Bush v. Dictaphone Corp.

• Decision Date: 11 January 1999
• Docket Number: No. 97-3886,97-3886
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 822, 74 Empl. Prac. Dec. P 45,666, 50 Fed. R. Evid. Serv. 956 F. Donald BUSH, Plaintiff-Appellant, v. DICTAPHONE CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 363

161 F.3d 363

78 Fair Empl.Prac.Cas. (BNA) 822,

74 Empl. Prac. Dec. P 45,666,

50 Fed. R. Evid. Serv. 956

F. Donald BUSH, Plaintiff-Appellant, v. DICTAPHONE CORPORATION, et al., Defendants-Appellees.

No. 97-3886.

United States Court of Appeals Sixth Circuit.

Argued Oct. 30, 1998.

Decided Nov. 23, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 11, 1999.

Russell A. Kelm (argued and briefed), Joanne Weber Detrick (briefed), Law Offices of Russell A. Kelm, Columbus, OH, for Plaintiff-Appellant.

Douglas L. Williams (argued and briefed), Julia A. Davis (briefed), Vorys, Sater, Seymour & Pease, Columbus, OH, for Defendants-Appellees.

Before: NELSON, CLAY, and GILMAN, Circuit Judges.

GILMAN, Circuit Judge.

From 1976 to 1994, F. Donald Bush was employed by Dictaphone Corporation, a maker of office equipment. In January of 1993, when Bush was 46 years old, he was demoted from his executive-level position, and two years later was terminated. Bush sued Dictaphone based on the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, the prohibitions on sex discrimination contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and various state law claims.

The district court granted Dictaphone's motion for summary judgment. On appeal, Bush claims that the district court erred (1) in denying Bush's motion to suppress certain statements as hearsay, (2) in curtailing Bush's ability to depose two corporate officers of Dictaphone's corporate parent, and (3) in granting Dictaphone's motion for summary judgment. For the reasons set forth below, we AFFIRM the decision of the district court.

I. BACKGROUND

The facts in this case are largely undisputed. Bush began working for Dictaphone in 1976. In 1979, Dictaphone promoted him to "Region Sales Manager," a position later known as "Region Vice-President." In the early and mid-1980s, his performance reviews were generally quite positive, and he was recognized by the company for good performance on several occasions. In 1989, after Bush began reporting to the Vice-President of Sales for the Communication Recording Systems Division, a woman, things began to change.

In February and March of 1992, the Sales Vice President became dissatisfied with Bush for two reasons. First, Bush responded to one of her routine business inquiries in an insubordinate and confrontational manner. Second, sales associates that Bush supervised claimed that he was abusive, unpredictable, and had a tendency to "fly off the handle." Bush was counseled by his superiors, and given an opportunity to correct his behavior. Because he did not, he was demoted ten months later to a lower position.

One year after his demotion, in early 1994, Bush's supervisors began receiving complaints that certain employees who worked for Bush were afraid that he might become violent. This caused Dictaphone to convene a "Prevention of Critical Incidents" team, a corporate structure created to prevent potential acts of workplace violence. The team required Bush, under threat of termination, to be evaluated by a psychiatrist named Howard Sokolov. After examining Bush, Dr. Sokolov concluded:

[I]n a practical sense, he probably can not function [as a salesman] in the context of a corporate employee at Dictaphone.... [I]t is extremely likely he will wage a war of vituperation, legal complaints, obstructionism, and pestering to attempt to win against the corporation and salvage some self esteem.

As part of the same evaluation process, Bush was also examined by psychologist Marlene Kocan, who stated that "Because of his high levels of underlying hostility and some suggestion that he may act on his hostility, caution should be exercised in dealing with this man." The team offered Bush the opportunity to be evaluated by a mental health professional of his own choosing, at company expense. He declined to do so. Based on the psychological and psychiatric assessments, as well as the team's own review of Bush's record, the team recommended that Bush be terminated. Dictaphone acted on the team's recommendation by discharging him in June of 1994. Shortly thereafter, Bush filed the instant lawsuit.

Bush concedes most of the foregoing facts, but contends that Dictaphone's allegations were a pretext designed to mask its discrimination against him based on his age and gender. Bush alleges that he was replaced by a younger woman when he was demoted, and by a younger man when he was terminated. Bush also claims to have heard the Sales Vice President make derogatory comments toward older people, although the only example he gave was a single alleged reference by her to "greybeards." Bush also claims that a number of older men were forced out of their jobs in favor of younger employees.

