David Weil v. Citizens Telecom Services Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID WEIL, No. 16-35813

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-00835-JLR

CITIZENS TELECOM SERVICES

COMPANY, LLC; FRONTIER OPINION

COMMUNICATIONS

CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted June 5, 2018

Seattle, Washington

Filed April 29, 2019

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,

and John Antoon II,* District Judge.

Opinion by Judge N.R. Smith;

Dissent by Judge Bybee

*

The Honorable John Antoon II, Senior United States District Judge

for the Middle District of Florida, sitting by designation.

2 WEIL V. CITIZENS TELECOM SERVS. CO.

SUMMARY**

Employment Discrimination / Hearsay

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of defendant employers

in an employment discrimination action under Title VII,

42 U.S.C. § 1981, and the Washington Law Against

Discrimination.

Reversing the district court’s summary judgment on a

failure-to-promote claim, the panel held that the district court

erred in excluding on hearsay grounds a statement proffered

by the plaintiff. The panel held that, under Federal Rule of

Evidence 801(d)(2)(D), hearsay does not include statements

offered against a party, made by that party’s employee on a

matter within the scope of that employee’s employment, so

long as the statement was made while the employee was still

employed by that employer. There is no requirement that the

declarant still be in the same position that resulted in the

matter being within the scope of the employment relationship.

The panel held that, properly considering the statement as

admissible evidence of pretext, the plaintiff met his burden on

summary judgment.

Affirming the district court’s summary judgment on

plaintiff’s termination claim, the panel held that plaintiff

failed to raise a genuine dispute of material fact as to that

claim because he did not present evidence that he was

performing satisfactorily or that defendants treated a similarly

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WEIL V. CITIZENS TELECOM SERVS. CO. 3

situated employee who was not a member of plaintiff’s

protected class differently.

Dissenting in part, Judge Bybee wrote that the district

court properly excluded the proffered statement because it

was not within the scope of the declarant’s employment when

she made it after having been relieved of her hiring and

promoting duties. Judge Bybee concurred in the majority

opinion insofar as it affirmed summary judgment on the

termination claim.

COUNSEL

Terry A. Venneberg (argued), Gig Harbor, Washington;

Kenneth R. Friedman, Friedman Rubin, Bremerton,

Washington; for Plaintiff-Appellant.

Lindbergh Porter Jr. (argued), Littler Mendelson P.C., San

Francisco, California; James G. Zissler and Breanne Sheetz

Martell, Littler Mendelson P.C., Seattle, Washington; for

Defendants-Appellees.

4 WEIL V. CITIZENS TELECOM SERVS. CO.

OPINION

N.R. SMITH, Circuit Judge:

Hearsay does not include statements offered against a

party, made by that party’s employee on a matter within the

scope of the employee’s employment, so long as the

statement was made while the employee was still employed

by that party. Fed. R. Evid. 801(d)(2)(D). Because the district

court excluded such a statement proffered by Plaintiff David

Weil on hearsay grounds, it erred in granting summary

judgment to Weil’s employers, Citizens Telecom Services

and Frontier Communications (collectively, Frontier),

regarding Weil’s failure-to-promote claim. However, the

district court properly granted summary judgment to Frontier

on Weil’s termination claim, because Weil failed to produce

evidence that raised a genuine dispute of material fact as to

that claim. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm in part and reverse in part.

I.

David Weil’s employment by Frontier (and its corporate

predecessors) began in 1999. In 2011, Weil was promoted to

Call Center Manager of a Frontier call center. In his 2011

performance review, Weil was praised for his leadership

skills and received high overall scores.

In September 2012, Weil became the interim acting

director of the call center, reporting directly to L.H., the

WEIL V. CITIZENS TELECOM SERVS. CO. 5

Senior Vice President of Call Centers.1 As Weil’s supervisor,

L.H. conducted Weil’s 2012 performance review, which

showed declines in several categories. Although L.H.

provided positive feedback about Weil’s leadership and

initiative, Weil’s overall performance rating, as well as his

own self-rating, decreased from his 2011 ratings.

After naming Weil the interim acting director, Frontier

began the process of hiring a permanent director. L.H. was

the person responsible for filling the permanent director

position. Frontier received roughly 150 applications,

including one from Weil. Weil was among the 7 to

10 applicants Frontier considered qualified for the position.

L.H. interviewed Weil and two other candidates, thereafter

ranking him second out of the three. In January 2013, L.H.

emailed her supervisor recommending that Weil be allowed

to present materials to the broader team for consideration for

the position.

On January 14, 2013, Frontier removed L.H. as Vice

President and moved her into a specialized role. Her

replacement, Becky Potts, took over responsibility for filling

the director position and became Weil’s direct supervisor.

Potts reviewed materials from the hiring process prior to her

appointment, including L.H.’s review of Weil and an email

from L.H. giving him a strong review. However, Potts

ultimately selected Jennifer Brown (a white woman) in March

2013, despite Weil’s complaint alleging Brown was never

1

L.H. is identified in the record, but she is not a party, nor was she

deposed in this action. Because the court discusses facts concerning her

employment record, L.H.’s full name is omitted.

6 WEIL V. CITIZENS TELECOM SERVS. CO.

interviewed for the position.2 Brown had fifteen years of

experience at Frontier, with five years of managerial

experience. However, her 2012 performance rating was

slightly lower than Weil’s score for that year and, unlike

Weil, she did not have a Bachelor’s Degree (which was listed

as a preferred qualification for the position).

On April 1, 2013, Weil was notified he had not been

selected for the promotion. Also in April, Potts prepared a

Development Action Plan (DAP) for Weil, which identified

areas for improvement, and Weil agreed to follow through on

several “action items.” Later that month, Weil spoke with

L.H., who was then working for Frontier in her new capacity.

In his deposition, Weil described what L.H. told him as

follows:

She had made it a – that the statement saying

that she felt I was qualified for the job. She

tried to get me into the director role; had three

things that were against me, and her exact

verbiage – I remember this clearly – is ‘You

have three things going against you. You’re a

former Verizon employee, okay. You’re not

white. And you’re not female.’

L.H. was later terminated in June 2013.

Weil failed to meet the DAP deadlines and complete

action items. In June 2013, he was put on a Performance

Improvement Plan (PIP) for a 60-day period to end on August

2

In his deposition, HR director Kevin Mailloux could not recall

whether Brown was ever interviewed.

WEIL V. CITIZENS TELECOM SERVS. CO. 7

26, 2013. The PIP outlined that Weil faced possible

termination if his performance failed to improve.

Weil’s 2013 mid-year performance review showed further

declines from his 2011 and 2012 reviews. He met with Brown

twice in early August to discuss his performance issues.

Following these meetings, Brown sought Frontier Vice

President Donna Loffert’s support to terminate Weil. Frontier

terminated Weil on August 15, 2013, prior to the end of his

PIP.

