The panel affirmed in part and reversed in part the district court’s summary judgment in favor of defendant employers in an employment discrimination action under Title VII, 42 U.S.C. § 1981, and the Washington Law Against Discrimination.
Reversing the district court’s summary judgment on a failure-to-promote claim, the panel held that the district court erred in excluding on hearsay grounds a statement proffered by the plaintiff. The panel held that, under Federal Rule of Evidence 801(d)(2)(D), hearsay does not include statements offered against a party, made by that party’s employee on a matter within the scope of that employee’s employment, so long as the statement was made while the employee was still employed by that employer. There is no requirement that the declarant still be in the same position that resulted in the matter being within the scope of the employment relationship. The panel held that, properly considering the statement as admissible evidence of pretext, the plaintiff met his burden on summary judgment.
Affirming the district court’s summary judgment on plaintiff’s termination claim, the panel held that plaintiff failed to raise a genuine dispute of material fact as to that claim because he did not present evidence that he was performing satisfactorily or that defendants treated a similarly situated employee who was not a member of plaintiff’s protected class differently.
Dissenting in part, Judge Bybee wrote that the district court properly excluded the proffered statement because it was not within the scope of the declarant’s employment when she made it after having been relieved of her hiring and promoting duties. Judge Bybee concurred in the majority opinion insofar as it affirmed summary judgment on the termination claim.
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