SHARON KELLY O'BRIEN VS. TELCORDIA TECHNOLOGIES, INC. Â (L-5516-03, MIDDLESEX COUNTY AND STATEWIDE), A-3251-14T1

Background

Sharon O'Brien, age 51, sued former employer Telcordia for age discrimination after a 2002 layoff during a large reduction-in-force.
On initial appeal the Appellate Division reversed summary judgment for Telcordia because the trial court had not adequately addressed a three-page certification by former employee Stephen Sperman alleging company officers announced an age-/pension-based "going forward" layoff policy.
The matter was remanded for a Rule 104 hearing on the certification's hearsay statements; Musumeci (an alleged speaker), Apgar (HR), and Sperman testified at the hearing.
At the hearing Musumeci and Apgar denied making the statements in the certification and said they had no role in O’Brien’s layoff; Sperman gave inconsistent accounts of what was said and disavowed portions of his prior statements.
The trial court ruled the Sperman certification inadmissible on three independent grounds: (1) sham affidavit/recantation, (2) unduly prejudicial under N.J.R.E. 403, and (3) inadmissible hearsay (including double-hearsay and statements outside declarants’ scope of employment). Summary judgment for Telcordia was granted again.
The Appellate Division affirmed, principally on the hearsay/agency analysis: double-hearsay from an unidentified HR speaker and statements beyond Musumeci’s and Apgar’s employment scope made the certification inadmissible as party admissions under N.J.R.E. 803(b)(4).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Sperman certification under hearsay/party-admission rule	Sperman's certification quotes Musumeci and Apgar; their statements are admissions by party agents under N.J.R.E. 803(b)(4) and thus admissible	Statements are double-hearsay and include an unidentified HR source; not within hearsay exception and cannot be treated as party admissions	Certification inadmissible: double-hearsay includes unidentified declarant; proponent failed to meet exception burden
Scope-of-employment requirement for N.J.R.E. 803(b)(4)	Musumeci and Apgar were company agents authorized to speak on personnel policy; their statements reflect corporate policy	Musumeci and Apgar lacked authority on the alleged policy (Apgar was recruiter; Musumeci’s role disputed); statements were outside their employment scope	Court affirmed trial court’s factual finding that statements were outside the declarants’ scope of employment; not admissible as vicarious admissions
Identification / cross-examination of original declarant	Plaintiff contends Musumeci’s words suffice to show corporate policy without needing the original HR speaker	Defendant and court note the original HR speaker is unidentified, so scope and opportunity for cross-examination are lacking	Because the original HR source is unidentified, the statement cannot be admitted as a vicarious admission; identification is required
Effect of recantation/inconsistencies on affidavit value	Plaintiff argues certification should stand absent proof it’s a sham	Defendant points to Sperman’s inconsistent testimony and denials by Musumeci/Apgar	Trial court did not need to reach alternative bases, but its findings that the affidavit was effectively recanted and conflicted with testimony support exclusion; affirmed on hearsay ground independently

Key Cases Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for discriminatory discharge claims)
Price Waterhouse v. Hopkins, 490 U.S. 228 (explains mixed-motive doctrine)
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (standard for summary judgment review in New Jersey)
Estate of Hanges v. Metropolitan Property & Casualty Insurance Co., 202 N.J. 369 (deference to trial court on evidentiary rulings; discretion to admit/exclude evidence)
Spencer v. Bristol-Myers Squibb Co., 156 N.J. 455 (admissibility of statements by corporate agents directly involved on matter at issue)