Weil brought suit against Frontier under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Section

1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the

Washington Law Against Discrimination, Wash. Rev. Code

§ 49.60.010 et seq., for wrongful and discriminatory failure-

to-promote and termination. After discovery, Frontier moved

for summary judgment. In opposing summary judgment, Weil

presented L.H.’s statement and argued that it precluded the

grant of summary judgment, because it was direct evidence

of employment discrimination or at least evidence of pretext.

Frontier then filed a motion in limine requesting, in part, that

the court exclude L.H.’s statement as inadmissible hearsay.

Weil countered that the statement was not hearsay under

Federal Rule of Evidence 801(d)(2)(D), asserting that L.H.

made this statement in April 2013, when she was still a

Frontier employee, though she had been moved to a different

role with the company by that time.

The district court determined that the statement offered by

Weil was inadmissible under Federal Rule of Evidence

801(d)(2)(D) for lack of foundation, because L.H. was not

employed in the supervisor position at the time L.H. made the

statement to Weil. After excluding the statement, the district

8 WEIL V. CITIZENS TELECOM SERVS. CO.

court then reviewed Weil’s failure-to-promote claim. It

assumed (without deciding) that Weil met his prima facie

burden but concluded that, having excluded the statement,

Weil failed to produce admissible evidence that Frontier’s

reasons for not promoting him were pretextual. Finally, the

district court assessed Weil’s wrongful termination claim and

concluded that Weil had not presented a prima facie case.

Weil appealed.

II.

Because we may only consider admissible evidence when

reviewing a motion for summary judgment, Orr v. Bank of

Am., NT & SA, 285 F.3d 764, 773–75 (9th Cir. 2002), we take

up the evidentiary issue first. Under the general rule of

evidence, all relevant evidence is admissible unless, inter

alia, the Federal Rules of Evidence provide otherwise. Fed.

R. Evid. 402. Here, we determine whether the district court

properly excluded otherwise admissible relevant evidence

under Federal Rule of Evidence 801. We review the district

court’s construction of Rule 801 de novo. See United States

v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). The district

court misconstrued Rule 801(d)(2)(D) when it required Weil

(as foundation for the statement) to show that L.H.’s

statement related to a matter within the scope of her

employment at the time the statement was made.

Under Federal Rule of Evidence 801(d)(2)(D), a

statement is not hearsay and may be admitted against an

opposing party if the statement “was made by the party’s

agent or employee on a matter within the scope of that

WEIL V. CITIZENS TELECOM SERVS. CO. 9

relationship and while it existed.”3 The Rule sets forth three

elements necessary for admitting a statement that would

otherwise be excluded as hearsay: (1) the statement must be

made by an agent or employee of the party against whom the

statement is being offered; (2) the statement must concern a

matter within the scope of that employment relationship; and

(3) the statement must be made while the declarant is yet

employed by the party.4 There is no additional requirement

that the declarant must still be in the same scope of

employment at the moment the statement is made. The Rule’s

language is unambiguous. The second element requires that

the statement concern a matter that was at some time within

the scope of the declarant’s employment. The third element

requires only that the statement be made while the declarant

is yet employed; it does not require that the declarant still be

in the same position that resulted in the matter being within

the scope of the employment relationship.

With respect to the second element, a statement may

concern a matter within the scope of employment—even

though the declarant is no longer involved with that particular

matter when the statement is made—so long as the declarant

3

Unless otherwise stated, all references to the “Rule” refer to Federal

Rule of Evidence 801(d)(2)(D).

4

The dissent characterizes these three factors as “too broad” in

contrast to the Second Circuit’s reading, which it calls “too narrow.”

However, the Second Circuit reads the Rule as we do. See Marcic v.

Reinauer Transp. Cos., 397 F.3d 120, 128–29 (2d Cir. 2005) (“In order to

introduce evidence of an out-of-court statement as nonhearsay under

Rule 801(d)(2)(D), a party must lay sufficient foundation by establishing

(1) the existence of the agency relationship, (2) that the statement was

made during the course of the relationship, and (3) that it relates to a

matter within the scope of the agency.” (internal quotation marks

omitted)).

10 WEIL V. CITIZENS TELECOM SERVS. CO.

was involved with that matter at some prior point in his or her

employment. See In re Sunset Bay Assocs., 944 F.2d 1503,

1519 (9th Cir. 1991) (“[S]tatements need only concern

matters within the scope of the agency; they need not be

made within the scope of the agency.”) (emphasis in

original). Additionally, a matter may fall within the scope of

a declarant’s employment even though the declarant did not

have final decision-making authority on that matter. See

Stiefel v. Bechtel Corp., 624 F.3d 1240, 1246 (9th Cir. 2010);

cf. Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir.

1986) (finding statements inadmissible in absence of

evidence showing declarants were involved in discharge).

Our sister circuits have similarly focused the scope

inquiry on whether the declarant was involved in a process

leading up to a challenged decision, rather than focusing on

whether the declarant was a final decision-maker. See, e.g.,

Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir. 2003)

(focusing on “whether the declarant was involved in any of

the critical appraisals of [plaintiff’s] performance that

preceded her leaving work[] – not whether the declarant was

a direct decision maker”) (first alteration in original, internal

quotation marks omitted)); Simple v. Walgreen Co., 511 F.3d

668, 670–72 (7th Cir. 2007) (holding that a declarant’s

statement was admissible under the Rule, because the

declarant was “involved in the process that led up to [the

hiring decision], by being consulted about the appointment”);

Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001)

(recognizing that “it is not necessary that [the declarants] be

the actual decision-makers” so long as they were involved in

“a process leading to a challenged decision”) (citing EEOC

v. Watergate at Landmark Condo., 24 F.3d 635, 640 (4th Cir.

1994)); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1208 (11th

Cir. 2013) (requiring foundation that the declarant

WEIL V. CITIZENS TELECOM SERVS. CO. 11

“participated–at least to some extent” in the company’s hiring

decision).5

Turning now to the third element, the Rule’s legislative

history and intent support our reading that the Rule requires

only that the statement be made when the declarant is yet

employed. When the Federal Rules of Evidence were enacted

in 1975, Rule 801(d)(2)(D) excluded from the definition of

hearsay a statement offered against a party made “by his

agent or servant concerning a matter within the scope of his

agency or employment, made during the existence of the

relationship.” (Emphasis added). The Rule, as it existed then,

required that the declarant’s statement be made while the

employment relationship existed, not within a specific scope

of that relationship.

In 2011, the Rule was amended to its current form. The

advisory committee notes to the 2011 amendment were clear:

“These changes are intended to be stylistic only. There is no

intent to change any result in any ruling on evidence

admissibility.” Fed. R. Evid. 801 advisory committee’s note

to 2011 amendment. Thus, the wording of the Rule has been

5

The dissent cites to Kidd as being “nearly on all fours” with our

case. There, HR manager Rolison made a statement to the plaintiff that the

company refused to consider American candidates. The court found that

the statement’s admissibility turned on “the scope of Rolison’s

involvement in the decisionmaking process leading up” to the hiring

decision. Id. at 1210–11. “If . . . Rolison was consulted by Mando’s

management (or otherwise included in the decisionmaking process),” his

statement may be admissible. Id. at 1210. The court there held that “some

kind of participation” must be shown, but that final decisionmaking was

not necessary. Id. at 1208–10 (citing Simple, 511 F.3d at 672, Yates,

267 F.3d at 802). We merely apply that same rule here. Weil was required

to (and did) lay foundation that L.H. was involved with and participated

in the process leading up to the decision.

