Blackburn v. United Parcel Ser

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

6-7-1999

Blackburn v. United Parcel Ser

Precedential or Non-Precedential:

Docket 98-6075

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation

"Blackburn v. United Parcel Ser" (1999). 1999 Decisions. Paper 149.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/149

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed June 7, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-6075

BENJAMIN BLACKBURN,

Appellant

v.

UNITED PARCEL SERVICE, Inc.;

PATRICIA KNOWLES

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 95-cv-04709)

District Judge: Honorable Maryanne Trump Barry

Argued: February 9, 1999

Before: BECKER, Chief Judge, McKEE, Circuit Judges

and LEE, District Judge.*

(Filed June 7, 1999)

WALTER A. LUCAS, ESQUIRE

(ARGUED)

GLEN D. SAVITS, ESQUIRE

LISA NEMETH, ESQUIRE

Lucas, Savits & Marose, LLC

50 Northfield Avenue

West Orange, NJ 07052

Counsel for Appellant

_________________________________________________________________

*Honorable Donald J. Lee, United States District Judge for the Western

District of Pennsylvania, sitting by designation.

KATHLEEN M. McKENNA, ESQUIRE

(ARGUED)

DAVID W. MacGREGOR, ESQUIRE

Proskauer, Rose, LLP

1373 Broad Street

P.O. Box 4444

Clifton, NJ 07105-4444

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

In this diversity case, we are asked to review the District

Court's grant of summary judgment for defendant United

Parcel Service ("UPS"), which was grounded on the view

that the conduct of plaintiff Benjamin Blackburn did not

constitute protected activity under the New Jersey

"whistleblower" statute, the Conscientious Employee

Protection Act ("CEPA"), N.J. Stat. Ann. SS 34:19-1 to -8.

Being doubtful of the correctness of this conclusion of the

District Court, we will assume that Blackburn has met his

burden of establishing a prima facie case of retaliation

under CEPA. We will instead affirm the District Court's

judgment on the alternative ground that Blackburn has

failed to offer sufficient admissible evidence to rebut UPS's

proffered legitimate justification for his discharge--his

putative violation of UPS's anti-nepotism, favoritism,

integrity, and accountability policies. In order to reach the

pretext issue, and so as to determine which evidence of

Blackburn's might be admissible at trial, we must consider

the contours of a number of exceptions to the rule against

admitting hearsay evidence. In particular, we must

interpret the seldom-invoked exception for reputation

evidence concerning family relationships, see Fed. R. Evid.

803(19), which bears on Blackburn's defense to the

nepotism charges. Ultimately, we conclude that an

insufficient quantum of evidence would be admissible at

trial to rebut UPS's proffered legitimate justification for

discharging Blackburn; hence, we affirm.

2

I. Facts & Procedural History

Blackburn worked for UPS1 for approximately eight years.

He began work as a driver in June 1986, and was promoted

several times, first becoming a manager in 1990. In early

1992, Blackburn was transferred to a division of the

company that priced UPS products and services. His duties

included development of a flexible pricing project, the

Incentive Administration System ("IAS"). In September

1993, he was promoted to Marketing User Representative

for the Marketing Information Group in Mahwah, New

Jersey. In this position, his responsibilities included

addressing, through the IAS or otherwise, UPS's loss of

accounts and significant amounts of business to a

competitor, Roadway Package Service. His principal

supervisor at that time was Gary Hopwood, who was based

in Atlanta. Hopwood's supervisor was Nicholas Bain, who

was also Atlanta-based.

A. Blackburn's Complaints to His Supervisors

In November 1993, Blackburn first expressed to the IAS

project manager, Rich Cooley, his concerns regarding

possible antitrust violations arising out of customer

discounts given through the IAS.2 Blackburn's concerns

allegedly intensified when, in early 1994, UPS began to

modify its pricing system and combined ground contracts

with air contracts, a "bundling" practice that he alleged

_________________________________________________________________

1. Also named as a defendant was Patricia Knowles, a supervisor in

UPS's Human Resources Department. The District Court found that

there was no basis for any claims against Knowles and dismissed her

from the suit. Blackburn does not appear to contest this ruling, focusing

his discussion on his claims against UPS. We likewise will confine our

discussion to the issues concerning UPS, and therefore refer to the

singular defendant throughout.

2. In this appeal from summary judgment in favor of defendant, "we view

the facts as they are set forth [in the record], in the light most

favorable

to the non-moving party [i.e., Blackburn], in order to determine whether

there are material issues of disputed fact." Bechtel v. Robinson, 886 F.2d

644, 647 (3d Cir. 1989). References in this opinion to "App." refer to

Blackburn's Appendix, while references to "S.A." refer to the

Supplemental Appendix filed by UPS.

3

allowed even unprofitable ground customers to be enticed

with air discounts. Blackburn believed that the IAS project

was generally falling apart because of inadequate resources

and a lack of management and direction.

On March 22, 1994, Blackburn first put his concerns in

writing, sending a memo to his supervisor, Hopwood. This

memo stated, in relevant part:

As per our recent phone conversation, I'm detailing

here areas where I believe that we may run into

significant problems with respect to Anti-Trust issues

going forward.

I would appreciate your running these by [UPS in-

house attorney] Joel Creamer in order to determine

whether these issues will present legal obstacles.

1) No security check exists at present to authenticate

or assure that the information entered by field users is

either accurate or valid. As you know, it is important

that user information be subject to some type of

validation process or, the worst case scenario, we may

be providing a discount level that could easily be

interpreted as predatory in nature.

While I am unsure as to the extent of our obligation

in this area, it seems to me that we must have some

type of system in place that will authenticate, to some

reasonable degree, the input data that our sales reps

are entering in order to develop prices. To leave this to

their discretion is, I believe, flirting with disaster under

the present scenario.

Obviously, Creamer will have a much better sense

about the company's obligation here but to expound

upon my concern a bit more, it occurs to me that a

challenge to our pricing methodology cannot be

defended merely by the company taking the position

that it didn't know what its sales reps were doing in

developing discounts. That is to say, it is difficult for

me to see where a posture of "see no evil, hear no evil

. . ." is especially wise given our current position in the

Ground marketplace. I urge you to take action to

determine whether this [is] as significant as I fear it

may be down the road.

4

2) The present combination of Mark Matulavicus and

Leslie Gilstrap working as representatives of the

Strategic Cost groups causes me grave concerns as I

have been unable, as you know, to get any real

commitment from their manager as to the level of

comfort we should have in determining whether their

costing methodology is indeed in line with regularly

accepted costing practices or whether the Incentive

Administration System is intended to be built using

trial methodology.

App. at 60 (ellipsis in original).

On April 18, 1994, Blackburn sent another memo to

Hopwood about his discomfort with the status of IAS. He

suggested that it could not be properly validated and that

there were many internal failures, including the improper

billing of hundreds of customers. He expressed concern

that releasing IAS to customers in its present state could

cause "significant" liability, and "we ought to try and get

things straightened out before we end up having to explain

ourselves to someone outside of our organization." Id. at 62.

On June 3, 1994, Blackburn wrote to Bain, expressing the

view that the IAS project "will have gravely negative

implications for the organization. . . . Both Rich Cooley and

I have serious reservations as to whether the system we are

building is indeed functioning properly and the potential

outcome of this may be significant both internally and

externally." Id. at 63.

On June 15, 1994, Blackburn wrote another memo to

Hopwood, stating that "I have serious concerns about the

rate we are moving and what I believe to be the gross

negligence of our group in assuring that the system works

properly and, dare I say, within the confines of ordinary

accepted business principles." Id. at 64. He could not "in

good conscience" sign off on the system without reasonable

testing:

Our billing problems have, I believe, only beg[u]n to

show themselves for what they truly will be come yet

another release of the system and I am extremely

uncomfortable with the idea of signing off on

something that is not only wrong but very likely illegal

in the way that it is used.

