and Submitted June 5, 2018 Seattle, Washington
from the United States District Court for the Western
District of Washington James L. Robart, District Judge,
Presiding D.C. No. 2:15-cv-00835-JLR
A. Venneberg (argued), Gig Harbor, Washington; Kenneth R.
Friedman, Friedman Rubin, Bremerton, Washington; for
Lindbergh Porter Jr. (argued), Littler Mendelson P.C., San
Francisco, California; James G. Zissler and Breanne Sheetz
Martell, Littler Mendelson P.C., Seattle, Washington; for
Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and
John Antoon II, [*] District Judge.
Discrimination / Hearsay
panel affirmed in part and reversed in part the district
court's summary judgment in favor of defendant employers
in an employment discrimination action under Title VII, 42
U.S.C. § 1981, and the Washington Law Against
the district court's summary judgment on a
failure-to-promote claim, the panel held that the district
court erred in excluding on hearsay grounds a statement
proffered by the plaintiff. The panel held that, under
Federal Rule of Evidence 801(d)(2)(D), hearsay does not
include statements offered against a party, made by that
party's employee on a matter within the scope of that
employee's employment, so long as the statement was made
while the employee was still employed by that employer. There
is no requirement that the declarant still be in the same
position that resulted in the matter being within the scope
of the employment relationship. The panel held that, properly
considering the statement as admissible evidence of pretext,
the plaintiff met his burden on summary judgment.
the district court's summary judgment on plaintiff's
termination claim, the panel held that plaintiff failed to
raise a genuine dispute of material fact as to that claim
because he did not present evidence that he was performing
satisfactorily or that defendants treated a similarly
situated employee who was not a member of plaintiff's
protected class differently.
in part, Judge Bybee wrote that the district court properly
excluded the proffered statement because it was not within
the scope of the declarant's employment when she made it
after having been relieved of her hiring and promoting
duties. Judge Bybee concurred in the majority opinion insofar
as it affirmed summary judgment on the termination claim.
N.R.SMITH, CIRCUIT JUDGE
does not include statements offered against a party, made by
that party's employee on a matter within the scope of the
employee's employment, so long as the statement was made
while the employee was still employed by that party.
Fed.R.Evid. 801(d)(2)(D). Because the district court excluded
such a statement proffered by Plaintiff David Weil on hearsay
grounds, it erred in granting summary judgment to Weil's
employers, Citizens Telecom Services and Frontier
Communications (collectively, Frontier), regarding Weil's
failure-to-promote claim. However, the district court
properly granted summary judgment to Frontier on Weil's
termination claim, because Weil failed to produce evidence
that raised a genuine dispute of material fact as to that
claim. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm in part and reverse in part.
Weil's employment by Frontier (and its corporate
predecessors) began in 1999. In 2011, Weil was promoted to
Call Center Manager of a Frontier call center. In his 2011
performance review, Weil was praised for his leadership
skills and received high overall scores.
September 2012, Weil became the interim acting director of
the call center, reporting directly to L.H., the Senior Vice
President of Call Centers. As Weil's supervisor, L.H.
conducted Weil's 2012 performance review, which showed
declines in several categories. Although L.H. provided
positive feedback about Weil's leadership and initiative,
Weil's overall performance rating, as well as his own
self-rating, decreased from his 2011 ratings.
naming Weil the interim acting director, Frontier began the
process of hiring a permanent director. L.H. was the person
responsible for filling the permanent director position.
Frontier received roughly 150 applications, including one
from Weil. Weil was among the 7 to 10 applicants Frontier
considered qualified for the position. L.H. interviewed Weil
and two other candidates, thereafter ranking him second out
of the three. In January 2013, L.H. emailed her supervisor
recommending that Weil be allowed to present materials to the
broader team for consideration for the position.
January 14, 2013, Frontier removed L.H. as Vice President and
moved her into a specialized role. Her replacement, Becky
Potts, took over responsibility for filling the director
position and became Weil's direct supervisor. Potts
reviewed materials from the hiring process prior to her
appointment, including L.H.'s review of Weil and an email
from L.H. giving him a strong review. However, Potts
ultimately selected Jennifer Brown (a white woman) in March
2013, despite Weil's complaint alleging Brown was never
interviewed for the position. Brown had fifteen years of
experience at Frontier, with five years of managerial
experience. However, her 2012 performance rating was slightly
lower than Weil's score for that year and, unlike Weil,
she did not have a Bachelor's Degree (which was listed as
a preferred qualification for the position).
April 1, 2013, Weil was notified he had not been selected for
the promotion. Also in April, Potts prepared a Development
Action Plan (DAP) for Weil, which identified areas for
improvement, and Weil agreed to follow through on several
"action items." Later that month, Weil spoke with
L.H., who was then working for Frontier in her new capacity.
In his deposition, Weil described what L.H. told him as
She had made it a - that the statement saying that she felt I
was qualified for the job. She tried to get me into the
director role; had three things that were against me, and her
exact verbiage - I remember this clearly - is 'You have
three things going against you. You're a former Verizon
employee, okay. You're not white. And you're not
L.H. was later terminated in June 2013.
failed to meet the DAP deadlines and complete action items.
