Robbin Perkins v. Rock-Tenn Services, Inc.
Filing
OPINION filed : AFFIRMED, decision not for publication. Martha Craig Daughtrey, AUTHORING Circuit Judge; Karen Nelson Moore, Circuit Judge and Julia Smith Gibbons, Circuit Judge.
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0383n.06
No. 16-1798
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBBIN PERKINS,
Plaintiff-Appellant,
v.
ROCK-TENN SERVICES, INC.,
Defendant-Appellee.
BEFORE:
)
)
)
)
)
)
)
)
)
)
)
Jun 30, 2017
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. After resigning from Rock-Tenn
Services, Inc., Robbin Perkins discovered that the male employee assigned to take over her
former job responsibilities was paid much more than she had been paid. Perkins filed suit under
the Equal Pay Act, 29 U.S.C. § 206(d), alleging that the pay differential was based on sex.
Perkins also claimed that Rock-Tenn did not provide her with notice that she was entitled to
continue her health-care benefits after her resignation, as is required under the Consolidated
Omnibus Budget Reconciliation Act of 1986 (COBRA), 29 U.S.C. § 1166(a). The district court
granted Rock-Tenn’s motion for summary judgment as to both claims.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2010, Rock-Tenn Services hired Robbin Perkins as the shipping superintendent
at a paper-production mill in Battle Creek, Michigan.
The International Brotherhood of
Teamsters represented Rock-Tenn’s non-managerial employees under a collective bargaining
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 2
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
agreement (CBA) that set compensation for those employees. Shipping superintendent was a
management position, however, and not subject to the CBA. Based on factors set out in RockTenn’s “Guide to Salaried Compensation,” such as market value of skills, performance, and
geographic location, Rock-Tenn hired Perkins at a salary of $70,000 a year.
As shipping superintendent, Perkins was responsible for managing the shipment
schedule, tracking shipments, supervising the shipping department employees, and confirming
that the correct number and type of paper rolls were loaded into the delivery trucks. As a
manager, Perkins had the authority to promote, hire, discipline, and fire, but the record indicates
that generally she received permission from her direct supervisor, the plant manager, before
taking any of these actions.
Six months after hiring Perkins, Rock-Tenn hired Tom Shannon in January 2011 as the
plant manager. In that position, Shannon was responsible for supervising the five different plant
departments, including the shipping department. The relationship between Perkins and Shannon
appears to have been strained. Perkins repeatedly made suggestions to Shannon about ways to
improve the shipping department, specifically about how to reduce “detention costs,” which are
costs charged by the trucking companies for time that the delivery trucks spend at the plant
waiting to be loaded, but Shannon did not implement these changes. Shannon assigned Perkins
additional job responsibilities but did not increase her compensation.
In 2013, Perkins asked Shannon to provide her with a “lead,” a title used to signify a
union employee that assists a department superintendent. The 2009-2013 collective bargaining
agreement provided:
Lead person functions will include implementation of their supervisor’s orders
and the making of necessary decisions in the absence of their supervisor as these
decisions pertain to the normal operations of the Company. Lead persons will
have no management rights and shall have no authority to hire, fire, promote,
-2-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 3
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
discipline, distribute paychecks, nor will they be held responsible in the event
there are errors in the distribution of overtime.
Shannon agreed to add a lead position to the shipping department, and Perkins and Shannon
selected Gary Wood to fill the role. Wood had worked at the Battle Creek mill since 1994, first
as a generalist, then in the machine department, and since 2009, in the shipping department.
Upon being selected for the lead position, Wood was given an initial 12 percent pay increase,
which was required by the CBA.
As lead, Wood assisted Perkins with all aspects of her job.
He took over her job
responsibilities on the weekends, when she was not at work. His pay rate was dictated by the
CBA, and he received time-and-a-half for every overtime hour worked, as well as double pay on
Sundays, holidays and for any hour worked beyond twelve hours in a row. Wood explained that
while working as lead for Perkins, he occasionally was elevated to “production lead” when
Perkins was on vacation or away from the mill. He received another 12 percent increase in pay
for time he spent as production lead. Wood testified that the production-lead pay increase is not
in the “actual contract” but that it had been negotiated between the union and management.