5

You have indicated to me that I should "relax" about

this and stated that the issues are too complex for

ordinary folks to understand. I must say that while I

agree that the issues are indeed complex, it won't take

a rocket scientist to figure out that the methodology

we've used in creating this system lacks a basic

integrity that is at the core of any worthwhile endeavor.

I fear that the result will not only be a loss of

confidence by our customers but also willingly and

knowingly violates fundamental obligations we have as

an organization to our fellow employees, our customers

and the public.

It certainly wouldn't take a genius to pick apart the

cost model as it stands at present and I suspect that

we could easily find glaring departures from commonly

accepted costing practices. . . .

Last but not least, I believe strongly that any

challenge to the practices in place would not stand a

legal litmus test. For this reason, I urge you on this

count to not only discuss the implications of this with

the legal staff but to also take another crack at making

the Strategic Costing group aware of the potential

impact should additional qualified resources not be

assigned to work on the project.

Id. at 64-65. Blackburn sent a final memo to Hopwood on

August 12, 1994:

Yesterday we had [a meeting] at your request. I've

written up the following summarization in order to

highlight the key points of what became a very

disturbing discussion.

. . . In reviewing my performance, you indicated that

I am performing at a very high level technically . .. .

You also indicated that you feel I need to improve in

the area of "being a team player".

As you stated, your concern regards my continued

criticism of the methodology used in IAS to apply

pricing formulas which may violate Anti-Trust

regulations.

. . . .

6

I believe that I have an obligation to raise these

concerns and your demand that I "not discuss these

with others" is especially difficult in light of the fact

that my concerns have been on-going for some time.

. . . .

You have agreed on numerous occasions with both

Pat Toomey and myself that this situation must be

corrected immediately if we are to avoid a significant

set of legal problems going forward. . . .

. . . I must nevertheless continue to remind you of

our obligation to assure proper pricing practices in

light of our role as the marketplace leader in the

ground segment.

As I have mentioned to you numerous times, the

stress that this subject has caused me is tremendous

and has been instrumental in the development of

serious health problems that originally led me to

request a transfer from the Marketing Information

group.

While I believe that I have been a solid "team player"

throughout my career, I am deeply bothered by your

clear message that my success on this project depends

more on my willingness to [toe] a line of silence amid

seriously questionable and unethical pricing and

management practices than on traditional measures of

accountability.

Your references to me as an "unimaginative stick in

the mud", a "snitch" and most interestingly, as a "nosy,

bean counting Jew" are unwanted, embarrassing and

frankly, unprofessional.

Id. at 66-67.

Blackburn was fired by UPS on September 29, 1994,

approximately seven weeks after his last memo was sent to

Hopwood. He alleges that he was fired for raising with his

supervisors the possible illegality of UPS's pricing system,

and that his firing violates CEPA.

7

B. UPS's Stated Reason for Blackburn's Firing

The position of UPS is twofold. First, it asserts that

Blackburn's conduct in complaining to his superiors about

problems with the IAS did not constitute protected activity

under CEPA. Second, UPS contends that Blackburn was

fired not for his complaints regarding the IAS, but for

violations of UPS's anti-nepotism, favoritism, integrity, and

accountability policies.

UPS has had an anti-nepotism policy in its Policy Book

for management employees since 1965. The 1992 version,

in effect during the period in question, states:

We Strictly Limit the Employment of Relatives. .. .

. . . .

. . . [W]e prohibit hiring--for either full-time or part-

time employment--relatives of active employees . .. .

For the same reasons, we discourage continuation of

the full-time or part-time employment of any employee

who marries another employee while either person

holds a management position in the same district, the

same region office or Corporate Headquarters.

S.A. at 118. The Policy Book does not define "relatives." The

favoritism policy states, "We Treat Our People Fairly and

Without Favoritism. . . . We have the responsibility to avoid

any relationship that may result in actual or perceived

favoritism." Id. at 123. The integrity policy states:

We Insist Upon Integrity in Our People. . . .

. . . We insist on integrity in the preparation and

approval of all reports.

We expect our people to be honest with respect to

intangible things as well--in the time, effort, and full

performance of their jobs; in fair play in dealing with

others; and in the acknowledgment of mistakes or

other shortcomings.

. . . [W]hen we do discover a dishonest person in our

organization, we deal with that individual quickly and

firmly.

8

Id. at 134. Finally, the accountability policy states:

We Are All Accountable for Compliance With Our

Policies. As individuals, we do not have the authority to

change or disregard any of our company's policies. We

are expected to follow existing policies, even if not

always in complete agreement with them. We must be

careful not to misinterpret or violate a policy's spirit

and intent. If in doubt, we should check with others for

guidance.

. . . .

Our managers and supervisors set the example for

carrying out our policies. . . . They, therefore, are

expected to lead the way for other UPS people--by word

and action--in living up to our policies.

Id. at 110. As a management employee, Blackburn received

a copy of the Policy Book and was aware of these policies.

Blackburn married Loren Morrissey in April of 1990. On

September 29, 1993, Linda Shepard, Morrissey's sister,

applied for a job at UPS's Mahwah facility. Shepard stated

on her employment application that she did not have any

relatives employed by UPS. In December of 1993, Shepard

was hired as a Methods Analyst at Mahwah, and began

work in the same building as Blackburn. Blackburn was

aware that Shepard had applied for and gotten the job, and

at times commuted to work with Shepard and had contact

with her during the workday by, for example, meeting her

for lunch. At no time before September 1994 did Blackburn

disclose his relationship with Shepard to UPS. See id. at 14

(Pl.'s Dep. at 182-83). At various times after Shepard's

hiring, and before September 1994, Blackburn

recommended Shepard for other UPS positions without

informing those to whom he made the recommendations

that Shepard was his sister-in-law.

On September 14, 1994, UPS's Loss Prevention

Department received an anonymous complaint, forwarded

to Patricia Knowles of UPS's Human Resources Department

at Mahwah, that Blackburn was Shepard's brother-in-law.

The complaint also expressed concern that Shepard might

be promoted because of Blackburn's influence. That same

9

day, Knowles and UPS manager Nigel Watson met with

Shepard and questioned her regarding her relationship with

Blackburn. After initially denying that Blackburn was her

brother-in-law, Shepard eventually admitted that he was

married to her sister. However, she gave an incorrect date

for Blackburn's marriage to her sister, claiming that they

were married in April 1994, after Shepard had been hired

by UPS.

After verifying the actual date of Blackburn's marriage

(through UPS's Human Resources Department in Atlanta),

Knowles confronted Blackburn on September 15, 1994.

Blackburn denied that he was "related" to Shepard but

admitted that he was married to her sister. He also

expressed disbelief that the relationship was of concern to

UPS. On September 16, Knowles met again with Shepard,

who claimed that Blackburn was aware that Shepard was

interviewing with UPS when she originally sought a job

there. On September 29, 1994, UPS offered Shepard a

chance to resign, on the grounds that she had lied on her

application (by indicating that she was not related to

anyone at UPS) and had lied to Knowles when confronted

with this information. Shepard resigned on September 30,

1994.

Also in September, Blackburn's supervisor, Hopwood,

was informed of the events surrounding Shepard's hiring

and her relationship to Blackburn. Hopwood spoke with

Blackburn and, upon learning the identity of Blackburn's

sister-in-law, realized that she was the person Blackburn

had recommended to him and another manager for

openings in the department without informing them that

she was his sister-in-law. Blackburn allegedly refused to

acknowledge that his conduct was inappropriate, and told

Hopkins that UPS would regret it if it pursued the matter.

