_______________________________________________________ No. 11-5508 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, CARLOTA FREEMAN, Intervenor Plaintiff-Appellee, v. WHIRLPOOL CORPORATION, Defendant-Appellant. ____________________________________________ Appeal from the United States District Court for the Middle District of Tennessee The Honorable John T. Nixon No. 3:06-cv-0593 ____________________________________________ BRIEF OF APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 4 C. District Court Decisions. . . . . . . . . . . . . . . . . . . . . 10 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. The district court's finding that Carlota Freeman was constructively discharged is not clearly erroneous because it was supported by the evidence, including Willie Baker's assault on Freeman and Whirlpool's failure to address the harassment leading up to it. . . . . . . . . . . . . . . . . . . . . . . . 15 B. The district court's award of equitable pay relief to Freeman was based on a sound exercise of its discretion and serves Title VII's make-whole and deterrence purposes. . . 22 1. There was no abuse of discretion in declining to cut off equitable pay relief to Freeman on the date the LaVergne plant closed, particularly as Whirlpool failed to prove that the closure would have resulted in her actual discharge. . . . . . . . . . . . . . . . . . . . . . . .22 2. The district court was well within its discretion to admit Dr. Cohen's expert report and opinion, and to award equitable relief in an amount which is supported by Dr. Cohen's testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 (a) Admitting Dr. Cohen's expert report and opinion was not an abuse of discretion. . . . . . . . . . . . . . . . . . . . .37 i. The district court properly declined to strike Dr. Cohen's expert report and testimony since there was no violation of Rule 26(a)(2)(B) and, as the district court found, any alleged discrepancies between the report and his later trial testimony are at worst harmless. . . . . . . . . . . . . . . . . . . . . . . 37 ii. The district court properly found Dr. Cohen's expert report and testimony reliable. . . . . . . . . . . . . . . 43 (b) Awarding equitable pay relief based on the testimony of Dr. Cohen, which the district court found credible, was not an abuse of discretion. 46 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 TABLE OF AUTHORITIES Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . 13, 22, 23 Anderson v. Bessemer City, 470 U.S. 564 (1985). . . . . . . . . . . . 28 Bruhwiler v. Univ. of Tenn., 859 F.2d 419 (6th Cir. 1988). . . . . . . . . 16 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). . . . . . . . . . . . . . . . . . 11, 14, 43, 44 Davis v. Combustion Eng'g, Inc., 742 F.2d 916 (6th Cir. 1984). . . . . . . 30 Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976 (6th Cir. 2004). . . . . . . . . . . . . . . . . .37, 38 Gaddy v. Abex Corp., 884 F.2d 312 (7th Cir. 1989). . . . . . . . . . . . 32 Gross v. Commissioner, 272 F.3d 333 (6th Cir. 2002). . . . . . . . . . . . 44 Hance v. Norfolk S. Ry. Co., 571 F.3d 511 (6th Cir. 2009). . . . . . . . . 48 Hill v. Spiegel, Inc., 708 F.2d 233 (6th Cir. 1983). . . . . . . . . 31, 32 In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008). . . . . .46 Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999). . . . . . . . . . . 21 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). . . . . . . . . . 44 Lewis v. Federal Prison Indus., Inc., 953 F.2d 1277 (11th Cir. 1992). . . 26 Logan v. Denny's, Inc., 259 F.3d 558 (6th Cir. 2001). . . . . . . . . . . .20 Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d 666 (6th Cir. 2008). . . . . . . . . . . . . . . . . .35, 48 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995). . . . . . 35 Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . .45 Moore v. KUKA, 171 F.3d 1073 (6th Cir. 1999). . . . . . . . . . . . . . . 17 Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000). . . . . .34 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). . . . . . . . . . . . . . . . . . 12, 15, 17, 31 Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001). . . . . . 33 Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614 (6th Cir. 1983). . . . . . . . . . . . . . . 23, 24, 30 Schrand v. Federal Pacific Elec. Co., 851 F.2d 152 (6th Cir. 1988). . . . .31 Shore v. Federal Express Corp., 777 F.2d 1155 (6th Cir. 1985). . . . . 23, 24 Shore v. Federal Express Corp., No. 81-2402, 1986 WL 25448 (W.D. Tenn. 1986), aff'd, 875 F.2d 867, 1989 WL 48382 (6th Cir. 1989). . . . . . . . . . . . . . . . . .26-27 Shore v. Federal Express Corp., 42 F.3d 373 (6th Cir. 1994) . . . . . . 27 Thompson v. Doane Pet Care Co. 470 F.3d 1201 (6th Cir. 2006). . . . . . 42 United States v. City of Warren, Mich., 138 F.3d 1083 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 22 United States v. Demjanjuk, 367 F.3d 623 (6th Cir. 2004). . . . . . . . . 43 West v. Tyson Foods, Inc., 374 F. App'x. 624 (6th Cir. 2010). . . 17, 19, 20 Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998). . . . . . 32, 33 Statutes 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1981a(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . 1 Rules Fed. R. Civ. P. 26(a). . . . . . . . . . . . . . . . . . . . . 37, 40, 42 Fed. R. Civ. P. 37(c)(1). . . . . . . . . . . . . . . . . . . . . . . . 37 Fed. R. Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . 44 INTRODUCTION Whirlpool Corporation's code of ethics states that "[i]n all aspects of [its] business, Whirlpool is continually looking for ways to ensure that [it] do[es] the right thing."<1> The facts of Carlota Freeman's experience at Whirlpool, as found by the district court, prove this tragically false. This appeal only underscores the falsity: Whirlpool continues to seek to deny Freeman all the equitable relief the district court concluded would make her whole. But because Whirlpool has not demonstrated any abuse of discretion or clear error below, this Court should affirm. STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, 1345, and 42 U.S.C. § 2000e-5(f)(1), (3). A final judgment was entered on December 21, 2009. R.195.<2> Whirlpool filed a Motion to Alter or Amend the Judgment on January 15, 2010 (R.196), which the district court denied on March 31, 2011. R.226. Whirlpool filed a timely notice of appeal on April 26, 2011. R.230. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Was the district court's finding that Carlota Freeman was constructively discharged not clearly erroneous because it was supported by the evidence, including Willie Baker's assault on Freeman and Whirlpool's failure to address the harassment leading up to it? 2. Was the district court's award of equitable pay relief to Freeman based on a sound exercise of its discretion and consistent with Title VII's make-whole and deterrence purposes? STATEMENT OF THE CASE A. Course of Proceedings On June 9, 2006, the EEOC filed a complaint against Whirlpool Corporation under Title VII of the Civil Rights Act of 1964, alleging that Willie Baker subjected Carlota Freeman to continuous sexual and racial harassment beginning in January 2004, and that Freeman reported it on many occasions but Whirlpool failed to stop it. R.1 at 3 ¶¶8-9. The EEOC further alleged that on or about March 26, 2004, Baker assaulted Freeman, causing physical harm and post-traumatic stress disorder, and causing her to be unable to return to employment. Id. ¶10. Freeman intervened in the EEOC's suit on July 24, 2006. R.9. From February 24 to 27, 2009, the district court conducted a four- day bench trial. R.171,<3> R.172, R.173, R.174. The court granted Freeman's motion to submit her video deposition in lieu of appearing at trial, but otherwise deferred rulings on the admissibility of evidence until the close of trial. R.160; R.161; R.171 (Tr. 4); R.193. Relevant here, on June 16, 2009, the district court denied Whirlpool's motion to strike the opinion and report of the plaintiffs' economics expert. R.192. The court rendered its judgment on the merits on December 21, 2009, finding Whirlpool liable under Title VII for the harassment and assault Freeman suffered. R.194 at 6-23. The court also found that Whirlpool had constructively discharged Freeman. R.194 at 23-29. On March 31, 2011, the district court denied Whirlpool's Rule 59 motion to alter or amend the judgment. R.226. Whirlpool filed a timely notice of appeal on April 26, 2011. R.230. B. Statement of Facts Carlota Freeman, an African American