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A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 251—NO. 36 TUESDAY, FEBRUARY 25, 2014 Outside Counsel Expert Analysis Employment Litigaton: Building Your Case

ll too frequently, employment attor- knowledge and motivation at the time of an neys fail to counsel their clients adverse employment action against a plain- with respect to documentary and tiff. For example, where a plaintiff claims By evidentiary issues until after the Russell that he or she was discriminated against client has been served with an Penzer based on membership in a protected class, Aemployment discrimination complaint in the employer has the burden to establish a a federal action. Counsel who act proac- legitimate, non-discriminatory reason for tively, however, can assist their clients both its actions. Very recently, the U.S. of in adopting and following policies and pro- Appeals for the Second Circuit, in affirming cedures that are likely to create favorable a district court’s consideration of work- and admissible long before a legal regular practice of the business; and (4) be place complaints and negative performance claim is ever asserted. There are many steps made at or near the time by someone with evaluations against an employee in this con- along the road to the filing of a complaint knowledge or from information submitted text, reaffirmed that “in a discrimination 1 which present both employer and employee from someone with knowledge. case, we are decidedly not interested in alike opportunities to “build their case.” This The determination of whether a docu- the truth of the allegations against plaintiff. article discusses some, but by no means all, ment satisfies the “business records” excep- We are interested in what motivated the such opportunities. tion is fact-based. For example, a document employer; the factual validity of the under- seemingly made and kept in the ordinary Personnel Files lying imputation against the employee is course of business, and marked “to file” not at issue.”4 Thus, the court found that Often, evidentiary issues in employment may be deemed inadmissible if the court the documents were properly considered discrimination cases revolve around items finds that it is not the type of document with respect to the employer’s motivation in the plaintiff’s personnel file, such as that the employer created with the kind of and its proffered non-discriminatory reason performance evaluations, documenta- regularity or routine that gives “business for its conduct. tion of disciplinary action and workplace records” their inherent reliability.2 Thus, complaints by other employees. While without establishing proper procedures such items are frequently vulnerable to for creating and maintaining employee Employment counsel should challenge under the rule, some files as “business records,” and routinely not be reactive and merely mar- exceptions to the hearsay rule may be following these procedures, an employer applicable to render them admissible. will not be able to successfully argue that shal relevant evidence after Counsel familiar with the parameters of a document that would otherwise be their client retains them to com- these exceptions can assist their clients excluded as hearsay should be treated as in developing favorable procedures for a “business record” because it was placed mence or defend against a fed- maintaining personnel files. in an employee’s personnel file. Addition- eral lawsuit. First, documents in an employee’s person- ally, even if performance evaluations and nel file may be admissible under the “busi- other documents in a personnel file are Depending on how they are created and ness records” exception to the hearsay rule. properly created and maintained as “busi- maintained, and the purpose for which they To qualify as a “business record,” a docu- ness records,” employers should be aware are offered, contents of an employee’s per- ment must: (1) be made in the regular course that, if these documents contain hearsay sonnel files can either be useful evidence, of business; (2) be kept in the regular course within hearsay or other indicia of unreli- or inadmissible hearsay. of business; (3) be made in response to a ability, they still may not be admissible.3 EEOC Proceedings A document from a personnel file may also escape exclusion as hearsay if it is It may be tempting for both sides to an RUSSELL PENZER is a partner with Lazer, Aptheker, Rosella offered, not for the truth of its contents, employment discrimination case to view & Yedid in Melville, N.Y. but instead to demonstrate an employer’s proceedings before the Equal Employment TUESDAY, FEBRUARY 25, 2014

Opportunity Commission (EEOC), or simi- of action. In so doing, the court held that whether there has been a violation of an lar state anti-discrimination agencies, as there was an issue of fact as to whether anti-discrimination statute. Thus, admission nothing more than a technical hurdle to the employer’s proffered non-discriminatory of such evidence poses a substantial risk of an employee acquiring his or her admit- reason for plaintiff’s discharge was a pretext unfair prejudice with little probative value.9 tance ticket to the federal . Before for prohibited retaliation. However, evidence of an employee’s claim paying short-shrift to their submissions in for such benefits, the employer’s response such administrative proceedings, however, to same, and determination with respect to employers and employees should give con- Depending on how they are cre- eligibility for the benefits, has been held sideration to the evidentiary ramifications to be admissible where it has independent of both their submissions to the agency ated and maintained, and the pur- with respect to the employer’s and the ultimate determination that the pose for which they are offered, claimed