MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Kimberly Earle alleges that her termination by Defendant, the Chair-

man of the Securities and Exchange Commission (“Defendant,” the “SEC,” or the “Commission”), constituted retaliation for engaging in protected activity and discrimination based on her gender and religion in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e et seq., and discrimination based on her age in violation of the Age Discrimination in Em- ployment Act (“ADEA”), 29 U.S.C. § 621 et seq. To support her claims, she plans to rely in part on the report and testimony of Ira W. Kitmacher, whom she has retained as an expert. The SEC has moved to exclude certain opinions of Kitmacher under Rule 702 of the Federal Rules of Evi- dence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. 2

For the reasons that follow, the motion is granted in part and denied in part.

performance and met with [her] weekly to assist in developing [her] project priorities and focus on pending deliverables.” ECF No. 70-4 at 1. In January 2018, after receiving an email from her union informing her that she “would receive a poor written performance appraisal if she did not resign or accept a demotion,” she filed an initial claim with the agency’s Office of Equal Employ-

ment Opportunity. Earle, 2020 WL 95812, at *2. In February 2018, she was given a rating of unacceptable and received her PIP, which lasted until May 2018. See id.at *3. “Plaintiff’s super- visors ultimately determined that Plaintiff failed the PIP and provided her with a Notice of Pro- posed Removal on July 30, 2018”; she was removed in September 2018. Id.

The claims remaining in this action allege that Plaintiff’s termination was retaliatory and discriminatory. See id. at[*13] (dismissing all other claims originally pleaded). “Discrimination and retaliation claims are subject to the familiar, burden-shifting framework of McDonnell Doug- las Corp. v. Green, 411 U.S. 792 (1973).” Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir.

2015) (parallel citations omitted). If a plaintiff establishes her prima facie case, “the burden shifts to the employer to identify the legitimate, non-discriminatory or non-retaliatory reason on which it relied in taking the complained-of action.” Id. at 1092. If the employer “proffers such a reason,” the plaintiff must then show “that the employer’s asserted nondiscriminatory or non-retaliatory reason was not the actual reason and that the employer intentionally discriminated or retaliated

against the employee.” Id. (quoting Allen v. Johnson, 795 F.3d 34, 39, (D.C. Cir. 2015)). Here, Plaintiff seeks to use Kitmacher’s testimony to show that the SEC’s asserted reason for terminating

her—that her job performance was substandard, see ECF No. 70-1 at 5 (Defendant’s motion for summary judgment contending that the SEC gave Plaintiff “multiple opportunities to improve her performance and correct the issues with her work product” and that the deciding official “had a genuine and honest belief based on the record that [Plaintiff] performed unacceptably in her position”)—was a pretext for retaliation and discrimination, see ECF No. 67 at 19 (Plaintiff as- serting that Kitmacher’s “testimony provides Plaintiff with the opportunity to demonstrate pre- text”).

Plaintiff intends to establish pretext by showing, in part, that “the relevant SEC manag-

ers . . . ignored the appraisal and removal provisions” governing “Performance Management” (or “PM”) in federal agencies, which are found in Chapter 43 of the Civil Service Reform Act, 5

U.S.C. Chapter 43, and in 5 C.F.R. Part 430. ECF No. 67 at 19; see also 5 U.S.C. § 4301 et seq.;

5 C.F.R. § 430.101 et seq. Chapter 43 of the Civil Service Reform Act and its implementing regulations “authorize[] agencies to remove employees or reduce them in grade due to ‘unaccepta- ble performance,’” 4 Garrow v. Phillips, 664 F. Supp. 2, 3 n.1 (D.D.C. 1987) (quoting 5 U.S.C.

§ 4303(a)), aff’d sub nom. Garrow v. Gramm, 856 F.2d 203 (D.C. Cir. 1988), which is defined as

“performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position,” 5 U.S.C. § 4301(3); see also 5 C.F.R. §

432.103(h). The statute requires each federal agency to establish “one or more performance ap- praisal systems,” which, under regulations promulgated by the Office of Personnel Management

(“OPM”), provide for such things as establishing performance standards based on objective crite- ria; communicating to employees the “performance standards and the critical elements” of their positions; evaluating employees on those standards “during the appraisal period”; “assisting em- ployees in improving unacceptable performance”; and reassigning, demoting, or removing em- ployees who, after having been given “an opportunity to demonstrate acceptable performance”

nevertheless “continue to have unacceptable performance.” 5 U.S.C. § 4302(a), (c). The regulations elaborate somewhat, defining a “[c]ritical element” as a “work assignment or respon- sibility of such importance that unacceptable performance on the element would result in a deter- mination that an employee’s overall performance is unacceptable” and an “[o]pportunity to demonstrate acceptable performance” as “a reasonable chance” to show “acceptable performance

in the critical element(s)” for which the employee has been found wanting and clarifying that, prior to demotion or removal for unacceptable performance, “the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance” with assistance from the agency.

5 C.F.R. §§ 432.103(b), (d), 432.104. The regulations also require, for example, development of a performance plan for each employee to be provided to the employee at the beginning of each appraisal period, which will generally last twelve months, id. § 430.206; “[o]ngoing appraisal” during the appraisal period of the employee’s “[p]erformance on each critical and non-critical el- ement” of the performance plan, id. § 430.207(b); and providing the employee, “[a]s soon as prac- ticable after the end of the appraisal period,” a “rating of record” that is based “on the evaluation of actual job performance for the designated appraisal period,” id. § 430.208(a)(1).

To help establish its pretext argument, Plaintiff retained Kitmacher to provide expert testi- mony on Chapter 43’s provisions and the SEC’s compliance with them with respect to Plaintiff’s performance appraisal and removal. His report offers opinions on four topics connected to Chapter

43 (some more directly than others): (1) the “SEC’s Compliance with 5 U.S.C. Chapter 43, Related to [Plaintiff’s] Performance Appraisal” by Willis; (2) the “SEC’s Compliance with 5 U.S.C. Chap- ter 43, Related to its Performance-based Removal Action against [Plaintiff]”; (3) the “SEC’s His- tory and Approach Related to [Performance Management]”; and (4) “Any Applicable [Prohibited

Personnel Practices]”—as defined in 5 U.S.C. § 2302, which include discrimination under Title

VII and the ADEA, as well as retaliation for protected activity, see 5 U.S.C. § 2302(b)(1)(A), (B), (9)—engaged in by the SEC in relation to Plaintiff’s termination. See ECF No. 66-1 8–24

(Kitmacher expert report). In general terms—further details of the opinions are discussed below—

Kitmacher concludes that the SEC was “not in compliance” with the provisions of 5 U.S.C. Chap- ter 43 governing performance appraisal, “which call[] for ongoing communication,” and that Plain- tiff’s “rights were [consequently] harmed,” 5 ECF No. 66-1 at 8; that the SEC was “not in compli- ance with” 5 U.S.C. Chapter 43 and 5 C.F.R. §§ 432.103 and 432.104,” which require a reasonable

opportunity to demonstrate acceptable performance during the PIP” before removal, resulting in harm to Plaintiff’s rights, ECF No. 66-1 at 11; that the SEC “has a continuing history of problems in administering its personnel management program” and that Plaintiff “may have been negatively impacted” by those problems, id. at 22; and that the SEC’s removal of Plaintiff “may have been negatively impacted ” and that she “may have experienced the discrimination she alleged, based on her gender, religion, and age, and that she may have been retaliated against for her protected activities,” id. at 26.

