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Revis v. T&A Farms

United States District Court, S.D. Georgia, Waycross Division

June 2, 2017

LAWRENCE C. REVIS, JR., Plaintiff,



         Presently 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. 101.) Defendants filed a Response. (Doc. 102.) For the reasons which follow, the Court DENIES Plaintiff's construed Motion.


         Plaintiff filed his Complaint against Defendants on October 28, 2014, and alleged he brought his cause of action 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 terminated his employment and denied him equal pay or work 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. 7, p. 2.) Plaintiff maintained Defendants subjected him to disparate treatment on the basis of his race. (Id. at p. 7.) 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. 67.) 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. 88, p. 11 n.6.) Plaintiff filed a second Amended Complaint on March 17, 2017, and set forth Title VII claims and claims of retaliation pursuant to 42 U.S.C. § 1981. (Doc. 89.) Defendants filed an Answer. (Doc. 98.)

         In the 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. 95, pp. 40-41.) Chief Judge Wood directed the parties to brief the issue of whether Mrs. Smallwood's testimony should be admitted or excluded as hearsay. (Doc. 101, pp. 1-2.) Plaintiff now seeks the admission of Mrs. Smallwood's testimony regarding this document.


         Plaintiff 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.

         Defendants 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. 102, 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.)

         The Court addresses the parties' contentions in turn.

         I. Whether Mrs. Smallwood's Testimony Related to the Document is Hearsay

         “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).

         Despite 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 black employees were paid a lower daily rate than their white counterparts.

         Plaintiff does not explain why he thinks the statements in the documents are not hearsay.[1]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 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 the amount 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.

         Moreover, 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.[2]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 ...

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