Robert Back v. Nestle USA, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0332p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ROBERT G. BACK,

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Plaintiff-Appellant,

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No. 10-6028

v.

,

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Defendant-Appellee. -

NESTLÉ USA, INC.,

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Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:08-cv-290—Joseph M. Hood, District Judge.

Decided and Filed: September 13, 2012 September 11, 2012

Before: KETHLEDGE and STRANCH, Circuit Judges; GWIN, District Judge.*

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COUNSEL

ON BRIEF: Sara Beth Gregory, Thomas E. Carroll, CARROLL & TURNER, P.S.C.,

Monticello, Kentucky, for Appellant. Thomas M. Wilde, Elizabeth N. Hall, VEDDER

PRICE P.C., Chicago, Illinois, for Appellee.

STRANCH, J., delivered the opinion of the court in which KETHLEDGE, J.,

joined, and GWIN, D. J., joined in part. GWIN, D. J. (pp. 14–15), delivered a separate

concurring opinion.

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OPINION

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JANE B. STRANCH, Circuit Judge. Plaintiff Robert Back sued his former

employer, Nestlé USA, Inc., alleging that the company discriminated against him based

on his age by terminating him, thereby violating the Kentucky Civil Rights Act (KCRA),

*

The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio,

sitting by designation.

1

No. 10-6028 Back v. Nestlé USA Page 2

Ky. Rev. Stat. Ann. §§ 344.010 to 344.990. The district court granted summary

judgment to Nestlé and Back appealed. For the reasons set forth below, we AFFIRM

the judgment of the district court.

I. BACKGROUND

Back was born in 1954 and began working in November 1998 as a Maintenance

Team Leader for Chef America at its food-processing plant in Mount Sterling, Kentucky.

The plant made “Hot Pockets.” In June 1999, Back was promoted to Maintenance

Superintendent and was responsible for supervising Maintenance Team Leaders.

Nestlé bought Chef America and took over the plant in late 2002 or early 2003.

Back continued to work for Nestlé but was moved back to Maintenance Team Leader

with no decrease in pay because Nestlé did not recognize the Maintenance

Superintendent position. In February 2005, Robert Vernon became the Maintenance

Manager of the plant and Back’s immediate supervisor. Before then, Back had several

supervisors, including Frank Saporito.

The food-processing plant runs five processing lines (lines 4-8) and had three

shifts, two production and one sanitation. For each shift, a maintenance team is assigned

to the processing, packaging, or refrigeration area. During his last 18 months of

employment, Back was responsible for the processing area up to the freezer. He was

primarily responsible for line 7, but he worked on all the lines and spent 70% of his time

on line 8.

Back directly supervised nine mechanics and was accountable for their

performance and for disciplining them. His mechanics ensured that the lines started and

stayed running during the shift and that equipment was properly maintained, clean, and

functioning. This helped to prevent both food contamination and the lines from going

down (referred to in the plant as “downtime”). The mechanics were expected to update

Back on equipment functioning and inform him if the line was down for more than

10 minutes. Back was responsible for managing his teams’ preventative maintenance,

No. 10-6028 Back v. Nestlé USA Page 3

a schedule by which mechanics inspected various pieces of equipment to maintain the

equipment and fix problems before they caused downtime.

Sometime before April 6, 2005, James Hagerman, another Maintenance Team

Leader, told Back that “Tim Shelburne told me [Hagerman] that he had been told by

higher management that they were planning to get rid of the three oldest employees and

highest paid team leaders.” The three oldest team leaders were Back, Hagerman, and

Frank Willis. Back testified that Shelburne was the acting Human Resources Director

when he made this alleged statement to Hagerman.

During the nine combined years that Back worked at the food-processing plant

for Chef America and Nestlé, he received both positive and negative reviews. His

reviews became increasingly negative in 2006, but even when they were positive overall,

he received comments that he needed to delegate more tasks to his subordinates, improve

in holding his subordinates accountable, and generally supervise and lead those working

under him better so that their skills would grow rather than stagnate as occurred when

he did their work for them.

