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Age Discrimination: You Can't Make Your Case with Double Hearsay

By Robyn Hagan Cain on September 13, 2012 | Last updated on March 21, 2019

If you want to win an age discrimination case with direct evidence, there’s a good chance you’ll have to argue hearsay. If your case involves double hearsay, you have to argue why the statement is admissible at each step.

For example …

Robert Back worked in Nestlé’s “Hot Pocket” plant in Mount Sterling, Ky. from November 1998 until July 2007. He was 53 when Nestlé fired him for his “history of failing to properly supervise his subordinates and his team’s history of failing to meet expectations.”

During the nine years that Back worked at the plant, he received both positive and negative reviews. His reviews became increasingly negative in 2006; he was also disciplined three times that year. After a five-day suspension in 2007, and poor performance following a June 2007 explosion, Nestlé fired Back.

Despite the facts in Nestlé's favor, Back claimed that the real reason he was fired was age discrimination.

Sometime in 2005, James Hagerman, a co-worker, told Back that the acting Human Resources Director told Hagerman that the highest management "were planning to get rid of the three oldest employees and highest paid team leaders." Back and Hagerman were two of the three oldest team leaders.

If that statement was true -- and admissible -- Back might have had a case.

The Kentucky Civil Rights Act (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." KCRA claims are analyzed the same way as Age Discrimination in Employment Act (ADEA) claims. A plaintiff can prove age discrimination through direct or circumstantial evidence.

Today, we're examining the direct approach.

Direct evidence of discrimination is evidence which requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions. In a direct evidence case, a plaintiff must prove "by a preponderance of the evidence ... that age was the 'but-for' cause of the challenged employer decision."

The only direct evidence of age discrimination that Back offered was Hagerman's affidavit detailing the H.R. Director's statement. While that statement was admissible under FRE Rule 801(d)(2)(D), (because it related to a matter within the scope of the H.R. Director's job), the Sixth Circuit Court of Appeals ruled that it was inadmissible in Back's case because it was embedded hearsay: Hagerman stated that the H.R. Director stated that upper management stated that it was getting 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. Back couldn't clear that evidentiary hurdle, so the appellate court ruled that the statement was inadmissible.

The lesson for lawyers? Consider all the possible hearsay exceptions before you take a case.

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