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Silence is not the same as an answer

By Harvey Randall, Esq.

Silence is not the same as an answer
Weston-Smith v Cooley Dickinson Hosp., CA1, #01-2284

An employee claims that Cooley Dickinson Hospital terminated her because she took a maternity leave. When the employee confronts her supervisor, the supervisor does not respond to the accusation and changes the subject. Is the supervisor's silence an admis­sion that the employee was dismissed because she took the maternity leave?

This was one the issues addressed by the Circuit Court of Appeals, First Circuit, in the lawsuit filed by Christina Weston-Smith against Cooley Dickinson Hospital. Weston-Smith alleged that the Hospital terminated her in violation of Title VII and the Family Medical Leave Act. Employed by the Hospital as its Director of Peri-Operative Services, Weston-Smith was laid off shortly after she returned from her maternity leave. Based on the timing of her layoff, and:

the comparison of her credentials with those of her replacement;
A hearsay statement attributed to another employee, Cathy Neumann, that her super­visor, Donna Bowles, said that Weston-Smith's going on maternity leave caused her to lose her job; and
Bowles's silence when Weston-Smith's said she had been told that she was terminated because of her going on a maternity leave;

Weston-Smith concluded that she had been terminated because she took a maternity leave from her position.

The Hospital denied that its personnel decisions constituted discrimination or retaliation against Weston-Smith, explaining that Weston-Smith was laid off as part of a hospital-wide reorganization of management and that there were legitimate reasons why another employee had been retained instead of Weston-Smith under the reorganization. In addi­tion, the Hospital argued that neither the alleged hearsay statement nor Bowles' silence when confronted by Weston-Smith was admissible as evidence.

The federal district court ruled that the hearsay statement was "inadmissible double hearsay" and that "it was doubtful the silence was admissible." Certainly, said the district court, Bowles' silence "did not amount to direct evidence of discrimination." In addition, the district court decided that Weston-Smith had failed to meet her burden of showing that the Hospital's explanation of its decision concerning Weston-Smith was pretextual.

The Circuit Court said that in order for the statement of an employee to be deemed the admission of a corporate or institutional employer, the statement must fit within subsec­tion (C) or (D) of Federal Rule of Evidence 801(d)(2). These rules of evidence provide that to be admissible, the statement must be:

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....

Clearly, silence is not a statement. The Circuit Court sustained the lower court's dismissal Weston-Smith's action, commenting that:

The district court correctly concluded that there might have been a great many reasons why Bowes was silent on the point and changed the subject when confronted by Weston-Smith, and those other reasons made it far from unnatural for Bowes to handle the matter as she did.

The Circuit Court identified another reason -- "Bowles could not know what Neumann had or had not said to Weston-Smith." Quoting from Weinstein's Federal Evidence Section 801.31[3][d], the First Circuit said that "[A] court may find, after evaluating the type of statement and who made it, that the party could not have been expected to deny it because the party lacked the information necessary to assess its truthfulness." In other words, Bowles' "silence was not an adoptive admission."

According to the Circuit Court, "[t]he reasons why Bowles did not respond with a vigor­ous denial were ambiguous at best, and Bowles was neither involved in the decision nor necessarily aware of the reasons Weston-Smith lost her job."

A related rule of law is the "speaking agent" rule. The speaking agent rule allows an employee's statement against the interest of the employer to be used "as an admission" if the employee was authorized to speak on behalf of the employer concerning the matter.

Full post as published by New York Public Personnel Law on February 01, 2008 (boomark / email).