woman, began working for Whirlpool in its facility in LaVergne, Tennessee in 1989. R.163 ¶2; R.194 at 2. Willie Baker, a Caucasian man, began working in the same facility in 2000. R.163 ¶3. In January 2004, Whirlpool transferred Baker to the same assembly line as Freeman. R.171 (Tr. 69); R.194 at 2. Kim Wheeler was their group leader, and Charles Fisher was the Manufacturing Supervisor who supervised them and others in the plant. R.171 (Tr. 10, 65, 66); R.194 at 2. Within days after starting to work on the same line as Freeman, Baker began "an escalating campaign of racial and sexual harassment" toward Freeman. R.194 at 8. The harassment specifically included: * Baker engaging in inappropriate staring (R.194 at 2; EEOC Appx. 216 (Freeman Dep. 141-42)); * Baker singing sexually lewd and vulgar songs - Freeman described them as "fuck you" songs - which she had to endure "day in, day out." (R.194 at 3; EEOC Appx. 184-85, 219-21 (Freeman Dep. 15-18, 156-61)); * Baker discussing the sexual skills of black men versus white men, commenting on Freeman's underwear and her "cute little body," and telling her that she was his "girlfriend" (R.194 at 3; EEOC Appx. 218-19, 247 (Freeman Dep. 150-56, 265-67)); and * Baker making racial comments to Freeman, such as that he had nothing "against black people," but that he did not get along with one of their black coworkers (R.194 at 10; EEOC Appx. 210, 211 (Freeman Dep. 120, 124)). Over the course of more than two months, Freeman repeatedly complained to Fisher about Baker's comments. R.194 at 3; R.171 (Tr. 19-20). Fisher generally responded by saying, "I'll handle it," or "I'll take care of it," or "just ignore it." R.171 (Tr. 21); EEOC Appx. 214 (Freeman Dep. 135); R.194 at 18-19. Fisher did not conduct an investigation or confront Baker about his conduct. R.194 at 3-4. On March 22, 2004, Baker made racist and threatening statements to Freeman - such as "I'm tired of you niggers," and "I'm killing you black motherfuckers" - and made what Freeman believed were gun gestures, and generally acted angry. R.194 at 4; EEOC Appx. 208, 209 (Freeman Dep. 109-11, 113-16); R.171 (Tr. 23-24). Later that day, after Fisher learned of Baker's most recent conduct, Fisher and his boss, Jimmy Lovelace, as well as the union representative, met with Baker and Freeman separately, and told them to ignore one another and not talk unless necessary. R.194 at 4; R.171 (Tr. 188); EEOC Appx. 210 (Freeman Dep. 117-18). Baker nevertheless continued to harass Freeman over the next day or two, so she complained again to Fisher. He responded, "Why don't you just go ahead and fuck him and get it over with. Then maybe he would leave you alone." R.194 at 5; EEOC Appx. 223 (Freeman Dep. 170) R.171 (Tr. 18). Baker's harassment of Freeman continued. It culminated at the end of the week, on March 26, 2004, in a violent attack in which Baker punched Freeman in the face and threw a steel valve at her and Chinica Lillard - an African American coworker who attempted to help her - and yelled at Lillard, "I'm going to get you too." R.194 at 5; R.174 (Tr. 266). Freeman was taken to the medical unit. EEOC Appx. 232 (Freeman Dep. 206-07). Freeman returned to work the following day to receive more medical treatment and to talk to Whirlpool officials. EEOC Appx. 234 (Freeman Dep. 214-16). Freeman requested personal leave effective March 29, 2004, which was granted. EEOC Appx. 238 (Freeman Dep. 232), EEOC Appx. 250 (Freeman's leave request). She began receiving mental health treatment from a psychologist and a psychiatrist. R.171 (Tr. 106); R.174 (Tr. 312-13). Both of Freeman's doctors testified that, as a result of the racial and sexual harassment and the assault, and the feeling of not being protected by Whirlpool, Freeman developed chronic post- traumatic stress disorder (PTSD). R.171 (Tr. 107, 121, 133-35); R.174 (Tr. 313, 315, 319-20). Both doctors' medical assessment was that Freeman's condition would not improve and that she likely would not be able to work again. R. 171 (Tr. 133); R.174 (Tr. 326, 28); R.194 at 6. Indeed, on their advice, Freeman resigned from Whirlpool on December 22, 2005. EEOC Appx. 239 (Freeman Dep. 234), EEOC Appx. 251 (Freeman's separation acknowledgment form). The plant at which she worked closed on August 15, 2008. R.194 at 23. The plaintiffs' economics expert, Dr. Mark Cohen, prepared an expert report and testified at trial as to the earnings Freeman lost as a result of her injuries. R.172 (Tr. 420-22); EEOC Appx. 253 (Cohen Expert Report). Dr. Cohen's expert report and testimony provided a low-end estimate of $511,888, and a high-end estimate of $773,261, for Freeman's lost compensation dating from March 2004. R.172 (Tr. 431); EEOC Appx. 355, 257 (Cohen Expert Report at 3, 5). Dr. Cohen's estimates included lost benefits valued from $104,982 to $158,586. R.172 (Tr. 436). The low-end estimate was based on a 2001 academic article stating that the mean work-life expectancy of a 43-year-old active woman with just a high school education was 14.6 years, i.e., to approximately age 57. R.172 (Tr. 441-45). The high-end estimate was based on a projected work-life expectancy keyed to when Freeman would be eligible to retire with full Social Security retirement benefits, i.e., age 67. R.172 (Tr. 429-30). Dr. Cohen testified that he knew about the potential for the plant to close when he prepared his report but concluded it did not fundamentally change Freeman's work-life expectancy or his estimate of what the range of her work-life earnings would have been in the absence of the discrimination. R.172 (Tr. 428-29, 455-57). He explained that a loss of a job does not necessarily change a person's work-life expectancy. R.172 (Tr. 456:2-458:11). And he testified that, in any event, an Internet news article he consulted at the time of the Whirlpool layoffs contained descriptions of the county labor market in robust terms. R.172 (Tr. 428:17-20, 467-68); Whirlpool Appx. 152-53. Dr. Cohen said his calculations were conservative because he did not factor in raises Freeman would have received according to the collective bargaining agreement - from the $12.38/hr. she was making before the assault (R.163 ¶4), to $12.78/hr. on August 1, 2004, to $13.08/hr. on August 1, 2005, and to $13.48/hr. on August 1, 2006. R.172 (Tr. 434-35); EEOC Appx. 252 (Plaintiffs' Trial Exh. 20 (Schedule A to collective bargaining agreement)). Dr. Cohen's estimate was also conservative, he testified, because he did not add a factor for potential overtime or shift differentials (R.172 (Tr. 432)); he presented his estimate in the form of a range (R.172 (Tr. 432)); and the upper boundary of his range - the age at which Freeman would be eligible for full Social Security benefits (67) - is itself conservative because it could change upward and people can and do work beyond that point. R.172 (Tr. 430:1-2, 432:24-25, 452:19-25). In response to a direct question by the district court at trial as to where Dr. Cohen would place Freeman's work-life expectancy on his range, Dr. Cohen stated that it is very likely that Freeman's work-life expectancy is age 67 in light of her long work- life history and her lack of substantial assets or a husband with financial means. R.172 (Tr. 453:8-454:2). C. District Court Decisions The district court found that Freeman endured a sexually and racially hostile work environment which Whirlpool knew or should have known about and that "every level of management at Whirlpool" failed to take reasonable steps to address it. R.194 at 20. The court found not only that Whirlpool's managers unreasonably handled Freeman's complaints, but that there was in fact a "shocking lack of interest . . . on the part of management at Whirlpool." R.194 at 22. The court further found that Freeman's resignation was in response to working conditions so intolerable that a reasonable person would have done the same. R.194 at 28. The court found that Whirlpool constructively discharged Freeman. R.194 at 25-29. The district court held Dr. Cohen's expert report and opinion on Freeman's lost earnings were admissible and denied Whirlpool's motion to strike. R.192 at 14-22. In so holding, the court rejected Whirlpool's challenge under Fed. R. Civ. P. 26(a)(2)(B), which requires that expert reports contain a complete statement of the expert's opinions and that the bases and information considered in forming them be disclosed. R.192 at 14-17. The court also held Dr. Cohen's expert report and testimony admissible against Whirlpool's reliability challenge