II. LEGAL STANDARD

The admissibility of expert testimony is governed by provisions of both the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Procedurally, where, as here, a proposed expert is “retained or specially employed to provide expert testimony on the case,” he or she must provide an expert report containing, among other things, “the witness’s qualifications,” “a com-

plete statement of all opinions the witness will express and the basis and reasons for them,” and “the facts or data considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i)–(ii), (iv). Requiring full disclosure of expert opinions not only protects litigants from being sand- bagged, but also “aids the court in addressing admissibility issues” effectively. Current v. Atochem

N. Am., Inc., No. 00-CA-332, 2001 WL 36101282, at *1 (W.D. Tex. Sep. 18, 2001); see also, e.g., KBS Preowned Vehicles, LLC v. Reviva, Inc., No. 13-cv-138, 2014 WL 1479169, at[*10] (N.D.W.

Va. Apr. ^[14], 2014) (“[T]he disclosure requirements of the Rules are also particularly helpful to the court in making rulings limiting or restricting expert testimony pursuant to Evidence Rules 104(a) and 702 and Daubert.” (quoting Reed v. Binder, 165 F.R.D. 424, 429 n. 9 (D.N.J. Mar. 27, 1996))).

Under Rule 37(c)(1), “[i]f a party fails to provide information . . . as required by Rule 26(a) . . . , the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1).

That is, “a party will not ordinarily be permitted to use on direct examination any expert testimony not . . . disclosed” as required by Rule 26(a)(2)(B). Fed. R. Civ. P. 26(a)(2) advisory committee’s note to 1993 amendment.

Rule 702 of the Federal Rules of Evidence provides substantive requirements for the ad- missibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702. That is, where a party offers testimony from an individual under Rule 702, a court must decide whether the individual is qualified to testify as an expert, whether the testimony offered will be helpful to the trier of fact, and whether the offered opinion is sufficiently reliable to be admissible. ^[6] Although there is “some overlap” in the inquiries, these questions “are distinct concepts that courts and litigants must take care not to conflate.” Quiet Tech. DC-8, Inc. v. Hurel-

Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). More, since “[e]xpert evidence can be both powerful and quite misleading [to a jury] because of the difficulty in evaluating it,” courts must consider Rule 403 of the Federal Rules of Evidence, which “permits the exclusion of relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, con-

fusion of the issues, or misleading the jury.’” Id. (first quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991); and then quoting Fed. R. Evid. 403); see also United States ex rel. Morsell v. Symantec Corp., No. 12-

cv-800, 2020 WL 1508904, at *7 (D.D.C. Mar. 30, 2020) (“[T]he danger of prejudice from the presentation of expert testimony is significant because of the potential for the jury to accept an

expert witness’s testimony automatically.” (quoting Edmonds v. United States, No. 05-cv-540, 2009 WL 969938, at *1 (D.D.C. Apr. ^[7], 2009)).

Preliminary questions about the qualification of a witness and the admissibility of evidence are decided by the Court under a preponderance of the evidence standard. See Fed. R. Evid.

104(a); Bourjaily v. United States, 483 U.S. 171, 175 (1987). “The proponent of the expert testi-

mony bears the burden to establish the admissibility of the testimony and the qualifications of the expert.” United States v. McGill, 815 F.3d 846, 903 (D.C. Cir. 2016).

III. DISCUSSION

As noted, a court faced with a motion to exclude expert testimony must generally answer three questions: (1) Is the proposed expert qualified to testify as to the proffered opinions? (2) Will the proffered testimony be helpful to the trier of fact? and (3) Is the testimony reliable? Here, there is no real dispute about whether Kitmacher is qualified as an expert, so that issue is addressed only briefly at the outset. The parties do have a fundamental disagreement about whether his proffered

testimony is relevant to an issue to be decided and, because that issue relates to the bulk of Kitmacher’s proposed opinions, the Court addresses it second. The rest of this section analyzes the admissibility of Kitmacher’s opinions related to each of the four specific topics noted above in turn.

A. Qualification

An individual may be qualified to testify as an expert based on his or her “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. “The degree of ‘knowledge, skill, experi- ence, training, or education’ sufficient to qualify an expert witness is only that necessary to

[e]nsure that the witness’s testimony helps the trier of fact,” that is, that the testimony “advances the trier of fact’s understanding to any degree.” 29 Wright & Miller’s Federal Practice and Proce- dure § 6264.1 (2d ed. 2025); see also Morsell, 2020 WL 1508904, at *3 (similar). As such, “[t]he court’s investigation of qualifications should not be onerous or inordinately exacting, but rather

must look to underlying competence, not labels.” Shupe v. Rocket Cos., Inc., 752 F. Supp. 3d 689, 725 (E.D. Mich. 2024) (quoting Zuzula v. ABB Power T&D Co., 267 F. Supp. 2d 703, 713 (E.D.

Mich. 2003)); see also, e.g., Shafer v. C.R. Bard, Inc., No. C20-1056, 2021 WL 4305216, at *2

(W.D. Wash. Sep. 22, 2021) (“Because the Rule ‘contemplates a broad conception of expert qual- ifications,’ only a ‘minimal foundation of knowledge, skill, and experience’ is required.” (empha- sis omitted) (quoting Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015–16 (9th

Cir. 2004))); 29 Wright & Miller’s Federal Practice and Procedure § 6264.1 (2d ed. 2025)

(“[C]ourts have found witnesses to be qualified as experts based on only a relatively modest degree of specialized knowledge. . . . Gaps in an expert witness’s qualifications or knowledge generally go to the weight of the witness’s testimony, not its admissibility. . . . Rule 702 takes a liberal approach to expert witness qualification.” (footnotes omitted)).

Kitmacher asserts that he is “an expert on federal HR matters, including those related to

[personnel management], removal, restructuring, and [prohibited personnel practices].” ECF No.

