Admissibility of Co-Worker Statements in Employment Cases
Sometimes, a co-worker will have made a statement to the plaintiff-employee which is offered as evidence in the case. The statement could be along the lines of, “You’re being let go because you’re too old.” Clearly, the statement will be admissible if made by the employee who decided to terminate the plaintiff. But what about non-decisionmaker statements — are those co-worker statements admissible in evidence?
The Hearsay Problem
You might ask, “Why wouldn’t they be”? The answer is the rule against hearsay. Hearsay is simply a statement not made at trial and offered for its truth. The statement, “You’re being let go because you’re too old” would be offered for its truth – that the reason for termination is the plaintiff-employee’s age. Unless an exception applies, the statement will not come into evidence. The exception that applies in employment litigation is for statements made by a party’s employee “on a matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). The Ohio evidence rule is essentially the same. See Ohio R. Evid. 801(D)(2)(d). So, the employee who is tasked with conveying the reason for termination is clearly acting within the course and scope of their employment. Their statements are admissible.
For statements by non-decision makers, the general principle is that they may be admissible if the statement is made by an employee whose job duties have some connection to the circumstances surrounding the decision.
Some Case Law Examples
For example, in Carter v. University of Toledo, 349 F.3d 269 (6th Cir. 2003), the plaintiff sued for race discrimination. She alleged that defendant failed to renew her contract as a visiting professor because of her race. The trial court refused to consider a statement made to her by a Vice Provost — that the Dean was trying to “whitewash the college of education” and to get rid of black professors. The court of appeals reversed a grant of summary judgment because the Vice Provost had oversight authority over the University’s affirmative action process. Thus, his statements concerning the racial composition of the workforce were admissible.
In Majure v. Primland, LTD, 2018 WL 3420827 (W.D.W. Va., July 13, 2018), plaintiff sued for sex discrimination. She offered evidence that the HR Director told her that the third-party responsible for hiring wanted to hire a male for the job. The employer objected that the statement was hearsay. The district court disagreed, finding that the statement was within the scope of the HR Director’s employment even though the HR Director did not have authority to hire or fire.
In Vaughan v. Boeing Company, 229 F.Supp.3d 339 (E.D. Pa. 2017), the plaintiff sued for race discrimination after being terminated for taking unauthorized overtime. To show disparate treatment, plaintiff offered statements to him by two white employees that they had not been disciplined for doing the same thing. The court held that the co-workers’ statements regarding lack of adherence to the employer’s overtime policies were “related to a matter” within the scope of their employment and admissible under Fed. R Evid. 801(d)(2)(D).
By way of contrast, in Ward v. Jackson State University, 602 Fed. Appx. 1000 (5th Cir. 2015), the plaintiff alleged that defendants violated Title VII by firing her in retaliation for reporting sexual harassment. To show defendants knew about her complaint of harassment, plaintiff offered evidence that a secretary had told her she had told the head of human resources about plaintiff’s allegations. Because the secretary’s duties did not encompass handling sexual harassment reports, her statement to plaintiff was inadmissible hearsay.
As you can see, the job duties of the co-worker making the statement are important. There are many cases on this subject. To read more see my forthcoming book, “Employment Evidence” being published by James Publishing in June 2019.