On September 29, 1994, Hopwood's supervisor Bain and

Human Resources manager James Daniels met with

Blackburn, who stated that he was not "related" to Shepard

but that he was her brother-in-law. He denied any

misconduct in permitting her to be hired, recommending

her for positions without revealing the nature of their

relationship, and claiming not to be related to her. Bain

advised Blackburn that he had violated the anti-nepotism

10

policy and the policies on favoritism, integrity, and

accountability. That day, after consultation with Daniels

and two Human Resources coordinators, Bain fired

Blackburn.

C. The Ensuing Litigation

In August 1995, Blackburn filed suit in New Jersey state

court, claiming that UPS had fired him in violation of CEPA,

and seeking compensatory and punitive damages,

attorneys' fees, costs, and such other relief as the court

might provide. UPS removed the case to the District Court

for the District of New Jersey on the basis of diversity

jurisdiction. See 28 U.S.C. S 1332. 3 Following discovery,

UPS moved for summary judgment under Federal Rule of

Civil Procedure 56(b).

The District Court found that Blackburn's conduct was

not covered by CEPA, and it therefore granted summary

judgment for UPS. See Blackburn v. United Parcel Serv.,

Inc., 3 F. Supp. 2d 504, 514-17 (D.N.J. 1998). The District

Court's conclusion that Blackburn's complaints regarding

the IAS did not constitute protected activity under CEPA

was based on a number of factors. First, the court stated

that it "must determine, as a matter of law, whether there

_________________________________________________________________

3. Blackburn was a citizen of Connecticut at the time suit was filed. UPS

is a citizen of New York. Knowles is a citizen of New Jersey. Therefore,

complete diversity exists and subject-matter jurisdiction is proper.

However, we note that this case was technically not removable under 28

U.S.C. S 1441 (1994), as a civil action in which jurisdiction is based on

diversity of citizenship may be removed "only if none of the parties in

interest properly joined and served as defendants is a citizen of the

State

in which such action is brought." Id.S 1441(b). Here, one of the

defendants is a citizen of the state in which the action was brought.

Nonetheless, under 28 U.S.C. S 1447(c) (Supp. II 1996), this defect is

waived if not raised within 30 days after the notice of removal is filed.

No

motion to remand having been filed within this period, jurisdiction in the

District Court was properly exercised. Cf. Korea Exch. Bank v. Trackwise

Sales Corp., 66 F.3d 46, 50-51 (3d Cir. 1995) ("Because removal by a

forum defendant in noncompliance with section 1441(b) does not deprive

a federal court of subject matter jurisdiction, it is clear under section

1447(c) that this irregularity must be the subject of a motion to remand

within 30 days after filing the notice of removal.").

11

exists a clear expression of law, either in a statute or rule

or in a regulation promulgated pursuant to a statute, that

`would be violated if the facts as alleged are true.' " Id. at

514 (citation and emphasis omitted). It then held that

Blackburn had not provided the court "with a scintilla of

evidence . . . that would permit [the] court to conclude, as

a matter of law, that any antitrust law would be violated if

the facts, as described by plaintiff, were true." Id. The court

found instead that Blackburn had only complained to his

supervisors "that a law might someday be violated if certain

precautions [were] not taken or certain changes [were] not

made," and that this complaint about potential future

violations of the law was not covered by CEPA. Id.

The court also held that no reasonable trier of fact could

find that Blackburn reasonably believed that the conduct

he complained of to his supervisor violated the antitrust

laws. See id. at 515. The court found that all of the

evidence, even viewed in a light most favorable to

Blackburn, demonstrated that he "merely questioned and

disagreed with UPS's pricing practices and was concerned

about the potential legal impact." Id. at 517. It concluded

that "[t]hese type of complaints do not constitute

`whistleblowing,' particularly where the vague references to

potential illegalities are mixed with and, indeed, dwarfed by

a potpourri of other unrelated complaints." Id. (citation

omitted). For these reasons, the court granted UPS's motion

for summary judgment. The District Court did not reach

the pretext issue on which we base our decision,finding

that a genuine issue of material fact existed regarding

UPS's claimed reason for firing Blackburn. See id. at 508

n.2.

Blackburn filed a timely notice of appeal. We have

jurisdiction to hear the appeal under 28 U.S.C. S 1291. We

exercise plenary review over a grant of summary judgment,

"construing all evidence and resolving all doubts raised by

affidavits, depositions, answers to interrogatories, and

admissions on file in favor of the non-moving party." Iberia

Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).

12

II. The New Jersey Conscientious Employee

Protection Act

A. Introduction

The New Jersey Conscientious Employee Protection Act,

enacted in 1986, provides in relevant part:

An employer shall not take any retaliatory action

against an employee because the employee does any of

the following:

a. Discloses, or threatens to disclose to a supervisor

or to a public body an activity, policy or practice of the

employer . . . that the employee reasonably believes is

in violation of a law, or a rule or regulation

promulgated pursuant to law . . .;

. . . .

c. Objects to, or refuses to participate in any activity,

policy or practice which the employee reasonably

believes:

(1) is in violation of a law, or a rule or regulation

promulgated pursuant to law . . .;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public

policy concerning the public health, safety or welfare or

protection of the environment.

N.J. Stat. Ann. S 34:19-3 (1988 & Supp. 1999)."Retaliatory

action" includes discharge, suspension, demotion, or other

adverse action involving an employee's terms and

conditions of employment. See id. S 34:19-2(e).

The New Jersey courts have repeatedly held that CEPA

was enacted "to protect employees from retaliatory actions

by employers," Abbamont v. Piscataway Township Bd. of

Educ., 650 A.2d 958, 964 (N.J. 1994), and that it is

"remedial legislation" that should be liberally construed to

effectuate the legislature's protective intent, see Young v.

Schering Corp., 660 A.2d 1153, 1158 (N.J. 1995); see also

Barratt v. Cushman & Wakefield, Inc., 675 A.2d 1094, 1098

(N.J. 1996) ("[C]ourts should construe CEPA liberally to

13

achieve its remedial purpose."). Like the New Jersey Law

Against Discrimination ("LAD"), CEPA "seeks to overcome

the victimization of employees and to protect those who are

especially vulnerable in the workplace from the improper or

unlawful exercise of authority by employers." Abbamont,

650 A.2d at 964. In interpreting CEPA's various provisions,

New Jersey courts have held that its protections should be

construed broadly and its exceptions and limitations read

narrowly:

The words used may be expanded or limited according

to the manifest reason and obvious purpose of the law.

. . . The language is not to be given a rigid

interpretation when it is apparent that such meaning

was not intended. The rule of strict construction

cannot be allowed to defeat the evident legislative

design.

Crusco v. Oakland Care Ctr., Inc., 702 A.2d 1363, 1367

(N.J. Super. Ct. App. Div. 1997) (internal quotation

omitted).

B. Elements of a CEPA Case

Our analysis of a retaliatory discharge claim under CEPA

is similar to our analysis of a retaliation claim under federal

discrimination law. Cf. Velantzas v. Colgate-Palmolive Co.,

536 A.2d 237, 238 n.1 (N.J. 1988) (citing federal court

decisions on retaliatory discharge in a case arising under

New Jersey law); Kolb v. Burns, 727 A.2d 525, 530-31 (N.J.

Super. Ct. App. Div. 1999) (adopting the federal court

analysis of retaliation claims "as legally sound and

consistent with New Jersey's general treatment of claims

asserted under anti-discrimination [legislation]"). First, the

plaintiff must make out a prima facie case of retaliatory

discharge. The court in Kolb held that a CEPA plaintiff

must demonstrate four elements to meet this initial burden:

(1) that he or she reasonably believed that his or her

employer's conduct was violating either a law or a rule

or regulation promulgated pursuant to law; (2) that he

or she performed whistle-blowing activity described in

[CEPA]; (3) an adverse employment action was taken

against him or her; and (4) a causal connection exists

14

between the whistle-blowing activity and the adverse

employment action.

