Weil v. Citizens Telecom Servs. Co.

• Decision Date: 29 April 2019
• Docket Number: No. 16-35813,16-35813
• Citation: 922 F.3d 993
• Parties: David WEIL, Plaintiff-Appellant, v. CITIZENS TELECOM SERVICES COMPANY, LLC; Frontier Communications Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

922 F.3d 993

David WEIL, Plaintiff-Appellant,

v.CITIZENS TELECOM SERVICES COMPANY, LLC; Frontier Communications Corporation, Defendants-Appellees.

No. 16-35813

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2018 Seattle, Washington

Filed April 29, 2019

N.R. SMITH, Circuit Judge:

Hearsay 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.

I.

David 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.

In September 2012, Weil became the interim acting director of the call center, reporting directly to L.H., the Senior Vice President of Call Centers.¹ 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.

After 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.

On 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.² 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).

On 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 follows:

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 female.’

L.H. was later terminated in June 2013.

Weil 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.

Weil’s 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.

Weil 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.

The 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. Weil appealed.

II.

Because 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.

Under 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."³ 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.⁴ 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.

With 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).

Our 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...