A former employee of the City of Tampa filed an action for unlawful retaliation in violation of the Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act (“FCRA”).
Plaintiff was employed as a City Solid Waste Collection Driver. At some time during his employment, he was diagnosed with a medical condition that allegedly limited one or more of his major life activities. He filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), asserting that the City failed to reasonably accommodate his disability. He then filed, pro se, a lawsuit under the ADA for disability discrimination against the City. Plaintiff was still employed by the City when he filed his pro se lawsuit.
During the ADA lawsuit against the City, Plaintiff was involved in an accident involving the City’s solid waste truck. While waiting to unload debris at a transfer station, Plaintiff exited the truck. He thought he had pulled the parking brake prior to getting out of the truck. However, while he was out of the vehicle, it began moving forward, went over a speed bump, and struck the vehicle causing damages. There were no injuries.
The City ultimately concluded that Plaintiff hadn’t set the brake and issued a “Letter of Counseling” related to the incident because the accident was preventable. The City relied on the recommendation from its safety review committee, which concluded that Plaintiff hadn’t pulled the parking brake, as well as a traffic report and statements from a mechanic who inspected the vehicle after the accident.
Plaintiff took the deposition of the City’s Solid Waste Director as part of his pro se lawsuit against the City, which was still pending. The complaint alleged that within a month of his deposition, Plaintiff was given a notice of disciplinary action, accusing him of making false statements, and thus violating the City’s policy on “Moral Turpitude.”
At a hearing, the City showed video footage of the accident, which revealed Plaintiff exiting the vehicle without setting the parking brake. Based on the video, the City terminated Plaintiff’s employment for intentionally lying to the police and the City when he repeatedly maintained throughout the investigation and grievance process that he had pulled the parking brake.
Plaintiff alleged that the City’s stated reason for terminating his employment was “not worthy of belief.” His retaliation claims were premised on the timing of Director’s deposition and Plaintiff’s termination. According to Plaintiff, these two events were causally related. However, Plaintiff then admitted that he didn’t pull the parking brake. Plaintiff argued that the real reason he was terminated was that he pursued the initial discrimination case against the City.
The City designated a mechanical engineer specializing in accident reconstruction as an expert witness. The expert opined that the driver of the City’s solid waste truck didn’t engage the parking brake prior to exiting the vehicle at the time of the accident. In addition, the expert said that the driver failed to put the truck in neutral and didn’t follow proper procedures.
The accident reconstruction expert also concluded that the driver had a habit of not parking the vehicle properly prior to exiting because he’d done the same thing five minutes before the accident; that he knew, or should have known, that he left the vehicle in drive as he must have put it in neutral after the accident when he engaged the parking brake; and that he knew, or should have known, that he didn’t put the parking brake on since he engaged the parking brake immediately after the accident.
Plaintiff moved to strike the expert’s report in its entirety. He argued that the expert improperly opined on Plaintiff’s credibility; he didn’t have the adequate expertise to testify about Plaintiff’s “habit” or what Plaintiff “knew or should have known;” and the expert’s testimony as to the causation of Plaintiff’s accident wouldn’t assist the trier of fact.
U.S. District Court Judge James S. Moody Jr. wrote in his decision that before permitting expert opinion testimony, the court must make certain that the expert employs “in the courtroom the same level of intellectual rigor that characterizes the practice of the expert in the field,” quoting Kumho Tire Co.
The judge found that the expert’s opinion must be excluded under Daubert because portions of his report were based on pure speculation. More importantly, the entire report would not assist the trier of fact. The expert, who was experienced in mechanical engineering and accident reconstruction, wasn’t qualified to testify about Plaintiff’s “habit” and state of mind. His opinions weren’t based on sufficient facts or data. Moreover, Judge Moody said that no expert is truly qualified to opine on a person’s credibility or state of mind—determinations typically left to the finder of fact.
The expert testimony, like the expert’s report, wouldn’t assist the trier of fact because Plaintiff admitted that he failed to set the parking brake. The part of the expert’s report where he opined that Plaintiff didn’t engage the parking brake, didn’t put the vehicle in neutral, and didn’t follow proper procedure was superfluous because Plaintiff conceded these points.
The expert’s opinion, which focused on the reasonableness of Plaintiff’s actions—and which was clearly not available to the City at the time that it made the decision to terminate Plaintiff—would offer no assistance to the trier of fact. Plaintiff’s motion to strike Defendant’s expert witness and his expert report was granted.