under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). R.192 at 17- 21. Having admitted Dr. Cohen's expert report and testimony, the court found Dr. Cohen's calculations credible and relied on them in formulating relief. R.194 at 29. The district court further found that Freeman's "chronic post-traumatic stress disorder rendering her unable to work" made reinstatement or any other work to mitigate damages infeasible. Id. The court thus awarded $773,261 in back pay and front pay relief, consistent with Dr. Cohen's upper estimate. Id. The court denied the plaintiffs' request for an injunction because the plant in which Freeman had worked closed approximately six months before trial, on August 15, 2008, and the plaintiffs did not renew their request for this relief. R.194 at 23. But with respect to monetary equitable relief, the court awarded back pay beyond the date of the plant's closure and up to the date of the judgment, and awarded front pay in lieu of reinstatement to the end of Freeman's work-life expectancy. R.194 at 29; R.226 at 9-15. The district court awarded Freeman $300,000 in compensatory damages for her psychological and emotional injuries. The court declined to award punitive damages because it did not find that Whirlpool's managers acted with the requisite malice or reckless disregard warranting such an award. R.194 at 30. SUMMARY OF ARGUMENT The district court's award of relief in this case comports with both law and equity and should be affirmed. In Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the Supreme Court held that Title VII encompasses employer liability for constructive discharge and articulated a wholly objective standard, stating that a constructive discharge occurs when working conditions become so intolerable that a reasonable person in the employee's position would feel compelled to resign. Id. at 141. The district court found Carlota Freeman was constructively discharged as a result of Willie Baker's vicious assault upon her and Whirlpool's failure to reasonably address the harassment leading up to it, despite Freeman's numerous complaints. Given these circumstances, the court found it was reasonable for Freeman to resign. This Court should affirm. Whirlpool's appeal of the constructive discharge ruling relies on an outdated, pre-Suders constructive discharge standard that requires not only that it was reasonable for the employee to quit, but also that the employer intended her to quit. In affirming the district court, this Court should explicitly acknowledge that in Suders the Supreme Court rejected any requirement that a plaintiff prove the employer intended to drive the employee from the workplace to establish a constructive discharge. This Court should affirm the judgment in any case because the conditions of Freeman's employment made her resignation foreseeable. As relief for Freemans's constructive discharge, the district court also did not abuse its discretion in awarding equitable back pay and front pay. It is well settled that a court is obligated to exercise its discretion to award "the most complete relief possible" consistent with the dual purposes of Title VII - to make victims whole, and to deter employers from violating the statute. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421-22 (1975). The district court found, based on evidence in the record, that Whirlpool's discrimination rendered Freeman unable to work for the rest of her work life, and that the equitable goals of Title VII support full back pay and front pay. In this circumstance, the fact that the plant where Freeman worked closed six months before trial did not materially alter the court's discretion to arrive at this just result, and this is especially so since Whirlpool never demonstrated that the closure would have in fact resulted in Freeman's discharge. The district court's decision to award full back pay and front pay in these circumstances was not an abuse of discretion. Lastly, in arriving at an amount of equitable pay relief to award, the district court was well within its discretion to admit and rely on the report and opinion of the plaintiffs' economics expert, Dr. Mark Cohen, and to award equitable relief in an amount supported by his testimony. Whirlpool's contrary arguments are either based on vastly overstated alleged discrepancies between Dr. Cohen's expert report and his trial testimony, or ignore the flexible nature of the reliability inquiry required under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The district court, exercising its gatekeeper discretion, properly disposed of Whirlpool's arguments and admitted Dr. Cohen's report and testimony. The court's award was expressly based on finding that evidence credible, and Whirlpool's challenge to the award as inflated rings hollow, as Dr. Cohen's estimates were inherently conservative. Further, Whirlpool failed to demonstrate that any purported inaccuracies in Dr. Cohen's estimates made a material difference or rendered the overall award unjust. ARGUMENT A. The district court's finding that Carlota Freeman was constructively discharged is not clearly erroneous because it was supported by the evidence, including Willie Baker's assault on Freeman and Whirlpool's failure to address the harassment leading up to it. The Supreme Court held for the first time in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), that Title VII encompasses employer liability for a constructive discharge. 542 U.S. at 143. The Court stated that, in the harassment context, a constructive discharge can be regarded as "an aggravated case of . . . hostile work environment." Id. at 146; see also id. at 147-48 (stating that Suders essentially "present[ed] a worse case harassment scenario, harassment ratcheted up to the breaking point"). The Court explicitly stated that "[t]he inquiry is objective: Did the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Id. at 141. The Court further stated that "harassment so intolerable as to cause a resignation may be effected through coworker conduct . . . ." Id. at 148. The district court's finding of constructive discharge under the legal standard set forth in Suders was not clearly erroneous. Bruhwiler v. Univ. of Tenn., 859 F.2d 419, 420-21 (6th Cir. 1988) (applying clearly erroneous standard of review to finding of constructive discharge after a bench trial). The district court found that Freeman resigned in response to working conditions so intolerable that a reasonable person would have done the same. R.194 at 28. The court also found that Whirlpool contributed to those intolerable working conditions by repeatedly failing to take reasonable care to prevent or correct Baker's harassing behavior. Id. The court thus found that Whirlpool constructively discharged Freeman. Id. at 29. This was a faithful application of the constructive discharge doctrine as articulated in Suders. This Court traditionally has required that in determining whether a constructive discharge occurred "both the employer's intent and the employee's objective feelings . . . be examined." Moore v. KUKA, 171 F.3d 1073, 1080 (6th Cir. 1999) (emphasis added). Specifically, "[t]o constitute a constructive discharge, the employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit." Id. Post-Suders, this Court has continued to apply the employer intent element in constructive discharge cases, but only in unpublished decisions, most recently West v. Tyson Foods, Inc., 374 F. App'x. 624, 639-40, 2010 WL 1507629, at *14 (6th Cir. 2010). While no precedential decision of this Court has yet addressed the effect of Suders on this Court's formulation of the constructive discharge doctrine, Suders has eliminated any requirement of employer intent. In setting out the standard for establishing a constructive discharge, the Supreme Court in Suders made no mention of employer intent. See Suders, 542 U.S. at 146, 147. Justice Thomas, in a lone dissent, recognized this omission as purposeful, observing that "the Court has now adopted a definition of constructive discharge . . . that does not in the least resemble actual discharge" in part because the standard articulated by the Court does not require the employer to act "with the same purpose as an actual discharge." Id. at 153-54 (Thomas, J., dissenting). In light of Justice Thomas's observation, and the Court's articulation of the constructive discharge standard explicitly as an objective standard from the perspective of the employee - i.e., "[t]he inquiry is objective: Did