Consistent with his increasingly negative reviews in 2006, Back was disciplined

three times in 2006. In August 2006, Vernon disciplined Back for his team’s failure to

quickly and properly “address two pieces of equipment that showed warning signs of

failure during the first shift and ultimately malfunctioned, causing food contamination

and downtime on a line.” Vernon thought that the two incidents “show a need for Bob

to raise the awareness of his team members to the importance of food safety

issues. . . . [H]is team should know that they are expected to take immediate appropriate

action on issues that can have a direct effect on food safety.”

In September 2006, Plant Engineer Saporito disciplined Back for not properly

managing his team’s preventative-maintenance duties. Back admitted that one of his

mechanics failed to properly complete his preventative maintenance on an exhaust fan

on the roof. Then, in November, Vernon disciplined Back because he did not know that

one of the lines he was responsible for was less than 60% efficient during the day. Back

was expected to know when a line was functioning poorly and why. Both the September

No. 10-6028 Back v. Nestlé USA Page 4

and November write-ups warned Back that failure to immediately improve could lead

to further discipline. The November write-up specifically warned Back that he could be

terminated for further problems.

In April 2007, Vernon suspended Back for five days for downtime issues, noting

in the suspension memo that “Bob has been counseled, coached, and even documented

for a need to hold his associates to [a] higher level of performance and accountability.”

He continued:

Bob needs to be aware that this suspension was in no way caused by

shortcomings in his dedication, effort, or personal work ethic. The issues

that led to this action were very specific to leadership potential, and

higher standards of planning, performance, and accountability. . . . Bob

needs to separate himself from the team; needs to be the leader not a

member.

In June 2007, an explosion occurred at the plant. Vernon assigned Back to

prepare line 7 to run again and complete any preventative maintenance that the line

needed. Line 7 failed to start up smoothly and Back admitted that there were start up

issues. Vernon then met with Human Resource Manager Anthony Mellone and Human

Resources Generalist Adreanne Green to discuss Back’s responsibility for the flawed

start up. Vernon terminated Back in July 2007 due to Back’s history of failing to

properly supervise his subordinates and his team’s history of failing to meet

expectations.

In May 2008, Back sued Nestlé in state court, alleging that Nestlé terminated him

because of his age in violation of the KCRA. Nestlé removed the case to federal court

based on diversity jurisdiction. Following discovery, Nestlé filed a motion for summary

judgment, which the district court granted in August 2010. The district court determined

that Shelburne’s alleged statement was inadmissible hearsay and that Back failed to

establish that he was terminated because of his age. Back timely appealed.

No. 10-6028 Back v. Nestlé USA Page 5

II. ANALYSIS

A. Standard of review

This court reviews a district court’s grant of summary judgment de novo. Carter

v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003). Summary judgment is proper if

there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). Courts consider the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in that party’s

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The ultimate question

is “whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at

251-52.

B. Age discrimination

In relevant part, the KCRA prohibits an employer from failing or refusing to hire,

discharging, or discriminating “against an individual with respect to compensation,

terms, conditions, or privileges of employment, because of the individual’s . . . age.”

Ky. Rev. Stat. Ann. § 344.040(1). “Claims brought under the KCRA are analyzed in the

same manner as ADEA claims.” Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th

Cir. 2008) (internal quotation marks omitted); accord Williams v. Wal-Mart Stores, Inc.,

184 S.W.3d 492, 495 (Ky. 2005).

A plaintiff may establish that the KCRA was violated through either direct or

circumstantial evidence. Williams, 184 S.W.3d at 495; see Provenzano v. LCI Holdings,

Inc., 663 F.3d 806, 811 (6th Cir. 2011) (holding that an ADEA violation can be proved

in the same way). “Direct evidence of discrimination is that evidence which, if believed,

requires the conclusion that unlawful discrimination was at least a motivating factor in

the employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570

(6th Cir. 2003) (en banc) (citation and internal quotation marks omitted). In a direct-

evidence case, the plaintiff must prove “by a preponderance of the evidence . . . that age

No. 10-6028 Back v. Nestlé USA Page 6

was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 177–78 & n.4 (2009).

A circumstantial-evidence case involves “proof that does not on its face establish

discriminatory animus, but does allow a factfinder to draw a reasonable inference that

discrimination occurred.” Allen, 545 F.3d at 394 (internal quotation marks omitted).