Id. at 530; see also Young v. Schering Corp., 645 A.2d 1238,

1244 (N.J. Super. Ct. App. Div. 1994) [Young I] (listing two

elements for prima facie case: a " `belief that illegal conduct

was occurring [that] had an objectively reasonable basis in

fact' " and an adverse employment action that was causally

connected to the plaintiff's disclosure or threatened

disclosure of the illegal conduct to a supervisor or public

body (citation omitted)), aff'd, 660 A.2d 1153 (N.J. 1995);

cf. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177

(3d Cir. 1997) (holding that a plaintiff in a federal

retaliation case "must show 1) that she engaged in

protected activity, 2) that the employer took adverse action

against her, and 3) that a causal link exists between the

protected activity and the employer's adverse action").

In addition to the prima facie case, the well-established

burden-shifting analysis that is used in federal

discrimination cases involving "pretext" claims is

appropriately used in a CEPA case. See Kolb, 727 A.2d at

530-31 (outlining the burden-shifting analysis under Title

VII and LAD). Once the plaintiff meets his prima facie

burden, "the burden of production shifts to the defendant

to `articulate some legitimate, nondiscriminatory reason' for

its actions." Woodson v. Scott Paper Co., 109 F.3d 913, 920

n.2 (3d Cir.) (quoting McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)), cert. denied, 118 S. Ct. 299

(1997). Once the defendant articulates a legitimate reason

for the adverse employment action, the presumption of

retaliatory discharge created by the prima facie case

disappears and the burden shifts back to the plaintiff. See

id. Then, "[t]o prevail at trial, the plaintiff must convince

the factfinder `both that the reason [given by the employer]

was false, and that [retaliation] was the real reason.' " Id.

(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993) (emphasis omitted)).

For summary judgment purposes, the court must

determine whether the plaintiff has offered sufficient

evidence for a reasonable jury to find that the employer's

proffered reason for the discharge was pretextual and that

retaliation for the whistleblowing was the real reason for

15

the discharge. See Sempier v. Johnson & Higgins , 45 F.3d

724, 728 (3d Cir. 1995) ("[T]o defeat a summary judgment

motion based on a defendant's proffer of a

nondiscriminatory reason, a plaintiff who has made a prima

facie showing of discrimination need only point to evidence

establishing a reasonable inference that the employer's

proffered explanation is unworthy of credence."). Typically,

the types of evidence that the plaintiff must point to are

"inconsistencies or anomalies that could support an

inference that the employer did not act for its stated

reasons." Id. at 731; see also Kolb , 727 A.2d at 531 (citing

Third Circuit Title VII case law regarding plaintiff's burden

to show pretext at summary judgment stage).

III. Blackburn's CEPA Claim

A. Prima Facie Case

In this case, the District Court found that Blackburn had

failed to make out a prima facie case because he had not

shown that he had engaged in protected whistleblowing

activity. Given New Jersey case law and the intent of the

legislature in enacting CEPA, we have some doubt as to the

correctness of the District Court's conclusion on this point.4

_________________________________________________________________

4. As noted in the text supra, the District Court relied primarily on the

fact that Blackburn had not clearly articulated the precise law that UPS

would be violating if its actions were as he alleged, and that he only

complained of potential future violations of the law, rather than ongoing

violations. We note, however, that New Jersey courts have held that a

CEPA plaintiff need not cite "any specific statute, rule or regulation

which was allegedly violated" when disclosing employer wrongdoing or

even when filing a CEPA action. Regan v. City of New Brunswick, 702

A.2d 523, 528-29 (N.J. Super. Ct. App. Div. 1997). For example, in

Mehlman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 1998), the plaintiff

complained about his employer's conduct without being aware of any

specific laws, guidelines, or government policies that his employer was

violating. The court nonetheless held that "[s]pecific knowledge of the

precise source of public policy [allegedly violated] is not required. The

object of CEPA is not to make lawyers out of conscientious employees

but rather to prevent retaliation against those employees who object to

employer conduct that they reasonably believe to be unlawful or

indisputably dangerous to the public health, safety or welfare." Id. at

1015-16.

16

However, rather than engage in a lengthy exegesis on the

matter, we will assume that Blackburn presented sufficient

evidence to meet his prima facie burden at the summary

judgment stage, and will dispose of this appeal on the

alternative ground that he has presented insufficient

evidence of pretext to survive summary judgment.

_________________________________________________________________

Further, while CEPA is not intended to protect chronic complainers or

those who simply disagree with their employer's lawful actions, it does

protect those persons who disclose their employer's activities when,

"given the circumstantial evidence, a reasonable lay person would

conclude that illegal activity was going on." Young I, 645 A.2d at 1244

(internal quotation omitted); see also Mehlman v. Mobil Oil Corp., 676

A.2d 1143, 1156 (N.J. Super. Ct. App. Div. 1996) ("The sine qua non of

a CEPA claim is not the actual occurrence of a violation of promulgated

authority or public policy, but rather the existence of a reasonable

belief

to the effect that such authority or policy has been breached."), aff'd,

707 A.2d 1000 (N.J. 1998). Finally, the New Jersey Supreme Court has

refused to engraft either temporal or geographic limitations onto CEPA

claims, holding that disclosure of past violations of law or complaints

regarding violations of another nation's laws are both protected under

the statute. See Mehlman, 707 A.2d at 1016-17; Barratt, 675 A.2d at

1100 ("CEPA protects more than the disclosure of illegal acts that are

ongoing. To require employees to confirm that the illegal conduct was

ongoing would inhibit them from reporting that conduct. Disclosure of

illegal conduct that is past, moreover, like that of ongoing conduct, can

be in the public interest.").

On the other hand, while the New Jersey courts have construed CEPA

broadly, it is clear that much of Blackburn's lamentation involved

internal disputes over funding and staffing. More importantly, his

allegations regarding one of the most complex and difficult-to-prove

areas of antitrust law--predatory pricing--are undermined by his patent

lack of sophistication in this area. In fact, Blackburn conceded that "all

I know about anti-trust is what I've learned at UPS." App. at 53. Despite

being liberally construed by the New Jersey courts, CEPA is not intended

to shelter every alarmist who disrupts his employer's operations by

constantly declaring that illegal activity is afoot--or, as in this case,

is

about to be afoot. Therefore, we believe it is a close question whether

the

District Court correctly concluded that Blackburn's activity was not

protected whistleblowing under the Act, and we decline to reach this

difficult issue, as our ultimate decision in this case makes it

unnecessary to do so.

17

B. UPS's Stated Reason for the Discharge

UPS's stated reason for firing Blackburn was his violation

of the company's anti-nepotism, favoritism, integrity, and

accountability policies, which it placed in the record. UPS

adduced evidence that Blackburn failed to divulge that

Shepard was his relative, and that he recommended her for

positions within UPS without disclosing to the relevant

decisionmakers that she was his sister-in-law. UPS also

offered evidence that it has consistently enforced its anti-

nepotism policy, which supports its proffer that

Blackburn's violation of this policy was the actual reason

he was discharged.5 Indeed, Blackburn himself conceded at

his deposition that UPS has regularly enforced the anti-

nepotism policy (although, as we detail below, he offers

purported examples of the policy's nonenforcement).