After becoming lead, Wood generally worked over 70 hours a week, and in 2013, he earned
$108,954.
Perkins resigned in February 2014, citing a “loss of confidence” in Shannon’s ability to
manage.
At the time of her resignation, Perkins was earning $78,463 a year.
After her
resignation, Rock-Tenn posted the shipping superintendent position and listed the maximum
salary as $70,000. In the meantime, Shannon assigned the majority of Perkins’s responsibilities
to Wood. Wood, however, remained an hourly union employee and thus still did not have
authority to hire, fire, promote, or discipline. Rock-Tenn ultimately decided not to hire a salaried
shipping superintendent to replace Perkins and, instead, decided that Wood would continue to
-3-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 4
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
perform the majority of the responsibilities previously designated to the shipping superintendent.
As a permanent production lead, Wood received 12 percent more—at all times—than his base
pay rate as regular lead. Wood earned $113,672.54 in Social Security wages in 2014.
Eventually, Monica LeGrand was selected to be Wood’s lead. As lead, she received a 12
percent pay increase and another 12 percent increase for any periods of time when she worked as
the production lead, if Wood was away from the mill. Wood supervised the lead and other
shipping department employees and coordinated and scheduled the shipments. Shannon was
Wood’s direct supervisor.
Perkins filed an action against Rock-Tenn, alleging that it paid her less than male
employees in her position, in violation of several federal and state statutes, and that Rock-Tenn
failed to provide her with notice of continuing health-care coverage, as required under COBRA.
Rock-Tenn moved for summary judgment, which the district court granted as to all claims.
Perkins appeals the district court’s grant of summary judgment as to her claim that Rock-Tenn
violated the Equal Pay Act, by paying Wood more money for doing equal work. She also
appeals the district court’s grant of summary judgment to the defendant on her COBRA claim.
DISCUSSION
Standard of Review
“Our standard of review of a grant of summary judgment is de novo; we use the same test
used by the district court.” Whittlesey v. Cole, 142 F.3d 340, 342 (6th Cir. 1998). “Summary
judgment is appropriate if, after an opportunity for discovery, the moving party demonstrates that
there is no genuine issue of material fact as to the existence of an element essential to the nonmoving party’s case and on which the non-moving party would bear the burden of proof at trial.”
-4-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 5
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
Martin v. Ohio Tpk. Comm’n, 968 F.2d 606, 608 (6th Cir. 1992) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). “In reviewing a summary judgment motion, credibility judgments and
weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most
favorable to the non-moving party.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th
Cir. 2009).
Equal Pay Act
In an effort to address “the age-old belief in women’s inferiority and to eliminate the
depressing effects on living standards of reduced wages for female workers and the economic
and social consequences which flow from it,” the Equal Pay Act prohibits employers from
paying an employee less than an employee of the opposite sex, if both employees are performing
equal work. Bence v. Detroit Health Corp., 712 F.2d. 1024, 1029 (6th Cir. 1983) (internal
quotations omitted). The district court found that Perkins established a prima facie case of wage
discrimination, but determined that Rock-Tenn had successfully established an affirmative
defense. Additionally, the district court found that Perkins failed to offer any evidence that
Rock-Tenn’s affirmative defense was pretexual.
a. Perkins’s Prima Facie Case
To make a prima facie case of wage discrimination under the Equal Pay Act, a plaintiff
“must show that an employer pays different wages to employees of opposite sexes ‘for equal
work on jobs the performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions.’” Beck-Wilson v. Principi, 441 F.3d 353, 359
(6th Cir. 2006) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). “Equal
work” does not necessarily mean that two jobs must be identical or share a title; rather, “[i]n
determining whether a comparator is appropriate for the purposes of an [Equal Pay Act] claim,
-5-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 6
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
our focus is on actual job requirements and duties, rather than job classifications or titles.” Id. at
362. “The jobs to which the equal pay standard is applicable are jobs requiring equal skill in
their performance. . . . Skill includes consideration of such factors as experience, training,
education, and ability. It must be measured in terms of the performance requirements of the
job.” 29 C.F.R. § 1620.15(a). “Whether a job is substantially equal for purposes of the [Equal
Pay Act] is determined on a case-by-case basis and ‘resolved by an overall comparison of the
work, not its individual segments.’” Beck-Wilson, 441 F.3d at 359. (quoting Odomes v. Nucare,
Inc., 653 F.2d 246, 250 (6th Cir. 1981)).
