Grounds : 1. Alleged admission by hiring manager that he did not hire plaintiff because of sex (and disability) inadmissible, where admission was communicated through another employee not involved in the decision process. The retelling of the statement violates a core hearsay purpose (the truth of the matter asserted), and the retelling itself is not a party- admission, FRE801(d)(2)(D). Although evidence submitted at the summary judgment stage need not be in admissible form, its substance must be admissible; statements might have been admissible if declarants who supposedly heard hiring manager's comments had offered sworn evidence.

Conclusory evidence that older candidates were treated relatively worse, even if admissible, lacked specific facts in support. Statement president of the Chicago Principals and Administrators Association not admissible as part admission under FRE801(d)(2)(D), as witness was not decision-maker or authorized to speak by board. Cat's paw fails because plaintiff did not point to evidence "that the biased subordinate actually harbored discriminatory animus against the victim of the subject employment action," plus there was substantial evidence from council having independent reasons for not renewing contract.Bagwe v. Sedgewick Claims Mgt. Sevs., No. 14-3201 (7th Cir. Jan. 26, 2016).

Outcome on Appeal: Affirmed [defendant]. Grounds: Draft EEOC charge by co-worker as evidence to support inference of age-animus was inadmissible hearsay under FRE801(c).Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 124 FEP 115 (2d Cir. 2014). Panel: WESLEY, Walker Pooler. Claims on Appeal: 1.Title VII and § 1983 promotion.

The Ninth Circuit reverses in part. The panel majority holds that L.H.'s statement ought to have been considered as a non-hearsay under Federal Rule of Evidence 801(d)(2)(D), and thus the plaintiff presented enough evidence of a discriminatory motive on the failure to promote claim to go to a jury.As the panel majority summarizes the law, under Rule 801(d)(2)(D), "a statement is not hearsay and may be admitted against an opposing party if the statement 'was made by the party's agent or employee on a matter within the scope of that relationship and while it existed."The crux of the dispute is whether, as part of the foundation of the party admission, the declarant had to be "in the same position that resulted in the matter being within the scope of the employment relationship" at the time the statement was made. Here, L.H. was still an employee at the defendant, but was no longer a decisionmaker on the promotion.

The amendments, endorsed by the Supreme Court earlier this year, will automatically become law on December 1, 2014 unless Congress takes affirmative action to override them.Federal Rule of Evidence (“FRE”) 801. FRE 801 is being amended to change how jurors can use prior consistent statements. Under the current rule, a fact-finder can only consider such statements for their truth if offered to rebut a charge that the declarant recently fabricated his testimony or acted from a recent improper influence or motive in testifying.

No error in excluding as hearsay alleged discriminatory remarks. One remark "there's not a court in the land that could force me to hire Dr. Shervin back," excluded under FRE403 because nothing connected it to denial of job offer from another institution. Evidence of allegedly retaliatory comment by non-party (executive of a non-profit organization affiliated with, but separate from, school) not admissible as part-admissions under FRE801(d)(2)(D); also, could be upheld on FRE403 grounds because there was no evidence of school's involvement in decision. Court also properly excluded alleged vicarious admission (about being "on the same page" about hiring of plaintiff) where person who made comment held only a clinical associate position at Harvard and, thus, no proof that that any statements made regarding hiring were within the scope of his faculty appointment.

Remember that under Mil. R. Evid. 1102, any changes to the federal rules become effective in court-martial practice 18 months after federal enactment, unless the President directs changes. So, federalevidencereview brings us:Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV)Under what circumstances may prior consistent statements be considered? A proposed amendment under consideration would broaden the use of prior consistent statements.

Outcome on Appeal: Affirmed [defendant]. Grounds: Testimony that manager from different location told her that her termination was because of her pregnancy properly excluded under FRE801(d)(2)(D) where manager was not a decisionmaker, and comment was thus not within the scope of employee's employment relationship. Evidence of temporal proximity did not create a jury issue (two months separated announcement of pregnancy from termination), and plaintiff failed to rebut several legitimate non-discriminatory reasons for termination: her contentious relationship with her manager; the problems she caused regarding store morale and customer service; and her repeated performance-related problems that resulted in warnings, including a citation issued after she informed employer of her pregnancy.Cannon v. Jacobs Field Services No. Am., Inc., No. 15-20127 (5th Cir. Jan. 13, 2016).

Challenges to evaluations' accuracy does not indicate age discrimination. Plaintiff's affidavit reflecting statements by unidentified co-workers about manager's age-bias not admissible as FRE 801(d)(2) party-admission or FRE 803(1) present sense impression.Rolland v. Potter, 492 F.3d 45, 19 A.D. Cases 677 (1st Cir. 2007). Panel: STAFFORD, Torruella, Lipez. Claim on Appeal: Rehabilitation Act overtime hours.

Finally, ToolGen asserted that none of these exhibits were authenticated by Broad's expert witness, Dr. Seeger who "[did] not profess to have any knowledge of the aforementioned exhibits."ToolGen's second basis for its Motion to Exclude is related to Exhibit Nos. 2708, 2710, 2716, 2734, 2751, 2770, 2771, 2772, 2773, 2775, 2777, 2780, 2781, 2782, 2784, 2829, 2830, 2842, and 2845, introduced in support of Broad's Substantive Motion No. 1, and also Exhibit Nos. 2704, 2705, and 2793 introduced in support of Broad's Substantive PreliminaryMotion No. 3, and was that they were hearsay and inadmissible under FRE 801 and 802. These Exhibits all contain out-of-court statements offered for the truth of the matter asserted, specifically "to prove that Broad's experiments allegedly showed successful reduction to practice of Broad's Proposed Count 2."ToolGen's third ground for its Motion to Exclude is related to Exhibits published after December 12, 2012, as being irrelevant under FRE 401 and 403 for not providing information about the state of the art at the time the application was filed.