Federal Evidence Review

In employment race discrimination action, exclusion of black co-worker’s testimony was appropriate when the witness lacked personal knowledge of alleged discriminatory employee evaluations by defendant employer; during the witness’s voir dire, he was only aware of employee evaluation scores a few years after the plaintiff’s termination and was unable to testify whether work performance accounted for the evaluations, in Zokari v. Gates, 561 F.3d 1076 (10th Cir. March 17, 2009) (No. 07-6173)

FRE 602 requires that a witness have personal knowledge of the matters to which the witness will testify. While this requirement appears simple and straightforward, it is occasionally overlooked with dire consequences to a party’s proof at trial. The Tenth Circuit recently examined an employment discrimination case involving a gap between the subject of a witness’s testimony and the witness’s personal knowledge of that subject.

In the case, plantiff Zokari, who was born in Nigeria and was a naturalized citizen, had been hired by the Defense Contract Audit Agency (DCAA) as an auditor-trainee. He was terminated nine months later during his probationary period. He filed a Title VII action (under 42 U.S.C.A. § 2000e-3(a)) alleging, inter alia, that his termination was based on his race and national origin. After summary judgment, only the race discrimination charges proceeded to a jury trial. The plaintiff contended that race discrimination was demonstrated by the “minimal guidance [he received] from the auditors supervising his work. His supervisors recorded his errors on internal forms … which were then used as evidence of his poor work performance to justify his termination, whereas the errors of the other three auditor-trainees ... were not recorded or used against them. Instead, the other auditor-trainees were given constructive feedback and the opportunity to correct their errors.” Zokari, 561 F.3d at 1080.

During the trial, the plaintiff offered “testimony of Emmett Holland, an African-American senior auditor ... regarding his experiences as an African-American at DCAA and information he had learned from reviewing employee evaluations in preparation for bringing his own claim of discrimination against DCAA (which he ultimately decided not to pursue).” The witness would testify that he had been “ranked lower than non-black counterparts” and that there was an “atmosphere of discrimination” at the DCAA. The witness was prepared to testify that lower rankings were suffered by other non-white employees. However, he was unable to show that he had access to the evaluation of these other employees to assess if they were similarly situated in terms of their performance. The proffered testimony was excluded after the trial court concluded the witness “lacked personal knowledge of relevant discrimination.” Zokari, 561 F.3d at 1080. The jury returned a verdict for the defendant employer. On appeal, the plaintiff challenged the trial court’s exclusion of the Holland testimony based on a finding that the witness lacked personal knowledge.

The Tenth Circuit affirmed the district court’s exclusion of the Holland testimony. The circuit noted that the defendant “did little to suggest” the witness’s personal experience necessary to provide a sufficient foundation for his testimony. The trial court had the parties conduct voir dire of the witness outside of the jury’s presence, so that it could determine whether to admit the testimony. The results of that voir dire, as recounted by the circuit, showed:

“It was clear ... that Holland did not have personal knowledge of discriminatory evaluations by DCAA. He knew the evaluation scores for employees two or three years after Mr. Zokari’s termination, but he could not know if the evaluations were discriminatory because he knew nothing regarding the work performance of any employee except himself. Although he may have had knowledge of other discriminatory conduct, his testimony did not provide sufficient information concerning his knowledge of such conduct for the district court to decide that he had personal knowledge of matters relevant to Mr. Zokari’s trial. In this circumstance, the district court did not abuse its discretion in ruling that Holland’s testimony should be excluded for lack of personal knowledge.”

Zokari, 561 F.3d at 1089 (citing FRE 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”)).

The disposition in Zokari is unusual only in the sense that the plaintiff could not ultimately show at trial the personal knowledge required for his witness. The Tenth Circuit implies the broad applicability of a standard articulated by the Ninth Circuit concerning the need to show a non-expert witness’s personal knowledge under FRE 602: For a witness to provide evidence, she must “show personal knowledge. It is not enough for a witness to tell all she knows; she must know all she tells.” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) (on claim of retaliation for bringing age and race discrimination suit against employer, grant of summary judgment for employer was not in error when plaintiff “failed to show personal knowledge” under FRE 602 that the asserted retaliation was based on an unlawful motive) (emphasis added).