12 WEIL V. CITIZENS TELECOM SERVS. CO.

amended, but the substance of the Rule itself remains

unchanged. The 2011 amendment did not add a requirement

that the declarant maintain the same scope of employment at

the time the statement is made; the Rule requires (as it always

has) only that the statement be made “during the existence of

the [employment] relationship.” Fed. R. Evid. 801(d)(2)(D)

(1975).

The agency principles underlying this statutory non-

hearsay category also bolster this interpretation of the Rule.

“Typically the [employee] is well informed about acts in the

course of the business, the statements are offered against the

employer’s interest, and while the employment continues, the

employee is not likely to make the statements unless they are

true.” 2 McCormick on Evidence § 259 (7th ed.) (emphasis

added). Neither an employee’s knowledge nor her loyalty to

her employer disappears at the moment the employee’s job

description changes. Accordingly, so long as the employment

relationship continues to exist, we can presume the declarant

is unlikely to make damaging statements unless they are true,

even if the declarant is no longer actively involved with the

particular “matter” at issue. Consequently, “the predominant

view [has been] to admit a statement by an agent if it

concerned a matter within the scope of the declarant’s

employment and was made before that relationship was

terminated.” Id. (emphasis added).

To read the Rule otherwise could lead to absurd results.

For instance, if a supervisor—just after being promoted—

made a statement admitting to a discriminatory motive for

terminating an employee the day before, the alternative

reading of the Rule would exclude that statement, merely

because the statement concerned a matter that was perhaps no

longer within the scope of that supervisor’s employment.

WEIL V. CITIZENS TELECOM SERVS. CO. 13

Such a reading disregards the agency principles on which the

Rule is predicated and would potentially allow employers to

avoid liability by merely changing employees’ positions or

narrowly redefining the scope of their employment.

Accordingly, we read the third element of the Rule to require

that the statement be made while the employment relationship

still exists, without regard to the declarant’s specific scope of

employment at the time the statement is made.

Applying this unambiguous Rule, L.H.’s statement is

admissible. Weil laid sufficient foundation to establish each

of the three required elements. First, the proffered statement

of Frontier’s employee, L.H., was offered against Frontier.

Second, the statement concerned a matter within the scope of

L.H.’s employment. The statement concerned why Weil was

not promoted to the director position.6 Although L.H. did not

make the final decision, she was significantly involved in the

process leading to the decision—not only was L.H.

responsible for filling that position while she was Vice

President, but during that time she specifically considered

Weil for the job, even conducting his performance review and

interview. Third, the statement was made in April 2013 when

L.H. was still employed by Frontier. Because all three

elements of the Rule are met, the statement is admissible

under Rule 801(d)(2)(D), and the district court erred in

excluding it.

6

The dissent appears to read L.H.’s statement as speaking to why

Brown was hired and makes much of the fact that L.H. was demoted

before Brown was considered and the final decision was made. However,

L.H.’s statement concerned only why Weil was not hired and did not

speak directly to Brown’s hiring or her qualifications.

14 WEIL V. CITIZENS TELECOM SERVS. CO.

The dissent’s arguments are misplaced when considering

the admission of this statement. Those arguments instead

focus on topics more appropriately addressed in cross-

examination. See Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 596 (1993) (“Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate means

of attacking shaky but admissible evidence.”). The dissent

emphasizes that L.H. was involuntarily demoted from the

hiring position, that Potts may have had good reasons for

choosing Brown over Weil, and that the source of L.H.’s

statement in this case is Weil’s own deposition rather than

from L.H. herself, because she was never deposed. These

observations go directly to the weight of L.H.’s statement.

However, they are misplaced in determining the statement’s

threshold admissibility under the Rule on summary judgment.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986) (“[A]t the summary judgment stage the judge’s

function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a

genuine issue for trial.”). On cross-examination, Frontier will

have its opportunity to discredit and oppose the statement, but

these issues do not determine a statement’s admissibility.

III.

We review a district court’s grant of summary judgment

de novo. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112

(9th Cir. 2004). “The [district] court shall grant summary

judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The court must

“view the facts and draw reasonable inferences in the light

WEIL V. CITIZENS TELECOM SERVS. CO. 15

most favorable to the [non-moving] party.” Scott v. Harris,

550 U.S. 372, 378 (2007) (internal quotation marks omitted).

In reviewing motions for summary judgment in the

employment discrimination context, a court must “zealously

guard[] an employee’s right to a full trial, since

discrimination claims are frequently difficult to prove without

a full airing of the evidence and an opportunity to evaluate

the credibility of the witnesses.” McGinest, 360 F.3d at 1112.

“[V]ery little . . . evidence is necessary to raise a genuine

issue of fact regarding an employer’s motive; any indication

of discriminatory motive . . . may suffice to raise a question

that can only be resolved by a factfinder.” Schnidrig v.

Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir. 1996)

(internal quotation marks and citation omitted, last alternation

in original).

Title VII prohibits employers from discriminating against

any individual on the basis of race, color, religion, sex, or

national origin. 42 U.S.C. § 2000e-2(a)(1). We analyze

Title VII claims, as well as § 1981 and state law employment

discrimination claims, under the McDonnell Douglas burden-

shifting framework. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973); see also Surrell v. Cal. Water Serv.

Co., 518 F.3d 1097, 1105 (9th Cir. 2008); Kastanis v. Educ.

Emps. Credit Union, 859 P.2d 26, 30 (Wash. 1993). First, the

plaintiff must make out a prima facie case. McDonnell

Douglas Corp., 411 U.S. at 802. Once the prima facie case is

made, a presumption of unlawful discrimination is created

and the burden shifts to the defendant to articulate a

“legitimate, nondiscriminatory reason” for its action. Id. If the

defendant meets that burden, the plaintiff must produce

evidence that the defendant’s “proffered nondiscriminatory

reason is merely a pretext for discrimination.” Dominguez-

16 WEIL V. CITIZENS TELECOM SERVS. CO.

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.

2005).

A. Failure-to-Promote Claim

Taking into consideration L.H.’s statement as admissible

evidence, we proceed to review the district court’s grant of

summary judgment. The district court assumed—without

deciding—that Weil established his prima facie case, but

determined that Weil failed to produce evidence that

Frontier’s legitimate, nondiscriminatory reasons for not

promoting him were pretext. The district court made that

determination after erroneously excluding L.H.’s statement.