Therefore, UPS has met its burden of production at the

second step of the burden-shifting analysis. See Woodson,

109 F.3d at 920 n.2 ("The defendant's burden at this stage

is relatively light: it is satisfied if the defendant articulates

any legitimate reason for the discharge . . . ."). It is thus

incumbent upon Blackburn to offer sufficient admissible

evidence that this justification is pretextual and that the

real reason that he was fired was for complaining about

UPS's possible antitrust violations to survive UPS's motion

for summary judgment. In other words, he must show

" `weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons.' " Kolb, 727 A.2d at 531 (quoting

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)).

_________________________________________________________________

5. While Blackburn has suggested that the anti-nepotism policy does not

apply to his situation because Shepard is not a blood relation, he does

not press this point, relying instead on UPS's purported nonenforcement

of the policy. However, UPS alleges that Blackburn's conduct also

violated its favoritism, integrity, and accountability policies, and he

has

offered little evidence in response to this proffer.

18

C. Pretext

1. Blackburn's Evidence

In order to meet his burden, Blackburn must point to

admissible evidence in the record "showing that there is a

genuine issue for trial." Fed. R. Civ. P. 56(e). In attempting

to show that UPS's stated reason for firing him was

pretextual, Blackburn claims that he never hid his

relationship with Shepard. Rather, he testified that he

regularly commuted to and from work with her, entered the

building with her each day, often met her for lunch and

breaks, displayed a wedding picture prominently on his

desk with Shepard in the wedding party, and was otherwise

open about the relationship, including the fact that they

shared an address. Similarly, Shepard testified that she

told colleagues about the relationship and even inquired

about it at her initial interview, and nothing was done.

Blackburn also testified that he assumed that the

prohibition on the hiring of "relatives" included only blood

relatives.6

We find the foregoing less than persuasive evidence to

support Blackburn's burden, even at summary judgment,

of proving that UPS's stated reason was pretextual. The

only portion of this evidence that is probative of pretext--

i.e., that UPS knew of Blackburn's relationship to Shepard

but did nothing about it, and later fired him for his

whistleblowing activity under the pretext of its anti-

nepotism policy--is Shepard's allegation that, when she

applied for a job at UPS, she informed the initial interviewer

that her brother-in-law worked for UPS. There is no

indication that the decisionmakers who fired Blackburn for

his violations of the anti-nepotism and related policies were

informed of Shepard's comments at her interview. In fact,

_________________________________________________________________

6. Although UPS's policy was less than clear in defining the prohibited

relationships, the clarity of the policy or the reasonableness of

Blackburn's alleged misreading of the policy are not necessarily relevant

to the pretext issue. If the policy actually covered relationships such as

Blackburn and Shepard's, and if this (along with the concomitant

violations of the other policies) was the real reason that Blackburn was

discharged, Blackburn's CEPA case must fail.

19

the record evidence overwhelmingly supports the

conclusion that the relevant UPS managers were unaware

of Blackburn's relationship with Shepard until the

anonymous tip was received in September 1994, at which

time immediate action was taken against both Shepard and

Blackburn. Cf. Delli Santi v. CNA Ins. Cos., 88 F.3d 192,

201-02 (3d Cir. 1996) (holding that jury could find that

employer had retaliatory intent because relevant

decisionmakers were aware of plaintiff's discrimination

complaints).

Blackburn's stronger argument for pretext--and one that

would be sufficient to preclude summary judgment, if

supported by adequate admissible evidence--is that UPS

did not consistently enforce its anti-nepotism policy, which,

according to UPS, was the primary basis for his discharge.

If Blackburn has presented admissible evidence that would

raise a fact question whether UPS enforced its anti-

nepotism policy, it would be for a jury to decide whether

UPS's proffered reason for firing him was pretextual. Given

our assumption that Blackburn has presented sufficient

evidence to meet his prima facie burden under CEPA, we

would have to reverse summary judgment in UPS's favor if

a fact issue regarding pretext existed.

In support of his pretext argument, Blackburn provides

numerous examples of UPS employees who were related to

other employees yet allegedly were not disciplined or

terminated for this apparent violation of the anti-nepotism

policy. His examples include brothers-in-law, siblings,

spouses, uncles and nephews, fathers and sons, and

intimate relationships between employees who were dating

or living together. UPS responds with evidence that, within

the last five years, twenty-nine people at Mahwah left UPS

in accordance with the anti-nepotism policy, and that no

exceptions currently exist there.

In order to resolve this issue, we must first determine

whether any of Blackburn's evidence in this regard is

admissible, based as it is on hearsay and, in some

instances, multiple hearsay. See Philbin v. Trans Union

Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996) (noting that a

hearsay statement that is not capable of being admissible

at trial should not be considered on a summary judgment

20

motion). Then, we must determine whether the hearsay

evidence that might be admissible at trial is sufficient to

defeat UPS's summary judgment motion or whether

judgment was properly entered in favor of UPS. See

Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co., 998

F.2d 1224, 1234 n.9 (3d Cir. 1993).

Blackburn's testimony regarding UPS employees he

believes to be related includes the following. We take the

descriptions of these allegedly related persons from

Blackburn's appellate briefs, see Appellant's Br. at 16-17;

Suppl. Br. at 1-3, with citations to the place in the record

in which the evidence is presented:

(1) Bill and Tim Jawor, a father and son (App. at 109);

(2) Jackie and Sal Biancardi, a married couple who

work at the UPS facility in Morristown (id.);

(3) Larry Zileski and Mr. Manzi, brothers-in-law (id. at

95);

(4) Barry Graziano and Tim Krill, relation not identified

(id. at 96);

(5) Steve Collamore and Eileen O'Connor, husband and

wife (id. at 97);

(6) an uncle and nephew working together at a UPS

facility in Parsippany (id. at 103-04);

(7) two brothers in New York (id.);

(8) Mark Hopkins and his wife, Beth (id. at 97);

(9) Bill and Art Weyrauch, brothers (id. at 96-97);

(10) Don McKenny and Vern Cormie, relation not

identified (id. at 97);

(11) Joe Rossano, Jack Davies, and Joe Reynolds,

relation not identified (id.);

(12) Lorrain Curley and Dan Grace, relation not

identified (id.);

(13) Karen Montemarano and another driver in a

Yorktown, New York, UPS facility (id.);

21

(14) Kathleen Jewell and someone else, relation not

identified (id. at 101); and

(15) Howard Kaufman and "Mindy," in the Mt. Vernon

facility (id. at 101-02).

Blackburn has no personal knowledge of any of the

alleged relationships listed above. See Fed. R. Evid. 602.

Rather, he testified in his deposition that he was told of

these relationships by other persons. The alleged

relationships are offered for their own truth. Therefore,

Blackburn's information is based on hearsay, see Fed. R.

Evid. 801(c), and in some cases on multiple hearsay, so

that it must fall within an exception to the rule against

hearsay to be admissible. See Fed. R. Evid. 802 (providing

that hearsay is not admissible unless it falls under a

particular exception); Fed. R. Evid. 805 (providing that

multiple hearsay is admissible "if each part of the combined

statements conforms with an exception to the hearsay

rule").

When asked by us to comment on the admissibility of his

pretext evidence, and in particular on the applicability of

Federal Rule of Evidence 803(19), Blackburn responded

that this evidence was admissible as admissions by a party-

opponent, Fed. R. Evid. 801(d)(2)(A), admissions by a party-

opponent's agent, Fed. R. Evid. 801(d)(2)(D), statements

against interest, Fed. R. Evid. 804(b)(3), or reputation

evidence concerning family history, Fed. R. Evid. 803(19).