In June 2013, he was put on a Performance Improvement Plan
(PIP) for a 60-day period to end on August 26, 2013. The PIP
outlined that Weil faced possible termination if his
performance failed to improve.
2013 mid-year performance review showed further declines from
his 2011 and 2012 reviews. He met with Brown twice in early
August to discuss his performance issues. Following these
meetings, Brown sought Frontier Vice President Donna
Loffert's support to terminate Weil. Frontier terminated
Weil on August 15, 2013, prior to the end of his PIP.
brought suit against Frontier under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
Section 1 of the Civil Rights Act of 1866, 42 U.S.C. §
1981, and the Washington Law Against Discrimination, Wash.
Rev. Code § 49.60.010 et seq., for wrongful and
discriminatory failure-to-promote and termination. After
discovery, Frontier moved for summary judgment. In opposing
summary judgment, Weil presented L.H.'s statement and
argued that it precluded the grant of summary judgment,
because it was direct evidence of employment discrimination
or at least evidence of pretext. Frontier then filed a motion
in limine requesting, in part, that the court exclude
L.H.'s statement as inadmissible hearsay. Weil countered
that the statement was not hearsay under Federal Rule of
Evidence 801(d)(2)(D), asserting that L.H. made this
statement in April 2013, when she was still a Frontier
employee, though she had been moved to a different role with
the company by that time.
district court determined that the statement offered by Weil
was inadmissible under Federal Rule of Evidence 801(d)(2)(D)
for lack of foundation, because L.H. was not employed in the
supervisor position at the time L.H. made the statement to
Weil. After excluding the statement, the district court then
reviewed Weil's failure-to-promote claim. It assumed
(without deciding) that Weil met his prima facie burden but
concluded that, having excluded the statement, Weil failed to
produce admissible evidence that Frontier's reasons for
not promoting him were pretextual. Finally, the district
court assessed Weil's wrongful termination claim and
concluded that Weil had not presented a prima facie case.
we may only consider admissible evidence when reviewing a
motion for summary judgment, Orr v. Bank of Am., NT &
SA, 285 F.3d 764, 773-75 (9th Cir. 2002), we take up the
evidentiary issue first. Under the general rule of evidence,
all relevant evidence is admissible unless, inter
alia, the Federal Rules of Evidence provide otherwise.
Fed.R.Evid. 402. Here, we determine whether the district
court properly excluded otherwise admissible relevant
evidence under Federal Rule of Evidence 801. We review the
district court's construction of Rule 801 de novo.
See United States v. Ortega, 203 F.3d 675, 682 (9th
Cir. 2000). The district court misconstrued Rule 801(d)(2)(D)
when it required Weil (as foundation for the statement) to
show that L.H.'s statement related to a matter within the
scope of her employment at the time the statement was made.
Federal Rule of Evidence 801(d)(2)(D), a statement is not
hearsay and may be admitted against an opposing party if the
statement "was made by the party's agent or employee
on a matter within the scope of that relationship and while
it existed." The Rule sets forth three elements
necessary for admitting a statement that would otherwise be
excluded as hearsay: (1) the statement must be made by an
agent or employee of the party against whom the statement is
being offered; (2) the statement must concern a matter within
the scope of that employment relationship; and (3) the
statement must be made while the declarant is yet employed by
the party. There is no additional requirement that
the declarant must still be in the same scope of employment
at the moment the statement is made. The Rule's language
is unambiguous. The second element requires that the
statement concern a matter that was at some time within the
scope of the declarant's employment. The third element
requires only that the statement be made while the declarant
is yet employed; it does not require that the declarant still
be in the same position that resulted in the matter being
within the scope of the employment relationship.
respect to the second element, a statement may concern a
matter within the scope of employment-even though the
declarant is no longer involved with that particular matter
when the statement is made-so long as the declarant was
involved with that matter at some prior point in his or her
employment. See In re Sunset Bay Assocs., 944 F.2d
1503, 1519 (9th Cir. 1991) ("[S]tatements need only
concern matters within the scope of the agency; they
need not be made within the scope of the agency.")
(emphasis in original). Additionally, a matter may fall
within the scope of a declarant's employment even though
the declarant did not have final decision-making authority on
that matter. See Stiefel v. Bechtel Corp., 624 F.3d
1240, 1246 (9th Cir. 2010); cf. Breneman v. Kennecott
Corp., 799 F.2d 470, 473 (9th Cir. 1986) (finding
statements inadmissible in absence of evidence showing
declarants were involved in discharge).
sister circuits have similarly focused the scope inquiry on
whether the declarant was involved in a process leading up to
a challenged decision, rather than focusing on whether the
declarant was a final decision-maker. See, e.g.,
Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th
Cir. 2003) (focusing on "whether the declarant was
involved in any of the critical appraisals of
[plaintiff's] performance that preceded her leaving
work - not whether the declarant was a direct decision
maker") (first alteration in original, internal
quotation marks omitted)); Simple v. Walgreen Co.,
511 F.3d 668, 670-72 (7th Cir. 2007) (holding that a
declarant's statement was admissible under the Rule,
because the declarant was "involved in the process that
led up to [the hiring decision], by being consulted about the
appointment"); Yates v. Rexton, Inc., 267 F.3d
793, 802 (8th Cir. 2001) (recognizing that "it is not
necessary that [the declarants] be the actual
decision-makers" so long as they were involved in
"a process leading to a challenged decision")
(citing EEOC v. Watergate at Landmark Condo., 24
F.3d 635, 640 (4th Cir. 1994)); Kidd v. Mando Am.