When the statement is properly considered as admissible

evidence of pretext, Weil meets his burden.7

As the district court did, we assume for the purposes of

summary judgment analysis that Weil established his prima

facie case. The burden then shifts to Frontier to produce a

legitimate, nondiscriminatory reason for its decision not to

promote Weil. Frontier points to various concerns about

7

In opposing a motion for summary judgment, a plaintiff asserting a

Title VII claim may either produce direct or circumstantial evidence that

a discriminatory reason motivated the defendant’s employment decision,

or alternatively may establish a prima facie case under the McDonnell

Douglas burden-shifting framework. McGinest, 360 F.3d at 1122. “[I]t is

not particularly significant whether [a plaintiff] relies on the McDonnell

Douglas presumption or, whether he relies on direct or circumstantial

evidence of discriminatory intent to meet his burden. Under either

approach, [the plaintiff] must produce some evidence suggesting that [the

defendant]’s failure to promote him was due in part or whole to

discriminatory intent . . . .” Id. at 1123. L.H.’s statement is evidence

suggesting that Frontier’s failure to promote Weil was in part

discriminatory. Thus, Weil created a triable question of fact such that the

grant of summary judgment was improper under either approach.

WEIL V. CITIZENS TELECOM SERVS. CO. 17

Weil’s leadership abilities, identified in his performance

reviews, as legitimate, nondiscriminatory reasons for not

promoting Weil. The burden then shifts back to Weil to

produce evidence that Frontier’s reasons were pretextual.

Viewing the facts and reasonable inferences therefrom in

the light most favorable to Weil, as we must on summary

judgment, L.H.’s statement is evidence that Frontier’s reasons

were merely prextext. The statement suggests that Frontier

discriminated against Weil on the basis of his sex and race

when it chose not to promote him. Such evidence “creates a

triable issue as to [Frontier’s] motive in failing to promote

[Weil], even if the evidence is not substantial.” Dominguez-

Curry, 424 F.3d at 1038 (internal quotation marks omitted).8

Because Weil met his burden of producing evidence of

pretext and creating a genuine dispute of material fact, the

district court erred in granting summary judgment on Weil’s

failure-to-promote claim. Thus, we reverse summary

judgment as to this claim.

B. Termination Claim

The district court granted summary judgment to Frontier

on Weil’s termination claim, because Weil failed to produce

evidence to support his prima facie case. After review, we

conclude that the district court did not err in determining

Weil did not present evidence that he was performing

8

The district court acknowledged the significance of L.H.’s statement

at the summary judgment phase: “Granting all reasonable inferences in

favor of Mr. Weil, a factfinder could read [L.H.]’s statement to indicate

that Mr. Weil’s skin color and gender played a role in the decision not to

hire him.” Because this statement alone is sufficient evidence to create a

triable issue as to pretext, we need not discuss Weil’s other circumstantial

evidence of pretext.

18 WEIL V. CITIZENS TELECOM SERVS. CO.

satisfactorily or that Frontier treated a similarly situated

employee who was not a member of Weil’s protected class

differently.

In a termination claim, the plaintiff may make a prima

facie case by offering proof that: (1) he belongs to a protected

class; (2) he was performing his job satisfactorily; (3) he

suffered an adverse employment action; and (4) his employer

treated him differently than a similarly situated employee

who does not belong to the same protected class. McDonnell

Douglas Corp., 411 U.S. at 802. The parties do not dispute

the first and third elements. Weil is a member of a protected

class, because he is a man of East Indian descent. And Weil

suffered adverse employment action when he was terminated.

Reviewing the record in the light most favorable to Weil,

he has not met the second element. Although the requisite

level of proof necessary for a plaintiff to establish a prima

facie Title VII case at the summary judgment stage “is

minimal and does not even need to rise to the level of a

preponderance of the evidence,” Wallis v. J.R. Simplot Co.,

26 F.3d 885, 889 (9th Cir. 1994), the plaintiff still must

produce evidence, not just pleadings or argument. An

employee’s self-assessment of his performance, though

relevant, is not enough on its own to raise a genuine issue of

material fact. See Aragon v. Republic Silver State Disposal

Inc., 292 F.3d 654, 660 (9th Cir. 2002).

The undisputed evidence, including Weil’s performance

reviews and his own self-ratings, shows that Weil’s

performance was steadily declining from 2011 to 2013.

Weil’s 2013 mid-year review shows an objective total self-

report score of 2.6 out of 5, which Weil admitted reflected

performance that was unsatisfactory. Weil does not dispute

WEIL V. CITIZENS TELECOM SERVS. CO. 19

that he missed deadlines and failed to complete action items

in his DAP, nor does he dispute that he was placed on a PIP

to address his performance and warned that termination was

a possible outcome if his performance failed to improve. On

this record, Weil has not shown that his performance was

satisfactory. Therefore, he has not met the second element.

Weil also failed to meet the fourth element. It is not

enough for employees to be in similar employment positions;

rather, the plaintiff and the comparator employee must be

“similarly situated . . . in all material respects.” Moran v.

Selig, 447 F.3d 748, 755 (9th Cir. 2006). Employees are

similarly situated if they have “similar jobs and display

similar conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d

634, 641 (9th Cir. 2003). Here, Weil failed to produce

evidence of a similarly situated employee who displayed

similar conduct. Although Weil introduced evidence that no

white female directors were placed on PIPs or terminated

during the relevant management period, Weil did not

introduce evidence that any of those employees failed to meet

deadlines and complete tasks or had steadily declining

performance reviews.

IV.

The judgment of the district court is AFFIRMED in part

and REVERSED in part, and this case is remanded to the

district court for further proceedings consistent with this

opinion. Each party shall bear its own costs and fees.

20 WEIL V. CITIZENS TELECOM SERVS. CO.

BYBEE, Circuit Judge, dissenting in part:

Federal Rule of Evidence 801(d)(2)(D) provides an

exclusion from hearsay for certain statements by a party

opponent. In this case, Weil seeks to offer a statement he

says his former supervisor, L.H., made to him concerning

why he was not promoted by Frontier. Weil argues that

L.H.’s statement is not hearsay because Weil is offering the

statement against Frontier and it “was made by the party’s

agent or employee on a matter within the scope of that

relationship and while it existed.” FED. R. EVID.

801(d)(2)(D). The real nub of our disagreement is whether

L.H.’s statement made in April 2013 was within the scope of

her employment when she made the statement. The majority

concludes that because L.H. had been involved in

interviewing candidates (including Weil) in October 2012 for

the position Weil says he was wrongfully denied, she was

competent to declare that Frontier didn’t promote Weil in

March 2013 because he was male and not white. The district

court concluded that Weil hadn’t laid a sufficient foundation

for admitting L.H.’s statement: Although L.H. had been

involved in making hiring decisions at one time, Weil failed

to show how L.H. knew why Weil was not promoted when

she had been relieved of her hiring and promoting duties in

January, the candidate ultimately promoted wasn’t even

interviewed until February, and the decision to promote was

made by a committee in March.