We consider the first, second, and fourth of these

contentions below. We dismiss as without merit

Blackburn's attempt to admit any of the evidence he has

presented under the exception for statements against

interest. Not only do we find the contention that the

particular statements at issue were "against interest" to be

baseless within the meaning of the Rule,7 but there is no

_________________________________________________________________

7. A statement is against interest when it "is so far contrary to [the

declarant's] pecuniary, proprietary or penal interest that `a reasonable

person in the declarant's position would not have made the statement

unless believing it to be true.' " United States v. Boyce, 849 F.2d 833,

836 (3d Cir. 1988) (quoting Fed. R. Evid. 804(b)(3)). Blackburn has

offered no evidence that unavailable declarants made"statements which

are damaging to themselves," Fed. R. Evid. 804(b)(3) advisory

committee's note, so as to come under the exception in the Rule.

22

indication that the hearsay declarants are unavailable, as

required by Rule 804.

2. Rule 801(d)(2)(A): Admissions by Party-Opponent

Under Rule 801(d)(2)(A), a statement offered against a

party is not hearsay if it is the party's own statement.

Blackburn claims that the first two relationships listed

above fall within the terms of Rule 801(d)(2)(A), because

these relationships were identified by defendant Patricia

Knowles at her deposition. Admissions by a party-opponent

need not be based on personal knowledge to be admitted

under Rule 801(d)(2). See United States v. Ammar, 714 F.2d

238, 254 (3d Cir. 1983). Therefore, we need not be

concerned here that the basis for Knowles's statement is

likely hearsay--i.e., she was told by someone (or discerned

from a written document) that Bill and Tim Jawor were

father and son, and that Jackie and Sal Biancardi were

married--which would ordinarily require an additional

exception to make her statements admissible. See Fed. R.

Evid. 805.

Although these statements are admissible as admissions

by a party-opponent,8 only one is arguably relevant to the

pretext issue. Knowles testified that the Jawors worked at

UPS in 1973, more than twenty years before Blackburn was

fired and before UPS's current anti-nepotism policy was in

force. We therefore find the testimony regarding the Jawors

immaterial to the pretext issue.9 On the other hand,

_________________________________________________________________

8. We note, however, that the statements by Knowles might be more

appropriately admitted under Rule 801(d)(2)(D), as statements of an

agent concerning a matter within the scope of her agency, as Knowles is

technically no longer a party to this case. Further, if the statements

were

admissible under Rule 801(d)(2)(D), they would be admissible against

UPS, while the statements would be admissible under Rule 801(d)(2)(A),

if at all, only against Knowles.

9. Although he appears to have abandoned his reliance on it,

Blackburn's initial testimony regarding two sets of brothers--the Caseys

and the Oberkotters--is indicative of the lack of relevance of much of his

pretext evidence. Both of these sets of brothers worked for UPS in the

1920s, many decades before the company established its current anti-

nepotism policy.

23

Knowles testified that the Biancardis remain UPS

employees, Jackie as an administrative assistant and Sal as

a driver. This could therefore be probative evidence in

support of Blackburn's pretext argument. However, the

anti-nepotism policy prohibits only the hiring of related

persons, and the continued employment of persons who

marry while working for UPS when one of them is a

management employee. The Biancardis reportedly were

married after both had begun working for UPS, and neither

holds a management position, so their continued

employment does not appear to come within the

prohibitions of the anti-nepotism policy.

3. Rule 801(d)(2)(D): Admissions by

Party-Opponent's Agent

Blackburn argues that testimony regarding the

relationships of Larry Zileski and Mr. Manzi; Barry

Graziano and Tim Krill; Steve Collamore and Eileen

O'Connor; the unnamed uncle and nephew working

together at the UPS facility in Parsippany; and the

unnamed brothers in New York, are all admissible as

admissions by UPS's employees, under Rule 801(d)(2)(D).

Blackburn reads the Rule much too broadly, however, and

fails to establish that most of these statements were made

by UPS's agents or employees "concerning a matter within

the scope of the agency or employment." Fed. R. Evid.

801(d)(2)(D). We discuss each alleged relationship in turn.

First, Blackburn testified that a UPS employee, John

Cipriani, informed him that UPS employees Larry Zileski

and a Mr. Manzi were brothers-in-law. Cipriani's position is

not identified, however, and there is no indication that the

statement was made concerning a matter within the scope

of Cipriani's agency or employment with UPS.10 Blackburn

testified that Zileski himself told Blackburn that Manzi was

his brother-in-law. This statement too is inadmissible

hearsay under Rule 801(d)(2)(D). Although Zileski may be

able to so testify on the basis of Rule 803(19), see infra,

_________________________________________________________________

10. It is also clear that Cipriani is not a party-opponent, and there is

no

indication that he either is authorized by UPS to speak for it or is its

coconspirator. See Fed. R. Evid. 801(d)(2).

24

there is again no indication that he was speaking for UPS

on a matter within the scope of his agency or employment

so that Blackburn could testify as to what Zileski told him.11

Blackburn testified that UPS Operations Manager

Michael Lattari informed him that Graziano and Krill were

somehow related. While Lattari may have been speaking

about a matter within the scope of his agency or

employment, Blackburn has offered no evidence of the

actual relationship between Graziano and Krill, whether it

was one that was covered by the UPS policy, and whether

UPS addressed any violation of the policy by discharging

one of the employees. Therefore, while this may be

appropriate Rule 801(d)(2)(D) evidence, it would be

immaterial to prove that UPS's stated reason for

discharging Blackburn was pretextual.

Blackburn testified that Steve Collamore told him that

Collamore's wife, Eileen O'Connor, also worked for UPS.

However, Blackburn admitted that at some point after they

got married, O'Connor left UPS, and there is no indication

that they were both allowed to remain at UPS in violation

of the anti-nepotism policy. Finally, while Linda Shepard

testified that she was told of certain related employees by

the person who interviewed her for a job at UPS, these

employees are not even identified by name and no

testimony was provided as to whether they were disciplined

for violating UPS's anti-nepotism policy. We find this

evidence plainly inadmissible to prove pretext, both because

Blackburn has failed to establish that it is proper Rule

801(d)(2)(D) evidence and because, without more details

regarding the alleged relationships and UPS's failure to act

on them, they are clearly irrelevant to the pretext issue.

_________________________________________________________________

11. Blackburn's testimony about what Zileski told him might be

admissible as a "statement concerning the declarant's own . . .

relationship by . . . marriage." Fed. R. Evid. 804(b)(4) (hearsay

exception

for statements of personal or family history). However, under Rule

804(b), such a statement is admissible only "if the declarant is

unavailable as a witness." Here, unless there is some indication in the

record that Zileski will be unavailable, Blackburn's statement about

what Zileski told him does not fall within an exception to the rule

against hearsay.

25

4. Rule 803(19): Reputation Concerning Personal or

Family History

As all of Blackburn's evidence that we are considering

here involves "personal or family history," the hearsay

exception in Rule 803(19) would appear to be a particularly

appropriate basis for finding the evidence admissible. The

Rule allows for the admission of otherwise excludable

hearsay, regardless of the declarant's availability (or lack

thereof), when it consists of:

Reputation among members of a person's family by

blood, adoption, or marriage, or among a person's

associates, or in the community, concerning a person's

birth, adoption, marriage, divorce, death, legitimacy,

relationship by blood, adoption, or marriage, ancestry,

or other similar fact of personal or family history.

Fed. R. Evid. 803(19).

a. Background Principles

The matters of personal and family history that are

within the ambit of Rule 803(19) are often difficult to prove

through personal knowledge. For example, if a witness has

not been present at someone's wedding, or has not

personally seen that person's valid marriage license and

executed marriage certificate, see, e.g., N.J. Stat. Ann.

