Prior Consistent Statements in Employment Cases

Prior Consistent Statements in Employment Cases


Consider the following separate conversations:

HR Director Sue:                  “I fired Stella because she violated the same company policy three times.”
Charlie:                                  “The boss threatened your job if you said anything different, right”?
HR Director Sue:                  “Not true. That’s exactly what I told Stella in her write-ups.”


HR Director Sue:                  “I fired Stella because she violated company policy three times.”
Charlie:                                  “You really don’t remember, do you”?
HR Director Sue:                  “Well, that’s exactly what I told Stella in her write-ups.”

In the first conversation Charlie contends the boss influenced Sue’s statement. In the second conversation Charlie raises doubt about Sue’s memory. Sue responds that she said the same thing before, i.e., that she has made prior statements consistent with what she just told Charlie. Sue has used her prior statements to rebut an attack on her credibility.

The same “conversations” might occur at trial. Sue is the witness. Charlie is a lawyer cross-examining her. Under both scenarios the prior consistent statements are admissible to rehabilitate Sue’s credibility as a witness. The prior consistent statements, though, are hearsay if offered to prove Stella violated company policy. That is, unless a hearsay exception or exemption applies.

An exemption for prior consistent statements does exist — Fed. R. Evid. 801(d)(1)(B). The first conversation is addressed in subpart (i) of the rule. The second version is addressed in subpart (ii).

Subpart (i) – Prior Consistent Statements

Rule 801(d)(1)(B)(i) permits the introduction of a prior consistent statement “to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” In Tome v. U.S., 513 U.S. 150, 115 S. Ct. 696 (1995), the U.S. Supreme Court held that to be admissible under Rule 801(d)(1)(B)(i), the fabrication, undue influence or motive must arise after the prior consistent statement was made. On a timeline, the order of events must be this:

Prior consistent statement — Fabrication, influence, motive — Statement at trial

So, if the boss threatened Sue’s job after she prepared the write-ups, then the hearsay exemption applies. The write-ups are then admissible not only to refute the charge that the threat affected Sue’s testimony, but also to prove that Stella violated company policy. The justification for permitting the statement’s use for the truth of the matter asserted is that “if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally.” Advisory Committee Notes.

If the fabrication, influence or motive and the prior consistent statement switch places on the timeline, then the prior consistent statement is not admissible as substantive evidence of the policy violations. Tome, 513 U.S. at 156, 115 S. Ct. at 700.

Subpart (ii) – Prior Consistent Statements

The Supreme Court in Tome identified other grounds of impeachment not covered by the prior version of Rule 801(d)(1)(B). Tome, 513 U.S. at 158, 115 S. Ct. at 701, quoting E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972) (“When the attack takes the form of impeachment of character, by showing misconduct, convictions or bad reputation, it is generally agreed that there is no color for sustaining by consistent statements.”). Congress added subpart (ii) to Rule 801(d)(1)(B), effective December 1, 2014, to cover such other forms of credibility attacks. Accordingly, a prior consistent statement is non-hearsay when offered “to rehabilitate the declarant’s credibility as a witness when attacked on [a] ground” other than to rebut a charge of recent fabrication, undue influence or motive. As stated in the Advisory Committee Notes, “[t]he intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness — such as the charges of inconsistency or faulty memory.” See also United States v. Finch, 2019 WL 1211845 (U.S. Army Court of Criminal Appeals, Mar. 13, 2019) (Rule 801(d)(1)B)(ii) applicable to impeachment through introduction of an inconsistent statement).

Thus, Rule 801(d)(1)(B)(ii) applies to the second conversation between Sue and Charlie. Sue’s prior consistent statements are admissible in evidence not only to repair any damage from Charlie’s attack on Sue’s credibility based on faulty memory. They are also admissible to prove that Stella violated company policy.

Application of Rule 801(d)(1)(B) in Employment Cases

At present there are no employment cases addressing subpart (ii) of Rule 801(d)(1)(B). There are a few employment cases applying Rule 801(d)(1)(B)(i). Here are two examples.

Evidence Not Admitted

Plaintiff brought a Title VII retaliation case alleging that she had been terminated for complaining about sexual harassment by her supervisor. Plaintiff claimed that in September 2000 she told her supervisor that she was going to report the harassment, prompting a threat that he would fire her if she told anyone.  The supervisor then enlisted two other supervisors to begin documenting performance issues.  At trial, Defendant offered a series of emails written by one of the supervisors to rebut Plaintiff’s charge that his complaints against her were motivated by a desire to retaliate.  The court rejected the offer under U.S. v. Tome, because the alleged improper motive arose in September 2000, prior to the supervisor’s emails. McInnis v. Fairfield Communities, Inc., 458 F.3d 1129 (10th Cir. 2006).

Evidence Admitted

Plaintiff, a part-time custodian at an elementary school, sued for sexual harassment and retaliation under Title VII. Plaintiff alleged that she reported numerous instances of harassment by her supervisor and that her complaints were ignored. Defendant moved for summary judgment, arguing that Plaintiff had never reported the harassment. Plaintiff offered the deposition of Gonzalez, her union representative, who testified that she and Plaintiff reported the harassment to supervisors and that Plaintiff had told her about the harassment. Defendant challenged the admissibility of Gonzalez’s testimony on hearsay grounds. The court construed Defendant’s denial that Plaintiff had reported the harassment as a charge that Plaintiff was now fabricating her complaints of harassment. The charge of recent fabrication occurred between Plaintiff’s prior statements to Gonzalez and Gonzalez’s current testimony. The court held, therefore, that Gonzalez’s testimony about what Plaintiff had told her was admissible under Fed. R. Evid. 801(d)(1)(B) as evidence that Plaintiff had reported the alleged harassment. Chavera v. Victoria Independent School Dist., 221 F.Supp.2d 741 (S.D. Tex. 2002).


There are more cases on this subject. To read more see my forthcoming book, “Employment Evidence” being published by James Publishing in June 2019.

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