In the district court, Bush moved to strike a number of statements contained in declarations offered by Dictaphone. These statements consisted of information that the Sales Vice President and other Dictaphone supervisors received from employees supervised by Bush. Bush claimed in his motion that these statements should have been excluded as inadmissible hearsay. The district court denied the motion, finding that the statements were not offered for the truth of the matter asserted.

Bush also sought to compel the depositions of two high-ranking executives of Pitney-Bowes, Dictaphone's corporate parent. He alleged that because these two executives were in charge of Bush's division, they must have information relating to Bush's discharge. The district court allowed only a limited deposition of the President and Chief Operating Officer, and refused to allow the deposition of the Chief Executive Officer.

Ultimately, the district court rejected all of Bush's substantive claims, granting summary judgment for Dictaphone. Bush now appeals.

II. ANALYSIS

A. Failure to Comply with Appellate Rules

As a preliminary matter, Dictaphone claims in its brief that Bush's appeal should be dismissed because his statement of facts failed to cite to the record, a violation of Rule 28 of the Federal Rules of Appellate Procedure and Sixth Circuit Rule 10. In support of this claim, Dictaphone cites two Ninth Circuit cases, Mitchel v. General Electric Co., 689 F.2d 877 (9th Cir.1982), and N/S Corp. v. Liberty Mutual Insurance Co., 127 F.3d 1145 (9th Cir.1997), and a case from this circuit decided in 1903, Mitchell Transportation Co. v. Green, 120 F. 49, 60-61 (6th Cir.1903) (per curiam).

A review of those cases, however, indicates that dismissal is appropriate only when a brief is so inadequate that a court cannot interpret it at all. See, e.g., Mitchel, 689 F.2d at 878-79. In addition, the appellants in the cited cases were given a chance to correct their errors and failed to do so. In contrast, Bush's reply brief contains a statement of facts that is in full compliance with the appellate rules. His appeal will therefore not be dismissed on this basis.

B. Admission of Alleged Hearsay

Bush moved under Rule 56(e) of the Federal Rules of Civil Procedure to strike significant portions of four different declarations offered by Dictaphone. Each declaration stated that the declarant, a corporate decision-maker, had been told by unidentified co-workers that Bush was abusive or unstable. For example, one secretary complained that Bush had "gone off the deep end" and another Dictaphone employee stated that he would no longer permit Bush to have contact with his family. Bush claimed that these averments were inadmissible hearsay under Rule 802 of the Federal Rules of Evidence. In the same order in which it granted summary judgment, the district court denied Bush's motion. The district court found that the statements were not being offered to prove the truth of the matter asserted (i.e., that Bush was an abusive boss), but "were admissible for the limited purpose of considering the grounds upon which the declarants based their decisions with regard to the employment status of the plaintiff."

This court reviews de novo a trial court's hearsay determinations under the Federal Rules of Evidence. See Hancock v. Dodson, 958 F.2d 1367, 1371 (6th Cir.1992) (stating that although a district court's evidentiary determinations are generally reviewed for an abuse of discretion, a district court's determination that proffered evidence is hearsay within the meaning of the Federal Rules of Evidence is a conclusion of law subject to de novo review). Evidence is hearsay only when the out-of-court statement is offered to prove the truth of the matter asserted. See FED.R.EVID. 801(C).

In this case, the truth of the statements is not at issue as long as the declarants had a reasonable basis to believe them to be true. See United States v. Martin, 897 F.2d 1368, 1371 (6th Cir.1990) (holding that testimony based upon an out-of-court statement of an unnamed declarant, indicating that defendant was charged with food stamp trafficking, was not hearsay because it was offered for the limited purpose of explaining how and why the investigation of the defendant began). Because Bush does not challenge the declarants' reasonable basis to believe that the statements were true, the hearsay rule is inapplicable and the district court's decision was proper.

C. Order Limiting Depositions

Bush complains that the district court erred by limiting his ability to depose two senior officers of Pitney-Bowes, Dictaphone's then corporate parent. In a separate one-page order dated some four months before the court entered summary judgment, the magistrate judge limited Bush's deposition of Marc Breslawsky, the President and Chief Operating Officer of Pitney-Bowes, to two hours, and further limited the deposition to questions regarding "ageist statements allegedly made by him and his involvement, if any, in plaintiff's demotion or termination." The magistrate judge also denied Bush's motion to depose George Harvey, the Chief Executive Officer of Pitney-Bowes.

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