Beyond The Scope (But Not): Court Finds That Supervisor’s Sexist Statements Qualify As Employee Admissions

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Federal Rule of Evidence 801(d)(2)(D)  states

Admission by party-opponent. [A] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of  the relationship.

How strictly should courts construe this Rule? If a supervisor makes sexist comments to an interviewee/employee, is the supervisor making statements concerning a matter within the scope of his employment, or are his statements beyond the scope of human decency as well as his employment? Thankfully, most courts have acted like the United States District Court for the Eastern District of California  in its recent opinion in Johnson v. Proline Concrete Tools, Inc., 2009 WL 1444204 (E.D. Cal. 2009), and reached the former conclusion.

In Johnson,  Lindsay Johnson, a mother, interviewed with  Proline Concrete Tools  for a Sales Representative position in 2006. Her interviewer was Larry Freeman, and, according to Johnson, Freeman

asked her whether she planned to have any other children and told her that the position was “tough” and “would be hard to do with a newborn.”…[Johnson]  informed Freeman that she did not plan to have any other children.

Nonetheless, Johnson was hired, with Freeman serving as her direct supervisor. Thereafter, in June 2007, Johnson “advised Freeman that she was pregnant, with an expected delivery date in late-November to early-December, and would need to take six to eight weeks of maternity leave at that time.” According to Johnson,

Freeman “responded by yelling at [her] in a very angry fashion.”…He purportedly “yelled that he thought that [Johnson] told him that [she] wasn’t going to have any more children” and “that he did not know how defendant’s owners, Paul Sowa and Jeff Irwin, were going to feel about it.”…He also “yelled that he could not see how [Johnson] would be able to do [her] job while pregnant and having a newborn child.”…Finally, he allegedly told her that he thought a mother should stay home for at least two years after having a baby and that he would have to talk to Sowa and Irwin about it.  

Johnson claimed that for the next three months, “Freeman was ‘curt and rude’ towards her and spoke to her more infrequently that he had in the past.” In September, Johnson spoke with Freeman again about her need for maternity leave, and, on September 17, 2007, Freeman informed Johnson that she had been “terminated, citing budget cuts.”

Thinking that she was fired for something more unseemly, Johnson brought an action against  Proline Concrete Tools  under Title VII  and the California Fair Employment and Housing Act.  Proline Concrete Tools  thereafter moved for summary judgment and claimed, inter alia, that Freeman’s question to Johnson during her interview about whether she intended to have more children and his statements when Johnson informed him that she was pregnant were inadmissible hearsay as defined in Federal Rule of Evidence 801(c).

With regard to  Federal Rule of Evidence 801(d)(2)(D),  Proline Concrete Tools  admitted that Freeman was acting as its agent at these points in time, but it claimed that Freeman’s sexist statements (and question) did not concern a matter within the scope of his employment. It’s an interesting argument, with  Proline Concrete Tools  seemingly saying that Freeman’s job was to interview and supervise and not to make sexist statements, meaning that it should not be bound by Freeman’s words.

Of course, when you think about it for a second, the argument falls apart.  Federal Rule of Evidence 801(d)(2)(D)  is the employee admission rule, and the Rule wouldn’t cover employee admissions if it only covered employees’ statements that fell within the four corners of their job descriptions. Instead, while Freeman was likely not authorized to make sexist statements, his questions and comments, which related to Johnson’s ability to perform her job while she was pregnant or after having had a child, related to a matter within the scope of his employment and was thus was an employee admission.

This seems correct to me and consistent with the opinions of courts from across the country which have generally broadly construed the “scope” portion of  Federal Rule of Evidence 801(d)(2)(D). See, e.g., United States v. Reed, 167 F.3d 984, 989 (6th Cir. 1999).

-Colin Miller

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