Top brass may have the last word when it comes to adverse actions. But even comments made by lower-level managers — including those in human resources — may be used to support the kind of discrimination claim that often follows in the highly emotional climate following a layoff.
A recent appeals court ruling in a Family and Medical Leave Act (FMLA) case illustrates the consequences for a company when HR doesn’t fully support the decision.
If the human resources director is in anyway involved in the decision-making process surrounding the layoff — including discussing legal details with lawyers — any comments she may make to the affected employee may be admissible during a trial, the 7th U.S. Circuit Court of Appeals recently ruled.
In overturning a lower court’s decision, the 7th Circuit’s ruling allowed the plaintiff, a former marketing director at SmithAmundsen LLC, a Chicago-based law firm, to proceed with claims alleging interference with FMLA rights, retaliation in violation of FMLA and discrimination under the Pregnancy Discrimination Act.
The claims stemmed from 2008, when the plaintiff, Laura Makowski, took FMLA-protected maternity leave. Makowski, who had been at the firm for more than two years when she took leave, was the leader of a four-person marketing team.
During her maternity leave, SmithAmundsen’s executive committee decided to eliminate Makowski’s position, concluding she was not a good fit for the job. A senior manager then asked Smith Amundsen’s human resource director to work out the details of Makowski’s pending termination with outside counsel.
When Makowski came to the office to retrieve her belongings, the human resources director allegedly told her that she “was let go because of the fact that [she] was pregnant and … took medical leave.” Makowski further asserted to the court that that the director said she “believed that there were [sic] a group of people that were discriminated against because they were pregnant or because they took medical leave.”
Holding that the human resources director’s alleged statements were inadmissible hearsay, the lower court refused to admit them into evidence. The reason, the lower court said, was because the human resources director’s job responsibilities were not related to the decision to terminate Makowski.
More than Hearsay
On appeal, Makowski challenged the lower court’s holding that the alleged statements made by the human resources director — the key evidence in establishing that she was terminated for her pregnancy — were hearsay.
Instead, she argued, the statements were admissible under Rule 801(d)(2)(D) of the Federal Rules of Evidence,” which provides that “[a] statement is not hearsay if … the statement is offered against a party and is … (D) 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….”
In Simple v. Walgreen Co., 511 F.3d 668 (7th Cir. 2007), the 7th Circuit sided with the 3rd Circuit (Marra v. Phila. Hous. Auth., 497 F.3d 286 (3d Cir. 2007)) in determining that a subordinate’s explanation concerning the criteria used by management in decisions on hiring, firing and compensation is admissible, regardless of whether the subordinate was personally involved in the employment decision.
Ultimately, the court said, the question of admissibility hinges on whether the statements fit under the scope of employment. Here, the 7th concluded, the human resources director’s comments “fit squarely” within the scope of her employment. For example, the appellate court noted, the director’s duties included regular consultations to ensure terminations complied with federal anti-discrimination statutes, making her part of the overall process. In Makowski’s case, the human resources director did not notify her of the termination, but was asked to consult outside labor and employment counsel about the decision. The adverse employment action was not the decision made by the executive council during the annual retreat, but rather her actual termination, the court made clear.
“While [the human resources director] was not involved in the employment action of Makowski’s termination, she was involved in the decisionmaking [sic] process leading up to that action due to her consultation with outside counsel regarding the termination and her job duties, which include ensuring the Firm’s compliance with federal anti-discrimination laws,” the court ruled. “Accordingly, [the director’s] statements fall within the scope of her employment and thus are admissible as nonhearsay under Rule 801(d)(2)(D).”
Because Makowski established the admissibility of the director’s alleged statements, the 7th Circuit overturned the lower court’s judgment on all the claims. The appeals court said the alleged statements “provide direct evidence that pregnancy was a motivating factor in Makowski’s discharge.”
Whether the case moves to a jury trial — where the validity of the alleged hearsay will be weighed (the human resources director denies making the comments, according to the court) — remains to be seen.
Both parties declined to comment on the status of the case.
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