Your in-house ‘expert’ can’t be used to prove employee should have been fired

A federal trial court hearing a Texas case has concluded that employers can’t use expert testimony to tell a jury that a discharge was justifiable based on a review of a worker’s employment records. That’s for a jury to decide.

Recent case: Bryan worked as an emergency medical technician for a county ambulance service. He developed an ear disorder that required him to take time off. He went out on FMLA leave. The day he returned, he was discharged for alleged poor performance.

He sued, alleging violations of the ADA and FMLA.

Shortly before a scheduled trial, the employer told the court it wanted to call an expert witness to testify that it was justified in terminating Bryan for poor performance. That expert was Bryan’s supervisor. He planned to testify that he had reviewed Bryan’s records and determined that he posed a danger to patients. Therefore, he would say that the discharge was intended solely to protect patients.

Bryan objected, arguing that this was nothing more than an attempt to sidestep the jury’s right to determine the facts of the case—whether Bryan had been terminated for legitimate reasons or for taking FMLA leave and being disabled.

The court sided with Bryan and refused to allow the “expert” testimony. (Brightwell v. Bandera County, WD TX, 2017)

Final note: Don’t expect a supervisor or HR professional to testify as an expert on a particular discharge. They can present facts, but they cannot make expert conclusions.

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