The district court has this one right. L.H. surely knew

something about the processes she was involved in. And she

might have even known something about how the final

decisions were made. But once she was excluded from the

decisionmaking process in January, Weil had to offer some

basis for her statement. Otherwise, the statement may be

WEIL V. CITIZENS TELECOM SERVS. CO. 21

nothing more than her uninformed opinion, a statement

“made in [that employee’s] capacity as wiseacre only.”

Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 967

(5th Cir. 2016) (quoting Staheli v. Univ. of Miss., 854 F.2d

121, 127 (5th Cir. 1988)). Federal Rule of Evidence

801(d)(2)(D) is not only an exclusion from the hearsay rule,

it is a powerful rule of attribution: If admitted, L.H.’s

statement becomes Frontier’s statement, as L.H. is presumed

to be speaking on behalf of her employer.

The district court correctly stated the law and did not

abuse its discretion when it refused to accept Weil’s version

of what he said L.H. said without further foundation. I

respectfully dissent.1

I

In this section, I am going to begin with a brief recitation

of the facts, with a focus on the timeline of the relationship

between Frontier, L.H., and Weil, and including some facts

omitted by the majority. I will then review the district court’s

careful opinion and discuss the standard of review.

A

Frontier named Weil the acting director of the call center

in September 2012, reporting to L.H. In October 2012, L.H.

began the process of hiring a new full-time director. That

same month, L.H. interviewed Weil and two other male

candidates for that position, ranking Weil second. On

January 14, 2013, the circumstances changed. Frontier

1

I concur in the majority opinion insofar as it affirms summary

judgment on Weil’s termination claim. Maj. Op. at 17–19.

22 WEIL V. CITIZENS TELECOM SERVS. CO.

demoted L.H., moving her to a so-called “specialized role”

where she was no longer in charge of hiring for the director

position and where she no longer supervised Weil or any

other employee. Less than five months later, on June 1, 2013,

Frontier terminated L.H.

L.H. was replaced by Becky Potts, who became Weil’s

supervisor and took charge of hiring a call center director. In

February 2013, Potts interviewed additional applicants,

narrowing the field to four leading candidates including

Jennifer Brown, a white woman.2 In late March 2013, Potts,

in consultation with Kevin Mailloux, a human resources

director, and Donna Loffert, a vice president, hired Brown as

the new call center director. Unlike Weil, Brown had over

fifteen years of experience at Frontier, including five years of

managerial experience, and she had “handled more than one

call center for a period of time.” Potts told her superiors by

email that she recommended not promoting Weil because of

his need to (1) develop proactive communication skills;

(2) improve cross-functional collaboration; and (3) increase

accountability, matters that had shown up on his 2012

employee performance review conducted by L.H. Potts noted

in that email that L.H. had given Weil a “strong review

(3.4),” but that L.H.’s evaluation “did agree to some of my

concerns above.” In August 2013, Brown—with support

from Loffert and Mailloux—decided to terminate Weil due to

his “inability to overcome . . . performance gaps.” Mailloux

added that he had favored terminating Weil due to concerns

about his honesty and dependability. Weil filed this suit,

2

The record does not disclose who the four leading candidates were

but suggests that Weil was not one of the four, and thus that at least two

of the four were not interviewed by L.H.

WEIL V. CITIZENS TELECOM SERVS. CO. 23

alleging failure to promote on the basis of race, color, and

sex.

In opposition to Frontier’s motion for summary judgment

on his failure to promote claim, Weil presented the district

court with only one piece of direct evidence in support of his

theory that he was denied promotion because of his race and

sex: an out-of-court statement allegedly made to him by L.H.3

The only evidence in the record that L.H. made this statement

comes from Weil’s own deposition, which reads in relevant

part as follows:

Q: At Frontier did anyone ever make any

inappropriate comments to you

regarding your race?

Weil: Not that I can recall, no.

Q: At Frontier did anyone ever make any

inappropriate comments to you

regarding your gender?

Weil: I’m not sure if it’s inappropriate or

not. There was a comment made by a

former supervisor regarding race and

gender, but I don’t think it was

inappropriate. It was more in the

3

Curiously, Weil neither deposed L.H. nor obtained a declaration or

affidavit from her. A deposition or statement might have been admitted

as direct evidence, without the recourse to the hearsay exclusion in Rule

801. At the very least, a statement from L.H. might have laid a foundation

for the admission of her supposed statement to Weil. We have no

explanation for this failure.

24 WEIL V. CITIZENS TELECOM SERVS. CO.

context of explanation and it wasn’t

like she was saying it to me.

Q: Was this –

Weil: But it wasn’t – I don’t think that it was

inappropriate – like an attack on me.

Q: Was this [L.H.]?

Weil: Yes, there was – it was her. And I did

have – yes, it was her.

Q: And what did she say to you?

Weil: She had made it a – that the statement

saying that she felt I was qualified for

the job. She tried to get me into the

director role; had three things that

were against me, and her exact

verbiage – I remember this clearly –

is, “You have three things going

against you. You’re a former Verizon

employee, okay. You’re not white.

And you’re not female.”

Q: When do you claim [L.H.] made this

statement?

Weil: It was in April. I don’t remember the

exact day in April.

Q: In April of 2013?

WEIL V. CITIZENS TELECOM SERVS. CO. 25

Weil: Yes.

Q: And [L.H.] had left the company by

this time; is that right?

Weil: No.

Q: She had not been involved in the – in

the decision, though, right?

Weil: She was involved in the hiring process

up until January. After that she was

not involved in the process.

Q: Because she had moved to a different

role, correct?

Weil: Yes.

....

Weil: . . . And I mean, if I take a look at,

you, as far as another example may be

[L.H.]. It’s like she went from

someone that had thousands of people

reporting to her. So all of sudden

being moved into a specialized role

where she had no one. And I

observed – to my observation.

Q: And so you don’t even know if that

was voluntary to involuntary, do you?

26 WEIL V. CITIZENS TELECOM SERVS. CO.

Weil: I know the – the move was

involuntary.

Q: How do you know that?

Weil: Based on conversations that I had with

[L.H.], the move was involuntary.

B

The district court recognized that L.H.’s statement was

critical to Weil’s case: “Granting all reasonable inferences in

favor of Mr. Weil, a factfinder could read [L.H.’s] statement

to indicate that Mr. Weil’s skin color and gender played a role

in the decision not to hire him.” The court correctly stated

the rule, that L.H.’s statement was hearsay and could be

admitted only if “it satisfies the carveout for admissions by

party opponents” under Rule 801(d)(2)(D). Quoting our

opinion in Breneman v. Kennecott Corp., 799 F.2d 470, 473

(9th Cir. 1986), the court stated that “[t]his rule ‘requires the

proffering party to lay a foundation to show that an otherwise

excludible statement relates to a matter within the scope of

the agent’s employment.’” The court found that L.H. made

the statement in April 2013, that she was only involved in the

hiring process until January 2013, and, “as Mr. Weil

acknowledges, [L.H.] did not partake in that final decision.”

