Commercial Litigation and Arbitration

Rule 802(d)(2) Admissions in Employment Actions — Employee-Speaker Must Have Been Involved in the Decision-Making Process

From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010):

"[A]n employee's statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was 'involved in the decisionmaking process affecting the employment action' at issue." Johnson v. Weld County, Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (quoting Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1301, 1314 (10th Cir. 2005)). Hulsey was not involved in any of the decisions associated with the termination of Cypert's employment. Hulsey was not superintendent at the time Cypert was terminated. Further, Hulsey did not send the e-mail to Drummond in his capacity as superintendent of the School District. He sent the e-mail on behalf of an individual Board member, who is not a defendant in this case. The e-mail is not an admission by a party-opponent, and is inadmissible hearsay. See Fed. R. Evid. 802.

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