66-1 at 5. He worked in human resources for 36 years in various positions at various federal agencies, including, at his retirement, as the Chief Human Capital Officer and Human Resources

Director for the Federal Deposit Insurance Corp. (“FDIC”). See id. He has taught human resources courses at universities and trained human resources professionals. See id. at 6. He is also a li- censed attorney. See id. Plaintiff highlights his four-year stint as the “senior-most human re- sources” executive at the FDIC, as well as his credentials as “an attorney and professor.” ECF No.

67 at 12. Plaintiff also observes that “Defendant apparently concedes Mr. Kitmacher’s qualifica- tion to testify as an expert on Chapter 43, specifically, and the content and application of federal employment law in a federal financial agency.” Id.

The SEC objects to that last claim, contending that Kitmacher “is not qualified under Fed-

eral Rule of Evidence 702” because his opinions are neither “based on sufficient facts or data” nor “the product of reliable principles and methods.” ECF No. 69 at 4 (quoting Fed. R. Evid. 702(b), (c). But those are not issues of qualification, which asks only whether the individual has a suffi- cient “degree of ‘knowledge, skill, experience, training, or education’” to “help[] the trier of fact” by “advanc[ing] the trier of fact’s understanding to any degree.” 29 Wright & Miller’s Federal

Practice and Procedure § 6264.1 (2d ed.). Rather, they are challenges to the reliability of his opin- ions. See Quiet Tech. DC-8, 326 F.3d at 1341 (noting that qualification, helpfulness, and reliability

“are distinct concepts that courts and litigants must take care not to conflate”). The SEC does not suggest that Kitmacher lacks sufficient “knowledge, skill, experience, training, or education,” Fed.

R. Evid. 702, to opine on the “federal HR matters” he addresses, ECF No. 66-1 at 5. Given the “relatively modest degree of specialized knowledge” necessary to qualify as an expert, 29 Wright

& Miller’s Federal Practice and Procedure § 6264.1 (2d ed.), and because the SEC offers no argu- ment that Kitmacher has insufficient “knowledge, skill, experience, training, or education” to offer his opinions, Fed. R. Evid. 702, the Court finds Kitmacher qualified under Rule 702 of the Federal

Rules of Evidence.

B. Relevance

“Expert testimony which is not relevant is ergo non-helpful.” Dyson v. Winfield, 113 F.

Supp. 2d 44, 47 (D.D.C. 2000) (citation modified) (quoting Daubert, 509 U.S. at 591)). As noted, the parties disagree on the fundamental issue of whether the workings of Chapter 43 are relevant to the issues to be decided in this case. According to Plaintiff:

Defendant asserts that it correctly and lawfully used Chapter 43 in: (1) evaluating and giving Plaintiff an “unacceptable” rating (on February 20, 2018) for her work performance during the SEC’s Fiscal Year 2017, which ended on September 30, 2017 (“FY2017”); (2) evaluating and giving Plaintiff an “unacceptable” rating (on July 23, 2018) for her work performance during the ensuing 90-day Performance Improvement Plan (“PIP”), which ran from February 20, 2018 to May 19, 2018 (“2018 PIP”), and proposing her removal; and (3) finalizing the proposed removal on September 30, 2018.

ECF No. 67 at 7–8. Therefore, Plaintiff maintains that

[t]o show discrimination, [she] must demonstrate that (1) Chapter 43 was the mech- anism by which SEC agents could remove her to re-purpose her compensation for the new associate director position; (2) Plaintiff was chosen as the employee to be removed because of her age, sex, and religious preference; and (3) SEC agents ig- nored Chapter 43’s appraisal requirements to improperly effect Plaintiff’s removal. In other words, although the SEC used the Chapter 43’s processes to assert that Plaintiff was removed based on performance, this was a sham and her alleged sub- par performance served simply as a pretext. Accordingly, Plaintiff must introduce evidence showing that the SEC did not comply with Chapter 43.

Id. at 10 (emphasis added). The SEC, on the other hand, contends that the question to be deter-

mined is whether Plaintiff has “produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee,” which hinges on whether the managers in- volved in her termination “honestly believe[d] in the reasons [they] offer[ed]” for that adverse em- ployment action. ECF No. 69 at 2–3 (first quoting Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008), and then quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183

(D.C. Cir. 1996)). Thus, according to the agency “the actual issue to be resolved” is whether

Plaintiff can show that the SEC “did not actually believe she was underperforming,” an issue that

“offers no space for unnecessary ‘expert’ testimony about the contours of Chapter 43 and whether the Commission complied with the technical elements contained therein.” Id. at 3.

Neither party gets this quite right. The SEC is correct that Plaintiff has engaged in “the wholesale invention” of a defense strategy that depends on the agency’s compliance with Chapter

43. ECF No. 69 at 3. A glance at the SEC’s motion for summary judgment demonstrates that is

not the agency’s argument. See generally ECF No. 70-1. Chapter 43 is nowhere mentioned, nor is it relied on implicitly. See id. Rather, on the issue of pretext—the issue on which Plaintiff asserts she “must introduce evidence showing that the SEC did not comply with Chapter 43,” ECF

No. 67 at 10—Defendant argues that Plaintiff “has not, and cannot, establish that the Commission did not honestly believe that her performance was deficient” and, further, that Plaintiff has “failed to provide any evidence that the Commission had any discriminatory motive underlying its deci- sion” to remove her. ECF No. 70-1 at 15–16.

Nevertheless, the SEC’s insistence that there is “no space,” ECF No. 69 at 3, for testimony about whether it complied with the statute and regulations that “authorize[] agencies to remove employees . . . due to ‘unacceptable performance,’” Garrow, 664 F. Supp. at 3 n.1 (quoting 5

U.S.C. § 4303(a)), is not well-taken. “One way that an employee can prove his employer’s stated reason is pretext is by pointing to the ‘employer’s failure to follow established procedures or cri- teria.’” Crowley v. Perdue, 318 F. Supp. 3d 277, 293 (D.D.C. 2018) (quoting Brady, 520 F.3d at

495 n.3); accord Francis v. District of Columbia, 731 F. Supp. 2d 56, 72 (D.D.C. 2010). That is, a showing that SEC managers failed to comply with Chapter 43 may have some relevance to the question of whether Plaintiff’s deficient performance was not the real reason for her removal. ^[7]

Accordingly, the Court finds that, as a general matter, testimony about whether the SEC

complied with the requirements of Chapter 43 and its supporting regulations in the lead-up to and accomplishment of Plaintiff’s termination is relevant to whether the agency’s professed reason for removing her—that her performance was deficient—was pretextual. That does not mean, how-

ever, that the specific opinions Kitmacher offers are relevant or that they would be helpful to the factfinder. Indeed, as discussed below, only fragments of Kitmacher’s opinions are admissible.

