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Garland's Digest on Employment Discrimination Law
online since 1997
 

 


 


Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Comments by non-decisionmaker are admissible on issue of pretext where comments were made within the scope of employment of the management level employee.

Carter v. University of Toledo, 349 F.3d 269 (6th Cir. November 12, 2003) - This is a 42 U.S.C. Section 1981 and Title VII race discrimination action alleging failure to renew contract. Dr. Carolyn Carter, who is African-American, was a visiting professor for the 1999-2000 academic year. Her contract was not renewed for the 2000-2001 academic year. The decisionmaker was Dr. Charlene Czerniak, who was the Interim Dean for the College of Education. While waiting to hear about her renewal, Carter contacted Dr. Earl Murry, the University's Vice Provost, about the fact that she had not heard anything. One of Murry's duties was to ensure compliance with affirmative action. According to Carter, Murry made statements to her such as: (1) Czerniak is trying to whitewash the college of education; (2) Czerniak was trying to get rid of the black professors; and (3) "they're a bunch of racists over there". On appeal, the Sixth Circuit holds that Murry's alleged statements are not "direct evidence" because he was not involved in the decisionmaking process regarding Carter's position. However, the statements are admissible under Federal Rule of Evidence 801(d)(2)(D) because while Murry was not a direct decisonmaker, the alleged comments were within the scope of his employment as the person in charge of ensuring compliance with affirmative action. Moreover, the comments were not isolated. They were made in direct response to Carter's inquiries about her position. Therefore, the comments can be considered on the issue of pretext and the comments are sufficient to defeat the University's motion for summary judgment. Click here to see actual case.

 

 



 

 


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