SS 37:1-2, 37:1-17 (1968 & Supp. 1999), he or she

presumably could only testify regarding the marriage on the

basis of hearsay. However, "[m]arriage is universally

conceded to be a proper subject of proof by evidence of

reputation in the community." Fed. R. Evid. 803(19)

advisory committee's note. This is no doubt because a well-

grounded belief that two persons are married--by those

who know them, have attended their family functions, and

have regarded them as a married couple--is sufficiently

reliable evidence to prove the fact of the marriage. Other

matters of personal and family history also "seem to be

susceptible to being the subject of well founded repute." Id.

That two community members are brothers or that a

member of the community is another member's father are

likely to be matters that have been discussed within the

community and that have become well-established "facts" if

26

no reason has been presented to doubt their truth.

Therefore, reputations regarding relationships and other

personal and family matters within a well-defined

community are considered to have the circumstantial

guarantee of trustworthiness that justifies a hearsay

exception. See 3 Stephen A. Saltzburg et al., Federal Rules

of Evidence Manual 1699 (7th ed. 1998) ("[G]eneral

reputation about facts of interest to the community is

probably trustworthy . . . .").

In applying the Rule 803(19) exception to Blackburn's

evidence of relatives working at UPS, we must answer at

least two questions. First, does a person's place of work

come within the Rule's coverage? And second, what

foundation is required for testimony to be admitted under

Rule 803(19)? In other words, is Blackburn's evidence

sufficiently based on actual "reputation," or is it based on

some other, less reliable foundation such as rumor or

speculation?

b. Relevant Community for Reputation

On the first question, we believe that Rule 803(19), in

referring to "reputation . . . among a person's associates, or

in the community," encompasses one's reputation at a

place of work. The advisory committee certainly foresaw

this application of the exception in Rule 803(19): "The

`world' in which the reputation may exist . . . has proved

capable of expanding with changing times from the single

uncomplicated neighborhood, in which all activities take

place, to the multiple and unrelated worlds of work,

religious affiliation, and social activity, in each of which a

reputation may be generated." Fed. R. Evid. 803(19)

advisory committee's note. In the context of reputation

evidence of a person's character, "courts have readily

extended the concept of community to include the

community in which one works, as well as where one lives."

United States v. Oliver, 492 F.2d 943, 946 (8th Cir. 1974).12

_________________________________________________________________

12. We of course do not decide here whether a witness could testify

regarding someone's reputation for good (or bad) character within a work

community, cf. Fed. R. Evid. 803(21) (providing a hearsay exception for

"[r]eputation of a person's character among associates or in the

community"), as this issue is not before us.

27

Both before and since enactment of the Federal Rules,

commentators have made the same point. See 5 Wigmore

on Evidence S 1616, at 591 (James H. Chadbourn rev.

1974) ("The traditional requirement about `neighborhood'

reputation was appropriate to the conditions of the time;

but it should not be taken as imposing arbitrary limitations

not appropriate in other times."); 5 Weinstein's Federal

Evidence S 803.24[2] (Joseph M. McLaughlin ed., 2d ed.

1999) ("Allowing such proof [under Rule 803(19)] to come

from `associates' reflects the fact that nowadays a person's

reputation may no longer exclusively be found in the place

where the person lives, but frequently can only be

ascertained from coparticipants in the varied activities that

make up a modern person's world.").

c. Trustworthiness of Reputation Evidence Concerning

Family History; Foundational Requirements

As for the basis of the reputation evidence regarding

relationships within a workplace, we find little guidance in

the sparse case law surrounding Rule 803(19).13 We believe,

however, that the principle behind admitting such evidence

despite its hearsay origin--i.e., "that general reputation

about facts of interest to the community is probably

trustworthy," Saltzburg et al., supra, at 1699--requires that

a proponent of Rule 803(19) evidence establish that the

reputation testimony arises from sufficient inquiry and

discussion among persons with personal knowledge of the

_________________________________________________________________

13. This court has cited Rule 803(19) in holding that a witness's

testimony regarding her own age "can be considered reputation

concerning personal or family history, for which an exception has been

made to the hearsay rule under the Federal Rules of Evidence."

Government of V.I. v. Joseph, 765 F.2d 394, 397 n.5 (3d Cir. 1985). A

district court within our circuit has held that family members'

statements that a particular person lived with the plaintiff, supported

her financially, and held her out as his child, were admissible under

Rule 803(19) in a proceeding to determine if the plaintiff was the

person's child. See McBride v. Heckler, 619 F. Supp. 1554, 1561-62

(D.N.J. 1985). More recently, the Second Circuit invoked the Rule to find

that testimony by a criminal defendant's father regarding his belief as to

where the defendant was born was admissible. See United States v. Jean-

Baptiste, 166 F.3d 102, 110 (2d Cir. 1999).

28

matter to constitute a trustworthy "reputation." Rumors

and speculation are clearly insufficient in this regard.

Testimony by a declarant that he heard, from some

unknown source, that two people were related in some way

would be inadmissible under Rule 803(19). Rather, what is

required is the laying of a foundation of knowledge

grounded in inquiry, discussion, interactions, or familiarity

"among a person's associates, or in the community" in

which he works.

We find support for our reading of the Rule in a number

of places. In discussing the rationale behind the Rule,

Weinstein notes that "it is likely that these matters have

been sufficiently inquired about and discussed with

persons having personal knowledge so that a trustworthy

consensus has been reached." Weinstein's Federal

Evidence, supra, S 803.24[1]. Weinstein continues:

Before a witness can testify to reputation, the

witness must be qualified by showing membership in a

group that could have been familiar with the personal

or family history of the person in question, namely,

family, associates or community. . . . The judge should

consider . . . not only the foundation that has been laid

for the reception of this reputation evidence, but also

such factors as the significance and nature of the fact

towards which the proof is directed, the availability of

other evidence, and the nature of the litigation.

Id. S 803.24[3] (footnote omitted). In discussing the similar

hearsay exception in Rule 803(20), for reputation

concerning boundaries or general history, Saltzburg

explains:

[I]t is considered unlikely that a falsehood could

become generally accepted as truth in the community,

where the matter is of importance to the community.

. . . [T]he testimony must report a general consensus

in the community, an assertion of the group as

opposed to one or a few of its constituents. The fact

that the information has been considered by and was

subject to the general scrutiny of the community is an

essential guarantee of reliability for the exception.

29

Saltzburg et al., supra, at 1699. As these comments

indicate, when a matter has been sufficiently discussed

within a well-defined community so that its truth has

obtained "circumstantial guarantees of trustworthiness,"

Fed. R. Evid. 807, it is properly the subject of reputation

testimony.

We find further support for our interpretation of the

requirements of Rule 803(19) in the more extensive

discussion of the required foundation for testimony

regarding character reputation. See Fed. R. Evid. 404(a),

405(a), 803(21). We acknowledge that reputation about

someone's character and reputation of family relationships

are, in many ways, very different concepts. The first might

be thought of as a collective community opinion, while the

second involves a factual issue. Both, however, require a

foundation that is trustworthy and a well-defined

"community" that is capable of, in a figurative sense,

forming an opinion or discerning a fact. Cf. Webster's Third

New International Dictionary 1929 (1966) (defining

reputation as "a particular character in popular estimation

or ascription"). We therefore find persuasive those

authorities that have discussed the foundation that must

be laid before a witness may testify about the community's

opinion of someone.

The leading case in this area predates the Federal Rules

of Evidence, but is helpful nonetheless. In Michelson v.

United States, 335 U.S. 469 (1948), the Supreme Court

discussed character evidence in the context of a criminal

trial. It noted that a witness who testifies about a

defendant's character is "allowed to summarize what he has

heard in the community, although much of it may have

been said by persons less qualified to judge than himself."

