Moore v. Holder
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that objections to Defendants Exhibits C, H, I, J, and K are OVERRULED at this point. Signed by District Judge Audrey G. Fleissig on 11/13/14. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CYNTHIA E. MOORE,
ERIC H. HOLDER, JR., Attorney
General of the United States,
Case No. 4:12CV02154 AGF
MEMORANDUM AND ORDER
This employment discrimination case is before the Court on Plaintiff’s Objections
(Doc. No. 62) to Defendant’s Exhibits C, H, I, J, and K, consisting of handwritten notes
by Nancy Gargula. Gargula was the decision-maker who denied Plaintiff a promotion, a
decision that Plaintiff claims was based on race. It is anticipated that Gargula will testify
that at an interview with Plaintiff, Plaintiff stated that the position she was seeking was
not “rocket science,” and that she (Plaintiff) tried to avoid or ignore rules that she
believed were tedious or unimportant. Gargula will further testify that these comments
contributed to Gargula’s decision not to promote Plaintiff.
It is also anticipated that Gargula will testify that she took notes during the
interview in accordance with her regular note-taking practice, and that her practice was to
keep the notes until the position in question was filled and background was complete.
Plaintiff seeks to preclude Defendant’s introduction of the notes, which reflect the two
above-noted statements, into evidence, on grounds of hearsay, as the notes would be
offered to prove the truth of Gargula’s testimony that Plaintiff made the two comments in
question. Plaintiff also argues that introduction of the notes would be an improper use of
a prior consistent statement.
Plaintiff’s alleged comments to Gargula are admissible non-hearsay when
offered against Plaintiff, as statements of a party opponent, pursuant to Federal Rule of
Evidence 801(d)(2)(A). The problem here arises because the comments are contained in
the notes. The Court agrees with Plaintiff that the notes are hearsay because they are an
out-of-court statement of Gargula and introduced for the truth of the matters asserted
therein, namely that Plaintiff made the two comments in question. However, the notes
potentially fall under two hearsay exceptions. First, assuming Gargula testifies as
outlined above, the notes would constitute her present sense impression of her interview
with Plaintiff, admissible under Rule 803(1). See Sullivan v. Temple University, No. 117305, 2014 WL 641341, at *4 (E.D. Pa. Feb. 19, 2014) (holding that notes of committee
members reciting facts provided in interviews with job applicants, including the plaintiff,
were present sense impressions, provided the defendant laid a proper foundation at trial;
out-of-court comments by the plaintiff contained in the notes were admissible as
statements by a party opponent); Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d
487, 502 (D. Del. 2005).
Second, the notes would fall under the business record exception, assuming the
evidence shows that Gargula kept the notes in the course of a regularly conducted
business activity, and that this was her regular practice. See Thanongsinh v. Bd. of Educ.,
462 F.3d 762, 775-76 (7th Cir. 2006) (holding that the district court erred in excluding an
interviewer’s score sheet and handwritten notes on that document because both fell
within the business record exception); United States v. Goodchild, 25 F.3d 55, 62 (1st
IT IS HEREBY ORDERED that objections to Defendant’s Exhibits C, H, I, J,
and K are OVERRULED at this point.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 13th day of November, 2014.
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