Sunday, June 6, 2010
In Bad Company: Western District Of Michigan Finds Employee Admissions Sufficient To Defeat Summary Judgment Motion In Age Discrimination Case
Federal Rule of Evidence 801(d)(2)(D) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
And, as the recent opinion of the United States District Court for the Western District of Michigan in Johnson v. United Rentals, Inc., 2010 WL 1981295 (W.D. Mich. 2010), makes clear, this Rule can be extremely useful to plaintiffs bringing discrimination actions against their employers.
In Johnson, after he was fired, Richard Johnson (born in 1958) brought a diversity action against his former employer, United Rentals, alleging a single claim of age discrimination. United Rentals thereafter brought a motion for summary judgment. According to the United States District Court for the Western District of Michigan,
Between August 2005 and July 2007, Sue Nichani was plaintiff's manager at the Grand Rapids branch...The parties do not dispute that Nichani testified, in other litigation, that Joe Perko, the district sales manager, complained “a lot” to her about plaintiff and Levack [(another employee, born in 1953)]. She said Perko would "talk about how the workforce in my branch particularly was too old, and that we should be replacing inside and outside salespeople with young folks."....She testified Perko told her that "we need a younger sales force."...Nichani testified that Perko asked her to fire plaintiff, although plaintiff was not then terminated...According to plaintiff, Perko agreed to retain plaintiff after Nichani discussed the branch needs with him....The parties do not dispute that Nichani testified that Mike Albers, a regional manager, also told her that “we need young salespeople."
Johnson sought to present Nichani's testimony to oppose United Rentals' motion for summary judgment, but the company claimed that it was inadmissible hearsay. The court disagreed, finding that
Federal Rule of Evidence 801(d)(2)(D) excludes as "not hearsay" those statements made by an "agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."...In contexts similar to the factual context at bar, the Sixth Circuit has found admissible statements made during employment by an upper-level supervisor to a lower-level supervisor....The Court determines that the statements by Perko and Albers constitute party admissions under Rule 801(d)(2)(D).
Accordingly, the court denied United Rentals' motion for summary judgment.