See, e.g., O’Hara v. Lott, No. 23-cv-442, 2025 WL 2549231, at[*14] (E.D. Mo. Sep. ^[4], 2025)

(“[E]xpert testimony ‘is not helpful if it draws inferences or reaches conclusions within the jury’s

competence or within an exclusive function of the jury,’” (quoting Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 883 (8th Cir. 1998))); Klein v. Justin D. Heidman, LLC, 574 F. Supp. 3d 1006, 1012 (D. Utah 2021) (noting that expert opinions that “invade the[] fundamental roles of the judge and jury . . . are not helpful under Fed. R. Evid. 702”).

C. Kitmacher’s Specific Opinions

Having found that Kitmacher is qualified to testify as an expert and that topics he proposes to address are generally relevant to the issue of pretext, the Court next addresses whether the opin- ions he offers are otherwise admissible—that is, whether Plaintiff has established by a preponder-

ance of the evidence that his opinions are reliable and will be helpful to the trier of fact. See, e.g., Fed. R. Evid. 104(a), 702; Quiet Tech. DC-8, 326 F.3d at 1341. The SEC’s primary argument is that the bulk of Kitmacher’s opinions constitute inadmissible legal opinions. Specifically, it ob- jects to his first and second opinions, which, as characterized in Kitmacher’s report, explicitly address the SEC’s compliance with Chapter 43—that is, the “SEC’s Compliance with 5 U.S.C.

Chapter 43, Related to [Plaintiff’s] Performance Appraisal” by Willis and the “SEC’s Compliance with 5 U.S.C. Chapter 43, Related to its Performance-based Removal Action against [Plaintiff]”— and to his fourth opinion, which addresses “Any Applicable [Prohibited Personnel Practices]” en- gaged in by the SEC in relation to Plaintiff’s termination. ^[8] ECF No. 66-1 at 8, 11, 26. The SEC claims Kitmacher’s third opinion, which (like his fourth opinion) does not engage with Chapter 43 specifically but instead concerns the SEC’s “history of problems in administering its personnel management program,” is irrelevant. As discussed below, there are several reasons, some of which are related, to exclude the first and fourth opinions and most of the second. Plaintiff does not respond to the SEC’s argument that the third opinion is irrelevant, so the Court deems it conceded and finds, in any event, that the bulk of that opinion is inadmissible because it is not helpful.

1. “SEC’s Compliance with 5 U.S.C. Chapter 43, Related to Ms. Earle’s Per- formance Appraisal” (Expert Report Section II.A)

On the topic of Plaintiff’s performance appraisal, Kitmacher’s summary of his opinion as- serts, in relevant part, that “based on [his] review and analysis,” the SEC “was not in compliance” with Chapter 43, “which calls for ongoing communication,” and, as a result, Plaintiff’s “rights were harmed.” ECF No. 66-1 at 8. More comprehensively, he opines (again in relevant part):

To my knowledge, SEC has not provided evidence that the ongoing dialogue re- quired by Chapter 43 . . . nor the feedback Mr. Willis described were delivered dur- ing the performance rating period.[9] Ms. Earle refuted that any such dialogue or communication was provided.

. . . Mr. Willis’ May 13, 2017 mid-year review transmittal email contained no hint of any performance issues or deficiencies. There was also no indication in Ms. Earle’s May 13, 2017 mid-year performance review that her performance was an- ything less than fully successful.

This lack of communication, at a minimum, is not in compliance with SEC’s own PM Program requirements, and does not meet 5 USC 4302, both of which require ongoing communication and dialogue.

Further undercutting Mr. Willis’s description of having given Ms. Earle “verbal and written feedback’’ that reflected less than fully successful performance, during the FY 17 rating period, on March 20, 2017 Mr. Willis nominated Ms. Earle, along with four of her teammates, for an “Andrew Barr Award,” as described above, for “outstanding performance and dedication to public service and to the agency.” Also, Ms. Earle was recognized on June 28, 2016 (just prior to the start of the FY ’17 performance period) with a “Director’s Award,” “in recognition for outstand- ing work, extraordinary effort, and tireless dedication in furtherance of the Divi- sion’s mission.” In my experience, over 36 years in federal HR, I do not recall an

9 As noted, in his February 20, 2018, memo providing Plaintiff her PIP, Willis asserted that he had given her verbal and written feedback on her performance and met with her weekly to assist her in improving it. See ECF No. 70-4 at 1.

employee receiving several prestigious awards, such as these, in such close prox- imity timewise to a PIP and/or performance-based removal. In fact, as an HR pro- fessional, I would advise the applicable manager against such an action, given these circumstances.

In my opinion, Ms. Earle’s rights were harmed due to SEC’s lack of compliance with Chapter 43, and policies.

It is my opinion that SEC’s failure to follow Chapter 43 . . . was a harmful error that likely caused SEC to reach a conclusion different from the one it would have reached in the absence or cure of the error.

ECF No. 66-1 at 10–11.

There are some problems with this opinion. Perhaps most obviously, Kitmacher proposes to testify as to whether Willis complied with applicable regulations. The D.C. Circuit has held that “[e]xpert testimony that consists of legal conclusions cannot properly assist the trier of fact.”

Burkhart, 112 F.3d at 1212. The court recognized that “the line between an inadmissible legal conclusion and admissible assistance to the trier of fact in understanding the evidence or in deter-

mining a fact in issue is not always bright.” Id. But here, the conclusion that Willis “was not in compliance . . . with 5 USC Chapter 43” and that Willis’ “lack of communication” did “not meet

5 USC 4302,” which “require[s] ongoing communication and dialogue,” ECF No. 66-1 at 8, are straightforward legal conclusions. See Crowley, 318 F. Supp. 3d at 293 (finding an opinion that an employee’s PIP “didn’t comply with the requirements of the Code of Federal Regulations” was an inadmissible legal conclusion); see also, e.g.¸ Ramirez v. U.S. Immigr. & Customs Enf’t, No.

18-cv-508, 2019 WL 6036121, at *5 (D.D.C. Nov. ^[14], 2019) (finding inadmissible an expert’s proffered “opinion on whether ICE is following the requirements of the statute”). Plaintiff rejoins

that Kitmacher’s testimony regarding compliance with Chapter 43 and its regulations will help the trier of fact because “Chapter 43 contains certain requirements and terms of art” that “are technical and not intuitive,” asserting that “[a]n attorney who can testify about a specialized area of law, such as Chapter 43, would assist the trier of fact” and citing U.S. v. Blick, 408 F.3d 162 (2d Cir.

2005), for that proposition. ECF No. 67 at 11. There is a case called United States v. Blick and it is found at 408 F.3d 162. But it is a case from the Fourth Circuit, not the Second Circuit. See

United States v. Blick, 408 F.3d 162 (4th Cir. 2005). A typographical error as to the court from which a cited opinion issued is forgivable. But Blick has nothing to do with whether an expert’s testimony “about a specialized area of law . . . would assist the trier of fact.” ECF No. 67 at 11.

