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Makowski v. Smith Amundsen LLC, No. 10-3330 (7th Cir. Nov. 9, 2011)

Memo to Directors of Human Resources: what you tell an employee about an adverse employment decision is admissible as evidence in a Title VII case, even if you were not personally involved in the final decision. The Seventh Circuit so holds in a case reversing summary judgment in a pregnancy-discrimination and FMLA case.

Makowski v. Smith Amundsen LLC, No. 10-3330 (7th Cir. Nov. 9, 2011): "While [plaintiff] Makowski was on [maternity] leave, her supervisors informed her that her position was eliminated as part of an organizational restructuring and terminated her employment."

The genesis of the decision came during the employee's maternity leave from her job as Marketing Director, when the Executive Committee met (in January 2008) and decided that "'[p]eople enjoyed working with [Marketing Project Manager Sarah] Goddard more' and that Goddard would be a stronger lead person in the department than Makowski, which 'was really what [Smith Amundsen] needed to focus a lot on.'"

The Executive Committee's decision was transmitted to the Director of HR, named O'Gara. Among other things, O'Gara was tasked by the company Chief Operating Officer with running the termination decision by outside counsel. Two members of the Committee then called Makowski to inform her of the termination.

When Makowski came to work to clear out her office, O'Gara (allegedly) spilled the beans:

"Makowski came to the office to retrieve her belongings. As she was leaving, O'Gara met her in the elevator lobby. O'Gara told her that she (Makowski) 'was let go because of the fact that [Makowski] was pregnant and . . . took medical leave.' Furthermore, O'Gara 'believed that there were [sic] a group of people that were discriminated against because they were pregnant or because they took medical leave' and specifically mentioned Carrie Von Hoff, a former associate at the firm, as one of the victims of discrimination. O'Garalso advised Makowski that 'it might be a good idea to speak with a lawyer [as there] might be a possibility of a class action.' Regarding Hoang [an IT director or, fired the same day], O'Gara said that 'they were working to let Tuan [Hoang] go for performance based reasons,' but because Makowski was pregnant and on FMLA leave, outside counsel suggested labeling both Makowski's and Hoang's terminations as part of a reduction in force."

Armed with this information, Makowski brought suit under the Pregnancy Discrimination Act of Title VII and the FMLA. The district court found the HR Director's comments to be inadmissible hearsay, and granted summary judgment.

On appeal, the Seventh Circuit reverses. It holds that the district court erred by not admitting O'Gara's statements as party admissions, Federal Rule of Evidence 801(d)(2)(D).

Summarizing the rule and applying it to the employment setting, the panel writes that "[f]or an employee's statement to constitute an admission [of the employer], she need not have been personally involved in the disputed employment action, 'but her duties must encompass some responsibility related to 'the decision making process affecting the employment action.' ' . . . Involvement in the process leading up to the employment action at issue is enough to make an employee's statement an admission." (Citations omitted.)

And so, with respect to O'Gara, the court held that she had the requisite level of involvement in the process. "O'Gara's duties as Human Resources Director at the Firm included regular consultations regarding decisions to eliminate positions and terminate employees in order to ensure compliance with federal anti-discrimination laws, making her a part of the firing process. . . . Although O'Gara did not personally notify Makowski of her termination, she was asked to confer with outside labor and employment counsel regarding the decision to terminate Makowski."

In sum: "While O'Gara was not involved in the employment action of Makowski's termination, she was involved in the decision making process leading up to that action due to her consultation with outside counsel regarding the termination and her job duties, which include ensuring the Firm's compliance with federal anti-discrimination laws. Accordingly, O'Gara's statements fall within the scope of her employment and thus are admissible as nonhearsay under Rule 801(d)(2)(D)."

With this evidence in the record, the panel has little difficulty concluding that the employee presents a triable issue of fact concerning the company's motive for terminating her in violation of Title VII and the FMLA.

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