Hearsay Exception's "During The Course Of Employment" Requirement Satisfied By Reference To Speaker's General Job Duties And Collateral Involvement
MAKOWSKI v. SMITHAMUNDSEN LLC (November 9, 2011)
Lisa Makowski had been the Marketing Director for the SmithAmundsen law firm for over two years when she discovered she was pregnant. She notified firm management and was given FMLA leave beginning in November of 2007. She gave birth on December 2. The next month, the firm’s all-male Executive Committee conducted its yearly meeting. At that meeting the Executive Committee decided to eliminate Makowski's position. The firm's Chief Operating Officer, Michael DeLargy, delegated to Molly O'Gara, the Director of Human Resources, the task of consulting with outside labor counsel before firing Makowski. DeLargy also commented that Makowski "doesn't fit into our culture." When Makowski returned to the office to collect her belongings, O'Gara told her that she was fired because of her pregnancy and leave and that she was not the only one. Makowski brought suit under the Pregnancy Discrimination Act and for both interference and retaliation under the FMLA. Judge Darrah (N.D. Ill.) ruled that O'Gara's statement was inadmissible and granted summary judgment to the defendants. Makowski appeals.
In their opinion, Seventh Circuit Judges Rovner and Williams and District Judge Young reversed and remanded. The Court first considered the evidentiary ruling with respect to the O'Gara statements. The statements are hearsay, unless they fit within an exception, and are not admissible. One exception, under Federal Rules of Evidence 801(d)(2)(D) , applies to the statement of a party’s agent made during the course of her employment, and offered against the party. The O'Gara statements are the statements of a party's agent and are offered against the party. The firm contends that they were not made within the scope of her employment. The district court agreed, because O'Gara was not involved in the termination decision. The Court disagreed with that analysis. The agent need not be personally involved in the employment action at issue if her duties relate to that decision-making process. Here, O'Gara was not involved in the decision to fire Makowski. But her job duties did include ensuring that the firm complies with antidiscrimination laws and she was even involved in the Makowski termination to the extent that she was the one designated to consult with outside labor counsel before her termination. She was acting within the scope of her employment and the statements are admissible. Having ruled on the admissibility of statements, the Court found no difficulty in finding jury questions on the Pregnancy Discrimination Act claim and the FMLA interference and retaliation claims. It reversed the summary judgment rulings.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select