The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq. Now before the Court is Defendant's motion [#73] for partial summary judgment, and Plaintiff's cross-motion [#81] to preclude testimony by Defendant's expert witness. Defendant's motion is denied, and Plaintiff's cross-motion is granted.
Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most-favorable to Plaintiff. Harry M. Davis ("Davis") is a member of the Jehovah's Witness religion, and was employed by Defendant as a machinist between 1974 and 2002, although he was laid off at least once during that period. Due to Davis's religious beliefs as a Jehovah's Witness, he refused to work on any "implement of war." Such belief presented a problem, since Defendant regularly performed manufacturing jobs for the United States Navy. Nevertheless, prior to 2002, on several occasions Davis had asked not to work on Navy projects, and Defendant had given him other work to do. On December 9, 2002, Davis again asked to be given other work, rather than work on a Navy project. Defendant responded by suspending Davis for insubordination. On or about December 11, 2002, Davis and his union representative met with Defendant to discuss possible accommodations. According to Defendant, no reasonable accommodation was available, since Davis needed to work the first shift in order to be able to attend to other religious obligations in the evenings, and since Defendant performed so much work for the Navy. Plaintiff denies that Defendant offered Davis a reasonable accommodation, and the Court has determined that there are triable issues of fact on that point.*fn1 On December 19, 2002, Defendant terminated Davis' employment.
On June 29, 2004, Plaintiff commenced this action on behalf of Davis.
During discovery, Davis testified at deposition*fn2
concerning his efforts to find another job after
being fired. In pertinent part, Davis testified to the following
facts: 1) after his employment was terminated by Defendant, he
received unemployment benefits for a year, during which he was looking
for work, because he "wanted a job," and "needed a job"*fn3
; 2) during that period Davis checked job listings at an
employment agency and went to "two or three" job fairs;*fn4
3) Davis also applied for work at a salt plant;*fn5
4) Davis made some effort to explore the job markets in other
states;*fn6 5) the first post-termination job that
Davis took was with Target Builders ("Target"), which was a job
offered to him by a member of his religious congregation two weeks
before his unemployment benefits ran out; 6) Davis worked for Target,
a construction firm, between January 2004 and July 2005; 7) in July
2005, Davis was hired as a machinist by Bills Machine Shop ("BMS"),
where he worked until January 2009, when he was laid off; 8) after
Davis was laid off by BMS, he again looked for jobs, and attended a
job fair;*fn7 9) while looking for full-time work,
Davis did not take any "odd jobs" because he feared that his
unemployment benefits would be reduced;*fn8 10) Davis
applied for work at the post office;*fn9 11) in or
about March 2009, someone at a job fair mentioned to Davis that job
retraining was available;*fn10
12) after that date, Davis considered whether he should seek
retraining to operate numerical controlled manufacturing ("CNC")
machines;*fn11 13) Davis considered obtaining CNC
training because a lot of machine shops were "going CNC," and because
he thought that he might not have been laid off from BMS if he had
been proficient in CNC;*fn12
14) Davis did not pursue such training because he decided to look for
manual machinist jobs instead;*fn13 and 15) Davis
sought work at various machine shops which told him that they were not
hiring.*fn14 Davis was born on November 4, 1954, and
was forty-eight years old when Defendant terminated his employment.
Davis dropped out of high school at age sixteen, and began working. In
1990, Davis earned his GED degree after taking the GED examination
Defendant's expert, George A. Barrett ("Barrett"), provided an expert report [#73-3], Ex. J. The stated purpose of Barrett's report is "to present the results of an independent economic evaluation of Mr. Davis's efforts to mitigate damages by obtaining alternating [sic] employment." Id. at 2 (emphasis added). In his report, Barrett states, in pertinent part, "to a reasonable degree of economic certainty," the following:
Mr. Davis had the opportunity to obtain CNC training as early as January 2003. Despite the availability of this training in nearby Corning, New York, Mr. Davis elected not to enhance his job qualifications. It is believed that Mr. Davis could have obtained qualifications in CNC machining by completing approximately 13 semester credit hours of courses at Corning Community College, which could be completed in approximately eight months by September 2003.
Had Mr. Davis attended and completed CNC training at Corning Community College, he would have been out of the labor force for approximately eight months during which he would have lost $23,846 in 2003 dollars in wages. In addition, the total tuition and fees for this training would be approximately $2,937 in 2010 dollars. Upon completion of this training, Mr. Davis would have possessed the job experience and qualifications necessary to obtain employment in an alternative occupation as early as September 2003. His employment as a CNC machinist would have resulted in increased compensation and reduced probability of unemployment by layoff.
Economic loss of earning capacity is established by first projecting the earnings anticipated to have occurred, but for Mr. Davis' termination from Dresser-Rand. Next, the projected earnings which should have occurred following the termination, or mitigation, are established. Mitigation earnings are deducted from the 'but-for' termination earnings and the resulting difference is economic loss of earnings. In the case of Mr. Davis, it is believed that he would have easily obtained employment as a CNC machinist by August 2003 had he taken advantage of available vocational retraining in the field of computer numerical controlled manufacturing.
Barrett Report at 20. Barrett further states that "mutiple job openings for CNC qualified machinists are currently available in the Watkins Glen, New York, area[.]" Id. at 18 (emphasis added).
At deposition, Barrett clarified his report in several respects. First, Barrett clarified that he was not expressing any opinion concerning Davis's diligence in looking for a job: "I don't see in my written report any specific opinions, statements or commentary regarding the diligence or the lack of effort on his part in seeking employment." Barrett Dep. at 11; see also, id. at 11 (Barrett agreed that there was nothing in his report concerning the "adequacy" of Davis's "efforts" to find a job). Barrett, therefore, does not offer an opinion as to the reasonableness of the efforts that Davis actually made to find work.*fn15 Rather, Barrett indicates that his opinion explains "the best method" that Davis could have used to mitigate damages. Id. at 111 ("I have provided you with an opinion that I believe explains the best method by which Mr. Davis could have mitigated his damages[.]"). Barrett further clarifies that he is not expressing an opinion concerning the availability of CNC machinist jobs, or "non CNC machinist" jobs, at any time prior to 2010:
Q. Are you offering an expert opinion on the availability of non CNC machinist jobs available to Mr. Davis?
A. I did not review any material which would signify the availability or lack of availability of non CNC jobs in the Watkins Glen area at approximately 2002, so I'm not really comfortable in providing an opinion regarding that. However, my review of the labor market at it existed in the winter and spring of 2010 suggests that CNC training is far more important at this particular point in time than would be analog or non digital machinist trades. Barrett Dep. at 13-14; see also, id. at 30 (Barrett indicated that he was making assumptions concerning the job market in 2002, based on the job market in 2010); see also, id. at 99 ("I'm not certain as to what ...