The three-step, burden-shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), and modified by Texas Department of Community Affairs

v. Burdine, 450 U.S. 248 (1981), is used to analyze age-discrimination claims based

upon circumstantial evidence. Provenzano, 663 F.3d at 811-12.

“On a motion for summary judgment, a district court considers whether

there is sufficient evidence to create a genuine dispute at each stage of

the McDonnell Douglas inquiry.” Cline v. Catholic Diocese of Toledo,

206 F.3d 651, 661 (6th Cir. 2000). Thus, the plaintiff must first submit

evidence from which a reasonable jury could conclude that a prima facie

case of discrimination has been established. Monette v. Elec. Data Sys.

Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). The defendant must then

offer sufficient evidence of a legitimate, nondiscriminatory reason for its

action. Id. If the defendant does so, the plaintiff must identify evidence

from which a reasonable jury could conclude that the proffered reason is

actually a pretext for unlawful discrimination. Id.

Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007). The burden

of production shifts during the three-step process, but the ultimate burden of persuasion

remains on plaintiffs to demonstrate “that age was the ‘but-for’ cause of their employer’s

adverse action.” Gross, 129 S. Ct. at 2351 n.4. “In evaluating pretext and the plaintiff’s

ultimate burden, the court should consider all evidence in the light most favorable to the

plaintiff, including the evidence presented in the prima facie stage.” Provenzano,

663 F.3d at 812.

1. Direct evidence

As direct evidence of discrimination, Back offers Hagerman’s affidavit which

states that “Tim Shelburne told me that he had been told by higher management that they

were planning to get rid of the three oldest employees and highest paid team leaders.”

No. 10-6028 Back v. Nestlé USA Page 7

Before considering whether this statement constitutes direct evidence, we must decide

whether it is admissible. Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir. 2007),

abrogated on other grounds by Gross, 557 U.S. at 178 n.4. In diversity cases, evidence

admissibility is governed by the Federal Rules of Evidence. Laney v. Celotex Corp., 901

F.2d 1319, 1320 (6th Cir. 1990). The district court found that the statement was hearsay

and thus did not consider it on summary judgment. See Carter, 349 F.3d at 274 (holding

that hearsay evidence cannot be considered on summary judgment). Whether a

statement is hearsay is a legal question that this court reviews de novo.1 United States

v. Boyd, 640 F.3d 657, 663 (6th Cir. 2011).

Rule 801(d)(2)(D) of the Federal Rules of Evidence includes a scope

requirement—a statement is not hearsay if it is “offered against an opposing party and

. . . was made by the party’s agent or employee on a matter within the scope of that

relationship and while it existed.” Relying on Hill v. Spiegel, Inc., 708 F.2d 233, 237

(6th Cir. 1983), the district court ruled that Shelburne (the declarant) must have been

involved in the decision to terminate Back in order for Shelburne’s alleged statement to

concern a matter within the scope of Shelburne’s employment relationship with Nestlé.

The court held that Shelburne’s statement did not satisfy Rule 801(d)(2)(D)’s scope

requirement and was inadmissible on the basis that Shelburne was not involved in

terminating Back.

But the district court’s interpretation of the scope requirement is too narrow and

was flatly rejected by this court’s decision in Carter. That case involved the

admissibility of Professor Carter’s hearsay testimony that Murry, the vice provost, had

told her that top college administration officials were racists and “trying to get rid of the

black professors.” 349 F.3d at 272, 275-76. Even though Murry was not involved in the

decision to let Carter’s teaching contract lapse, his testimony was admissible under Rule

801(d)(2)(D) because his statements about the workforce’s racial composition were on

a matter within the scope of his employment—overseeing affirmative-action

1

“Hearsay is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” United States v. Rodriguez-Lopez,

556 F.3d 312, 314 (6th Cir. 2009) (internal quotation marks omitted).

No. 10-6028 Back v. Nestlé USA Page 8

requirements. Id. at 276. A statement is not hearsay under Rule 801(d)(2)(D) when it

concerns a matter within the scope of the declarant’s employment—there is no

requirement that a declarant be directly involved in the adverse employment action. Id.

at 275-76.

