When does a human-resources executive truly speak for the corporation? This oft-ignored, yet critically important question occupies this Eleventh Circuit decision today, which remands a Title VII national-origin case to the district court for an evidentiary ruling on this issue. The lower court must now rule whether a remark allegedly made by the employer’s HR director – that the Korean management of the company “refused to even consider American candidates” for an assistant accounting manager vacancy – may be admitted as evidence. One judge files a partially dissenting opinion on the remand.
Kidd v. Mando American Corp., No. 12-12090 (11th Cir. Sept. 27, 2013):
The Eleventh Circuit substantially affirms summary judgment on Kidd’s various Title VII discrimination and retaliation claims, but remands one claim: for failure to promote on account of national origin.
Despite the plaintiff having expressed interest in a manager vacancy, Kidd contended that she was never considered for a vacancy ultimately filled by a Korean named Seo. (By way of a footnote, the panel majority mentions that despite that Kidd did not formally apply for the promotion, she still is entitled to make the claim under the circumstances of this case: “when an employer does not formally announce that it is seeking to hire for a vacant position within the company, the plaintiff need not advance evidence that she applied for the vacant position to state a prima facie case.”)
The potentially most damaging evidence to the company was the plaintiff’s testimony that the HR director, Jerry Rolison, told her that Americans would not be considered for that position:
“Rolison informed her that [Mando executives] Kwak and Cheong ‘refused to even consider an American candidate’ for the assistant accounting manager job. See Kidd Dep. 346:7-12 (‘Jerry Rolison told me himself that he had tried to get four Americans to be considered in the position [sic] and he was denied, they were not even allowed to interview’). Kidd also testified that another member of HR (Deborah Stone) told her that ‘no matter what . . . there would never be any American management in the company, it would always be Korean management . . . ‘.”
Applying the customary McDonnell Douglas method of sorting the case out at summary judgment, the panel majority holds (as did the district court) that the plaintiff established her prima facie burden, i.e., that she was qualified for the promotion that went to a Korean national. The panel also holds that the company advanced a legitimate explanation for its decision: “Mando contends that it hired Seo because he had auditing experience – experience Mando’s accounting department needed and experience the pre-screened candidates and Kidd did not have.”
So the ultimate question is whether the plaintiff presented enough evidence for a jury to conclude that national origin factored into the promotion decision.
The panel declares itself unmoved by the employee’s comparison with the successful candidate: “Despite Kidd’s laundry list of reasons of why, in her mind, she would have been a more qualified assistant accounting manager, we do not find that Kidd’s educational experience, job history, or supervisory experience, made her exceptionally more qualified than Seo, much less his equal . . . . Because Kidd’s argument regarding why she was more qualified than Seo calls into question Mando’s business judgment -not its honesty -it is one we must reject.”
Yet the panel majority holds that Rolison’s comments about Mando management disfavoring Americans, if believed by a jury, could support a finding of national-origin discrimination. What went unanswered by the district court – indeed, not even addressed by the parties – was whether the comment was admissible:
“As a starting point, we note that Rolison’s statement regarding Mando’s hiring process -i.e., that the decision makers ‘refused to even consider an American candidate’-is subject to two, distinct interpretations. One interpretation is that Rolison’s statement is one of opinion which concerned a matter within the scope of his employment, as contemplated by Federal Rule of Evidence 801(d)(2)(D). Rule 801(d)(2)(D) provides that a statement is not hearsay if the ‘statement is offered against a party and is . . . a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.’ Thus, if Kidd were able to show by ‘a preponderance of the evidence that [Rolison] was speaking as an agent of [Mando] at the time he made [this] statement,’ it would be admissible. [Citation omitted.] A second interpretation of Rolison’s alleged remark is that Rolison was simply repeating what the Mando decision makers told him or what he heard them say. If that was the case, then Rolison’s remark might be admissible as an admission by a party opponent absent a valid hearsay objection If neither is true, however, Rolison’s alleged remark would be inadmissible hearsay.”
The panel majority observes that the admissibility of the statement does not ride on whether the commentator was himself a decision maker: “a statement made by a non-decision maker may be both relevant and attributable to the defendant employer if the non-decision maker was sufficiently involved in the decision making process leading up to the adverse employment action.” Such involvement, according to the panel majority, must be more than purely ministerial, such as the routine “gathering of resumes submitted by professional recruiting services for management to review.” On the other hand, if he was “consulted” or “otherwise included” in the decision, that may be enough to tilt toward admissibility. Alternatively, because “Rolison was the head of Mando’s human resources department, which may suggest “he [was] authorized to speak with subordinates about  [Mando’s] employment practices . . . .”
The panel majority concludes on the promotion claim that the district court judge must decide the admissibility of the statement (as it is the bench’s, not the jury’s, role under Federal Rule of Evidence 104(a) to make findings pertaining to admissibility):
“If the district court determines that Rolison’s statement is admissible, then there is sufficient evidence to raise a factual dispute about the legitimacy of Mando’s proffered reason for hiring Seo. But if, on the other hand, the district court determines that Rolison’s statement is not admissible, then there is no factual dispute and summary judgment is appropriate. Because the meaning of Rolison’s statement is subject to different interpretations and the scope of Rolison’s involvement in the decision making process leading up Seo’s hire is unclear, we think the prudent course is to remand this case to the district court so that it may determine whether Rolison’s alleged statement is admissible.”
Dissenting in part, Circuit Judge Wilson would not remand the issue to the district court and instead would simply affirm the judgment. The judge concludes that plaintiff’s counsel admitted at oral argument that Rolison’s “vague” statement was merely expressing his own personal perspective (“his own perception”), and thus would not constitute an admission.