Use And Abuse Of Hearsay Evidence In Summary Judgment
Wed, 06/13/2012
Noting that a grant of summary judgment to the defendant in a race harassment case (as there was no showing of "a dispute of material fact") could be reversed if the opponent of the motion was unable to show that the hearsay could be "reduced to" admissible evidence by the time of trial, in Jones v. UPS Ground Freight, __ F.3d __ (11th Cir. June 11, 2012) (No. 11–10416)
In civil cases, a motion for summary judgment is most often based on declarations or affidavits submitted by the parties. In general, the requirement is that the paper set forth facts that would be admissible in evidence, therefore precluding much hearsay or opinion evidence. But this rule has exceptions: while the hearsay must be such as is admissible at trial, it need not be in the precise form for admission at the time of the motion for summary judgment. The focus of the courts is the admissibility of its content and not its form. In a recent case, the Eleventh Circuit assessed the operation of this practice and explained some of the reasons underlying the practice.
In the case, plaintiff Jones filed a suit charging his employer UPS with maintaining a racially hostile work environment under Title VII and 42 U.S.C. § 1981. At the close of discovery, defendant UPS moved for summary judgment, which was granted to the defendant by the trial judge. The court failed to find any dispute of material fact. The harassment the plaintiff suffered included individuals "repeated placing of banana peels ... on [plaintiff's] truck and not on Caucasian drivers' trucks; [Plaintiff] would have to work around employees wearing confederate shirts on several occasions;" racial comments made" directly by a supervisor to the plaintiff, by "workers in the [loading] yard making racial statements in [Mr.] Jones's presence" and "being threatened by Caucasian employees after complaining about the racially hostile environment." Jones, __ F.3d at __.
Apparently, the record of the case identified only two situations in the case provided proof that "racial comments had been made" in the defendant's presence, supporting the inference that the cause of harassment of the plaintiff was that he was a membership in a minority group. The first incident was when a supervisor made "racial comments" early in the plaintiff's work at the company. The second incident involved hearsay contained in an email in which one of defendant's employees told another that the plaintiff had complained to him that co-workers"make racial remarks to him all the time." The task to be considered by the circuit was to decide whether this hearsay statement, which would be not admissible at trial would thereby prevent the plaintiff from using it to defeat the defendant's summary judgment motion. Jones, __ F.3d at __.
The circuit noted that in its current form, this evidence would not be admissible. It was classic hearsay and the plaintiff failed to "assert" that if fell within any of the hearsay rule exceptions. The general difficulty, according to the circuit, was that even if the evidence could be admitted under the theory that it placed the defendant in the position of initiating an investigation into the matter. But even if admissible for that purpose, the evidence could not be used as "a basis for ... establishing that there was any truth to the content of the complaints." Thus, at trial the jury would not be able to "consider the statement as evidence that the racial remarks were in fact made." Because it could not be shown that the evidence could be made admissible, it precluded the court from relying on the statement as additional proof that the harassment of the plaintiff was due to race in violation of the civil rights law. This result was simply a reflection of the "general rule ... that inadmissible hearsay cannot be considered on a motion for summary judgment.” Jones, __ F.3d at __ (citing Macuba v. DeBoer, 193 F.3d 1316, 1322-23 (11th Cir. 1999) (noting that “a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.”) (internal quotation marks omitted).
In assessing whether there was any way in which the statement in the memo (regarding a racial basis for the treatment of the plaintiff), the circuit concluded there was not. It was not as simple as the usual way such a limitation could be avoided and the evidence be used in opposition to the summary judgment as hearsay testimony which could be "reduced to admissible form," such as "have the hearsay declarant testify directly to the matter at trial."Jones, __ F.3d at __ (citing Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (an affidavit “can be reduced to admissible form at trial” by calling the affiant as a witness)).
The reason this simple step would not avoid the problem was that the declarant of the statement had "given sworn testimony during the course of discovery that contradicts the hearsay statement." This possibility precluded use of the statement as evidence in considering the summary judgment motion because:
we may not consider the hearsay statement at the summary judgment phase. The possibility that the declarant might change his sworn deposition testimony and admit to the truth of the hearsay statement amounts only to “a suggestion that admissible evidence might be found in the future,” which “is not enough to defeat a motion for summary judgment.” When asked at his deposition whether “anyone else,” other than Terrell, “made racial comments to [him],” Mr. Jones answered, “No.” Accordingly, we cannot assume that Mr. Jones will change his testimony at trial and testify in conformity with the hearsay statement.Jones, __ F.3d at __ (citing McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) (footnote omitted)).
This left a record for the summary judgment in which there was only one instance tying the harassment to racial causes. There was no other evidence in the record to suggest that there was a witness who had personal knowledge of the matter who could be called to testify to the racial basis of the harassment if the case went to trial. Because the hearsay statement in the employee's "email — that Mr. Jones had heard others making racially derogatory remarks to him — could not be presented at trial in admissible form ... [it] cannot be considered in an effort to defeat summary judgment." Jones, __ F.3d at __.
The result of excluding hearsay evidence which cannot be reduced to admissible form at a later stage of proceedings is a direct effect of Fed. R. Civ. P. 56, which
provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.Jones, __ F.3d at __ (quoting 2010 ACN - Fed. R. Civ. P. 56).
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