Id. at 477. The Court limited this rule, however: "[T]he

witness must qualify to give an opinion by showing such

acquaintance with the defendant, the community in which

he has lived and the circles in which he has moved, as to

speak with authority of the terms in which generally he is

regarded." Id. at 478.

In a pre-Federal Rules case applying the hearsay

exception we are considering here (for reputation of family

30

matters), the Ninth Circuit reiterated the Supreme Court's

point in Michelson:

It is not every statement or tradition in the family

that can be admitted in evidence. The tradition must

be from persons having such a connection with the

party to whom it relates, that it is natural and likely,

from their domestic habits and connections, that they

are speaking the truth, and that they could not be

mistaken.

Young Ah Chor v. Dulles, 270 F.2d 338, 344 (9th Cir. 1959)

(internal quotations omitted). In Whiting v. United States,

296 F.2d 512 (1st Cir. 1961), government witnesses had

testified at a criminal trial regarding the defendant's

reputation on the basis of hearsay of unknown origin. The

court of appeals vacated the conviction, finding the

testimony to be inadmissible, as "there must be some

demonstrable basis evincing the competence of the witness

to give his opinion" about the defendant's character. Id. at

517. While we have held that a witness need not know the

defendant personally in order to testify about his character,

we have found it sufficient if the witness "knew of [him] and

his reputation among the community and the persons

making up at least one of the circles which [he] frequented."

United States v. Neff, 475 F.2d 861, 863 (3d Cir. 1973).

From these cases, we discern a clear principle: A witness

who wishes to testify about someone's reputation within a

community must demonstrate that he or she knows of the

person and is truly familiar with the "community" in which

the reputation has been formed, and that the basis of the

reputation is one that is likely to be reliable. Where the

alleged reputation is based on nothing more than rumors of

unknown origins, or a single instance of "someone told me

so," a proper foundation has not been laid for admitting

such evidence under Rule 803(19).14

_________________________________________________________________

14. Of course, if each hearsay link in the communication chain falls

under some exception, the evidence may be admissible. See Fed. R. Evid.

805. For example, if witness A knows nothing of an individual's

reputation, but declarant B, who is qualified under Rule 803(19) to

testify thereto, informs A of the individual's relationship, and the

statement from B to A falls under some hearsay exception, A's testimony

about the individual's relationship would be admissible.

31

d. Applying Rule 803(19) to Blackburn's Evidence

We must now determine whether any of Blackburn's

evidence involving allegedly related persons working at UPS

is likely to be admissible under the exception in Rule

803(19). We note preliminarily that our determination that

a workplace may constitute a "community" under Rule

803(19) is limited by the requirement that a proponent of

such evidence establish a reliable foundation for admitting

this hearsay testimony. In other words, allegations

regarding relationships at far-flung facilities of a large

employer such as UPS almost certainly cannot be

admissible as reputation evidence within a community or

among one's associates.15 Blackburn has not, in many

cases, identified the UPS facility at which allegedly related

persons were working. In order to meet his burden of

establishing a reliable basis for the alleged reputations he

invokes, he would need to identify the "community" in

which those reputations exist.16 Because we find that, even

without this identification of the appropriate community,

most of Blackburn's evidence would be inadmissible--and

because, at all events, we conclude that his relevant,

possibly admissible evidence is insufficient for him to

survive summary judgment--we do not dwell on the

shortcomings in his evidence regarding the work location of

most of the allegedly related persons he offers.

Blackburn testified that "[i]t was known by myself,

certainly, and numerous other people, I presume, that Bill

and Art [Weyrauch] were brothers. I believe that it was a

regular topic of discussion." App. at 97. Although the

requirements we have set forth above regarding admission

of such reputation evidence may not be met by Blackburn's

testimony, we will assume that upon further development

of the background to his allegations, this testimony might

_________________________________________________________________

15. UPS currently has 326,800 employees worldwide, and 291,500 in the

United States alone, at more than 1700 facilities. See UPS at a Glance

(visited June 3, 1999) http://www.ups.com/about/glance.html>.

16. We do note that most of Blackburn's examples appear to concern

UPS employees at facilities in Northern New Jersey, which might

constitute an adequate community for Rule 803(19) purposes, assuming

that they are somehow linked to each other.

32

be admissible at trial, see Petruzzi's, 998 F.2d at 1234 n.9,

and we therefore consider it below in our analysis of

whether summary judgment for UPS was properly granted.

As for Don McKenny and Vern Cormie, Blackburn could

not state how they were related, and admitted that the

basis of his information that they were related was

"something that I was told by someone I worked with at

UPS sometime before I left the company." App. at 97. This

clearly fails to meet the standards we have outlined for

reputation evidence under Rule 803(19). Not only does it

appear that Blackburn does not know McKenny and

Cormie (i.e., he could not identify their alleged relationship),

but the source of his information--"something that I was

told by someone"--cannot even be identified, let alone

measured for its trustworthiness.

The same is true of the alleged relationships between Joe

Rossano, Jack Davies, and Joe Reynolds (relationship

unknown, and information based on "something that

someone told [Blackburn]"); between Lorrain Curley and

Dan Grace (source of information unknown); between Karen

Montemarano and an unknown driver; between Kathleen

Jewell and an unnamed relative ("I just remember that she

had a relative of some type working there"); and between

Howard Kaufman and "Mindy" ("it was my understanding"

that they were related). Each of these cases fails to meet

the standard we have established for admitting hearsay

evidence under the exception for reputation concerning

family matters. In each case, Blackburn does not appear to

be familiar with the persons named, fails to identify the

community involved, and does not establish any basis, let

alone a reliable one, for the information that he is offering.

In other words, he has failed demonstrably to identify a

reputation concerning family relationships that would bring

this testimony within the exception in Rule 803(19).

Finally, while we have held that Blackburn may not

testify about what Zileski told him, as this is hearsay not

within any exception, see supra note 11, Zileski himself

could almost certainly testify at trial that Manzi is his

brother-in-law. We will assume that Blackburn's testimony

regarding what Zileski told him was effectively a proffer of

the testimony that Zileski himself would give at trial, and

33

we therefore treat this as evidence capable of being

admitted at trial. However, Blackburn has presented no

evidence that UPS knew of Zileski and Manzi's relationship,

or that the company knew and did nothing about it.

Therefore, this evidence, while potentially admissible under

a hearsay exception, is not probative of pretext.

5. Summary Judgment

We conclude that Blackburn's evidence that UPS

decisionmakers were aware of his relationship to Shepard,

and later fired him for his whistleblowing activity under the

pretext of its anti-nepotism policy, is, without more,

insufficient to overcome summary judgment. As we have

detailed supra Part III.C.2-.4, we find that virtually none of

his evidence regarding other UPS employees who were

allegedly related would likely be admissible at trial as

relevant evidence that falls within a hearsay exception. We

must therefore determine whether Blackburn has offered

sufficient evidence to create a genuine issue of material fact

regarding UPS's stated reason for firing him.

Blackburn concedes that there were numerous instances

in which UPS terminated employees who violated its anti-

nepotism policy. We have held that only the following

pretext evidence might be admissible at trial: Blackburn's

testimony that Bill and Art Weyrauch were generally known

as brothers among UPS employees, and Shepard's

testimony that she informed UPS's interviewer about her

relationship to Blackburn. This scintilla of evidence is

clearly inadequate to create a genuine issue of material fact

on UPS's proffered reason for firing Blackburn. In sum, on

this record, we are satisfied that, even assuming that

Blackburn has met his prima facie burden under CEPA, he

has failed to adequately rebut UPS's proffered reason for

his discharge by pointing to sufficient "inconsistencies or

anomalies that could support an inference that the

employer did not act for its stated reasons." Sempier v.

Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995). The

judgment of the District Court will therefore be affirmed.

34

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

35