Applying this principle, the question becomes whether Shelburne’s

statement—that there was a plan to get rid of the three oldest employees and highest paid

team leaders—concerned a matter within the scope of his employment as the acting

Human Resources Director. That Director is responsible for overseeing the human-

resource policies, procedures, practices, benefits, and overall employee relations, and his

job includes involvement in employee-performance issues generally and termination

specifically. So Shelburne’s alleged statement—which relates to terminating

employees—plainly concerns a matter within the scope of the Human Resources

Director’s job and would be admissible under Rule 801(d)(2)(D), barring further

evidentiary issues.

But there is another evidentiary concern not addressed by the district court:

Shelburne’s statement presents a double-hearsay issue. The first level of hearsay is

Hagerman swearing in an affidavit that Shelburne (the declarant) told him about the plan

to get rid of the three oldest employees. For this level of hearsay, Shelburne’s statement

qualifies for admissibility under Rule 801(d)(2)(D). The second level of hearsay is

higher management (the declarant) telling Shelburne that they are planning to get rid of

the three oldest employees. For double-hearsay statements to be admissible, each

separate statement must either be excluded from the hearsay definition or fall within a

hearsay exception. See United States v. Gibson, 409 F.3d 325, 337 (6th Cir. 2005); Fed.

R. Evid. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each

part of the combined statements conforms with an exception to the rule.”). So unless the

statement by management to Shelburne also fits within a hearsay exception or is not

hearsay, federal law renders the entire statement inadmissible hearsay.

Admitting higher management’s statement to Shelburne is problematic—but not

impossible—because the declarant (higher management) is unidentified. Compare

No. 10-6028 Back v. Nestlé USA Page 9

Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1002-03 (3d. Cir. 1988) (holding in

a similar double-hearsay situation that the statement from the unidentified declarant did

not fit within Rule 801(d)(2)(D) because there was not evidence establishing that the

statement made by the unidentified individuals (“they”) concerned a matter withing the

scope of their employment), with Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 134

(3d Cir. 1997) (holding in a similar double-hearsay situation that statements from

unidentified executives were admissible because evidence established that though their

precise identity was unknown, they were all “Westinghouse executives who had

authority to make personnel decisions [and thus were] act[ing] within the scope of their

employment in stating their views on the state of their workforce”). The crucial question

is whether there is evidence that the unidentified declarants were speaking on a matter

within the scope of their employment. Fed. R. Evid. 801(d)(2); Ryder, 128 F.3d at 134;

Carden, 850 F.2d at 1002-03.

In answering that question, the “statement must be considered but does not by

itself establish . . . the existence or scope of the relationship under [Rule 801(d)(2)(D)].”

Fed. R. Evid. 801(d)(2). Outside evidence sufficient to satisfy Rule 801(d)(2)(D)’s

scope requirement could come from the “circumstances surrounding the statement, such

as the identity of the speaker [or] the context in which the statement was made.” Fed.

R. Evid. 801 advisory committee’s notes, 1997 Amendment. But the speaker in the

present case is Hagerman because Shelburne himself is a declarant due to the double-

hearsay issue. And Hagerman’s identity does not grant any greater assurance of

trustworthiness because Hagerman was a Maintenance Team Leader just like Back—a

position not ordinarily expected to be privy to a plan to terminate other Maintenance

Team Leaders. If Back had presented other outside evidence sufficient to satisfy Rule

801(d)(2)(D)’s scope requirement, the statement would be admissible. But because there

is no such evidence, the statement is inadmissible hearsay. Fed. R. Evid. 801(d)(2). The

district court therefore correctly excluded the statement, albeit for the wrong reasons.

