David Weil v. Citizens Telecom Services Co., 922 F.3d 993

Background

David Weil was interim acting director of a Frontier call center (Sept. 2012) and applied for the permanent director role; Becky Potts ultimately hired Jennifer Brown in March 2013.
Weil claimed he was qualified; L.H., a former VP who had supervised Weil and participated in his 2012 review and interview process, allegedly told Weil in April 2013 that Weil wasn’t promoted because he was a former Verizon employee, not white, and not female.
L.H. had been moved out of the hiring role in January 2013 and was terminated in June 2013; she was not deposed and gave no direct statement in the record.
Frontier placed Weil on a Development Action Plan, then a Performance Improvement Plan, and terminated him in August 2013; Weil sued for discriminatory failure to promote and wrongful termination under Title VII, § 1981, and Washington law.
The district court excluded L.H.’s April 2013 statement as hearsay because Weil did not lay foundation showing L.H. was acting within the scope of her employment when she made the remark, and granted summary judgment to Frontier on both claims.
The Ninth Circuit reversed summary judgment on the failure-to-promote claim (holding L.H.’s statement admissible under Fed. R. Evid. 801(d)(2)(D) and sufficient to create a triable issue of pretext) but affirmed summary judgment on the termination claim (Weil failed to show satisfactory performance or a similarly situated comparator).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under Fed. R. Evid. 801(d)(2)(D) — whether L.H.’s April 2013 statement is a non-hearsay admission of the employer	Weil: L.H. was a Frontier employee, the statement related to a matter within the scope of her employment (she had participated in the hiring process), and it was made while she was still employed — so Rule 801(d)(2)(D) applies.	Frontier/District Ct: L.H. had been removed from hiring duties in January; Weil failed to show she had authority or involvement at the time of the final decision, so the statement lacks the necessary foundation and is hearsay.	Ninth Circuit: Reversed district court — statement admissible under Rule 801(d)(2)(D) because (1) declarant was an employee, (2) statement concerned a matter within the scope of her employment (she had been involved in the hiring process), and (3) statement was made while she remained employed.
Sufficiency of evidence of pretext for failure-to-promote	Weil: L.H.’s statement is direct evidence of discriminatory motive and creates a genuine dispute of material fact on pretext.	Frontier: Legitimate nondiscriminatory reasons (performance concerns) and, without L.H.’s statement, Weil lacks evidence of pretext.	Ninth Circuit: With L.H.’s statement admitted, Weil raised a triable issue of pretext; summary judgment on failure-to-promote was improper.
Prima facie case for wrongful termination	Weil: Termination was discriminatory and pretextual.	Frontier: Weil’s performance declined, he missed deadlines, was on a PIP; no similarly situated nonprotected comparator.	Ninth Circuit: Affirmed — Weil failed to show satisfactory performance and failed to identify a similarly situated comparator, so summary judgment on termination was proper.
Standard for foundation under Rule 801(d)(2)(D) — must declarant still occupy the same role at time of statement?	Weil: Rule requires only that the statement concern a matter within the scope of employment at some point and be made while the speaker remains employed.	Dissent/Frontier: Foundation must show the declarant’s statement related to a matter within the scope of employment at the time made or otherwise show participation in the decision; mere continued employment is insufficient.	Ninth Circuit majority: Rule unambiguous — statement admissible if (1) declarant was employee/agent, (2) statement concerned matter within scope of employment (at some time), and (3) made while declarant remained employed; no requirement that declarant hold same role at time of statement. (Dissent would have upheld exclusion for lack of foundation.)

Key Cases Cited

Orr v. Bank of Am., N.T. & S.A., 285 F.3d 764 (9th Cir.) (principle that only admissible evidence is considered on summary judgment)
United States v. Ortega, 203 F.3d 675 (9th Cir.) (de novo review of Rule 801(d)(2)(D) construction)
In re Sunset Bay Assocs., 944 F.2d 1503 (9th Cir.) (statements need only concern matters within scope of agency; need not be made within scope)
Stiefel v. Bechtel Corp., 624 F.3d 1240 (9th Cir.) (involvement in process can suffice where declarant lacked final decision authority)
Marcic v. Reinauer Transp. Cos., 397 F.3d 120 (2d Cir.) (same formulation of Rule 801(d)(2)(D): agency relationship, made during relationship, and related to matter within scope)
McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir.) (summary judgment standard in discrimination cases and evidentiary approaches)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (framework for disparate-treatment burden-shifting)
Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027 (9th Cir.) (evidence of discriminatory motive need not be substantial to create triable issue)
Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir.) (very little evidence can raise genuine issue regarding motive)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment is not a credibility determination)
Bourjaily v. United States, 483 U.S. 171 (foundation rules for admitting co-conspirator statements and consideration of surrounding circumstances)
Kidd v. Mando Am. Corp., 731 F.3d 1196 (11th Cir.) (agent’s statement admissible under Rule 801(d)(2)(D) only if declarant participated to some extent in decisionmaking; remand where foundation unclear)