Appeal from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER CA4-89-604. JUDGE John McBryde
Before Goldberg, Garwood, and Wiener, Circuit Judges.
The Equal Employment Opportunity Commission ("EEOC") filed this action against General Dynamics in the Northern District of Texas. The EEOC's complaint alleged that General Dynamics violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Specifically, the EEOC claimed that: (1) General Dynamics' policy of rejecting job applicants for the stated reason that these applicants were "overqualified" had an unlawful disparate impact on older workers, and (2) General Dynamics subjected Mr. William Willis and other similarly situated applicants over the age of 40 to disparate treatment by applying the policy of not hiring "overqualified" applicants more strictly to older workers than to younger workers.
Before the commencement of trial, the district court sanctioned the EEOC for violating a discovery order by excluding the EEOC's expert witness, Dr. Kearns, who intended to testify with regard to the EEOC's disparate impact claim. The district court also sanctioned the EEOC for its failure to adequately respond to portions of General Dynamics' interrogatories by excluding the EEOC's evidence regarding the alleged disparate treatment of employees similarly situated to Willis. As a result of the trial court's exclusions, the EEOC could ultimately present only Willis' individual claim of discrimination to the jury. The jury found that General Dynamics did not discriminate against Willis.
On appeal, the EEOC challenges the trial court's exclusion of its expert witness and the exclusion of its evidence pertaining to the disparate treatment of persons similarly situated to Willis. The EEOC also appeals the district court's admission of evidence regarding Willis' prior employment discrimination lawsuits against other employers. In their cross appeal, General Dynamics requests that we award General Dynamics attorney's fees.
We reverse the district court's exclusion of the EEOC's expert witness and the EEOC's evidence regarding persons similarly situated to Willis, and remand for further proceedings.
The exclusion of Dr. Kearns' expert testimony
On November 13, 1991, with trial scheduled to begin on December 16, 1991, General Dynamics moved to exclude the EEOC's expert witness Dr. Kearns because at the time of General Dynamics' deposition of Dr. Kearns, on September 30, 1991, Dr. Kearns could not yet provide General Dynamics with any of his Conclusions. The district court denied General Dynamics' motion, but issued an order giving the EEOC five days (until November 18) to file an instrument with the court describing everything done by Dr. Kearns in preparation for the coming trial. The order also required that the EEOC provide General Dynamics with a copy of "each tangible thing" on which Dr. Kearns had relied in forming his opinions.
In an effort to comply with the court's order, the EEOC produced an eighty-two page document for the court regarding Dr. Kearns' preparations and expected testimony. The EEOC also provided General Dynamics with computer printouts of the entire data base constructed by Dr. Kearns (except for documents that the EEOC had previously obtained from General Dynamics itself), all the computer programs Dr. Kearns had used, and the analyses he performed on the data.
On November 27, 1991, at a pretrial conference, General Dynamics complained that the EEOC should have supplied Dr. Kearns' data base and computer programs in the form of a machine-readable computer tape, rather than in the form of a computer printout. General Dynamics maintained that without the computer tapes it could not sort out the information the EEOC provided it. According to General Dynamics, the computer tapes were essential to make the provided information intelligible.
General Dynamics also complained that not all the documents used by Dr. Kearns were supplied to General Dynamics. The EEOC responded that the only documents not given to General Dynamics were copies of documents the EEOC had received from General Dynamics itself; and that instead of recopying and returning General Dynamics' records to General Dynamics, Dr. Kearns specified which information he used and described where in General Dynamics' records that information could be found.
The district Judge ruled from the bench that the EEOC failed to comply with the court's November 13 discovery order, and had not diligently developed its expert testimony. As a sanction for the EEOC's violation of the court's order, the district ...