The district court found that the work performed by Perkins in her role as “shipping
superintendent” and the work performed by Wood as “production lead” after Perkins’s
resignation to be equal work for purposes of the statute.
We agree.
In explaining the
responsibilities associated with each of their respective roles, Perkins and Wood described the
same primary tasks: managing the shipping floor, supervising the shippers, coordinating with
customer service, and creating the shipment schedule. Wood explained that when he worked
under Perkins as a “lead,” he helped her perform the shipping-superintendent duties, and that he
performed these duties on a full-time basis as “production lead” after Perkins resigned. After
Perkins left, Rock-Tenn did not hire a new “shipping superintendent” because Wood was
covering the main job responsibilities.
“[E]vidence that the positions being compared are
fungible can support a prima facie case under the [Equal Protection Act].” Beck-Wilson, 441
F.3d at 360. Both Perkins, as shipping superintendent, and Wood, as production lead, were
responsible for supervising the shipping department employees. Both worked with a union
employee in the “lead” position. Both were supervised directly by Shannon. In short, the record
contains sufficient evidence such that a reasonable jury could conclude that the positions of
-6-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 7
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
“shipping superintendent” and “production lead” were fungible under the circumstances in this
case and, therefore, that they required “equal work” under the Equal Pay Act.
b. Rock-Tenn’s Affirmative Defense
“Once the plaintiff establishes a prima facie case, the defendant must ‘prove’ that the
wage differential is justified under one of the four affirmative defenses set forth under
§ 206(d)(1) of the Equal Pay Act: (1) a seniority system; (2) a merit system; (3) a system which
measures earnings by quantity or quality of production; or (4) any other factor other than sex.”
Buntin v. Breathitt Cty. Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998). Unlike the Title VII
framework, in which defendants only have to assert a legitimate, non-discriminatory reason for
the treatment at issue before the burden shifts back to the plaintiff to show pretext, under the
Equal Pay Act, the defendant bears the burden of proof in establishing an affirmative defense.
Beck-Wilson, 441 F.3d at 360. “Thus the district court’s grant of [a defendant’s] motion for
summary judgment can be upheld only if the record shows that [a defendant] established the
defense so clearly that no rational jury could have found to the contrary.” Id. at 365 (internal
quotations omitted).
The “factor other than sex” defense does not encompass all other factors—at a minimum,
it must be a factor that was adopted for a legitimate business reason. E.E.O.C. v. J.C. Penney
Co., 843 F.2d 249, 253 (6th Cir. 1988). “[T]he burden of proving that a factor other than sex is
the basis for a wage differential is a heavy one.” Timmer v. Michigan Dept. of Commerce, 104
F.3d 833, 843 (6th Cir. 1997). Nevertheless, the district court found that Rock-Tenn successfully
proved that the wage differential at issue was justified under the Equal Pay Act. The district
court ruled that “[i]t cannot be disputed that paying one employee more than another based on a
-7-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 8
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
different measure of compensation (hours worked versus an annual salary) in accordance with an
agreement with a union is a legitimate business reason.”
The district court was correct in finding that Rock-Tenn met its burden of proving that
the wage differential was justified based on factors other than sex by establishing that any pay
differential between Perkins and Wood was based on experience, the existence of an hourly
position, wage earnings history, and the fact that Wood’s pay was set by a collective bargaining
agreement.
Our circuit has previously found that a “[a] wage differential based on . . . experience is a
factor other than sex for purposes of the Equal Pay Act.” Balmer v. HCA, Inc., 423 F.3d 606,
612 (6th Cir. 2005), abrogated on other grounds by Fox v. Vice, 563 U.S. 826 (2011).
