United States District Court, S.D. Georgia, Waycross Division
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's Brief in Support of
Sheila Smallwood's Testimony Regarding Unequal Pay, which
the Court construes as a Motion in Limine seeking the
admission of certain testimony at trial. (Doc. 96.)
Defendants filed a Response. (Doc. 97.) For the reasons which
follow, the Court DENIES Plaintiff's construed Motion.
filed his Complaint against Defendants on October 28, 2014,
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., for employment
discrimination. (Doc. 1, p. 2.) Plaintiff asserted Defendants
denied him equal pay or work and decreased his work hours as
acts of racial discrimination. (Id. at pp. 2-3.)
Plaintiff filed an Amended Complaint on November 26, 2014,
alleging employment discrimination under Title VII and
discrimination under 42 U.S.C. § 1981. (Doc. 6, p. 2.)
Plaintiff maintained Defendants subjected him to disparate
treatment on the basis of his race. (Id. at pp.
6-8.) Defendants filed their Answer to Plaintiff's
Amended Complaint on February 9, 2015. (Doc. 18.) On August
15, 2016, Defendants filed a Motion for Summary Judgment.
(Doc. 65.) The Honorable Lisa Godbey Wood denied
Defendants' Motion, in part, but found Plaintiff to have
surrendered his Title VII claims against Defendants Alphine
Davis and Dinwiddie. (Doc. 81, p.15 n.5.)
parties' Consolidated Pretrial Order, Defendants objected
to Plaintiff eliciting testimony from Mrs. Smallwood
regarding a document she claims to have seen during her
employment at T&A Farms, which listed the names of
employees at T&A Farms and their daily pay rates. (Doc.
85, p. 42.) Chief Judge Wood directed the parties to brief
the issue of whether Mrs. Smallwood's testimony should be
admitted or excluded as hearsay. (Doc. 96, pp. 1-2.)
Plaintiff seeks the admission of Mrs. Smallwood's
testimony regarding this document.
asserts Mrs. Smallwood's testimony relating to the
contents of this document is not hearsay, as she will not be
offering a statement to prove the truth of the matter
asserted. Instead, Plaintiff contends, Mrs. Smallwood will
provide a description of a document she personally witnessed.
(Id. at p. 2.) Plaintiff argues that, because Mrs.
Smallwood's testimony stems from her personal knowledge
of the document, her testimony is admissible under Federal
Rule of Evidence 602. Additionally, Plaintiff contends Mrs.
Smallwood will be present at trial and will be subject to
cross-examination by Defendants' counsel. While Plaintiff
agrees that the document itself would be the best evidence,
Defendants informed him during discovery that this list no
longer exists. (Id. at p. 3.) Thus, Plaintiff
maintains, Mrs. Smallwood's testimony regarding this
document becomes the best evidence.
respond that Mrs. Smallwood's proposed testimony relating
to this document is hearsay and does not fit within the
numerous exceptions to the hearsay rule. Defendants aver the
document Mrs. Smallwood claims to have seen never existed,
and therefore, Mrs. Smallwood cannot have personal knowledge
of employees' wages. (Doc. 97, p. 2.) In addition,
Defendants assert the best evidence rule prohibits Mrs.
Smallwood's testimony, as this rule does not allow a
witness to testify from memory. (Id. at p. 3.)
Court addresses the parties' contentions in turn.
Whether Mrs. Smallwood's Testimony Related to the
Document is Hearsay
means a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted
in the statement. Fed.R.Evid. 801. Hearsay is generally
inadmissible at the trial of a case. See Fed. R.
Evid. 802. Federal Rules of Evidence 803 and 804 set forth
numerous exceptions to the rule against hearsay.
Additionally, Federal Rule of Evidence 807-the residual
exception to the hearsay rules-also allows the introduction
of hearsay if specific circumstances are present. See
Rivers v. United States, 777 F.3d 1306, 1311-12 (11th
Cir. 2015) (quoting Fed.R.Evid. 807(a)). “The statement
is admissible only if, before the trial or hearing, the
proponent gives an adverse party reasonable notice of the
intent to offer the statement and its particulars, including
the declarant's name and address, so that the party has a
fair opportunity to meet it.” Fed.R.Evid. 807(b).
“Congress intended the residual hearsay exception to be
used very rarely, and only in exceptional
circumstances[.]” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1279 (11th Cir. 2009). The burden
to satisfy the requirements of an exception to the rule
against hearsay rests with the proponent of the evidence.
United States v. Kennard, 472 F.3d 851, 855 (11th
Cir. 2006); United States v. Acosta, 769 F.2d 721,
723 (11th Cir. 1985).
Plaintiff's contentions to the contrary, Mrs.
Smallwood's proffered testimony regarding the contents of
a document she saw while employed at T&A Farms is
hearsay. This document contains out-of-court written
statements purportedly made by an unknown declarant.
Specifically, the writer of the document stated the daily
rates that T&A Farms paid employees. Further, Plaintiff
intends to have Mrs. Smallwood recount the out-of-court
statements in the document to show the truth of the matter
asserted in those statements, i.e., the pay rates of the
employees. He intends to offer these statements to show that
that black employees were paid a lower daily rate than their
does not explain why he thinks the statements in the
documents are not hearsay.However, it appears he rests his
argument on the fact that Mrs. Smallwood saw the statements
in documentary form. However, as other courts have held,
allowing a witness to testify as to statements in documents
poses the same hearsay problems as allowing a witness to
recount an out of court declarant's oral statements.
See United States v. Salinas-Garza, 20 F.3d 1171
(5th Cir. 1994) (overturning defendant's conviction where
district court permitted agent to testify to contents of
report, including fingerprint information); United States
v. Marshall, 762 F.2d 419, 423 (5th Cir. 1985) (trial
court committed reversible error by permitting witness to
give prejudicial hearsay testimony summarizing the contents
of store records in prosecution for missing merchandise).
Moreover, the fact that the document that Mrs. Smallwood
would summarize is missing does not somehow transform the
document's statements to non-hearsay. For example, in
United States v. Wells, 262 F.3d 455, 459-64 (5th
Cir. 2001), a cooperating witness had testified at trial to
his memory of the contents of previously-destroyed ledgers
that purportedly contained information regarding amounts of
drugs he and his friend had sold to the defendant. The Fifth
Circuit Court of Appeals reasoned that allowing testimony
summarizing the ledgers would be an “end run around the
rule against hearsay.” Wells, 262 F.3d at 462.
Allowing Mrs. Smallwood to summarize the statements regarding
T&A Farms' rates of pay would likewise run afoul of
the hearsay rule.
Plaintiff bears the burden of proving that a hearsay
exception exists. Kennard, 472 F.3d at 855. Despite
this burden, Plaintiff does not offer any argument that the
statements Mrs. Smallwood intends to recount fall within a
hearsay exception. This fact alone prevents the Court from
allowing the testimony into evidence under a hearsay
exception. In their Brief, Defendants argue against the
statements being admitted under the business records
exception.Plaintiff has not argued, much less shown,
that this document falls within this exception. Further,
there is nothing before the Court which reveals who prepared
this document, whether the document was kept in the regular
course of business and as a regular practice of T&A
Farms, or that Plaintiff could otherwise authenticate this
document. See Wells, 262 F.3d at 462 (concluding
that oral testimony of cooperating witness with respect to
his memories of notations of drug sales apparently drafted by
someone else several years earlier and destroyed soon
thereafter did not fall within business records ...