the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" - there should be little doubt about the fate of the employer intent element after Suders. Nowhere in its brief does Whirlpool even cite, much less analyze, Suders, controlling Supreme Court precedent. Whirlpool simply argues that intent is a necessary element to find an employer liable for constructive discharge. And the company argues that the district court clearly erred in finding a constructive discharge given that "there was no finding that anyone in Whirlpool management had deliberately created the working conditions at issue with the intent of forcing Freeman to resign." Whirlpool Opening Br. at 16; see id. at 19. But even if employer intent were required, which it is not, Whirlpool's argument fails. In West v. Tyson Foods, for example, the plaintiff was sexually harassed in the first few weeks of work with vulgar sexual statements and unwanted touching, so she complained to the supervisor in charge. West, 374 F. App'x. at 627-28, 2010 WL 1507629, at *1. The supervisor first did not take her complaint seriously, saying, "That's how they treat their women over there," and, "Well, you know, you are hot." Id. at 628. Later in the conversation, the supervisor promised to resolve the issue, but in fact only "observed her for a few days." Id. He also agreed to move the plaintiff to a different area on the same line, but the harassment continued with the same frequency. Id. at 629, 2010 WL 1507629, at *2. Two weeks after speaking to the supervisor, the plaintiff stopped showing for work and was terminated for job abandonment. Id. The case was tried to a jury, which found constructive discharge. Tyson Foods argued there was insufficient evidence for the jury to so find. Id. at 639, 2010 WL 1507629, at *14. The Sixth Circuit rejected Tyson Foods' argument even under the pre-Suders employer intent standard. The Court stated that such intent can be shown "if the employee quitting is a foreseeable consequence of the employer's actions." West, 374 F. App'x. at 640, 2010 WL 1507629, at *14 (citing Logan v. Denny's, Inc., 259 F.3d 558, 569 (6th Cir. 2001)). The Court held that the plaintiff's decision to leave Tyson Foods was foreseeable: "It is foreseeable that, after weeks of continuous physical and verbal harassment that goes unaddressed, an employee in West's position would choose to resign. Further it cannot be said that West assumed the worst or jumped to conclusions." Id. (internal quotation marks and citation omitted). Freeman likewise did not assume the worst or jump to conclusions. The district court found that Freeman quit only after complaining of harassment by Baker for months to no avail; after complaining that Baker ignored explicit instructions to stay away from her and being told in response that she should "just go ahead and fuck him and get it over with [and t]hen maybe he would leave you alone;" after being violently assaulted by Baker; and after developing PTSD to a degree that her mental health doctors advised that returning to Whirlpool would compromise her mental health. Even more so than the plaintiff in West v. Tyson Foods, it was foreseeable that Freeman would choose to resign. This Court should affirm the district court's constructive discharge finding as not clearly erroneous. Finally, Whirlpool makes the peculiar legal argument that the district court's denial of punitive damages foreclosed a finding of constructive discharge. Whirlpool Opening Br. at 19 (citing R.194 at 30). However, this argument misunderstands the showing required for punitive damages. To impose punitive damages under Title VII, a plaintiff must show the employer acted "with malice or reckless indifference to the federally protected rights of an individual." 42 U.S.C. § 1981a(b)(1). As the Supreme Court held in Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), "[t]he terms 'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law . . . or at least . . . in the face of a perceived risk that its actions will violate federal law." Kolstad, 527 U.S. at 535, 536. This involves a totally different inquiry than what this Court has required in constructive discharge cases - i.e., whether the employer intended the employee to resign. Thus, Whirlpool is simply incorrect in arguing that the district court's finding that Whirlpool's managers lacked the requisite intent to impose punitive damages precluded a finding of constructive discharge. B. The district court's award of equitable pay relief to Freeman was based on a sound exercise of its discretion and serves Title VII's make-whole and deterrence purposes. 1. There was no abuse of discretion in declining to cut off equitable pay relief to Freeman on the date the LaVergne plant closed, particularly as Whirlpool failed to prove that the closure would have resulted in her actual discharge. In evaluating the district court's decision not to cut off monetary equitable relief due to the August 15, 2008, plant closure, the standard of review is "the familiar one of whether the District Court was clearly erroneous in its factual findings and whether it abused its traditional discretion to locate a just result in light of the circumstances peculiar to the case." Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975) (internal quotation marks and citation omitted); see also United States v. City of Warren, Mich., 138 F.3d 1083, 1096 (6th Cir. 1998) ("A court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.") (internal quotation marks and citation omitted). Congress intended courts to fashion "the most complete relief possible" in awarding equitable pay relief, and to exercise their discretion in light of the dual purposes of Title VII - to make victims whole, and to deter employers from violating the statute. Albemarle, 422 U.S. at 421. Thus, this Court should reverse the district court's decision "only for reasons which, if applied generally, would not frustrate the[se] central statutory purposes . . . ." Id.; see also Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 626-28 (6th Cir. 1983) (setting out this Court's guidelines on awarding back pay); Shore v. Federal Express Corp., 777 F.2d 1155, 1159 (6th Cir. 1985) (holding Title VII permits front pay). The district court did not abuse its discretion by declining to hold that Whirlpool's LaVergne, Tennessee plant closure cut off Freeman's back pay and declining to hold that it foreclosed awarding front pay altogether. The district court declined to hold this event cut off equitable pay relief in part because it did not find that Whirlpool would have terminated Freeman as a result of the plant closure and because it found the award is consistent with the make-whole purpose of Title VII. R.194 at 29 (finding plaintiffs' expert's calculations of Freeman's work life and income expectancy to be credible); R.226 at 14-15 (observing that it had not found that Freeman would have been terminated when her plant closed, and stating that full front pay would make Freeman whole). The district court's ruling is consistent with this Court's holding that when a Title VII violation is found, back pay should always be awarded in the absence of exceptional circumstances and should completely redress the economic injury, and that any ambiguity in what the victim would have received but for the discrimination should be resolved against the discriminating employer. Rasimas, 714 F.2d at 626, 627, 628. This Court has also held that front pay in lieu of reinstatement should be evaluated according to the same standards. Shore, 777 F.2d at 1159 (stating that "[a]wards of front pay should be evaluated under the standards applied to all Title VII relief: whether the award will aid in ending discrimination and rectifying the harm it causes"). Whirlpool complains that Freeman's relief should have been cut off as of the plant closing because "[b]eyond August 15, 2008, all hourly employees ceased work" and "the only evidence before the District Court establishes that Freeman would have been terminated when the Division closed." Whirlpool Opening Br. at 56. Whirlpool's argument fails for two reasons - the circumstances of this case render the plant closure a nonfactor and, in any event, Whirlpool has failed to establish that the district court's refusal to find that Freeman would have been terminated when the plant closed was erroneous as a matter of law. The undeniable purpose of Title VII relief is to compensate the individual for the injury caused by the discrimination. As a result of the discrimination she endured