Additionally, “[c]onsideration of a new employee’s prior salary is allowed as long as the
employer does not rely solely on prior salary to justify a pay disparity.” Id. There are no issues
of fact regarding Wood’s lengthy tenure at Rock-Tenn or his salary prior to Perkins’s
resignation. Even before we consider Wood’s union membership, the fact that Wood had
worked at Rock-Tenn for 20 years, and the fact that his salary at the time of Perkins’s resignation
was over $100,000, are both legitimate factors other than sex that justify the wage differential.
As the district court emphasized, however, the most persuasive justification for the wagedifferential between Wood and Perkins is the fact that Wood was a union employee and Perkins
was not. There is no question that the decisions made as a result of negotiations between union
and employer are made for legitimate business purposes; thus, a wage differential resulting from
status as a union member constitutes an acceptable “factor other than sex” for purposes of the
Equal Pay Act. As a union employee, Wood was compensated on an hourly basis, rather than a
set salary. Wood, and all union employees, received time-and-a-half pay for every hour worked
-8-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 9
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
in excess of 40 hours, and double time on Sundays and holidays. Both parties agree that when
Wood was assigned to the lead position under Perkins, the collective bargaining agreement
required that he receive a 12 percent pay increase. Even before Wood was elevated to full-time
“production lead,” he earned significantly more than Perkins, largely due to the amount of
money he was able to earn through overtime and weekend work.
Perkins argues on appeal that Rock-Tenn failed to meet its burden of proof because it did
not sufficiently prove that sex played no role in the pay differential. Although Rock-Tenn’s
decision to convert Perkins’s former position to a union position clearly did benefit Wood, the
record does not contain evidence that Rock-Tenn’s decision to convert the position was based on
Wood’s sex. If Perkins had evidence that Rock-Tenn hired only men for union positions, while
relegating female applicants to what turned out to be a lower-paid management track, this
shipping superintendent job reassignment would be suspect. However, the record contains no
such evidence. In fact, there is evidence in the record that Rock-Tenn assigned a woman,
Monica LeGrand, to work as lead under Wood. LeGrand received a 12 percent pay increase as
lead, and an additional 12 percent increase for any time she spent filling in for Wood—the same
pay increases Wood received while working under Perkins. Based on the evidence of Wood’s
experience, tenure, prior salary, and union membership, and because the record does not contain
any evidence that the job reclassification was based on discriminatory animus, the district court
concluded correctly that Rock-Tenn successfully established an affirmative defense.
c. Evidence of Pretext
In an Equal Pay Act claim, the “plaintiff bears the burden of producing evidence of
pretext solely where a reasonable jury viewing the defendant’s evidence could find only for the
defendant; the plaintiff, however, never bears the burden of persuasion regarding the affirmative
-9-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 10
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
defenses.” Buntin, 134 F.3d at 799 n.7 (emphasis in original). The district court found that
Perkins failed to offer evidence of pretext. Perkins puts forth several theories in an attempt to
prove that the pay differential was based on sex, rather than Wood’s experience, former salary,
or union membership. None, however, hold water.
First, Perkins points out that in converting the shipping superintendent position from a
salaried management position to an hourly union position, Rock-Tenn had to pay Wood over
$35,000 more than what Perkins had earned. Perkins argues that this decision is “economically
irrational,” “unusual,” and “counter-intuitive.” She further speculates that “employers usually
resist the expanding of unionization.” Perkins believes that a reasonable jury could infer, based
on this fact, that Rock-Tenn’s decision to convert the position to a union position was made
based on sex. Although proving an affirmative defense is a heavy burden, this argument is
insufficient to disprove Rock-Tenn’s explanation for the pay differential.
Second, Perkins points out that the additional 12-percent pay increase given to lead
employees who step in as “production leads” is not referenced specifically in the collective
bargaining agreement. She contends that the defendant generously volunteered to “sweeten the
deal” for Wood, by giving him a permanent 12-percent increase when he became a full-time
production lead. Based on the record, however, it appears to be standard procedure for the
company to increase a union lead’s pay by 12 percent for time spent filling in as “production
lead.” The district court found that Perkins requested that Wood receive a 12-percent increase in
pay for the time he spent filling in for her while she was away from the mill. Similarly, LeGrand
received the same pay increase when she became lead, and a further 12-percent pay increase for
periods of time she covered for Wood. Additionally, both Shannon and Wood, who is the union
-10-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 11
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
vice-president, agreed that the additional 12-percent pay increase was negotiated through the
collective-bargaining process.