Rather, it addresses whether the appeal waiver of a defendant who pleaded guilty to seven counts of wire fraud prohibited an appeal of his sentence based on the Supreme Court’s intervening deci- sion in United States v. Booker, 543 U.S. 220 (2005). See generally Blick, 408 F.3d at 164–73.

That is, Plaintiff has cited Blick for a proposition found nowhere in the case, which is a more serious issue. It also leaves Plaintiff’s proposition—that, as a general matter, an attorney may testify as an expert as to the meaning of terms of art in a statute—entirely unsupported. Arguments

“unsupported by pertinent authority” are forfeited. Johnson v. Panetta, 953 F. Supp. 2d 244, 250

(D.D.C. 2013); see also United States v. Callwood, 66 F.3d 1110, 1115 n.6 (10th Cir. 1995) (“A litigant who mentions a point in passing but fails to press it ‘by supporting it with pertinent author- ity forfeits the point.’” (citation modified) (quoting Pelfresne v. Vill. of Williams Bay, 917 F.2d

1017, 1023 (7th Cir. 1990))).

Even if the point were not forfeited, cases have held that an expert should not define legal terms of art; rather, it is the province of the trial judge to instruct the jury on the meaning of relevant legal terms. See Burkhart, 112 F.3d at 1213 (stating that “[e]ach courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards” and that if “the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular,” then “exclusion is appropriate” (quoting Torres v. Cnty. of Oakland, 758 F.2d 147, 151 (6th Cir. 1985)); Clarke v. Healthsouth

Corp., No. 14-cv-778, 2021 WL 129821, at *6 (M.D. Fla. Jan. ^[14], 2021) (“Expert witnesses ‘are prohibited from testifying as to questions of law regarding the interpretation of a statute, the mean- ing of terms in a statute, or the legality of conduct.’ Instead, ‘the determination of which law applies and what the law means is for the Court to decide.’” (citation modified) (quoting Dahlgren v. Muldrow, No. 06-cv-65, 2008 WL 186641, at *5 (N.D. Fla. Jan. 18, 2008))). Plaintiff has made compliance with Chapter 43 and its regulations a centerpiece of her case: “[A]lthough the SEC used . . . Chapter 43’s processes to assert that Plaintiff was removed based on performance, this was a sham and her alleged sub-par performance served simply as a pretext. Accordingly, Plaintiff must introduce evidence showing that the SEC did not comply with Chapter 43.” ECF No. 67 at

10. As such, instruction to the factfinder about the legal requirements of Chapter 43 must come from the judge at trial.

Kitmacher’s proposed testimony raises other red flags. Take, for instance, his statement that, “to [his] knowledge,” the SEC failed to “provide[] evidence that the ongoing dialogue re- quired by Chapter 43” and the “feedback Mr. Willis described” in his February 20, 2018, memo to Plaintiff providing her PIP “were delivered during the performance rating period.” ECF No.

66-1 at 11. As support, he relies on the fact that Plaintiff denied “that any such dialogue or com- munication was provided” in her response to that memo, as well as that communications from

Willis to Plaintiff on May 13, 2017, “contained no hint of any performance issues or deficiencies”; that Willis nominated Plaintiff and “four of her teammates” for a performance award on March

20, 2017; and that in June 2016, Plaintiff had received a different performance award. Id. At his deposition, although he quibbled with the characterization that he “discounted or gave more credit to” either Willis’ statement or Plaintiff’s, Kitmacher explained that “as a licensed attorney and a long time federal executive and manager,” he “had many experiences and education on . . . how to handle one person saying one thing and another person saying another” and that he “weighed both

of those statements, both Mr. Willis’ statement in the PIP as well as [Plaintiff’s] statements” in which “she claimed he did not provide her with any ongoing dialogue or communication, and [he] relied on the evidence that [he] saw or did not see of any communications or dialogue that took place during the performance appraisal period.” ECF No. 66-2 at 42–43. To the extent that

Kitmacher offers an opinion weighing the credibility of Willis’ assertion that “[d]uring the perfor- mance rating period, [he] provided [Plaintiff] verbal and written feedback about [her] performance and met with [her] weekly to assist in developing [her] project priorities and focus on pending

deliverables,” ECF No. 70-4 at 1, against Plaintiff’s denial that she received such feedback—and his deposition indicates he is doing just that—he “invades the jury’s province to make credibility determinations.” Jetport, Inc. v. Landmark Aviation Miami, LLC, No. 16-cv-23303, 2017 WL

7734095, at *9,[*12] (S.D. Fla. July 18, 2017) (quoting United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996)).

Relatedly, the method Kitmacher used to conclude that Willis’ appraisal of Plaintiff’s per- formance did not comply with Chapter 43 is suspect. He testified at his deposition that, to reach his conclusion, he “looked at the various background documents, law, regulations,” and “specific documents that were provided . . . related to [Plaintiff].” ECF No. 66-2 at 27. That is, he “took a look at the circumstances surrounding [P]laintiff’s performance appraisal and then . . . reached a

determination, based on [his] knowledge and experience, of whether or not that complied with the law.” Id. at 30–31. It appears from his deposition, however, that he did not review certain docu- ments relevant to his conclusions, such as calendar appointments for Willis and Plaintiff to discuss

“career development” and at least one email from Willis to Plaintiff that outlines her performance deficiencies and schedules a face-to-face meeting. See ECF No. 66-2 at 43–45, 49–52. The reli- ability of an opinion based on a review of the evidence—particularly one that relies in part on a

purported lack of evidence—is undermined where material evidence was not reviewed. More, opinion testimony that “draws a legal conclusion by applying law to facts is generally inadmissi- ble.” United States v. Lab’y Corp. of Am. Holdings, No. 14-cv-3699, 2021 WL 2253360, at *3

(D.S.C. June 3, 2021) (quoting United States v. McIver, 470 F.3d 550, 561-62 (4th Cir. 2006)); see also, e.g., Magallon v. Robert Half Int’l, Inc., 743 F. Supp. 3d 1237, 1249 (D. Or. 2024) (“District courts routinely exclude expert testimony that purports to apply the law to the facts of the case.”).

That is because it is the jury’s role to apply the law on which it has been instructed by the judge to the facts before it. See Tang Cap. Partners, LP v. BRC Inc., 757 F. Supp. 3d 363, 390–92

(S.D.N.Y. 2024) (excluding as “impermissible . . . application of the law to the facts” of an expert opinion that was based on “what I see in [the relevant documents] and what I see in rules” prom- ulgated by the SEC); Dickson v. Bosworth Co., No. 21-cv-9, 2022 WL 1523490, at *5 (W.D. Tex.

