CALVIN S. MOORE, PLAINTIFF-APPELLANT,
v.
SEARS, ROEBUCK AND COMPANY, DEFENDANT-APPELLEE
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The court held that memoranda regarding an employee's performance were not hearsay when offered to show the employer's good faith motive for termination, not the truth of the memoranda's contents.
Calvin Moore sued Sears for age discrimination. Sears introduced internal memoranda about Moore's performance, which Moore argued were inadmissible he…
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JAMES C. HILL, Circuit Judge:
Calvin Moore brought this action against Sears, Roebuck and Company alleging violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, 623. The jury verdict and judgment were entered in favor of Sears.
During the trial, Sears introduced a series of memoranda prepared by Moore’s supervisors over a period of months. The memos, most of which are designated “for the file,” contain observations pertaining to Moore’s performance, summaries of reports on his performance made by other Sears employees, and chronological accounts of events such as personnel investigations and meetings. Several of the persons whose reports were reflected in the memos testified at trial. Moore’s attorney, contending that the documents constituted hearsay, challenged the introduction of this evidence1 by way of a continuing objection originally made by a motion in limine.
The trial judge admitted the documents in question under the business records exception to the hearsay rule,3 Fed.R.Evid. 803(6). On appeal, Moore argues that the judge abused his discretion, thus necessitating a new trial.
We hold that the trial judge properly admitted the evidence in question because it did not constitute hearsay; we need not decide whether the documents were admissible business records under Fed.R.Evid. 803(6). “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). The documents here were not tendered to prove the particulars of their contents, but to help establish that Sears was motivated, in good faith, to discharge Moore for reasons other than age.4
The appellant argues that it was unnecessary for Sears to introduce, in detail, the contents of the memoranda as evidence of proper intent, that it would have been sufficient for Sears to have established the existence and nature of . the memoranda. Sears could have chosen to take that alternate course. Instead, however, Sears sought to introduce more specific evidence of Sears’ assessment of Moore’s performance in order to strengthen the credibility of those who testified that Moore had been terminated for bona fide reasons.5
Since the admission of the documents and the accompanying testimony was proper to show that Sears’ stated reasons for termination were not a pretext, the trial court’s decision is
AFFIRMED.
. Moore contends that the employees would have been unable to testify had the documents not been introduced and asserts that the testimony should thus have been excluded along with the documents. We have difficulty with this argument since the only basis for a hearsay objection would be that the employees, who were the out-of-court declarants, were not giving their own testimony in court. Resolu-< tion of this issue is unnecessary to our result.
. Sears asserts that the objection was not sufficient, but we do not reach that issue.
. The trial judge did not issue, nor did Moore seek, instructions explaining to the jury how the evidence was relevant or instructions restricting its use.
. It is well settled in employment discrimination cases such as this that for an employer to prevail the jury need not determine that the employer was correct in its assessment of the employee’s performance; it need only determine that the defendant in good faith believed plaintiff’s performance to be unsatisfactory and that the asserted reason for the discharge is therefore not a mere pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Turner v. Texas Instruments, Inc., 555 F. 2d 1251, 1256-57 & n.6 (5th Cir. 1977); Kephart v. Institute of Gas Technology, 630 F. 2d 1217, 1219-20 (7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Loeb v. Textron, Inc., 600 F. 2d 1003, 1012 n.6 (1st Cir. 1979).
. This defense strategy is common, and we acknowledge that ADEA cases often degenerate into what may seem to be trials on the issue of competence. It is not improper for a defendant to introduce evidence reflecting the unsatisfactory performance of a former employee, though, for that evidence is relevant to the real issue — the defendant’s motive for termination.
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Citator
Cited By (12 total)
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Elrod v. Sears, 939 F.2d 1466 (11th Cir. 1991)…jury need not determine that the employer was correct in its assessment of the employee’s performance; it need only determine that the defendant in good faith believed plaintiff’s performance to be unsatisfactory. ...” Moore v. Sears, Roebuck & Co., 683 F. 2d 1321, 1323 n. 4 (11th Cir.1982) (emphasis in original). See also Jones, 874 F. 2d at 1540; Smith v. Papp Clinic, P.A., 808 F. 2d 1449, 1452-53 (11th Cir.1987) (“[I]f the employer fired an employee because it honestly believed that the employee had viol…
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Walker v. Nationsbank OF Fla. N.A., 53 F.3d 1548 (11th Cir. 1995)…e employer did not rely on that result in making its employment decision). It is obviously not a violation of federal employment discrimination laws for an employer to err in assessing the performance of an employee. Moore v. Sears, Roebuck and Co., 683 F. 2d 1321, 1323 n. 4 (11th Cir.1982). See also Russell v. Acme-Evans Co., 51 F. 3d 64, 68-69 (7th Cir.1995). Thus, establishing pretext is not merely demonstrating that the employer made a mistake, but that the employer did not give an honest account of its…
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Crimm v. Mo. Pac. R.R. Co., 750 F.2d 703 (8th Cir. 1984)…MoPac had conducted an investigation and to disclose the information that MoPac had relied on in making its decision. The records were not offered to prove the truthfulness of the statements contained therein. See Moore v. Sears Roebuck and Company, 683 F. 2d 1321, 1322 (11th Cir.1982). Even if we accept appellant’s argument that the records are hearsay, they are admissible under the business records exception. MoPac had a written policy requiring that in an investigation of sexual harassment the conversatio…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (U.S. 1981)
- Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979)
- Turner v. Texas Instruments, 555 F.2d 1251 (5th Cir. 1977)
- Kephart v. Inst. OF GAS Tech., 630 F.2d 1217 (7th Cir. 1980)
- Mescalero Apache Tribe v. O'Cheskey, 450 U.S. 959 (U.S. 1981)
- Lum v. Campbell, 450 U.S. 959 (U.S. 1981)