Finally, Perkins points out that Shannon ignored all of the cost-saving changes she
suggested but agreed to make the same changes when suggested by Wood. Additionally, she
explains that she was not given a raise after Shannon increased her responsibilities as shipping
superintendent. Perkins argues that the district court did not consider these facts, which, in her
opinion, are compelling evidence of sexism. However, Perkins fails to connect adequately either
of these alleged incidents to Rock-Tenn’s decision to assign her duties to Wood after her
resignation or Rock-Tenn’s decision to convert the shipping superintendent position into a
“production lead” position to be filled by a union employee. As a result, these arguments are
unpersuasive and fail to show that Rock-Tenn’s affirmative defense regarding the pay
differential was pretextual. Because Perkins failed to produce evidence on which a reasonable
jury could determine that Rock-Tenn’s affirmative defense was pretextual, the district court was
correct in granting Rock-Tenn’s motion for summary judgment as to this claim.
COBRA Notice
Next, Perkins asks us to review the district court’s dismissal of her COBRA-violation
claim. Perkins’s complaint alleged that Rock-Tenn failed to comply with COBRA because it did
not send her a notice that she was entitled to continue her health-insurance benefits. Under
COBRA, employers are required to notify employees of their right to continue health-insurance
coverage after a “qualifying event.” 29 U.S.C. § 1166(a); 29 U.S.C. § 1162. Termination of
employment is a qualifying event. 29 U.S.C. § 1163(2). The district court granted Rock-Tenn’s
motion for summary judgment as to this claim. We review a grant of summary judgment de
novo. Whittlesey, 142 F.3d at 342. Here, however, Perkins’s challenge primarily concerns the
-11-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 12
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
district court’s consideration of an affidavit given in support of Rock-Tenn’s motion for
summary judgment. We generally review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012). We will reverse a district
court’s evidentiary decisions only when we find that such abuse of discretion has caused more
than harmless error. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994).
In its motion for summary judgment, Rock-Tenn included an affidavit from Karol
Fecteau, Rock-Tenn’s human resources manager, explaining that a third-party vendor, Aon
Hewitt, was responsible for sending COBRA notices on Rock-Tenn’s behalf. Rock-Tenn also
attached screenshots from Aon Hewitt’s computer database, indicating that COBRA notices had
been sent to Perkins on March 7, 2014, and February 17, 2015. In her affidavit, Fecteau averred
that the screen shots confirm that the notices had been sent to Perkins. Perkins argued that
Fecteau’s affidavit and the computer screenshots were inadmissible hearsay and, in response,
Rock-Tenn submitted a second affidavit along with its reply brief in support of the motion for
summary judgment. The second affidavit is from Clyde Watson, a delivery manager directly
employed by Aon Hewitt.
a. Unfair Prejudice
First, Perkins argues that she was unfairly prejudiced by the district court’s consideration
of the Watson affidavit submitted with Rock-Tenn’s reply brief, because she did not have an
opportunity to respond. We have previously held that “[w]hile the Rules are silent as to timing
matters with reply affidavits, precedent establishes that, in the face of new evidence, the court
should permit the opposing party an opportunity to respond.” Peters v. Lincoln Elec. Co., 285
F.3d 456, 477 (6th Cir. 2002). However, Rock-Tenn filed its reply brief on January 22, 2016,
more than four months before the district court ruled on the motion. Seemingly, Perkins had
-12-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 13
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
ample opportunity to request that the court allow her to respond to this new evidence, had she
desired. See id. (finding that a reply affidavit filed one week before a hearing still provided the
opponent sufficient time to respond). There is no evidence that Perkins made any effort to
respond, despite having sufficient time to do so and, therefore, this argument fails to establish
that the district court abused its discretion in admitting the Watson affidavit.
b. Hearsay
Second, Perkins contends that the district court erred in admitting the Watson affidavit
because the affidavit contains inadmissible hearsay. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or the hearing, offered in evidence to prove the truth
of the matter asserted.