May 13, 2022) (excluding proffered expert testimony that involved applying the law to the facts

of the case because it would “invade upon the purview” of both the court and the jury). Indeed, the court in Yancey v. Carson found that an expert report that drew inferences from selective re- view of testimony and then made “what are essentially legal arguments as to the conclusions that

should be drawn” was inadmissible because it was “virtually devoid of any evidence that [the expert’s] opinions were arrived at by any methodology, let alone any reliable methodology.” Nos.

04-cv-556, 04-cv-610, 2007 WL 3088232, at *5 (E.D. Tenn. Oct. 19, 2007). Similarly, the court in Richter v. City of Commerce City could “perceive[] no ‘methodology’” where a proposed expert reviewed discovery materials, the defendant’s employment policies, and similar evidence, and then

“made findings of fact and came to various conclusions after applying the law.” 185 F. Supp. 3d 1274, 1279 (D. Colo. 2016). It precluded the opinions, finding that they “state[d] legal conclusions by applying law to the facts, passe[d] upon the weight or credibility of the evidence, and usurp[ed] the province of the jury by telling it what result should be reached” on the topics addressed. Id.; see also id. at 1280–81. Here, Kitmacher’s method appears to have been, as the SEC notes, “an

attempt to put himself in the shoes of the factfinder” and reach a conclusion, ECF No. 69 at 5, conduct that “usurp[s] . . . the role of the jury.” Tang Cap. Partners, 757 F. Supp 3d at 391.

Additionally, one of the opinions Kitmacher offers is, besides being a legal conclusion, also irrelevant. He asserts that the SEC’s failure to follow Chapter 43 harmed Plaintiff’s rights because it “likely caused [the agency] to reach a conclusion different from the one it would have reached in the absence or cure of the error.” ECF No. 66-1 at 11. That conclusion is an application of 5 C.F.R. § 1201.4(r), which defines “harmful error” as “[e]rror by the agency in the application

of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.” Under 5 C.F.R. § 1201.56, in an

appeal to the MSPB of an agency’s decision to remove or demote an employee under Chapter 43, the agency must show that its decision was “supported by substantial evidence,” 5 C.F.R. §

1201.56(b)(1)(i). However, even if the agency meets that evidentiary standard, the MSPB “is required to reverse the action of the agency” if the employee can establish, as an affirmative de- fense, “harmful error in the application of the agency’s procedures in arriving at its decision” as defined in Section 1201.4(r). That is, the “harmful error” standard applies in an appeal of removal or demotion to the MSPB. It also applies in a federal court appeal of a decision of the MSPB on a claim that does not involve discrimination. See, e.g., Perry v. Dep’t of Veterans Affs., No. 18-

cv-14180, 2020 WL 6799220, at *5 (E.D. La. Nov. 19, 2020). It is not applicable here, where the issue is whether the proffered non-discriminatory reason for terminating Plaintiff—her alleged unacceptable performance—was a pretext for unlawful discrimination. As discussed above, a showing that the SEC failed to follow its governing regulations in appraising and thereafter re- moving Plaintiff may tend, in some cases, to support an inference of pretext. But whether Plaintiff could sufficiently establish an affirmative defense available in an appeal of a termination not based on unlawful discrimination is not relevant here. ^[10]

Finally, “[i]t has long been the law in this Circuit that ‘where the jury is just as competent

to consider and weigh the evidence as is an expert witness and just as well qualified to draw the necessary conclusions therefrom, it is improper to use opinion evidence for the purpose.’” Evans v. Wash. Metro. Area Transit Auth., 674 F. Supp. 2d 175, 179–80 (D.D.C. 2009) (quoting Henkel v. Varner, 138 F.2d 934, 935 (D.C. Cir. 1943)). Plaintiff nowhere explains why a factfinder re- quires an expert to explain whether the text of a performance review “indicat[es] . . . that [an em- ployee’s] performance was anything less than fully successful.” ECF No. 66-1 at 11. Nor is it clear why a factfinder needs an expert to opine on whether Plaintiff’s mid-year review transmittal

email contained “no hint of any performance issues or deficiencies.” Id. Those are matters of basic reading comprehension. See, e.g., Coquina Invs. v. Rothstein, No. 10-60786-CIV, 2011 WL

4949191, at *5 (S.D. Fla. Oct. 18, 2011) (“Jurors are able to read and understand . . . documentary evidence without assistance of an expert.”). “‘Merely reading and interpreting documents without

drawing on any additional expertise’ is not helpful, and thus not admissible.” Kraft Foods Glob., Inc. v. United Egg Producers, Inc., No. 11-cv-8808, 2023 WL 6248473, at *2 (N.D. Ill. Sep. 19, 2023) (citation modified) (quoting Sullivan v. Alcatel-Lucent USA Inc., No. 12 C 7528, 2014 WL

3558690, at *6 (N.D. Ill. 2014))); see also Virgin Mobile USA, L.P. v. Keen, 447 F. Supp. 3d 1071, 1081 (D. Kan. 2020) (excluding expert testimony that merely reiterated information found on a webpage because “a juror is capable of reading and understanding a public webpage”); In re Men- tor Corp. ObTape Transobturator Sling Prods. Liab. Litig., No. 07-cv-88, 2010 WL 1727828, at

*4 n.3 (M.D. Ga. Apr. 27, 2010) (excluding expert testimony as unnecessary because “anyone who

reads and understands the English language can interpret and apply the principles underlying” the text the expert relied on). Nor is it clear why a factfinder needs Kitmacher to opine on whether the fact that an employee received an award related to performance is inconsistent with a review finding her performance deficient. 11 See ECF No. 66-1 at 11. Again, that is a matter a layperson is well-equipped to understand and analyze.

Attempting to salvage Kitmacher’s testimony on this topic—that is, whether the SEC

“properly used Chapter 43 in [Plaintiff’s] FY2017 performance appraisal,” ECF No. 67 at 13

(some initial capitals omitted)—Plaintiff maintains that he should be permitted to address the fol- lowing issues:

(1) The 2017 Work Performance Plan contains only two so-called “critical el- ements:” (1) “Achieving Results in Occupation” and (2) “Teamwork and Collaboration.” These are defined with non-specific and general language purporting to describe what is intended by these terms, but the definitions fail to put the employee on notice of what job responsibilities and assign- ments she would be required to do during the fiscal year were critical, such that failure to complete them could result in termination. Neither of these “critical elements” specifically correlated with Plaintiff’s Position Descrip- tion.

