Psychology Expert Questions the Existence of Plaintiff’s Disability in ADA Case

    Court: United States District Court for the Southern District of New York
    Jurisdiction: Federal
    Case Name: Weiss v. Macy’s Retail Holdings, Inc.
    Citation: 2019 U.S. Dist. LEXIS 200855


    The plaintiff was an employee at a Macy’s retail store from 1997 to 2015. He also had a learning disability which affected his ability to “read and process information”. His employer, Macy’s, was aware of his disability and gave him certain accommodations, such as extra time with training materials. Upon his termination, the plaintiff sued Macy’s, claiming a violation of the Americans with Disabilities Act, and that his manager had harassed and later fired him due to his disability.  

    The defendant, Macy’s, moved to compel arbitration of the plaintiff’s discrimination claims.  This was denied and the defendant appealed, claiming the plaintiff had entered into an arbitration agreement earlier during his employment with Macy’s.  

    The defendant maintained that six years previously, all employees at Macy’s had received documentation of a new employee dispute resolution process, including a voluntary arbitration agreement. To opt out, employees had to submit a written form, on which the plaintiff took no action. Without any response, Macy’s marked the plaintiff as having agreed to mandatory arbitration. The plaintiff argued that he never received such a form by mail and if he did, he would not have agreed to mandatory arbitration. The plaintiff further argued that his brother would review and explain any important documents mailed to him, and that the opt out form had not been received by mail.  

    The defendant retained a psychology expert witness to testify regarding the plaintiff’s claimed learning disability. 

    The Psychology Expert Witness 

    The psychology expert witness was a board-licensed psychologist, held a psychology Ph.D., and completed a fellowship at the American Psychological Association. She also had 24 years of experience as a consultant to standardized testing companies on test accommodations and 38 years of experience as a professor for graduate psychology programs. 

    The expert’s testimony included a report based on her two-day, in-person review of the plaintiff. She also reviewed the plaintiff’s grades from high school, college, and graduate school, and scores from standardized testing. The psychology expert also reviewed vocabulary and reading ability demonstrated during the in-person examination. Based on her assessment, the expert concluded that the plaintiff would have been able to read and understand the language of the opt out form. In fact, following the criteria in DSM-V, the expert found that the plaintiff did not have a specific learning disability which would impact reading comprehension. The plaintiff challenged the psychology expert’s admissibility and claimed her conclusions had relied too heavily on certain data—including his academic history.  


    The court found that Dr. Brassard was suitably qualified to testify as an expert in this case, noting her Ph.D. in educational psychology and her psychology license. The court further asserted that given her nearly 40 years of experience, she was extremely qualified in the field of psychoeducational assessment. Though the expert’s testing of the plaintiff was outside of the context in which she had gained her experience, the court cited Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp. as recognizing that “expert should not be required to satisfy an overly narrow test of [her] own qualifications.” 

    The court also found that the psychology expert collected a variety of data points, including her evaluation of the plaintiff and had appropriately explained how her findings related to DSM-V criteria. The court noted that this is an accepted method of psychological diagnosis (Tardif v. City of New York). Per the plaintiff’s claims that the expert gave too much weight to areas like his academic history, the court found this to not be substantial enough to bar the expert. Rather, they explained this issue could be addressed on cross examination. The court, thus, found her opinion to be reliable. 

    The court noted that plaintiff’s cognitive abilities were the issue at hand and the expert’s testimony would assist the trier of fact in determining the plaintiff’s situation.


    The motion to exclude the defendant’s psychology expert witness was denied.