at Whirlpool, Freeman did not just lose her job, she was rendered unable to work at any job for the rest of her work-life. Had she just lost her job, the company could argue plausibly that its liability to replace her income and make her whole ceased at the point where, for legitimate reasons, Freeman no longer would have had a job at Whirlpool. This makes sense because in such circumstances, as is typically the case, the injury is the discriminatory deprivation of the job - and once the job is no longer available for legitimate reasons, liability for front pay ceases. Here, in contrast, Whirlpool's discrimination did not take away just Freeman's job; it deprived her of the ability to be employed in any job for the rest of her life. Accordingly, Freeman's relief should be measured not by reference to the availability of a job at Whirlpool's LaVergne plant but by the remainder of her work-life. Whirlpool's plant closure is simply not dispositive of this determination. Cf. Lewis v. Federal Prison Indus., Inc., 953 F.2d 1277, 1281 (11th Cir. 1992) (stating, in awarding front pay after constructive discharge, "the most important factor remains the evidence adduced at trial that the discrimination endured by Lewis in effect disabled him") (emphasis in original). The district court did precisely what was needed - it made the relief fit the injury. Because Freeman lost the remainder of her work- life due to Whirlpool's discrimination, the district court properly exercised its discretion to award Freeman full back pay and front pay to retirement age, in accordance with the goals of Title VII equitable relief: "ending illegal discrimination and rectifying the harm it causes." See Shore v. Federal Express Corp., No. 81-2402, 1986 WL 25448, at *2-3 (W.D. Tenn. 1986) (exercising discretion in light of Title VII's goals of ending discrimination and rectifying its harm and, given that plaintiff would likely never obtain a job similar to the unique one she held, awarding front pay in an amount equaling the difference between plaintiff's former salary and future salary until the end of her work expectancy of age 65), aff'd, 875 F.2d 867, 1989 WL 48382 (6th Cir. 1989); Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2d Cir. 1996) (granting 24 years of front pay not an abuse of discretion under circumstances). It is worth noting that in addition to serving Title VII's goal of making Freeman whole, the full relief accorded by the district court furthers the statute's goal of deterring discrimination. As the district court observed, "[w]hile it is undisputed that the LaVergne plant in this case closed on August 15, 2008, there is no allegation that Whirlpool itself has gone out of business or has ceased employing people in its manufacturing plants." R.226 at 14. The district court's award also avoids a windfall in Whirlpool's favor. Whirlpool should not be able to curtail Freeman's relief by relying on the fortuitous closing of its plant. Cf. Shore v. Federal Express Corp., 42 F.3d 373, 379 (6th Cir. 1994) (upholding the district court's exercise of discretion in fashioning front pay and stating that "Federal Express is no more entitled to a windfall . . . than Shore"). In sum, in fashioning relief tailored to the circumstances of the case, the district court located a just result. Whirlpool's argument also fails because even if relief were to be measured based solely on the availability of a job, Whirlpool failed even to prove its assertion that "all hourly employees ceased work" as a result of the plant closure. Whirlpool has the burden to demonstrate that the district court abused its discretion by making a clearly erroneous finding of fact. This means that Whirlpool faces the high burden of demonstrating that not finding that Freeman would have in fact been terminated when Whirlpool's LaVergne plant closed leaves this Court "with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). But Whirlpool comes nowhere close to meeting its burden. The testimony Whirlpool relies on - that of James Lovelace, Freeman's second-level manager; Catina Bouldin, her coworker; and Dr. Mark Cohen, plaintiffs' expert - does not establish this at all, much less as a matter of law. Lovelace testified that on August 15, 2008, employees stopped being paid for work at the LaVergne facility: Q: Was August 15, 2008, the last day the hourly employees worked at the LaVergne facility? A: We actually stopped production probably a couple of days before that and did some cleaning, and then they were paid up until August 15th. R.174 (Tr. 248:10-14). With respect to Bouldin, she simply testified that her employment ended when the plant shut down. R.172 (Tr. 475:10-14 ("Q: When did your employment with Whirlpool end? [Bouldin]: Last year when the plant closed.")). Bouldin was not asked - and she did not say - whether she had any opportunity to continue working for Whirlpool. As for Dr. Cohen, he testified that when he prepared his expert report detailing Freeman's lost earnings the plant was still in operation. R.172 (Tr. 428). He said he did not know how many people were displaced as a result of the layoffs. R.172 (Tr. 455:2-5). Whirlpool is correct that Dr. Cohen agreed with its counsel's question that he "assumed" that the plant's closure meant that Freeman would have to find another job, R.172 (Tr. 455-56), but his testimony obviously does not "establish" that Freeman would not have continued to work for Whirlpool in some other capacity, as Whirlpool now asserts. He simply did not know. See R.172 (Tr. 462:7-9 (Dr. Cohen essentially stating he did not know if Freeman would have "transition[ed] into a different position" at Whirlpool)). Thus, Whirlpool has not established as a matter of law that the district court's award of equitable pay relief to Freeman beyond the date of the LaVergne plant closure should be reversed. The most that can be said is that the record is ambiguous as to whether Freeman's employment with the company would have ended on the date the plant closed. The district court's decision to resolve the ambiguity against Whirlpool and in favor of make-whole relief was a valid exercise of its discretion. Rasimas, 714 F.2d at 628; see Davis v. Combustion Eng'g, Inc., 742 F.2d 916, 923 (6th Cir. 1984) (stating front pay is governed by the sound discretion of trial court; holding district court did not abuse its discretion in granting 59-year-old front pay to age 65 under ADEA even though district court found that "substantial reductions in force and changed conditions at the defendant's plant ... ma[de] it possible that the plaintiff would be lawfully terminated" before retirement) (emphasis added). This result is consistent with the general principle that the "burden of [proof] is said to be put on the party who presumably has peculiar means of knowledge" of the relevant facts. Suders, 542 U.S. at 146 n.7 (quoting 9 J. Wigmore, Evidence § 2486, at 290). Whirlpool obviously was in the best position to put on evidence at trial demonstrating what happened to all the unionized assembly line workers at its LaVergne facility. Whirlpool should not now profit from its failure to do so. The cases on which Whirlpool principally relies are also unavailing. In Schrand v. Federal Pacific Elec. Co., 851 F.2d 152 (6th Cir. 1988), this Court upheld a district court's denial of front pay due to a plant's closure because it was based on the jury's implied finding that the plaintiff would have been terminated on that date. Id. at 159. Here, however, as the district court stated, "there was no such finding by the finder of fact." R.226 at 14. Whirlpool also relies on Hill v. Spiegel, Inc., 708 F.2d 233 (6th Cir. 1983), and says "the Sixth Circuit held that any liability for lost earnings should have been limited to the time between the date of the employee's discharge and the date on which the division was completely eliminated." Whirlpool Opening Br. at 58. But Hill did not hold that. This Court stated that district courts, in deciding on relief, must exercise their discretion "reasonably and within the range of proofs in the case" and that as between the two proposed cut-off dates in that case - the date the plaintiff's job was eliminated, or the later date when the division was eliminated - the later date was "more reasonable and supportable." Id. at 238. Hill did not hold, as Whirlpool argues, that a court abuses its discretion by awarding monetary equitable relief beyond the date of a plant shutdown where the employer has not proved that the closure would