Fed. R. Evid. 801(c). Hearsay evidence cannot be considered on
summary judgment. See Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003).
The district court held that the Fecteau affidavit and the accompanying screen shots of
Aon Hewitt’s database were inadmissible as hearsay, because the screenshot was “merely
commentary and a picture from an unknown source purporting to establish the truth of the matter
asserted” and because Fecteau did not assert that the data depicted by the screenshot was a record
kept in the ordinary course of business. The district court determined that the evidence did not
fall under any of the hearsay exceptions and, therefore, that “[Fecteau’s] affidavit and its exhibits
are not sufficient in themselves to establish that [the] Defendant complied with COBRA.”
The district court gave much greater credence to the Watson affidavit. In that affidavit,
Watson asserted that he had worked for Aon Hewitt since 1998 and as a “delivery manager”
since April 2015. As delivery manager, Watson was responsible for ensuring that COBRA
notices were sent to departing Rock-Tenn employees, as directed by Rock-Tenn. Watson’s
affidavit explained that Aon Hewitt “maintains certain records in the ordinary course of business
-13-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 14
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
on behalf of Rock-Tenn.” He further stated, “My review of Aon Hewitt’s computer system
demonstrates that COBRA notifications were sent by regular U.S. mail to Ms. Perkins twice:
first on March 7, 2014 and again on February 15, 2015.”
Watson does not claim that he personally sent the notices to Perkins or documented such
mailings in the computer system—nor could he have, because he did not take on the role as
delivery manager until after Aon Hewitt mailed Perkins her notices. Watson stated only that he
reviewed the company’s computer data—presumably input by another Aon Hewitt employee—
and Rock-Tenn offered this statement for the truth of the matter asserted. This statement is also
hearsay and is admissible only if it satisfies one of the hearsay exceptions.
Although the district court did not articulate the relevant applicable hearsay exception,
we conclude that Watson’s affidavit, and the Aon Hewitt computer records referenced therein,
are admissible under the business record exception.
Rule 803(6) of the Federal Rules of
Evidence permits records of regularly conducted business activity to be admitted into evidence if
the records: (1) “were created in the course of a regularly conducted business activity,” (2)
“were kept in the regular course of that business,” (3) “resulted from a regular practice of the
business to create such documents,” and (4) “were created by a person with knowledge of the
transaction or from information transmitted by a person with knowledge.” United States v.
Collins, 799 F.3d 554, 582 (6th Cir. 2015) (internal quotations omitted).
Fulfillment of the business record exception conditions must be shown through the
testimony of the custodian, a qualified witness, or through a certification. Id. at 583. “[I]t is not
necessary that the person laying the foundation for the introduction of the business record to
have personal knowledge of their preparation.” Dyno Const. Co. v. McWane, Inc., 198 F.3d 567,
576 (6th Cir. 1999). “All that is required of the witness is that he or she be familiar with the
-14-
Case: 16-1798
Document: 30-2
Filed: 06/30/2017
Page: 15
No. 16-1798
Perkins v. Rock-Tenn Services, Inc.
record-keeping procedures of the organization.” Id. As a long-time Aon Hewitt employee, and
the current delivery manager of COBRA notices, Watson was qualified to lay a foundation for
the introduction of Aon Hewitt’s computer records.
Watson’s affidavit explains that Aon Hewitt provides record-keeping services for RockTenn, provides COBRA notifications to departing Rock-Tenn employees, and maintains certain
records in the ordinary course of business on behalf of Rock-Tenn. Watson specifies that Aon
Hewitt does not retain hard copies of COBRA notices, but it does retain computer records. It
was not an abuse of discretion for the district court to admit this hearsay evidence under the
business record exception.
In consideration of Watson’s affidavit and Aon Hewitt’s computer records, there is no
issue of material fact that, through a third-party vendor, Rock-Tenn sent Perkins written notice of
her option to continue her health insurance pursuant to COBRA. See also 29 C.F.R. § 2590.6061; 29 C.F.R § 2520.104(b)-1 (explaining that mail is a permissible way to deliver notice).
CONCLUSION
For the reasons set out above, we AFFIRM the district court’s judgment.
-15-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?