doc. 66, ex. 1). His training in the area of

human resources includes a master of business administration in

industrial relations, certification as a "Senior Professional in

Human Resources," and a "Certified Association Executive." He is

a co-author and co-editor of books on human resource management.

Discussion 

Cook intends to have Julie Moore testify about the

investigation that CTC made into the circumstances that preceded

her termination from CTC. CTC represents that it retained Losey

to respond to Moore's proposed testimony and that he will testify

"about typical HR issues associated with the integration of two

companies of similar sizes, . . . will explain the problems Cook

identified, the various alternative steps the Company could have

taken to address them, and what CTC did to resolve the issues." 

In addition, CTC expects Losey to testify about the

responsibilities of Cook's job, Cook's allegation that she had a

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good faith belief that CTC was violating certain laws, and

whether her concerns justified her conduct.

Expert witness testimony is admissible if the testimony will

assist the jury, if the witness is qualified, "if the testimony

is based on sufficient facts or data, [if] the testimony is the

product of reliable principles and methods, and [if] the witness

has applied the principles and methods reliably to the facts of

the case." Fed. R. Evid. 702. To assist the jury, the testimony

must be relevant in the sense that the opinion "likely would

assist the [jury] to understand or determine a fact in issue." 

Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81

(1st Cir. 1998). If the probative value of expert testimony,

which is otherwise admissible under Rule 702, is outweighed by a

risk of unfair prejudice, the testimony may be excluded under

Federal Rule of Evidence 403. United States v. Garcia-Morales,

382 F.3d 12, 19 (1st Cir. 2004). The party offering expert

witness evidence bears the burden of establishing that the expert

is qualified to give the opinion and that the opinion to be

offered is both reliable and relevant within the meaning of Rule

702. See Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th

Cir. 2007); United States v. Vargas, 471 F.3d 255, 265 (1st Cir.

2006); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58

(8th Cir. 2006); Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.

2000). 

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I. Motion to Exclude Moore

Julie Moore would testify that Prenetta's investigation of

the complaints against Cook was flawed because he failed to

follow nine steps which she contends are required for an

appropriate workplace investigation. CTC objects to Moore's

opinions about Prenetta's investigation, contending that the

opinions are not reliable because they are not based on an

acceptable methodology or supporting sources, the opinions are

not relevant to Cook's claims, and the probative value of her

opinions is outweighed by other considerations. In response,

Cook argues that Moore is qualified to opine on investigations;

that her opinions are based on "industry standards" she has

learned from case law, publications, and her preparation for

presentations on employment law; that her opinion is relevant

because Cook was terminated based on the investigation; that the

jury requires expert opinion on the investigation to evaluate it;

and that her opinions as a lawyer would not be unfairly

prejudicial.

Although Moore's experience has included researching

information about how to conduct investigations of employment

issues, she has no first hand experience in human resources

management. Instead, her experience is as a lawyer practicing in

the field of employment law. Her expertise is in the legal

requirements and standards for employers not in human resources

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management. Therefore, Cook has not shown that Moore's opinions

on human resource management are sufficiently based on her

experience and knowledge to satisfy Rule 702.

Cook also failed to demonstrate that Moore's opinions about

the nine-step investigation standard are based on accepted

methodology or data. Moore was asked, repeatedly, to identify

the source of her nine-step investigation standard. In response,

she referred only generally to sources. Based on her

submissions, it appears that Moore developed the nine-step

standard based on what she believes would be required for

employers to avoid liability for discrimination claims. In other

words, her nine-step standard is a recommendation to avoid

liability, but it is not necessarily an industry standard. 

Moore's opinions on what would constitute an appropriate

investigation are not sufficiently supported by relevant data and

appropriate methodology to satisfy Rule 702.

Further, Cook has not persuasively explained how Moore's

opinion would assist the jury in determining whether Cook was

terminated in retaliation for her concerns about CTC's compliance

with statutory requirements. Moore's opinion is that Prenetta's

investigation was not conducted properly, which led to the

erroneous conclusion that Cook could not get along with her coworkers and should be terminated. To prove her retaliation and

wrongful discharge claims, however, Cook must show that the

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reasons given for her termination were not true and that her

termination was actually retaliatory. See 29 U.S.C. § 215(a)(3);

29 U.S.C. § 2615(a)(2); 38 U.S.C. § 4311(b); Karch v. Baybank

FSB, 147 N.H. 525, 536 (2002) ("To establish a wrongful discharge

claim, a plaintiff must allege and prove that: (1) the

termination of employment was motivated by bad faith, retaliation

or malice . . . .").

Evidence of a flawed investigation is relevant only if Cook

proves that Prenetta intentionally failed to investigate properly

in order to concoct a pretext for her termination. That theory

is not demonstrated by showing that Prenetta failed to follow

Moore's nine-step standard, which was unknown to Prenetta. 

Instead, Cook would have to show that Prenetta knowingly avoided

evidence that would have supported Cook or otherwise intended the

negative outcome despite evidence to the contrary. In the

context of this case, jurors are fully capable of assessing

Prenetta's investigation without the assistance of Moore's

opinions. 

II. Motion to Exclude Losey

Cook objects to Michael Losey's expected testimony as to

whether CTC violated the federal laws that are the bases for

Cook's claims, whether Cook's conduct complied with the standards

for a human resources manager, and whether CTC responded

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appropriately to Cook's concerns. In response, CTC defends

Losey's opinions, but admits that some of the opinions are

required only to rebut Moore's opinions. 

Losey is not a lawyer, and CTC did not show that he has

expertise in explaining the federal laws implicated in Cook's

claims. Therefore, he will not be permitted to testify about

whether CTC was violating federal law. Cook challenges Losey's

opinions on administering CTC's 401(k) and benefit plans on the

ground that such opinions were not disclosed and must be

excluded. Losey did discuss CTC's administration of its 401(k)

and other benefit plans in his report. His opinions as to why

errors or violations were occurring, however, are not relevant. 

Losey's excuses and explanations for CTC's conduct, based on

the challenges of merging companies following an acquisition, are

not relevant to Cook's retaliation claims. Therefore those

opinions will not be allowed. Similarly, Losey's opinions about

Cook's conduct are not relevant. Whether Cook was acting within

the scope of her employment depends on her specific job, not on

Losey's opinions as to what, in general, a human resource

manager's job might entail. See Garcetti v. Ceballos, 126 S. Ct.

1951, 1961-62 (2006) ("The proper inquiry is a practical one. 

Formal job descriptions often bear little resemblance to the

duties an employee actually is expected to perform . . . .")

Therefore, those opinions are not admissible. To the extent CTC

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retained Michael Losey to rebut Julie Moore's opinions, that

testimony will not be necessary. 

As none of the opinions CTC expects to elicit from Losey are

admissible, he is excluded as a witness.

Conclusion

For the foregoing reasons, the plaintiff's motion to exclude

(document no. 58) and the defendant's motion to exclude (document

no. 67) are both granted. Neither Julie Moore nor Michael Losey

will be permitted to testify as an expert witness at trial.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 15, 2007

cc: Samantha C. Halem, Esquire

Lauren S. Irwin, Esquire

Mary L. Marshall, Esquire

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