Moore v. Sears, Roebuck and Co., 80-9022

• Decision Date: 23 August 1982
• Docket Number: No. 80-9022,80-9022
• Citation: 683 F.2d 1321
• Parties: 29 Fair Empl.Prac.Cas. 931, 30 Empl. Prac. Dec. P 33,001, 11 Fed. R. Evid. Serv. 338 Calvin S. MOORE, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1321

683 F.2d 1321

29 Fair Empl.Prac.Cas. 931,

30 Empl. Prac. Dec. P 33,001,

11 Fed. R. Evid. Serv. 338

Calvin S. MOORE, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.

No. 80-9022.

United States Court of Appeals, Eleventh Circuit.

Aug. 23, 1982.

Ellsworth T. Simpson, Washington, D.C., Mary Ann B. Oakley, Atlanta, Ga., for plaintiff-appellant.

Sidney O. Smith, Jr., Alston, Miller & Gaines, John R. Crenshaw, Anne S. Rampacek, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, HILL and JOHNSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Calvin Moore brought this action against Sears, Roebuck and Company alleging violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, 623. The jury verdict and judgment were entered in favor of Sears.

During the trial, Sears introduced a series of memoranda prepared by Moore's supervisors over a period of months. The memos, most of which are designated "for the file," contain observations pertaining to Moore's performance, summaries of reports on his performance made by other Sears employees, and chronological accounts of events such as personnel investigations and meetings. Several of the persons whose reports were reflected in the memos testified at trial. Moore's attorney, contending that the documents constituted hearsay, challenged the introduction of this evidence ¹ by way of a continuing objection originally made by a motion in limine. ²

The trial judge admitted the documents in question under the business records exception to the hearsay rule, ³ Fed.R.Evid. 803(6). On appeal, Moore argues that the judge abused his discretion, thus necessitating a new trial.

We hold that the trial judge properly admitted the evidence in question because it did not constitute hearsay; we need not decide whether the documents were admissible business records under Fed.R.Evid. 803(6). " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The documents here were not tendered to prove the particulars of their contents, but to help establish that Sears was motivated, in good faith, to discharge Moore for reasons other than age. ⁴

The appellant argues that it was unnecessary for Sears to introduce, in detail, the contents of the memoranda as evidence of proper intent, that it would have been sufficient for Sears to have established the existence and nature of the memoranda. Sears could have chosen to take that alternate course. Instead, however, Sears sought to introduce more specific evidence of Sears' assessment of Moore's performance in order to strengthen the credibility of those who testified that Moore had been terminated for bona fide reasons. ⁵

Since the admission of the documents and the accompanying testimony was proper to show that Sears' stated reasons for termination were not a pretext, the trial court's decision is

AFFIRMED.

1 Moore contends that the employees would have been unable to testify had the documents not been introduced and asserts that the testimony should thus have been excluded along with the documents. We have difficulty with this argument since the only basis for a hearsay objection would be...