When is a statement by an employer's agent an admission rather than hearsay? The Sixth Circuit again addressed this question recently in Back v. Nestle USA, Inc., No 10-6028 (September 13, 2012).
Back was a long-term employee for Nestlé and worked as a maintenance superintendent. He was terminated and filed suit claiming age discrimination. As evidence in support of this claim, Back offered an affidavit from a Hagerman which stated that "Tim Shelburne told me that he had been told by higher management that they were planning to get rid of the three oldest employees and highest paid team leaders." As an initial matter, the Sixth Circuit had to determine if this affidavit offered admissible evidence; this required a two-part analysis.
First, the court ruled that Shelburne's statement was not hearsay. Shelburne was the company's acting human resources director whose job duties included, among other things, "employee-performance issues generally and termination specifically." Since the statement regarded the termination of employees – clearly a matter within the scope of Shelburne's job duties – it would not constitute hearsay. The court stated: "A statement is not hearsay under Rule 801 (d)(2)(D) when it concerns a matter within the scope of the declarant's employment – there is no requirement that a declarant be directly involved in the adverse employment action."
But second Shelburne statement presented a double-hearsay issue. The first level was Hagerman swearing that Shelburne told him about a plan to fire the three oldest employees. The second level was an unidentified higher management person telling Shelburne of the plan. Although the identity of the upper management person was unknown, the statement could still be admissible if "there is evidence that the unidentified declarant(s) were speaking on a matter within the scope of their employment." See Ryder v. Westinghouse Electric Corporation, 128 F.3d 128, 134 (3d Cir. 1997) (holding a similar double-hearsay situation that statements from unidentified executives were admissible because evidence established that though the precise identity was unknown, they were all "Westinghouse executives who have authority to make personnel decisions [and thus were] acting within the scope of their employment in stating their views on the state of the workforce"). Back was not able to offer any evidence supporting the conclusion that the plan was within the scope of any of the unidentified declarants. Accordingly, the Sixth Circuit ruled that Hagerman's affidavit constituted inadmissible hearsay and affirmed the summary judgment granted by the district court.
The opinion for the Sixth Circuit was written by Circuit Judge Jane Stranch.
Robert L. Abell
www.RobertAbellLaw.com