have resulted in the employee's discharge. Whirlpool's reliance on Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998) is similarly misplaced. Whirlpool points out that the Seventh Circuit in Williams observed that "[t]he district court appropriately limited the duration of Williams's front pay award to one year because she would have lost her position by that time in any event because of the merger with Upjohn." Id. at 953. However, this was a fact-bound conclusion tied to circumstances specific to that case. A different record may well have yielded a different result, both below and on appeal. See Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th Cir. 1989) ("Defendants assert that no evidence has been presented to indicate that following the sale of the plant any comparable position is available for plaintiff in any of the defendant's operations although Gaddy has indicated a willingness to relocate if necessary. She is however not required to demonstrate the existence of a comparable position in the company given the presumption in her favor of full relief under Title VII. Since the defendants have not demonstrated the lack of any comparable position at any of Abex's locations, reinstatement is appropriate."). Whirlpool again points to Williams to contend that any award of equitable monetary relief to Freeman beyond the closure date of the LaVergne Plant must be considered "lost future earnings" because the Seventh Circuit held that "lost future earnings" were separate from front pay and thus subject to the damages cap. Whirlpool Opening Br. at 54. But Williams's holding in that regard does not apply: the "lost future earnings" referred to in that case pertained to nonmonetary damage to the plaintiff's character and reputation. Williams, 137 F.3d at 952-53. In this case, the district court's monetary equitable relief to Freeman pertains to lost pay, which is indisputably not subject to Title VII's cap on damages. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001); see also id. at 846 (stating "[f]ront pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement . . . [i]n cases in which [it] is not viable . . . [for example,] because of psychological injuries suffered by the plaintiff as a result of the discrimination"). Instead of the Williams Court's approach, the district court was correct to apply the approach of the Eleventh Circuit in Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000). R.226 at 12-15. In Munoz, the Eleventh Circuit placed the burden of proof on the employer to demonstrate that its elimination of the department in which the plaintiff worked would have resulted in the plaintiff's termination. 223 F.3d at 1351. The court was "persuaded that requiring an employer to demonstrate with particularity that it actually would have terminated the plaintiff ensures that equitable relief is not foreclosed lightly and thus better comports with the broad remedial purpose" of the discrimination statute. Id. In the present case, likewise, the district court's placing the burden on Whirlpool to demonstrate that its LaVergne plant closure would have in fact resulted in Freeman's discharge comports with Title VII's broad remedial purpose. This is not unlike other situations in which the employer has the burden of demonstrating that monetary equitable relief should be cut off. For example, employers bear the burden of demonstrating that equitable relief should be cut off because the employee failed to mitigate. See Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d 666, 680 (6th Cir. 2008) (reiterating Sixth Circuit rule that employers bear the burden of demonstrating failure to mitigate and refusing to hold the district court erred in finding the plaintiff did mitigate "[g]iven CWS's failure to offer any evidence to meet its burden and the rather limited evidence on this issue in the record"). And, by further analogy, under the after-acquired evidence doctrine, if an employer seeks to rely on after-acquired evidence of wrongdoing to deny an employee front pay, and to cut off back pay and certain other relief as of the date the wrongdoing was discovered, the employer "must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995) (emphasis added). The point in all of these situations is clear: even when a discriminating employer can overcome the presumption in favor of full make-whole relief, it must prove, not merely assert (or ask the court to surmise) the factual basis for doing so. 2. The district court was well within its discretion to admit Dr. Cohen's expert report and opinion, and to award equitable relief in an amount which is supported by Dr. Cohen's testimony. Whirlpool offered no expert testimony of its own on the subject of Freeman's work-life expectancy. Yet it makes numerous arguments and assertions as to why the district court should not have admitted the report and testimony of the plaintiffs' economics expert, Dr. Mark Cohen, and why the district court should not have credited Dr. Cohen's testimony in determining the amount of back pay and front pay to award. Whirlpool Opening Br. at 21-49. The district court properly disposed of these arguments in denying Whirlpool's motion to strike, R.192 at 14-22, and in denying Whirlpool's motion to alter or amend. R.226 at 3-9. The reality is that the district court did not abuse its discretion in applying the relevant civil procedure and evidentiary rules and in admitting Dr. Cohen's report and testimony. Nor did the court abuse its discretion in awarding Freeman equitable relief consistent with that testimony, as the award serves both the deterrent and make-whole purposes of Title VII. (a) Admitting Dr. Cohen's expert report and opinion was not an abuse of discretion. i. The district court properly declined to strike Dr. Cohen's expert report and testimony since there was no violation of Rule 26(a)(2)(B) and, as the district court found, any alleged discrepancies between the report and his later trial testimony are at worst harmless. Whirlpool contends the district court abused its discretion in declining to strike Dr. Cohen's report and testimony from the evidence as a sanction against the EEOC and Freeman for an alleged discovery violation. Whirlpool Opening Br. at 22-30. In particular, Whirlpool contends that the plaintiffs did not comply with Federal Rule of Civil Procedure 26(a)(2)(B), which required disclosure of Dr. Cohen as an expert, disclosure of his written report, and, Whirlpool emphasizes, a "complete statement" of all his opinions and "the data or other information considered" in forming them. Whirlpool Opening Br. at 22, 29; Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii). A violation of Rule 26(a) calls for automatic exclusion of the expert's opinion unless the violation was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004). But the district court's decision on whether or how to sanction a party under Rule 37 is reviewed for abuse of discretion. 388 F.3d at 983. Whirlpool makes two allegations of fatal discrepancies: (1) that Dr. Cohen's report did not disclose or cite certain labor market data that Whirlpool contends he testified at trial that he considered; and (2) that when the district court asked Dr. Cohen at trial to provide an opinion as to where Freeman's work-life expectancy falls within the range he identified in his report, Dr. Cohen, in providing the requested opinion (age 67), referred to factors that were not disclosed or cited in his report - Freeman's lack of substantial assets or a husband with financial means. Whirlpool Opening Br. at 23, 24. The district court considered Whirlpool's arguments and denied its motion to strike Dr. Cohen's report and testimony. R.192 at 14-17. The district court did not abuse its discretion in denying Whirlpool's motion to strike. It is important to remember what Dr. Cohen's report was designed to do: "analyze and render [an] expert opinion on the monetary losses [Freeman] has suffered as a result of the physical and psychological injuries . . . following the alleged incident that is the subject of this lawsuit." EEOC Appx. 253 (Cohen Report at 1). Dr. Cohen testified at trial that in arriving at the range of Freeman's work-life expectancy in his report he "took into account the local labor markets that certainly at the time of this incident were quite robust." R.172 (Tr. 428:18-20). But he further testified that this was not really relevant to work-life expectancy: A: Well, I looked up local labor markets and looked up the Tennessee Department