Southern District of Indiana Finds Statement About Employee's Tenacity During Mediation Inadmissible Under Rule 408

Federal Rule of Evidence 408(a) states that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

So, what if a statement is made during negotiation/mediation but not by a part to that negotiation/mediation? That was the question addressed by the United States District Court for the Southern District of Indiana in its recent opinion in Geng v. Spencer, 2021 WL 1225923 (S.D.Ind. 2021).

In Geng,

Jiayi Geng was suspended from her job with the Navy and was not admitted into a combat-support deployment program. She then brought [a] lawsuit pro se alleging that she was discriminated and retaliated against and was subjected to a hostile work environment.

In support of her lawsuit, Geng alleged "that an employee commented on her 'tenacity,' which is evidence of sex and race discrimination." According to the court, however,

The statement about "tenacity" that Ms. Geng relies was from one of the [Mobile Technology & Repair Complex] MTRC leaders at a mediation....Defendant argues that this statement is inadmissible under Federal Rule of Evidence 408 because it was made during mediation....Ms. Geng responds that the MTRC leader did not sign a "Mediation Consent form" so he does not count as a party and Rule 408 does not apply....Rule 408, however, makes certain evidence inadmissible "on behalf of any party," regardless of whether the statement was made by a party. Fed. R. Evid. 408(a) (emphasis added). And Rule 408 sweeps broadly- "statements made in settlement negotiations are inadmissible to prove liability on the underlying claim."...Since Ms. Geng seeks to use the comment for that purpose, it is inadmissible. 

-CM