discriminatory or retaliatory agency will issue. intent.10 Accordingly, parties to an employ- It is well-established in the Second contents of an employee’s person- ment dispute should be aware that it is pos- Circuit that findings by the EEOC or nel files can either be useful evi- sible that their submissions with respect to other similar administrative agencies fall dence, or inadmissible hearsay. these benefit claims could be considered in within the “public records” exception to a subsequent discrimination case. the hearsay rule, and that the decision Conclusion whether to admit into evidence such find- The Second Circuit’s decision in this ings is left to the sound discretion of the regard was premised on the fact that the Given the opportunities prior to com- trial court.5 In making this decision, the employer offered a different non-discrim- mencement of litigation to shape evidence district court is guided by Federal Rule of inatory explanation for the plaintiff’s ter- that may be considered by a court in a Evidence 403, and weighs the probative mination to the district court than it had discrimination lawsuit, employment law value of the agency findings against the offered in its position statement to the counsel should not be reactive and merely danger that their admission would result EEOC. The court found that “Andalex’s marshal relevant evidence after their cli- in unfair prejudice. Thus, EEOC findings inconsistent and contradictory explana- ent retains them to commence or defend that are well-reasoned and fact-based tions for the plaintiff’s termination, com- against a federal lawsuit. Rather, counsel will usually be admitted into evidence, bined with the close temporal proximity should be proactive, both in terms of whereas determinations that are conclu- between the [protected activity] and counseling employer clients with respect sory and lack substantive analysis usually Kwan’s termination, are sufficient to cre- to their policies and procedures, and mak- will not.6 While parties cannot dictate ate a genuine dispute of material fact as ing sure that documentation created and the type of findings an agency will issue, to whether Kwan’s [] complaint of gender issued with respect to specific employees their level of cooperation and participa- discrimination was a but-for cause of the is of the type and substance likely to be tion certainly will impact whether the plaintiff’s termination.” Thus, the court admitted as favorable evidence in the event agency is likely to issue findings of the held that the employer’s position state- that the employment relationship results admissible type or not. ment was admissible for the non-hearsay in a judicial claim of discrimination. Aside from the issue of admissibility of the purpose of demonstrating the employer’s ••••••••••••••••••••••••••••• agency’s determination, sometimes there are change of story. 1. U.S. v. Meda, 2012 U.S.Dist.LEXIS 16091, **11-12 (E.D. issues as to whether certain submissions Accordingly, in approaching EEOC pro- Mi. Feb. 9, 2012). made to the EEOC or other agency during ceedings, employees and employers should 2. Pierce v. The Atchinson Topeka, Santa Fe Railway Co., the course of the agency’s investigation of a be aware that their submissions to the 110 F.3d 431, 444 (7th Cir. 1997). 3. Meda, 2012 U.S.Dist.LEXIS 16901 at *12. complaint should be admissible in a subse- agency, as well as the agency’s ultimate 4. Wolf v. Time Warner, 2013 U.S.App.LEXIS 25181, **3-4 quent lawsuit. Generally, statements made determination, may prove to be either useful (2d Cir. Dec. 19, 2013) (citations and quotations omitted). to administrative agencies by non-parties evidence or come back to haunt them in a 5. Estate of Hamilton v. City of New York, 627 F.3d 50, 54 (2d Cir. 2010); Paolitto v. John Brown E.&C., Inc., 151 F.3d 60, are considered hearsay, while statements subsequent federal case. 64 (2d Cir. 1998). by parties may qualify as admissions and 6. Chisholm v. Memorial Sloan-Kettering, 2011 U.S.Dist. Other Proceedings thus be admissible.7 LEXIS 53243, *5 (S.D.N.Y. May 13, 2011). 7. Keene v. Hartford Hospital, 208 F.Supp.2d 238, 243 (D. Additionally, as was demonstrated by the In addition to proceedings before the Conn. 2002). recent Second Circuit decision in Kwan v. EEOC and state anti-discrimination agen- 8. 737 F.3d 834 (2013). The Andalex Group,8 submissions made by cies, evidentiary issues can arise concerning 9. Flick v. Aurora Equipment Co., 2004 U.S.Dist.LEXIS 4304, **11013 (E.D. Pa. Jan 15, 2004); Morales v. N.Y.S. Dept. of La- a party to the EEOC may be relevant for other administrative proceedings, such as bor, 2012 U.S.Dist.LEXIS 92075, *3 (N.D.N.Y. July 3, 2012). purposes other than the truth of the matter submissions and findings with respect to an 10. Layman v. Alloway Stamping & Machine Co., 98 Fed. asserted therein, and thus, fall outside of the employee’s eligibility for unemployment or Appx 369 (6th Cir. 2004); Flick, 2004 U.S.Dist.LEXIS 4304 at hearsay rule. Kwan involved an appeal from Workers’ Compensation benefits. Generally, **12-13. a judgment dismissing, inter alia, claims for determinations with respect to claims for hostile work environment and retaliation unemployment or Workers’ Compensation under Title VII. The Second Circuit affirmed are not admissible in a subsequent federal the district court’s dismissal of the hostile employment discrimination action, because Reprinted with permission from the February 25, 2014 edition of the NEW YORK LAW JOURNAL © 2014 ALM Media Properties, LLC. All rights reserved. Further work environment claim, but reversed with eligibility for those benefits is based upon duplication without permission is prohibited. For information, contact 877-257-3382 respect to dismissal of the retaliation cause different standards than a determination of or [email protected]. # 070-03-14-29