The court then stated, again correctly and citing decisions

from the Sixth and Seventh Circuits, that L.H.’s “lack of

decision-making authority at the time she made the statement

is not dispositive on whether the statement relates to a matter

within the scope of her employment.” See Carter v. Univ. of

Toledo, 349 F.3d 269, 275 (6th Cir. 2003); Nekolny v.

Painter, 653 F.2d 1164, 1171 (7th Cir. 1981). Nevertheless,

WEIL V. CITIZENS TELECOM SERVS. CO. 27

the district court held that Weil still had the burden to lay a

foundation for L.H.’s statement. Finding that Weil argued

only that L.H. was “still employed” by Frontier in April, the

court concluded that Weil’s statement and evidence “lay no

foundation regarding the scope of [L.H.’s] employment when

she made the statement in question.” “Indeed, based on the

evidence in the record, the court can reasonably infer only

that the scope of L.H.’s employment in April 2013 was

minimal.” On this basis, the court concluded that L.H.’s

statement was hearsay and inadmissible.

C

We review the district court’s interpretation of the

hearsay rule de novo and its decision to admit or exclude

evidence as hearsay for abuse of discretion. Calmat Co. v.

U.S. Dep’t of Labor, 364 F.3d 1117, 1122 (9th Cir. 2004).

The majority concludes that the district court incorrectly

interpreted the rule and resolved the case on de novo review.

However, as I explain below, the district court stated the

correct law. The question before us is thus whether the

district court abused its discretion in excluding the hearsay

statement because Weil failed to lay an adequate foundation.

II

The majority holds that the district court erred as a matter

of law when it required Weil to lay additional foundation for

L.H.’s April 2013 statement. It holds that Weil laid a

sufficient foundation by demonstrating two facts: first, that

L.H.’s statement to Weil related to a matter that was “at some

prior point” within the scope of her employment, and second,

that L.H. was “still employed by Frontier” when she made the

statement. Maj. Op. at 9–10, 13. The majority emphasizes

28 WEIL V. CITIZENS TELECOM SERVS. CO.

that Rule 801(d)(2)(D) requires only that “the statement be

made while the employment relationship still exists, without

regard to the declarant’s specific scope of employment at the

time the statement is made.” Maj. Op. at 13 (emphasis

added). According to the majority, the rule “does not require

that the declarant still be in the same position that resulted in

the matter being within the scope of the employment

relationship,” “only that the statement be made when the

declarant is yet employed.” Maj. Op. at 9, 11, 12.

According to the majority, Rule 804(d)(2)(D) is

“unambiguous,” both in its meaning and application. Maj.

Op. at 9, 13. But for me, the majority’s reading of Rule 801

is formulaic and its application to this case wooden. Other

courts have recognized that “the law regarding this rule is

‘somewhat muddled,’” United States v. Bloom, 846 F.3d

243, 256 (7th Cir. 2017) (internal marks and citations

omitted), because the rule must be read differently “in

employment cases in which the admission deals with

hiring/firing/promoting/demoting-type decisions.” Aliotta v.

Nat’l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir.

2003); see also Williams v. Pharmacia, Inc., 137 F.3d 944,

950 (7th Cir. 1998) (“The precise reach of Rule 801(d)(2)(D)

is sometimes difficult to discern, as there has been

considerable debate about the justification for classifying

vicarious admissions as non-hearsay.”).

With all due respect, I believe the majority has missed a

nuanced, but critical point: If it is admissible at all, L.H.’s

statement is admissible against Frontier as evidence of

Frontier’s position only up until the point she was relieved of

WEIL V. CITIZENS TELECOM SERVS. CO. 29

her responsibilities in January 2013.4 L.H. told Weil he was

qualified, she tried to get him the directorship, and he had

three things going against him: he was a former Verizon

employee, not white, and not female. If Weil had attempted

to introduce L.H.’s statement as evidence that Weil was not

going to get the job while L.H. was in charge, then the

statement is likely admissible against Frontier. See 4

CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK,

FEDERAL EVIDENCE § 8:53 (4th ed. 2018) (Rule 801(d)(2)(D)

“clearly endorses [admission] . . . where the speaker is

himself the alleged tortfeasor.”). But Weil sought to

introduce the statement as direct evidence that Frontier

ultimately failed to promote him because of his race and

gender. “[D]irect evidence of employment discrimination is

rare,” and, “if believed, proves the fact of discriminatory

4

I should note that the Second Circuit has adopted a formulation of

Rule 801(d)(2)(D) that would limit the admission to statements “made

during the course of the [agency] relationship that . . . relate[] to a matter

within the scope of the agency.” Marcic v. Reinauer Transp. Cos., 397

F.3d 120, 129 (2d Cir. 2005) (quoting Pappas v. Middle Earth

Condominium Ass’n, 963 F.2d 534, 537 (2d Cir. 1992)). In contrast, the

majority elicits three elements from the rule: (1) the statement must be

made by an agent or employee of the party against whom the statement is

offered; (2) the statement concerns a matter within the scope of that

employment relationship; and (3) the statement was made while the

declarant was still employed by the party. Maj. Op. at 9. Elements

(1) and (3) are redundant: “an employee” (1) is by definition one “still

employed by the party” (3).

The Second Circuit’s rule seems too narrow; the majority’s too broad.

Here I am trying to offer a formulation between the two that might

recognize an employee’s competence to speak about historical

facts—matters previously, but not currently, within the employee’s scope

of employment—but would recognize the limitations of the admission.

My view would avoid the majority’s “absurd results” hypothetical. See

Maj. Op. at 12.

30 WEIL V. CITIZENS TELECOM SERVS. CO.

animus without inference or presumption.” Aragon v.

Republic Silver State Disposal, Inc., 292 F.3d 654, 662 (9th

Cir. 2002) (internal citation and alteration omitted) (emphasis

in original). The problem is that Weil himself admitted that

L.H. was long out of the loop when she made the statement:

She was demoted in January and replaced by someone (Potts)

not previously involved in the hiring process. Potts

interviewed candidates L.H. did not (including the successful

candidate, Brown), consulted with management in meetings

L.H. didn’t attend, and hired Brown two months after L.H.

was demoted. Nothing in that chain of events suggests that

L.H. knew why, in March, Frontier passed over Weil and

hired Brown.5

To be clear, I am not suggesting that the district court had

to exclude L.H.’s statement—only that given the lack of a

foundation Weil laid, it did not abuse its discretion in doing

so. Even after L.H. was removed from her position, her

statement to Weil might still be relevant if Weil had offered

some foundation for how L.H. knew what she said to him.