of Labor - I always forget the exact name of it, but the State government labor office, and looked at the data. Looked at local newspaper reports. And as, you know, a business school professor at Vanderbilt for 22 years, I follow the local labor markets and know the situation. But in this case, I did do a quick sort of update of my knowledge and looked to see what was happening in that area and what was happening overall. But that doesn't require much work on my part because I generally keep up with this. Q: None of that data appears in your report anywhere, does it? The local labor market information? A: No, I just provided my opinion as to what her work life would be, and it wasn't relevant. Again, if I had adjusted things, that would have been something I would have sat down and explained in my report, but, no, I didn't. R. 172 (Tr. 458:21-459:15). As he explained in earlier testimony, in the field of economics, a person's work-life expectancy generally is not tied to their short-term job prospects. R.172 (Tr. 456:2-458:11). Whirlpool makes much of the fact that in the above testimony Dr. Cohen made a passing, vague reference to state government labor office data that is not in his report. But this provides no basis upon which to strike his expert opinion. What Whirlpool's argument boils down to is that if an expert report does not contain information the expert considered not relevant in forming his opinion, the Rule 26(a) requirement that expert reports contain information considered in forming the opinion is violated. This makes no sense. The more logical reading of Rule 26(a)(2) is that an expert report must include information the expert does consider relevant in forming his opinion. Accordingly, there was no violation of Rule 26(a)(2). To the extent a discrepancy existed between Dr. Cohen's report and his trial testimony, it was, as the district court found, harmless. Whirlpool claims it was harmed by not being able to cross-examine or hire an expert to refute Dr. Cohen's "use" of the state government labor office data. Whirlpool Opening Br. at 28. But as the district court found, notwithstanding the vague reference to looking at state government labor office data (R.226 at 9), Dr. Cohen's trial testimony referenced more specifically the Internet news article that he consulted at the time of the Whirlpool layoffs in which the county labor market was described in robust terms. R.172 (467:16-468:12). Dr. Cohen's deposition confirms not only that this article is the key document he reviewed as background research about the labor market, but also that he does not believe the short-term health of the local labor market is particularly relevant. R.192 at 16-17; EEOC Appx. 261 (Cohen Dep. 59-61). In light of the disclosure of the Internet article in Dr. Cohen's deposition well before trial, the district court found that any Rule 26(a) violation that may have occurred was harmless. R.192 at 16-17. This was a well-considered exercise of the court's discretion. The other purported discrepancy between Dr. Cohen's report and his trial testimony relates to Dr. Cohen's response to a question posed directly by the district court: Court: Do you have any opinion as to [whether] a woman with Freeman's statistic would retire between age 58 and 67? The Witness: Well, Your Honor, yes . . . somebody with a long work life history, without substantial assets, in other words a cushion, and who is healthy, when you take those combined factors, okay, without a husband, let's say, who is wealthy, independently wealthy or have a high earning job, or also a husband who is older and therefore tends to retire early and the spouse retires or vice versa, those are the kinds of factors that one would take into account. So given all those factors, it's very likely, again barring another injury, barring early death, it's very likely that age 67 would be a work life. R.172 (Tr. 453:8-454:2). The factors Dr. Cohen mentioned in response to the court's question are not in his expert report. Id. (Tr. 453:3-6). But this is not a discrepancy which violates Rule 26(a)(2). Dr. Cohen simply answered a direct question by the court which asked him to supplement the opinion in his report (the work-life expectancy range) with a probability opinion (where Freeman falls on the range). As this Court held in Thompson v. Doane Pet Care Co. 470 F.3d 1201 (6th Cir. 2006), "[s]ection 26(a)(2)(B) does not limit an expert's testimony simply to reading his report. . . . The rule contemplates that the expert will supplement, elaborate upon, explain and subject himself to cross examination upon his report." 470 F.3d at 1203. That is what Dr. Cohen did, and at the specific request of the district court. The court relied on Thompson and correctly held that it would be improper to strike an expert's opinion for his failure to "include within his report the basis for opinions which he might discuss for the first time in response to the Court's questioning at trial." R.192 at 17. ii. The district court properly found Dr. Cohen's expert report and testimony reliable. This Court reviews the admission of expert evidence for abuse of discretion and will affirm the district court's decision unless it was manifestly erroneous. United States v. Demjanjuk, 367 F.3d 623, 633 (6th Cir. 2004). This review is made with the understanding that "[a]n expert is permitted wide latitude to offer opinions," Daubert, 509 U.S. at 592, and that a district court's discretion to make admissibility rulings on expert opinions "is particularly broad in a bench trial," Demjanjuk, 367 F.3d at 633. The district court did not abuse it discretion in concluding that Dr. Cohen's choice of the age at which Freeman will be eligible for full Social Security benefits - age 67 - as the upper boundary was reliable. To be sure, the court declined to mechanically apply the Daubert factors. As the court explained, however, those factors are not helpful here because little academic research has been done. R.192 at 19. That does not mean, as Whirlpool argues, that the district court abdicated its gatekeeper role. Whirlpool Opening Br. at 31. Just the opposite: it would be an abdication of the gatekeeper role to mechanically apply factors which have no applicability. Recognizing this, the district court quite properly grounded its reliability determination on Dr. Cohen's testimony as to why he chose the range that he did. R.192 at 20. This is precisely what Rule 702 calls for. See Daubert, 509 U.S. at 594-95 ("The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is . . . the evidentiary relevance and reliability of the principles that underlie a proposed submission."). Indeed, "whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Gross v. Commissioner, 272 F.3d 333, 339 (6th Cir. 2002) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999)); see also id. (stating that the Daubert test is not a "straightjacket," but that courts should not adopt an "excessive level of generality"). In any event, the court's assessment of the reliability of Dr. Cohen's expert opinion marking the age at which Freeman will be eligible for full Social Security retirement benefits as the upper end of her expected work life is manifestly reasonable. Whirlpool repeatedly cites Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398 (6th Cir. 2006), to support its argument that the district court abused its discretion. But in that case the district court made no findings at all under circumstances in which the Daubert factors could be applied. Id. at 407. This Court's review of the record in Mike's Train, moreover, led it to conclude that the expert "lacked a rudimentary understanding" of the subject of his testimony; that he "arbitrarily" chose certain factors; and that he "not only created his report for the purposes of litigation, but . . . created the precise methodology at issue for that purpose as well." Id. at 408. Dr. Cohen's report and testimony bear no resemblance to what this Court rejected in Mike's Train. The district court also held Dr. Cohen's opinion reliable without having been adjusted for the LaVergne, Tennessee plant closure in August 2008. R.192 at 20. Whirlpool asserts that Dr. Cohen's decision not to "discount" his range of Freeman's work-life expectancy given the LaVergne plant closure is "without justification" and renders his opinion unreliable. Whirlpool Opening Br. at 44-46. But Dr. Cohen testified that he knew of this fact and explained why it did not change his work-life ranges. R.172 (Tr. 456:2-458:11). The