No. 10-6028 Back v. Nestlé USA Page 10

Because the statement must be excluded, Back presents no direct evidence of

discrimination.2

2. Circumstantial evidence

Nestlé concedes for purposes of this appeal that Back has established a prima

facie case of discrimination. And Nestlé has offered evidence of a legitimate,

nondiscriminatory reason for terminating Back—his history of failing to properly

supervise his subordinates and his team’s history of failing to meet expectations. The

burden shifts to Back to “identify evidence [at summary judgment] from which a

reasonable jury could conclude that the proffered reason is actually a pretext for

unlawful discrimination.” Macy, 484 F.3d at 364. Back can prove pretext “by showing

that the proffered reason (1) has no basis in fact, (2) did not actually motivate the

defendant’s challenged conduct, or (3) was insufficient to warrant the challenged

conduct.” Wexler, 317 F.3d at 576 (internal quotation marks omitted). Back attempts

to show pretext through all three avenues. Significantly, Back cannot rely on

Hagerman’s affidavit regarding Shelburne’s statement of the plan to get rid of the three

oldest employees because that evidence is inadmissible, as established above. Before

undertaking this analysis, we note that while these three avenues provide a useful

analytical map regarding pretext, the ultimate inquiry during the pretext analysis is “did

the employer fire the employee for the stated reason, or not?” Chen v. Dow Chem. Co.,

580 F.3d 394, 400 n.4 (6th Cir. 2009) (“[A]t bottom the question is always whether the

employer made up its stated reason to conceal intentional discrimination.”).

Back argues that Nestlé’s reasons for taking the disciplinary actions—write-ups

in August, September, and November 2006; his suspension for five days in April 2007;

and his termination in July 2007—have no basis in fact. But here, Nestlé points to

particularized facts upon which it relied to show that it “made a reasonably informed and

considered decision before taking the complained-of action,” Michael v. Caterpillar Fin.

Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007) (internal quotation marks omitted).

2

Back’s argument that the statement should be admitted under various Kentucky state cases is

unpersuasive because federal law governs the admissibility of evidence in diversity cases. See Laney,

901 F.2d at 1320.

No. 10-6028 Back v. Nestlé USA Page 11

Defeating a properly supported summary-judgment motion in these circumstances

requires the plaintiff to “produce sufficient evidence from which the jury could

reasonably reject the defendant’s explanation and infer that the defendants . . . did not

honestly believe in the proffered non-discriminatory reason for its adverse employment

action.” Braithwaite v. The Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001) (internal

quotation marks and brackets omitted). Undisputed evidence shows that Back fails to

meet this burden.

Back argues that the August 2006 write-up disciplining him for his team’s failure

to quickly and properly address equipment that showed warning signs of failure has no

basis in fact because the underlying problem had to do with line 8, which he argues was

not his responsibility. But in his deposition he testified that he was responsible for the

processing area of the plant, not just line 7, and that he spent 70% of his time on line 8.

That Back disciplined the mechanics he supervised after he was disciplined by Vernon

is not determinative. Vernon wrote up Back for his failure to properly supervise his

mechanics team and impress upon them that they were expected to respond to issues

impacting food safety immediately.

Similarly unpersuasive is Back’s argument that the lack of preventative

maintenance triggering the September 2006 write-up was one of his mechanic’s fault

rather than his own. While Back was not personally responsible for doing the

preventative maintenance, the write-up was for failing to properly manage the

preventative maintenance that his mechanics performed. And Back admitted that the

mechanic who failed to do the proper maintenance was a member of his team.

Another Back concession undermines his argument that the November 2006

write-up was pretext. Back concedes that his mechanics should have let him know that

the line was down for 40% of the day, as it was. The issue flagged in this write-up was

that Back was expected to know when and why a line was running that poorly but that

he knew neither in this situation.

Regarding his April 2007 suspension, Back argues that he could not recall the

specific event and that the only documented reason was the way he handled avoidable

No. 10-6028 Back v. Nestlé USA Page 12

downtime. But as Nestlé argues, Back’s inability to recall the specific incident

underlying the suspension does not mean that it was not based in fact, especially since

the reason is documented in both writing and Vernon’s deposition testimony. Back’s

complaints about the event immediately preceding his termination fare no better. He

essentially contends that the problem with starting up line 7 after the explosion was

minor. But, as Nestlé argues, he offers no evidence showing that Vernon’s displeasure

with the start up of line 7—which Back was assigned to after the explosion and which

was not one of the more damaged lines—was not based on fact. And Back even

concedes that there were some issues with the start up of the line. Back therefore fails

to show that the proffered reasons for his termination were not based in fact.