For example, if L.H. had said to Weil, “Becky Potts asked me

to sit in on some discussions of the final candidates, and it

was clear we were only going to hire a woman,” we would

5

The majority considers these facts relevant only to the weight

accorded to L.H.’s hearsay statement and not to the threshold question of

admissibility. Maj. Op. at 14. This is a misunderstanding of the hearsay

rule: Because L.H.’s statement may only be admitted against Frontier if

she was an employee who spoke on a matter within the scope of her

employment relationship as defined by Rule 801(d)(2)(D), evidence that

the scope of L.H.’s employment had narrowed by the time of the relevant

events is essential to our determination of whether the statement fell

within that scope—and accordingly, to whether the statement may be

admitted or must be excluded under Rule 802. If the statement were

admitted, these factors could again be relevant on the question of weight.

WEIL V. CITIZENS TELECOM SERVS. CO. 31

have a basis for admitting L.H.’s statement against Frontier.

But L.H.’s statement, as related by Weil, not only is

untethered to the final decision, but lacks any connection to

the hiring of a new supervisor to make the decision, the

additional candidate interviews conducted in January and

February, and the final decision made in late March.6 As

Weil himself candidly admitted, L.H. was “not involved in

the process [after January].”

The district court’s decision to insist on a proper

foundation for L.H.’s statement was proper for an additional

reason. As the district court found, by April 2013, L.H.’s

responsibilities at Frontier were “minimal.” In fact, less than

two months later, L.H. was terminated. Federal Rule of

Evidence 801(d)(2)(D) is not only a rule about hearsay, it is

a powerful rule of attribution. It takes ordinary hearsay and

makes the statement attributable to the employer. At the

heart of the rule is the law of agency, and the touchstone of

agency is the consent of the principal and agent. See FED. R.

EVID. 801(b)(2)(D) 1972 advisory committee’s note;

MUELLER & KIRKPATRICK, supra, § 8:53 & n.1; 2 KENNETH

S. BROWN ET AL., MCCORMICK ON EVIDENCE § 259 & nn.4–5

(7th ed. 2016); see also RESTATEMENT (THIRD) OF AGENCY

§ 1.01 cmt. c (Am. Law. Inst. 2006). Like other agency

6

The lack of a foundation for L.H.’s statement leaves us with an

additional dilemma. If L.H. “knew” Weil did not get the promotion on

account of his race and sex because another Frontier official told her so,

then we have a double hearsay problem. In order to admit Weil’s

statement that L.H. told him that someone else told her, Weil would have

to show, at the least, that every link in the hearsay chain satisfied

Rule 801(d)(2)(D). See Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir.

2001). Since we know, by Weil’s own admission, that L.H. was not

involved in the decision to hire Brown instead of Weil, the possibility of

double hearsay is quite real.

32 WEIL V. CITIZENS TELECOM SERVS. CO.

relationships, the scope of employment—its subject matter,

duties, and rights—may be modified through agreement or

otherwise. For that reason, the district court must require

some foundation for the statement; it is not sufficient to show

that the declarant was simply employed at the time the

statement was made. FED. R. EVID. 801(d)(2) (“The

statement must be considered but does not by itself establish

the . . . scope of the relationship under (D).”). See Stephens

v. Erickson, 569 F.3d 779, 793 (7th Cir. 2009) (“[N]ot

everything that relates to one’s job falls within the scope of

one’s agency or employment.” (internal quotation marks and

citation omitted)); Rowell v. BellSouth Corp., 433 F.3d 794,

800 (11th Cir. 2005) (“If it is to be contended that Gillis’s

statements represent the policy of BellSouth, . . . a court

would have to determine by a preponderance of the evidence

that Gilles was speaking as an agent of BellSouth at the time

he made these statements. Nothing . . . supports such a

conclusion. It is in reality nothing but the inadmissible

opinion of Gillis.” (emphasis added)).7

7

In 1997 Rule 801(d)(2) was amended in response to the Supreme

Court’s decision in Bourjaily v. United States, 483 U.S. 171 (1987). That

decision concerned the proof required to demonstrate a conspiracy for

purposes of admitting a co-conspirator’s statements pursuant to Rule

801(d)(2)(E). The Advisory Committee noted that the changes made clear

that

the contents of the declarant’s statement do not alone

suffice to establish a conspiracy in which the declarant

and the defendant participated. The court must

consider in addition the circumstances surrounding the

statement, such as the identity of the speaker, the

context in which the statement was made, or evidence

corroborating the contents of the statement in making

its determination as to each preliminary question.

WEIL V. CITIZENS TELECOM SERVS. CO. 33

We have long assumed that, out of loyalty, an employee

“is unlikely to make statements damaging to his principal or

employer unless those statements are true.” Nekolny,

653 F.2d at 1172; see Maj. Op. at 12 (“so long as the

employment relationship continues to exist, we can presume

the declarant is unlikely to make damaging statements unless

they are true”); Pappas v. Middle Earth Condo. Ass’n,

963 F.2d 534, 537 (2d Cir. 1992); Joseph T. Ryerson & Son,

Inc. v. H.A. Crane & Bro., Inc., 417 F.2d 1263, 1270 (3d Cir.

1969) (“It has been traditional practice to permit a hearsay

exception where the necessity is great and the reliability

involved in an identifiable class of statements is adequate. . . .

[T]he agent is more likely to be telling the truth in most

instances when he makes an admission . . . .” (citation and

internal alteration omitted)); FED. R. EVID. 801 1972 advisory

committee’s note (“[F]ew principals employ agents for the

purpose of making damaging statements . . . .”). The district

court noted that L.H. had reason to be unhappy with Frontier:

she had been relieved her of all supervisory responsibilities.

In Weil’s own words, “the move was involuntary,” and “she

went from someone that had thousands of people reporting to

her. So all of sudden being moved into a specialized role

where she had no one.” There is no reason to maintain the

fiction that so long as one remains an employee, the

employee may speak on behalf of the employer—especially

where there is evidence that the employee has been demoted,

disciplined, or placed on probation as a prelude to

termination, or that the employee is preparing to resign or

FED. R. EVID. 801 advisory committee’s note to 1997 amendment. “The

Advisory Committee believes it appropriate to treat analogously

preliminary questions relating to the declarant’s authority . . . and the

agency or employment relationship and scope thereof under subdivision

(D).” Id.

34 WEIL V. CITIZENS TELECOM SERVS. CO.

may have an adverse litigation position with respect to the

corporation by, for example, filing a complaint with the

EEOC. In these contexts, the employer and employees may

be adversaries. See Young v. James Green Mgmt., Inc.,

327 F.3d 616, 622–23 (7th Cir. 2003) (statement in letter of

resignation was not admissible; employee “was acting not

only independently of [his employer] but also as its

adversary”); United States v. Summers, 598 F.2d 450, 459

(5th Cir. 1979) (agent’s statements could not be attributed to

principal after the agent began cooperating with the FBI;

“[the agent] could not be working for both the FBI and [the

principal] at the same time”); SEC v. Geon Indus., Inc.,

531 F.2d 39, 43 n.3 (2d Cir. 1976) (suspended employee’s

testimony was properly excluded under Rule 801(d)(2)(D);

employee and employer were “potential defendants [who]

might have conflicting litigating positions”).

