EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 30, 2010

You're Out Of Your Element: Eighth Circuit Finds Statement Concerning Matter Outside Scope Of Employment Not An Employee Admission

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....

The problem for the plaintiffs in the recent opinion of the Eighth Circuit in E.E.O.C. v. Con-Way Freight, Inc., 2010 WL 3655999 (8th Cir. 2010), was that while they had a statement by an employee of the defendant which potentially helped their case, they could not prove that the statement concerned a matter within the scope of his employment.

In Con-Way Freight,

The EEOC filed [an] action claiming that Con-Way failed to hire [Roberta] Hollins because of her race in violation of Title VII of the Civil Rights Act of 1964....After the court allowed Ms. Hollins to intervene, she added claims of race discrimination in violation of 42 U.S.C. ยง 1981 and Missouri state law.

Con-Way thereafter brought a motion for summary judgment dismissing the complaint, claiming, inter alia, that Hollins would not have been hired regardless of any discriminatory animus because she has two misdemeanor theft convictions and Con-Way has a policy of automatically disqualifying applicants with theft -related convictions.

The plaintiffs countered that when Hollins interviewed with Con-Way's Poplar Bluff branch service center manager, Kenneth Gaffney, she told him about her prior convictions and he responded that she should not worry about the misdemeanor convictions because Con-Way "won't go back that far" anyway. The plaintiffs claimed that this statement established that Con-Way did not have such a policy. The district court, however, deemed this statement inadmissible hearsay and granted Con-Way's motion for summary judgment.

The plaintiffs thereafter appealed, claiming, inter alia, that Gaffney's statement constituted an employee admission under Federal Rule of Evidence 801(d)(2)(D). The Eighth Circuit disagreed, finding that

We have held that party admissions must concern a matter within the scope of employment of the person making the statement....Here, Mr. Gaffney testified that he was not involved in the criminal background checks and was not given specific reasons when the personnel department disqualified an applicant; we cannot, therefore, say that the district court abused its discretion in concluding that Mr. Gaffney's comment was outside the scope of his employment. Even if the statement were admissible, moreover, the same lack of knowledge that rendered it inadmissible would render it insufficient to allow a reasonable jury to infer that Con-Way did not have a policy of automatically disqualifying applicants with theft-related convictions.



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