Corp., 731 F.3d 1196, 1208 (11th Cir. 2013) (requiring
foundation that the declarant "participated-at least to
some extent" in the company's hiring
now to the third element, the Rule's legislative history
and intent support our reading that the Rule requires only
that the statement be made when the declarant is yet
employed. When the Federal Rules of Evidence were enacted in
1975, Rule 801(d)(2)(D) excluded from the definition of
hearsay a statement offered against a party made "by his
agent or servant concerning a matter within the scope of his
agency or employment, made during the existence of the
relationship." (Emphasis added). The Rule, as it
existed then, required that the declarant's statement be
made while the employment relationship existed, not within a
specific scope of that relationship.
2011, the Rule was amended to its current form. The advisory
committee notes to the 2011 amendment were clear: "These
changes are intended to be stylistic only. There is no intent
to change any result in any ruling on evidence
admissibility." Fed.R.Evid. 801 advisory committee's
note to 2011 amendment. Thus, the wording of the Rule has
been amended, but the substance of the Rule itself remains
unchanged. The 2011 amendment did not add a requirement that
the declarant maintain the same scope of employment at the
time the statement is made; the Rule requires (as it always
has) only that the statement be made "during the
existence of the [employment] relationship." Fed.R.Evid.
agency principles underlying this statutory non-hearsay
category also bolster this interpretation of the Rule.
"Typically the [employee] is well informed about acts in
the course of the business, the statements are offered
against the employer's interest, and while the
employment continues, the employee is not likely to make
the statements unless they are true." 2 McCormick on
Evidence § 259 (7th ed.) (emphasis added). Neither an
employee's knowledge nor her loyalty to her employer
disappears at the moment the employee's job description
changes. Accordingly, so long as the employment relationship
continues to exist, we can presume the declarant is unlikely
to make damaging statements unless they are true, even if the
declarant is no longer actively involved with the particular
"matter" at issue. Consequently, "the
predominant view [has been] to admit a statement by an agent
if it concerned a matter within the scope of the
declarant's employment and was made before that
relationship was terminated." Id.
the Rule otherwise could lead to absurd results. For
instance, if a supervisor-just after being promoted- made a
statement admitting to a discriminatory motive for
terminating an employee the day before, the alternative
reading of the Rule would exclude that statement, merely
because the statement concerned a matter that was perhaps no
longer within the scope of that supervisor's employment.
Such a reading disregards the agency principles on which the
Rule is predicated and would potentially allow employers to
avoid liability by merely changing employees' positions
or narrowly redefining the scope of their employment.
Accordingly, we read the third element of the Rule to require
that the statement be made while the employment relationship
still exists, without regard to the declarant's specific
scope of employment at the time the statement is made.
this unambiguous Rule, L.H.'s statement is admissible.
Weil laid sufficient foundation to establish each of the
three required elements. First, the proffered statement of
Frontier's employee, L.H., was offered against Frontier.
Second, the statement concerned a matter within the scope of
L.H.'s employment. The statement concerned why Weil was
not promoted to the director position. Although L.H. did
not make the final decision, she was significantly involved
in the process leading to the decision-not only was L.H.
responsible for filling that position while she was Vice
President, but during that time she specifically considered
Weil for the job, even conducting his performance review and
interview. Third, the statement was made in April 2013 when
L.H. was still employed by Frontier. Because all three
elements of the Rule are met, the statement is admissible
under Rule 801(d)(2)(D), and the district court erred in
dissent's arguments are misplaced when considering the
admission of this statement. Those arguments instead focus on
topics more appropriately addressed in cross-examination.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596 (1993) ("Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence."). The
dissent emphasizes that L.H. was involuntarily demoted from
the hiring position, that Potts may have had good reasons for
choosing Brown over Weil, and that the source of L.H.'s
statement in this case is Weil's own deposition rather
than from L.H. herself, because she was never deposed. These
observations go directly to the weight of L.H.'s
statement. However, they are misplaced in determining the
statement's threshold admissibility under the Rule on
summary judgment. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986) ("[A]t the summary
judgment stage the judge's function is not himself to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial."). On cross-examination, Frontier will have its
opportunity to discredit and oppose the statement, but these
issues do not determine a statement's admissibility.
review a district court's grant of summary judgment de
novo. McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1112 (9th Cir. 2004). "The [district] court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
court must "view the facts and draw reasonable
inferences in the light most favorable to ...