Back next argues that the purported reasons did not actually motivate Nestlé’s

decision to terminate him. But his primary argument is based on Shelburne’s statement,

which is inadmissible and cannot be considered at the summary-judgment stage. See

Carter, 349 F.3d at 274 (holding that hearsay evidence cannot be considered on

summary judgment). His only fallback is to argue that other, informal criticisms in his

file related to things that were minor or so clearly not his fault that a reasonable person

could infer that Nestlé was documenting his file with frivolous events to provide cover

to terminate him. But this contention is fatally undermined by Back’s concession that

Nestlé does not rely on these informal criticisms to support its decision to terminate him

but on five incidences of formal discipline (the three write-ups, the suspension, and the

termination). Further, Nestlé’s records specifically note that the disciplinary actions are

not related to Back’s “dedication, effort, or personal work ethic” but to a failure of

leadership. And as detailed above, Back does not successfully dispute the facts

underlying his write-ups, counseling, suspension, and termination. Back therefore fails

to show that a reasonable jury could conclude that Nestlé’s decision to terminate Back

was motivated not by its purported reasons, but rather by discriminatory animus.

Nor can Back show that Nestlé’s purported reasons were insufficient to warrant

terminating him. Back argues that he regards the incidents leading up to his termination

as minor, but he concedes the facts underlying the incidents leading to his termination.

No. 10-6028 Back v. Nestlé USA Page 13

And Nestlé’s evidence describes incidents that do not seem minor from Nestlé’s

perspective. Moreover, the dispositive question is whether a reasonable factfinder could

conclude that the incidents are not sufficient from the employer’s perspective to warrant

terminating him. Back fails to make this showing.

Because Back fails to show a triable issue of material fact regarding pretext, he

has not established a genuine dispute of material fact that age discrimination was the but-

for cause of Nestlé’s decision to terminate him. See Provenzano, 663 F.3d at 818. The

district court therefore did not err in granting summary judgment to Nestlé.

III. CONCLUSION

For all the above reasons, we AFFIRM the judgment of the district court.

No. 10-6028 Back v. Nestlé USA Page 14

____________________

CONCURRENCE

____________________

JAMES S. GWIN, District Judge, concurring. I join part II.B.2 of Judge

Stranch’s opinion, which correctly concludes that Back offered insufficient

circumstantial evidence of discrimination. And I agree with her conclusion in part II.B.1

that the district court properly excluded Back’s direct evidence of discrimination, if for

the wrong reason. I write separately to express my view that a straightforward

application of the Federal Rules of Evidence compels the same result.

Back’s “direct evidence” was nothing more than an out-of-court statement about

an out-of-court statement: Shelburne said that higher management said that the three

oldest workers would be fired. Higher management’s statement, then, is hearsay within

hearsay, and it’s inadmissible absent a hearsay exclusion or exception for both

Shelburne’s and higher management’s statements. See Fed. R. Evid. 805.

Even assuming that Shelburne’s statement falls within the “Opposing Party’s

Statement” hearsay exclusion in Federal Rule of Evidence 801(d)(2)(D), higher

management’s statement does not. Rule 801(d)(2)(D) says that an opposing party’s

statement is not hearsay if it is offered against the opposing party and the party offering

the statement shows that the statement was (1) “made by the [opposing] party’s agent

or employee” and (2) “on a matter within the scope of that relationship and while it

existed.” But there’s a caveat: “The statement must be considered but does not by itself

establish . . . the existence or scope of the [agent or employee] relationship.”

Back failed to offer any evidence on the existence or scope of higher

management’s agency or employment relationship other than the higher-management

statement itself. Without outside evidence to support “higher management’s” role, Back

could not—and did not—lay the necessary foundation for admitting that statement.

See Fed. R. Civ. P. 56 advisory committee’s note (2010 Amendments) (“The burden is

on the proponent to show that the material is admissible as presented or to explain the

No. 10-6028 Back v. Nestlé USA Page 15

admissible form that is anticipated.”); Fed. R. Evid. 801 advisory committee’s note

(1997 Amendment); Fed. R. Evid. 104(a).

For this reason, the district court correctly excluded higher management’s

statement and, in the end, correctly granted summary judgment to Nestlé.