(2) The Position Description, first delivered to Plaintiff on February 20, 2018, is dated February 15, 2013, and is materially inconsistent with the Position Description posted in the job announcement dated May 25, 2012, the

11 The Court notes, too, that Kitmacher’s assertion on that issue is inaccurate. He states that, in his 36 years of expe- rience “in federal HR,” he does not “recall an employee receiving several prestigious awards . . . in such close prox- imity timewise to a PIP and/or performance-based removal.” ECF No. 66-1 at 11 (emphasis added). However, Plain- tiff did not “receiv[e] several” awards. She received one award in June 2016. See ECF No. 72-2 at 10, 49. The team she was a part of was nominated for two awards in March 2017, but did not, apparently, receive them. See id. at 10– 12. However, inaccuracies in an expert report generally go to the weight of the evidence, not its admissibility. See, e.g., United State v. Sutton, 642 F. Supp. 3d 57, 71 (D.D.C. 2022).

position for which Plaintiff applied and which contains a generic description of her actual job responsibilities from her hiring in September 2012 forward.

(3) The FY 2017 appraisal by Willis, prepared with the assistance from the Of- fice of General Counsel (“OGC”), dated February 20, 2018, contains a list of employment failures without referencing the 2017 Work Performance Plan.

Id. at 15–16 (internal footnote omitted). But Kitmacher’s expert report does not mention any of those issues. The thrust of his opinion as to Plaintiff’s performance appraisal in Section II.A of his expert report is that Willis did not comply with Chapter 43 because he failed to engage in “ongoing performance dialogue” with Plaintiff. ECF No. 66-1 at 8, 10–11. There is nothing about

whether the “critical elements” in her 2017 Work Performance Plan provided sufficient notice of essential job responsibilities or were consistent with her job description, whether the job descrip- tion provided in 2018 was consistent with the job she applied for in 2012, or whether Willis’ ap- praisal of her performance in fiscal year 2017 referenced the 2017 Work Performance Plan.

Kitmacher’s opinion on Plaintiff’s removal in Section II.B. of the expert report focuses on whether

she was provided a “reasonable opportunity to demonstrate acceptable performance during the PIP.” Id. at 11–22. Again, the topics listed above are not included. As noted, an expert report

must provide “a complete statement of all opinions the witness will express and the basis and reasons for them,” and “the facts or data considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i). Although experts are to be “permitted a certain degree of latitude with respect to the areas in which [they have] been accepted” as experts to “expand upon and explain the opin-

ions and conclusions” in their expert reports, Minebea Co. v. Papst, 231 F.R.D. ^[3], 8 (D.D.C. 2005), they cannot simply add “claims and issues which should have been included” in their report or proffer “significantly different” opinions, Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 639 (D. Haw. 2008) (quoting Beller ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M.

2003)).

For all those reasons, Kitmacher will not be permitted to testify as to the opinions included in Section II.A of his expert report or offer testimony on the newly minted topics noted above. ^[12]

2. “SEC’s Compliance with 5 U.S.C. Chapter 43, Related to its Performance- based Removal Action against Ms. Earle” (Expert Report Section II.B)

Kitmacher’s summary of his opinion related to Plaintiff’s PIP and subsequent removal as- serts in relevant part that the PIP upon which she was placed in February 2018 did not comply with Chapter 43 and 5 C.F.R. §§ 432.103 and 432.104 because it did not allow her “a reasonable opportunity to demonstrate acceptable performance” and that, consequently, Plaintiff’s “rights were harmed.” ECF No. 66-1 at 11. His full opinion states that Plaintiff’s PIP was unusual in his experience in that it had a “high volume” of deliverables—44 deliverables in twelve sections—to be completed in a 90-day period. Id. at 21. More, some of the sections “required ‘perfect’ perfor- mance and were absolute standards,” which Kitmacher says should be avoided according to OPM and MSPB guidance, and others were “near-absolute” standards that did not “allow for a reasona- ble opportunity to improve” as required by the statute and regulations. Id. at 21–22. He bolsters his opinion that the PIP was not “reasonable” by pointing to “the alleged requirement that [Plain- tiff] work non-ordered and unauthorized overtime to complete PIP-related tasks,” which was “con- trary to 5 U.S.C. 5541” and an alleged comment by an SEC attorney that “the likely outcome of a

PIP at the SEC is termination.” Id. at 22 (emphasis omitted). Finally, he asserts that the “SEC’s action failed the substantial evidence test, as defined by 5 CFR 1201.4(p), as a reasonable person, considering the record as a whole, including the PIP, would not accept this as adequate to support

[Plaintiff’s] removal” and that the agency’s “removal action” was a “harmful error[] that harmed

[her] rights.” Id.

Some of those opinions are inadmissible for the reasons stated above in Section III.C.1—

specifically, Kitmacher’s assertions that the agency failed to comply with statutes or regulations, including not only his opinions that the agency violated Chapter 43 and 5 U.S.C. §§ 432.103 & 432.104, but also his opinions that there was not “substantial evidence” to support the SEC’s de- cision to remove Plaintiff, that her removal was “harmful error,” and that the PIP violated

“5 U.S.C. 5541.” Again, his opinions as to the SEC’s alleged violations of Chapter 43 and its regulations and “5 U.S.C. 5541”—are inadmissible legal conclusions. ^[13] His opinion regarding

substantial evidence and harmful error are not only legal conclusions, but also irrelevant for the reasons discussed in Section III.C.^[1]. His opinion that “a reasonable person, considering the record as a whole, including the PIP, would not accept this as adequate to support [Plaintiff’s] removal” is further excluded because expert testimony as to that issue is unnecessary. Jurors “regularly determine what constitutes the conduct of a ‘reasonable person’[] by bringing their own common sense and life experience to bear.” Hammond v. Lyndon S. Ins. Co., No. 19-cv-245, 2020 WL

13881248, at *3 (W.D. Okla. Sep. 30, 2020) (quoting Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 939 (10th Cir. 1994)); see also Kreidler v. Pixler, No. 06-cv-697, 2010 WL 1507888, at *2 (W.D. Wash. Apr. ^[14], 2010) (“[A] jury can make its own determination regarding what a reasonable person might do.”).

Opinions based on expertise that do not spout legal conclusions or usurp jury functions, however, are admissible. For example, in Crowley, the court allowed testimony from a human

resources professional that a PIP contained “unreasonable expectations,” finding it relevant to the question of pretext and admissible to the extent the expert did “not offer the ultimate opinion tes- timony that the PIP didn’t comply with the requirements of the Code of Federal Regulations.” 318

F. Supp. 3d at 293. Kitmacher offers similar opinions here, namely that Plaintiff’s PIP was unu-

sually onerous because of the number of tasks, the absolute or near-absolute standards, and the consequent difficulty in demonstrating satisfactory performance. Accordingly, the Court will not preclude Kitmacher from offering those opinions. ^[14]

3. “SEC’s History and Approach Related to [Personnel Management]” (Expert Report Section II.C)

Kitmacher opines that, “according to [the Government Accountability Office] and [the]

SEC’s [Office of the Inspector General],” the agency “has a continuing history of problems in administering its personnel management program.” ECF No. 66-1 at 22. He further asserts that he “cannot determine if the SEC’s [personnel management] program shortcomings . . . negatively impacted” Plaintiff, but he finds the “overall picture” to be “concerning.” Id. at 25. He also states

that, in his experience, it is unusual for an agency to involve, as the SEC apparently did here, attorneys in employee relations matters “at the front end.” Id. To reach these conclusions, he

primarily reviewed two reports from the Government Accountability Office (from July 2013 and December 2016) and two reports from the SEC’s Office of the Inspector General (from October 2017 and September 2018) discussing the SEC’s personnel management difficulties. See id. at

22–25.

