The Tie Between Hearsay And Relevance

In race and sex prejudice case, excluding report of an anonymous call received by the defendant concerning hostile comments made by workers toward the plaintiff as hearsay; the report was not admissible for the non-hearsay purpose of showing that the defendant received notice of the incidents, as the issue at trial concerned only a failure to promote, which did not implicate whether or not the defendant had notice of the alleged hostile actions against the plaintiff, in Williams v. CSX Transp. Co., Inc., __ F.3d __ (6th Cir. June 28, 2011) (No. 09-5564)

There is a fundamental tie between a question of hearsay and the issue of relevance. Under FRE 802, hearsay is generally not admissible, so that the rule excludes a statement "offered in evidence to prove the truth of the matter asserted" by the statement. See FRE 801(c). If the statement is one made by the declarant while testifying, it is not a hearsay statement. But a statement must also be relevant to be admitted at trial, this is an independent requirement of FRE 401. As a consequence, part of the difficulty of assessing the admissibility of a statement as hearsay turns on whether the statement is relevant to an issue at trial. In a recent case, the Sixth Circuit assessed an otherwise unremarkable case, except in that it pointedly illustrates how relevance is also a key inquiry in deciding if a statement is relevant.

In the case, plaintiff Williams alleged that her employer, the defendant CXS Transporation Co., had subjected her to racially and sexually hostile work environments and retaliation. On her claim of racially hostile work environment, the trial court granted summary judgment as a matter of law to defendant CSX, reasoning "that her [plaintiff's] evidence of a racially hostile work environment was not sufficiently 'severe' or 'pervasive' to create a jury question." On appeal, the Sixth Circuit affirmed the trial court's grant of summary judgment, as well as the action of the trial judge to exclude evidence offered by the plaintiff.

As recounted by the circuit, "Williams was the only black employee and the only female employee," working at a particular CSX facility. The plaintiff alleged that "between 2002 and 2004, her supervisors treated her differently than her white male counterparts," and she was denied promotions and eventually terminated. The plaintiff had made administrative filings with the EEOC, which "spanned seven pages, [and] recounted the Wingo incident [a racially-charged employee argument] in detail. She alleged that the elimination of positions, which led to her being relocated to a distant facility, "was in retaliation against her for the anonymous call to the CSX ethics hotline reporting the Wingo incident. She also alleged, independently, that her dislocation to the Nashville facility was an act of discrimination based on her race and sex." Williams, __ F.3d at __.

The evidentiary error the plaintiff contested involved evidence of the "Wingo Episode" as reflecting the racial bias of the workplace: In this incident, the plaintiff had an argument with:

"Wingo and ... Magargle, two supervisors, [who] were watching the Republican National Convention on television on the evening of September 2, 2004 when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot 'have the love of God in their heart[s]'; and that this country should 'get rid of' Jesse Jackson and Al Sharpton because without those two 'monkeys' the country 'would be a whole lot better.' The following day, Williams alleges that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother. Several days later, an anonymous caller, professing to be white, reported Wingo’s conduct to a CSX ethics hotline. The caller stated that Wingo “takes delight in harassing employees of other races.”

Williams, __ F.3d at __.



At a hearing, the plaintiff sought to offer the CSX report on the phoned account of the "Wingo" episode (as recounted above). The CSX report reflected that "an anonymous caller phoned the CSX ethics hotline shortly after the Wingo incident. CSX generated a report of the call. According to that report, the caller said that Wingo insulted Williams and:

“the rest of the [b]lack race,” that Wingo “takes delight in harassing employees of other races,” and that “Wingo does not deserve to be in a managerial role if he cannot curb his excesses.” The caller, who
professed to being white, also reported that “[t]he morale of employees has been affected
by this uncouth behavior. Williams sought to introduce the report into evidence, but the district court held
it to be inadmissible hearsay."

Williams, __ F.3d at __.


In her appeal, the plaintiff argued the trial judge erred in excluding the report as hearsay. She proffered the report was admissible for a non-hearsay purpose. In short, it was not proffered as evidence that Wingo harassed employees of other races. The Sixth Circuit rejected this argument. It noted that the plaintiff alleged that the evidence was admissible because "the statements were not hearsay ... she offered them to prove that CSX had notice of the harassment, rather than the truth of the matter asserted." Williams, __ F.3d at __ (citing FRE 801(c)). The circuit noted a "fatal flaw in Williams’s argument" was her assumption that she bore the burden of showing "whether CSX had notice of that [Wingo] incident had occurred." The circuit indicated this purpose was irrelevant for the purpose of the question before the jury: her failure-to-promote claim," which she failed to appeal.

According to the circuit, the evidence did have some hearsay purposes for which it could be admitted, as well as non-hearsay purposes that could not be admitted because they were irrelevant. Williams, __ F.3d at __. As explained by the circuit:

"Although an employer’s notice and inadequate response are necessary components of a hostile work environment claim, those issues are simply not part of the framework of a failure-to-promote claim, And Williams’s racially hostile work environment claim fail[ed] for [reason that] isolated racist remarks by a single supervisor are not “severe” or “pervasive” — irrespective of the contents of the CSX hotline report [on the Wingo incident].

Williams, __ F.3d at __.

Accordingly, the CSX hotline report was inadmissible hearsay, and the district court properly excluded it from evidence. It was not relevant to a matter before the fact finder at the time of the evidence proffer. It was non hearsay as evidence of a failure to promote, a matter not at issue. In essence, the circuit concluded its analysis by pointing out that prevailing legal authority in the Sixth Circuit would preclude use of the evidence:

Although an employer’s notice and inadequate response are necessary components of a hostile work environment claim, those issues are simply not part of the framework of a failure-to-promote claim. And Williams’s racially hostile work environment claim fails ... that is, isolated racist remarks by a single supervisor are not “severe” or “pervasive” — irrespective of the contents of the CSX hotline report. Accordingly, the CSX hotline report was inadmissible hearsay, and the district court properly excluded it from evidence.

Williams, __ F.3d at __ (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999) (defendant notice on failure to promote claim), White v. Baxter Healthcare Corp., 533 F.3d 381, 391-92 (6th Cir. 2008) (4-part test for failure-to-promote claims)).

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