The district court didn’t hold that L.H.’s statement could

not be admitted under Rule 801, only that it would not be

admitted without some explanation for why L.H. could speak

for Frontier in April 2013. See 5 JACK B. WEINSTEIN &

MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE

§ 801.33[2][c] (Matthew Bender 2d ed. 1997 & supp. 2019)

(stating that “the decisionmaking authority of the declarant to

hire, fire, promote or demote may be critical in employment

cases” and that “the declarant must be among the persons

who made the employment decisions in question”—or at least

have “the ability to influence the personnel decision in

question”—“for his or her statements about those decision to

qualify as having been made within the scope of

employment”). That was a perfectly reasonable decision.

Without some foundation, some additional explanation,

L.H.’s April 2013 statement was not within the scope of her

employment when she uttered it just because she had once

WEIL V. CITIZENS TELECOM SERVS. CO. 35

had a supervisory position and was still employed in some

capacity. The district court was right to be suspicious of the

statement, and it was Weil’s burden to lay that foundation.

See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808,

821 (9th Cir. 2002) (party laid a sufficient foundation to

admit email against employer by showing sender was

employed when she forwarded the email and the contents of

the email were within the scope of her employment);

Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.

2002) (party failed to lay a foundation by merely stating

declarant’s job title without “provid[ing] any description of

[his] job responsibilities” and without “show[ing] that [the]

job duties had anything to do with” the matter at hand); Oki

Am., Inc. v. Microtech Int’l, Inc., 872 F.2d 312, 314 (9th Cir.

1989) (party failed to lay a foundation where declarant “knew

nothing” about the contracts at issue); Breneman, 799 F.2d at

473 (party failed to lay a foundation showing that declarants

“were involved in” her discharge at all).

A decision from the Eleventh Circuit is nearly on all fours

with this case and demonstrates the reading of Rule

801(d)(2)(D) I would favor. In Kidd v. Mando American

Corp., 731 F.3d 1196 (11th Cir. 2013), Leanne Kidd, a white

female, was an accountant at Mando American Corporation,

a Korean-owned company. When Kidd’s immediate

supervisor, the assistant accounting manager, left the

company, Kidd assumed his responsibilities and indicated

that she wished to be considered for the permanent position.

B.J. Cheong, the accounting manager, told her he would get

her promoted. Cheong and Mando’s president, Tae Kwak,

ultimately interviewed only one candidate for the permanent

position, B.W. Seo, a Korean male. Talking with one of

Mando’s HR managers, Jerry Rolison, Kidd learned that

Rolison had shown Cheong and Kwak four resumes from

36 WEIL V. CITIZENS TELECOM SERVS. CO.

qualified American candidates, but they refused to consider

an American candidate. Kidd resigned and filed suit,

claiming that Mando’s failure to promote her violated Title

VII. Id. at 1200–01. Agreeing with the district court, the

court of appeals found that Kidd made out a prima facie case

of failure to promote and that Mando offered a race-neutral

reason for hiring the sole candidate it interviewed—Seo had

more auditing experience. Id. at 1204–05. The burden then

shifted to Kidd to show that Mando’s explanation was

pretextual. Id. at 1205–06. As the Eleventh Circuit

explained, “The potentially strongest circumstantial evidence

for Kidd is her testimony that Rolison informed her that

Kwak and Cheong ‘refused to even consider an American

candidate’ for the assistant accounting manager job.” Id.

at 1207; see also id. at 1208 (the evidentiary question was

“outcome determinative” as to whether Kidd’s case could

proceed to trial).

The problem for Kidd was that “the facts surrounding

Rolison’s alleged remark [were] unclear . . . . If Kidd seeks

to introduce Rolison’s alleged remark under Rule

801(d)(2)(D), she needs to show that Rolison participated—at

least to some extent—in Mando’s decision to hire Seo and not

promote Kidd.” Id. at 1208. On the one hand, Rolison was

head of Mando’s HR department, which suggested he might

be authorized to talk about Mando’s hiring practices; on the

other hand, “Rolison was only tangentially involved in

Mando’s decision to hire Seo, and . . . the Mando

decisionmakers didn’t consult with Rolison regarding Seo’s

hire over other eligible candidates.” Id. at 1208–09. The

court made clear that Rule 801(d)(2)(D) does not mean that

“a non-decisionmaker can never be considered an agent,” but

“to be considered an agent for purposes of Rule 801(d)(2)(D),

the record needs to reflect ‘some kind of participation in the

WEIL V. CITIZENS TELECOM SERVS. CO. 37

employment decision or policy of the employer.’” Id. at 1209

(quoting Rowell, 433 F.3d at 800).8 Because it was “entirely

unclear whether Rolison’s alleged statement that the Mando

decisionmakers ‘refused to even consider an American

candidate,’ was based on something he observed or heard, or

whether it was his own personal opinion,” the court remanded

to the district court to determine if Rolison’s alleged

statement was admissible. Id. at 1210–11; but see id. at 1212

(Wilson, J., concurring in part and dissenting part) (objecting

that remand gave Kidd a “second opportunity”; Kidd had

conceded that Rolison’s comment was “his own perception”).

As in Kidd, Weil needed to lay some foundation which

would allow a district court to reach the conclusion that L.H.

was involved in some way in the decision to promote Brown

and not to promote Weil. He failed to do that, even admitting

that L.H. was “not involved in the process.” The district

court faithfully followed our decisions and those from other

circuits. Having construed Rule 801(d)(2)(D) correctly, it did

8

See Rowell, 433 F.3d at 800–01 (there must be “some evidence that

the statements reflected some kind of participation in the employment

decision or policy of the employer”; statements by former supervisor that

the company wanted “to keep the youth” was not admissible where there

was “no evidence that [the declarant] was involved in the decisions of how

to structure the reduction in force”); see also Fairchild., 815 F.3d at 967

(Rule 801(d)(2)(D) “does not apply to an employee’s statement

concerning a termination decision when that employee had nothing to do

with that decision,” even where the employee was a managerial employee

(quotation marks and citation omitted)); Stephens v. Erickson, 569 F.3d

779, 793 (7th Cir. 2009) (“For an agent’s statement regarding an

employment action to constitute an admission, she need not have been

personally involved in that action, but her duties must encompass some

responsibility related to the decision making process affecting the

employment action” (quotation marks and citation omitted)).

38 WEIL V. CITIZENS TELECOM SERVS. CO.

not abuse its discretion in excluding Weil’s statement as

hearsay.

III

Rule 801(d)(2)(D) is not so restrictive that it would limit

party admissions to principals but is also not so generous as

to allow employees to speak for their employers on matters

that their employers had deliberately removed from the scope

of their authority. The district court did not commit legal

error in requiring Weil to lay a foundation defining the scope

of L.H.’s authority.

I would affirm the judgment of the district court. I

respectfully dissent.