district court was thus correct that Whirlpool disputes not the reliability of Dr. Cohen's opinion, but the conclusion itself, which "is not a threshold reliability issue, but a question more properly considered in the Court's disposition of the underlying Title VII action." R.192 at 20. See In re Scrap Metal Antitrust Litig., 527 F.3d 517, 527, 529-32 (6th Cir. 2008) (upholding district court's admission of opinion of plaintiff-appellee's damages expert; explaining that defendant-appellant's Daubert arguments confused credibility and accuracy with reliability). Whether and how to account for the plant closing were questions for the district court to consider in deciding on discretionary equitable pay relief. As stated in part B.1., above, under the circumstances of this case, declining to cut off equitable pay relief simply due to the plant closure was consistent with the court's discretion. The amount the court awarded was consistent with its discretion as well, as explained below. (b) Awarding equitable pay relief based on the testimony of Dr. Cohen, which the district court found credible, was not an abuse of discretion. Once expert testimony is admitted, the fact finder is responsible for deciding whether to believe it and, if so, how much weight to give it. In re Scrap Metal, 527 F.3d at 531. The district court here explicitly found credible Dr. Cohen's expert calculations regarding Freeman's projected work-life expectancy and, to make Freeman whole, granted back pay and front pay totaling $773,261 according to Dr. Cohen's upper estimate. R.194 at 29. Whirlpool finally challenges the part of the award pertaining to lost benefits as an abuse of discretion. Whirlpool Opening Br. at 47-49. In particular, Dr. Cohen's upper estimate, and thus the district court's equitable pay award, includes $158,586 to account for Freeman's lost benefits. R.172 (Tr. 436); EEOC Appx. 258 (Cohen Report at 6). Whirlpool asks this Court to cut the award by this entire amount because it includes certain fringe benefits Freeman did not partake in, and because, Whirlpool argues, Dr. Cohen's method of calculating lost benefits artificially inflated the amount. Whirlpool Opening Br. at 47- 49. But Whirlpool's argument is both factually and legally flawed. As a factual matter, although the $158,586 figure may account for group benefit plan costs related to benefits to which Freeman was entitled but had waived (health, dental, and vision coverage), it also accounts for benefits that Whirlpool does not contest - for example, a pension plan and family accidental and life insurance benefits. Whirlpool Opening Br. at 47 (citing Defendant's Appendix 3)). So it makes little sense to cut lost benefits from the award entirely. Whirlpool's argument also makes little sense legally. As the district court observed, while equitable pay relief cannot be based only on speculation, it "need not be proven with the exactitude of lost profits in a breach of contract case" or with "absolute accuracy." R.226 at 6 (quoting Hance v. Norfolk S. Ry. Co., 571 F.3d 511, 520 (6th Cir. 2009)). And "[a]ny ambiguity . . . should be resolved against the discriminating employer." Hance, 571 F.3d at 520 (internal quotation marks and citation omitted). The court's equitable pay award represents reasonably accurate make-whole relief. To the extent there was some minor inflation in the award traceable to certain lost benefits, this was likely offset by other factors. Cf. Madden, 549 F.3d at 680 (affirming allegedly imperfect equitable award because alleged inflationary error was offset by exclusion of deflationary factors). For example, Dr. Cohen's estimate was conservative. It did not factor in raises Freeman would have received according to the collective bargaining agreement - from the $12.38/hr. she was making before the assault (R.163¶4), to $12.78/hr. on August 1, 2004, to $13.08/hr. on August 1, 2005, and to $13.48/hr. on August 1, 2006. R.172 (Tr. 434-35); EEOC Appx. 252 (Plaintiffs' Trial Exh. 20 (Schedule A to Collective Bargaining Agreement)). Nor did it factor in the potential for overtime or shift differentials. R.172 (Tr. 432). Thus, one cannot say with any degree of confidence that the inclusion of some unquantified portion of the $158,586 pertaining to Freeman's lost benefits made a material difference. Whirlpool did not demonstrate how excluding those benefits materially affects the overall award or, in fact, at all. Similarly, Whirlpool argues the portion of the award attributable to benefits is fatally flawed because Dr. Cohen used Bureau of Labor Statistics estimates related to benefit costs rather than the value of the benefits to Freeman. Whirlpool also faults Dr. Cohen for not using "actual Whirlpool information" for his benefits calculation. Whirlpool Opening Br. at 48. Tellingly, Whirlpool's brief cites no such information. Id. at 48-49. Again, Whirlpool has provided no demonstration that this undisclosed information or its preferred methodology for calculating Freeman's lost benefits would have made any material difference, as the district court held. R.226 at 6-7. CONCLUSION The district court's judgment and award comport with both law and equity. This Court should affirm. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I hereby certify that the attached appellee brief is proportionally spaced, has a typeface of at least 14 points, and contains 9,976 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). /s/ Corbett L. Anderson____ CERTIFICATE OF SERVICE I hereby certify that on September 12, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system. /s/ Corbett L. Anderson____ CERTIFICATE OF CORRECTIONS I hereby certify that this is a corrected copy of the brief filed on September 12, 2011. It differs from the original in only the following non-substantive respects: (1) the font style and size in the table of contents were changed from Times New Roman 12-point, to Century Schoolbook 14-point to conform to the text of the brief; (2) the table of authorities was made complete by listing cases and page numbers missed in coding the word-processor's automatic table of contents generator; (3) a missing citation to the EEOC's appendix was added at page 8, line 3; (4) in the argument heading at p. 15, the first reference to "Freeman" was clarified to read "Carlota Freeman;" and (5) in the certificate of compliance, "opening brief" was corrected to read "appellee brief" and the word count was updated by four words. /s/ Corbett L. Anderson ADDENDUM Designation of District Court Documents Relevant to Issues on Appeal ------+-------------------------------------------------------------- Docket Description No. ------+-------------------------------------------------------------- 1 EEOC Complaint 9 Intervenor’s Complaint 13 Answer to EEOC Complaint 23 Answer to Intervenor’s Complaint 69-1 Expert report of plaintiffs’ expert, Dr. Mark Cohen 90 Motion to excuse Freeman from trial 160 Order granting motion to allow Freeman’s testimony to be introduced by deposition 161 Order deferring judgment on pre-trial motions 163 Stipulations by the parties 171 Amended Vol. 1 of trial transcript, for 2/24/09 172 Volume 3 of trial transcript, for 2/26/09 173 Volume 4 of trial transcript, for 2/27/09 174 Volume 2 of trial transcript, for 2/25/09 175 Amended witness/exhibit list 182 Whirlpool’s motion to strike the report, opinion, and testimony of Dr. Mark Cohen 187 Response in opposition to motion to strike the report, opinion, and testimony of Dr. Mark Cohen 192 Order denying Whirlpool motions to strike 194 Memorandum Order rendering judgment for plaintiffs 196 Whirlpool motion to alter or amend judgment 213 Response of EEOC in opposition to Whirlpool motion to alter or amend judgment 214 Memorandum in support of R.213 215 Response of Carlotta Freeman to Whirlpool motion to alter or amend judgment 226 Order granting Whirlpool motion for leave to file reply; denying Whirlpool motion to alter or amend judgment 230 Notice of appeal -------+----------------------------------------------------------- ********************************************************************************** <> <1> Available at http://www.whirlpoolcorp.com/responsibility/codeofethics.aspx (last visited September 12, 2011). <2> "R._" refers to the docket entry number in the district court docket sheet. "Tr. _" refers to the page of the trial transcript. "EEOC Appx. __" refers to the page in the EEOC's Appendix. <3> All references to R.171 are to the amended version of that day's trial transcript.