Defendant argues that Kitmacher’s opinions on this topic have “nothing to do with [Plain- tiff] at all” and are “entirely irrelevant” to the issue remaining in this case, that is, whether Plain- tiff’s “termination constituted discrimination and/or retaliation.” ECF No. 66 at 7. The SEC’s reply brief notes, accurately, that Plaintiff does not address those arguments in her opposition. See

ECF No. 69 at 1. The Court therefore treats the government’s argument as conceded and excludes any testimony related to the opinions expressed in section II.C of the expert report. See, e.g. Wan- nall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (affirming the district court’s applica- tion of the precept that “if a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded”); Hartzler v. Mayorkas, No. 20-cv-3802, 2022 WL 15419995, at[*20] (D.D.C. Oct. 27, 2022) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” (citation modified) (quoting Nwachuku v. Jackson, 605 F. Supp.

2d 285, 286 n. 1 (D.D.C. 2009), aff’d, No. 22-5310, 2024 WL 3219489 (D.C. Cir. June 28, 2024))).

The undersigned notes, too, that the bulk of the opinions are inadmissible because they are not helpful. Kitmacher merely read four reports about issues the SEC has had administering its personnel management program, at different times, and concluded that the SEC has had issues administering its personnel management program. A factfinder can do that without help from an expert. See, e.g., Kraft Foods Glob., 2023 WL 6248473, at *2; Virgin Mobile USA, 447 F. Supp.

3d at 1081; Coquina Invs., 2011 WL 4949191, at *5; In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 2010 WL 1727828, at *4 n.3.

4. “Any Applicable [Prohibited Personnel Practices]” (Expert Report Sec- tion II.D)

Kitmacher summarizes his opinion on this topic as follows:

[The] SEC’s Chapter 43 removal of Ms. Earle may have been influenced by its planned realignment, which would have required Chapter 351 restructuring proce- dures. Further, it appears Ms. Earle may have experienced the discrimination she alleged, based on her gender, religion, and age, and that she may have been retali- ated against for her protected activities.

ECF No. 66-1 at 26. He further expounds on the alleged scheme to repurpose vacant positions to

create new management positions, which began a year before the institution of Plaintiff’s PIP, finding “the timing” of the PIP to be “of concern,” repeating the assertions from Section II.A of the expert report that he had seen “no evidence” that Willis “communicated performance concerns to [Plaintiff] during the rating period” and that the “SEC’s Chapter 43 action against [Plaintiff] is

undercut by the awards” she received and “the nature of her PIP.” Id. at 30. Looking at “the totality of the circumstances,” he opines that “a reasonable person may conclude that [Plaintiff’s]

Chapter 43 PIP and removal may have been influenced” by the SEC’s planned realignment and that, “[i]f restructuring was the goal,” the agency “needed to follow Chapter 351 RIF[15] and not

Chapter 43 performance procedures and doing otherwise (if the case) may have been” a prohibited personnel practice. Id.

Plaintiff must show the relevance of expert testimony by a preponderance of the evidence.

See McGill, 815 F.3d at 903 (“The proponent of the expert testimony bears the burden to establish the admissibility of the testimony and the qualifications of the expert.”). She has not even at- tempted to show that the SEC’s hypothesized failure to comply with regulations governing reductions in force when attempting to reorganize the department is relevant to whether the non- discriminatory reason the agency has advanced to support its decision to terminate her is pre- textual.

Kitmacher’s second opinion—that Plaintiff “may have experienced the discrimination she

alleged, based on her gender, religion, and age, and that she may have been retaliated against for her protected activities,” is supported by the following discussion:

As noted by the law firm, [16] [Plaintiff] was the only female SK-16 in her work unit, with the other three SK-16s being male. She was the only Jewish SK-16 em- ployee in her unit. She was also over the age of 40. According to the law firm, none of the male SK-16s were impacted by the realignment, none were placed on PIPs, nor did they lose their jobs. . . . [A]s [union] official Barry relayed, in his January 17, 2018 email to [Plaintiff] and others, to which SEC Attorney Rossiter was Ccd on the string of emails, it appears SEC management was aware of her retirement eligibility.

Also as noted by the law firm, [Plaintiff’s] work unit, the [front office] which ap- parently experienced a significant reduction in the number of female employees, and the realignment were all under the same management chain. Further, [Plain- tiff’s] timely allegations of gender, religion and age discrimination, retaliation for her protected activity, and being a whistleblower, were subsequent to her May 2, 2018 document to the SEC Commissioners “Report on Illegal Employment Prac- tices and Corruption.”

Again, given the totality of the circumstances, it appears that [Plaintiff] may have experienced the discrimination and retaliation she alleged.

ECF No. 66-1 at 30. In light of the discussion in Section III.C.^[1], supra, testimony related to this opinion will be excluded. To repeat, “[e]xpert testimony that consists of legal conclusions cannot properly assist the trier of fact.” Burkhart, 112 F.3d at 1212. Indeed, “[d]istrict courts routinely exclude expert testimony that purports to apply the law to the facts of the case,” Magallon, 743 F.

Supp. 3d at 1249; and courts have found that reviewing evidence and reaching “conclusions after applying the law” does not constitute an appropriate expert methodology, Richter, 185 F. Supp. 3d at 1279.

IV. CONCLUSION

It can be a delicate operation to disentangle expert testimony that appropriately helps the factfinder understand the evidence from expert testimony that consists of inadmissible legal con- clusions. Here, however, much of the testimony Plaintiff proffers effectively tells the jury what its decision should be on an argument she has made central to her case—that the SEC failed to comply with governing regulations in its machinations to fire her, which she contends is evidence that her performance was not deficient and the real reason she was removed was illegal discrimi-

nation or retaliation. Courts have found similar testimony to be inadmissible. And when the method used to reach those conclusions merely mimics the jury’s own process—reviewing the factual record and applying the law—it not difficult to conclude that the testimony impinges on the province of the jury to find the facts and of the court to instruct on the law. Accordingly, it is hereby

ORDERED that Defendant’s Motion to Exclude the Testimony of Ira W. Kitmacher, ECF

No. 66, is GRANTED IN PART AND DENIED IN PART as explained above.

SO ORDERED. G. Michael Date: May 8, 2026 Harvey G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE