NOT RECOMMENDED FOR PUBLICATION File Name: 09a0255n.06 Filed: April 2, 2009
No. 07-6491
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Gregory Cobbins, ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE Tennessee Department of Transportation, ) MIDDLE DISTRICT OF TENNESSEE ) Defendant-Appellee. ) ) )
BEFORE: Merritt, Moore, and Cole, Circuit Judges.
MERRITT, Circuit Judge. This is an appeal from a jury verdict in favor of defendant,
Tennessee Department of Transportation, in an action for race discrimination by plaintiff, Gregory
Cobbins, pursuant to Title VII, 42 U.S.C. § 2000e et seq. On appeal, Cobbins claims error in two
evidentiary rulings by the district court: (1) the exclusion of an exhibit offered by plaintiff as hearsay
due to the lack of an appropriate witness to lay the proper foundation for the document, and (2) the
granting of a motion in limine in which the district court prohibited the admission of certain evidence
from a prior action between the same parties. Because both rulings were in error, we reverse the
judgment of the district court. No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
I.
Plaintiff Greg Cobbins is an African-American male who has been employed by defendant
Tennessee Department of Transportation as a maintenance worker in Lawrence County, Tennessee,
since February 1994. In March 2004, plaintiff submitted an application to the Tennessee Department
of Human Resources seeking promotion to one of several “career service” positions at the Department
of Transportation. The Department of Human Resources is responsible for reviewing applications
to verify that the applicants meet the minimum qualifications for the posted job. Applicants who meet
the minimum requirements for a particular classification receive a civil service score based upon the
applicable Department of Human Resources examination process.1 The examination process assigns
the score based on education, training and work experience typically required or associated with the
job being sought. When an agency like the Department of Transportation needs to fill a “career
service” position, the agency requests a “Certificate of Eligibles” from the Department of Human
Resources. This is a list of the eligible applicants for the position in rank order by civil service score.
There are two types of certificates available to Tennessee agencies: “employment”
(commonly referred to as “appointment”) and “promotional.” An agency may request either or both
types of certificates when filling vacant positions. “Employment” certificates include the names of
all eligible applicants listed in rank order of examination score and appointments from these
1 The same applicant can have a different civil service score for different positions, depending on how well the applicant’s education and prior work experience match up with the requirements for a specific job. For example, plaintiff had a score of 70, the minimum qualifying score, for the job of Highway Maintenance County Superintendent 1, but had a score of 93 for the position of Highway Maintenance Worker 2.
-2- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
certificates must be made from the five highest ranking eligible applicants. “Promotional” certificates
include only applicants who are already state employees with career status listed in rank order of
examination scores. Appointments from these certificates must be made from the three highest
ranking eligible applicants.
In May 2004, the Highway Maintenance County Supervisor position for Lawrence County
became available and a certificate was issued for the position.2 Plaintiff was not among the top five
candidates and was not interviewed for the position at that time. However, in April 2005, after two
higher-ranking applicants had declined the position, a third certificate was issued for the position and
plaintiff was on the list of eligible applicants with a score of 76. Three other applicants were on the
list, and all three had higher scores than plaintiff.3 Two of the eligible applicants advised that they
were not interested in the position, leaving plaintiff and Bradford Staggs, a white male with a score
of 81, as the only two applicants interviewed for the job. Staggs was recommended for the promotion
to the Highway Maintenance County Supervisor position. In a letter to the Director of Affirmative
Action for the Department of Transportation, Winston Gaffron, a Regional Director with the
Department of Transportation, noted Staggs’ education, three more years of experience than plaintiff
as a Highway Maintenance Worker 2, which is the level directly below the Supervisor position, and
2 The position of Highway Maintenance County Supervisor requires the successful applicant to assign, supervise and evaluate lower-level highway workers, supervise roadway and bridge preparation for paving and maintenance, supervise snow and ice removal from bridges and roadways, supervise maintenance and operation of small and heavy-duty machinery and other duties. 3 The record does not reflect why only four instead of five candidates were on the list of eligible applicants for this position.
-3- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
supervisory experience. Gaffron noted that plaintiff had less education, less work experience in the
Highway Maintenance Worker 2 position, and no supervisory experience. Letter dated May 10, 2005,
from Winston Gaffron to Sherrae Hall, Director of Affirmative Action for Tennessee Department of
Human Resources. (J.A. at 97-98) Plaintiff also had several oral and written warnings in his work
file. (J.A. 91-96) Staggs had no record of disciplinary action.
Plaintiff claims that he was deprived of the opportunity to fairly compete for the promotion
to supervisor based on the bias and discrimination toward him due to race by his former supervisor,
Wayne Yocum. The warnings in plaintiff’s file were all received between 1998 and 2002 when
Yocum, whom plaintiff had accused of racial discrimination in an earlier lawsuit, was plaintiff’s
supervisor. Plaintiff claims that Yocum improperly marred his work record with unfounded
complaints, refused to give him supervisory responsibilities and generally treated him more harshly
than white employees.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission on April 20, 2005, which alleged that he had been subjected to continuing discrimination
based upon race and had been retaliated against for having previously filed a charge and bringing a
lawsuit against the Department of Transportation in 2004.4 He received a right-to-sue letter on June
4 Summary judgment was granted to the Department of Transportation and the prior lawsuit dismissed in 2005 due to plaintiff’s failure to file a response to the Department of Transportation’s summary judgment motion. Cobbins v. Tenn. Dep’t of Trans., No. 3:04-1056 (M.D. Tenn. Oct. 7, 2005). Plaintiff claims that his failure to file a response was due to the district court’s then-new electronic filing system, which did not process his response to the summary judgment motion. Despite this claim, after receiving notice of judgment for the defendant, plaintiff did not move to reopen or reconsider for almost a year. While we state no opinion as to the appropriateness of the dismissal in the earlier action, the judgment was essentially a sanction for failure to respond to
-4- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
23, 2006, and filed his complaint in the Middle District of Tennessee on September 21, 2006,
claiming denial of promotion, disparate treatment concerning the application process and retaliation
for a protected activity. The district court granted in part and denied in part defendant’s motion for
summary judgment on September 25, 2007, leaving only the claim for discrimination in relation to
promotion to go to trial. A two-day trial was held in November 2007, and the jury returned a verdict
for defendant. Plaintiff filed a timely notice of appeal to this Court. On appeal, plaintiff challenges
the district court’s grant of a motion in limine that excluded certain evidence from plaintiff’s earlier
discrimination action against defendant and an evidentiary ruling at trial finding the promotion
application of Bradford Staggs inadmissible as hearsay.
II.
A. Exclusion of Staggs’ Promotion Application as Hearsay
Plaintiff attempted to enter into the record the promotion application of Bradford Staggs, the
person who ultimately received the Supervisor position. Plaintiff alleges that Staggs lied about his
educational level on his promotion application, thereby giving Staggs an unfair advantage in the
promotion process over plaintiff. Specifically, Staggs stated on his application that he had
“postsecondary education after high school” during the years 1991-1995. Staggs did not graduate
from high school until 1995, so any education between 1991 and 1995 could not have been
“postsecondary” education. Plaintiff’s plan at trial was to impute knowledge of this alleged falsehood
defendant’s summary judgment motion and cannot be construed as a judgment on the merits.
-5- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
to the neutral decisionmakers who chose Staggs over plaintiff for the position.5 Plaintiff’s counsel
attempted to introduce the document through plaintiff. The document was a form provided by the
state and completed by Staggs. Defendant objected to the document as hearsay. Plaintiff’s counsel
stated during a sidebar that he believed the document to be a “public record” and, therefore, an
exception to the hearsay rule under Federal Rule of Evidence 803(8).6 The district court suggested
that perhaps counsel could get the document in under the business records exception to the hearsay
rule using a state employee as a custodian of records. However, no witness present had sufficient
knowledge of the state’s recordkeeping system to qualify as a custodian of records under Federal Rule
of Evidence 803(6). Staggs’ promotion application was never entered into the record.
5 In the employment discrimination context, what is known as the “cat’s paw” theory refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse hiring decision, thereby hiding the subordinate’s discriminatory intent. EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006),; see also Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008) (“When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of liability.”). 6 Federal Rule of Evidence 803, Hearsay Exceptions, states that “[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
-6- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
On appeal, plaintiff claims that his case-in-chief was greatly harmed by his inability to enter
Staggs’ allegedly false application into the record and it was error to exclude the document. He
argues that an employment application submitted to the state is required to be received and
maintained by the State in accordance with certain personnel rules and it is, therefore, admissible as
a public record. Moreover, the parties stipulated to the authenticity of the document. Amended Joint
Proposed Stipulations, Cobbins v. Tenn. Dep’t of Trans., No. 1:06-cv-00073, (M.D. Tenn. Oct. 24,
2007) (J.A. at 140).
We first question whether this document constitutes hearsay at all — that is, was it introduced
to prove the truth of the matter asserted about the discriminatory intent of the State in not promoting
plaintiff? Although plaintiff did not make this argument at trial or on appeal, the allegedly false
application does not seem to go to the alleged discriminatory intent by either Yocum or the State.
Plaintiff may have been merely trying to point out a mistake in the records the State decisionmaker
used to make the promotion decision and possibly allude to the bad character of Staggs in filing a
false application. As this argument was not addressed by the parties, it is difficult for us to make the
call here except to note that the document may not even be hearsay. In any event, even if the
document is hearsay, it should have been admitted under one or more exceptions to the hearsay rule.
The disputed evidence could conceivably fall into either of two long-established exceptions
to the rule against hearsay, those for business or government records. The question is whether the fact
that the application, a business document maintained by a state agency, an act which implies some
endorsement of its authenticity, is such an adequate assurance of trustworthiness that the contested
document may be admitted under 803(8) without further foundation. Looking to the plain language
-7- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
of Rule 803(8), the employment application of a specific person may fall within that body of records
generally considered under the public records exception. See generally United States v. Regner, 677
F.2d 754, 761 (9th Cir.1982); Brown v. ASD Computing Ctr., 519 F. Supp. 1096 (D. Ohio 1981).
However, Rule 803(6),7 the business record exception, appears as the most relevant hearsay exception
to permit admission of Staggs’ application into the record.
The business records exception is based on the indicia of reliability that attaches to a record
created or maintained by an employer in the ordinary or regular course of their business. An
employer’s independent motivation for creating and maintaining reliable business records obviates
the need for sworn testimony and cross-examination. A business record is admissible under Rule
803(6) where a sufficient foundation for reliability is established. Business records are properly
admitted under the business records exception to the hearsay rule if they satisfy four requirements:
(1) they must have been made in the course of regularly conducted business activities; (2) they must
have been kept in the regular course of business; (3) the regular practice of that business must have
7 Federal Rule of Evidence 803(6) identifies one of the exceptions to the general hearsay prohibition:
Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, . . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
-8- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
been to have made the memorandum; and (4) the memorandum must have been made by a person
with knowledge of the transaction or from information transmitted by a person with knowledge.
Redken Labs, Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988).
The district court erred in refusing to allow plaintiff to introduce into the record the
employment application of a coworker. The document, if hearsay at all, falls within the exception
for business records and possibly public records as well. Moreover, the authentication of the
document through the parties’ stipulation minimizes any question about the trustworthiness of the
document and obviates the need to introduce the record through someone who had actual knowledge
of its content, such as Staggs himself, or through a custodian of records for the State. United States
v. Pluta, 176 F.3d 43, 49 (2d Cir.1999); United States v. Robbins, 197 F.3d 829, 838 (7th Cir.1999);
United States v. Chang, 207 F.3d 1169, 1176 (9th Cir.2000) (all stating that the proponent of evidence
has the burden of proof and must lay appropriate foundation). Therefore, the document should have
been admissible under Federal Rule of Evidence 803(6), the business records exception, and possibly
other exceptions as well.
B. Excluded Testimony Concerning Plaintiff’s Prior Claims of Race Discrimination
Before trial, defendant filed a motion in limine seeking to exclude “any testimony or
documentary presentation” regarding “the factual claims and allegations that Plaintiff asserted in a
prior lawsuit against TDOT.” The prior lawsuit was between the same parties and contained claims
of discrimination in the form of disparate discipline, unfair job assignments, and racial harassment.
Defendant was granted summary judgment in that case because plaintiff failed to file a timely
response to defendant’s motion for summary judgment. Specifically, defendant sought to exclude in
-9- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
this case factual evidence involved in the prior action regarding discipline that was or was not
imposed by plaintiff’s then-supervisor, Wayne Yocum. Plaintiff opposed the motion, arguing that
a supervisor’s discriminatory animus may be imputed to the neutral decision-maker concerning the
promotion.
The district court granted defendant’s motion to prohibit plaintiff from introducing evidence
as it relates to facts and allegations involved in the prior case. The district court found evidence
concerning Yocum’s bias toward plaintiff was not relevant to this action because it was resolved in
defendant’s favor in the prior action and could not be imputed to the decisionmakers in this case
because Yocum was not plaintiff’s supervisor at the time he applied for the Highway Maintenance
County Supervisor position. The district court also ruled that even if relevant, such evidence should
be excluded under Rule 403 as more prejudicial than probative.
On appeal, plaintiff argues that the trial court committed reversible error by excluding
evidence of his former supervisor’s “discriminatory animus and motive” toward African-Americans.
Plaintiff argues that this disparate treatment in discipline by his former supervisor is relevant in the
current proceeding because Yocum’s conduct marred his work record and his opportunity for
promotion. Plaintiff is not seeking to relitigate the claims from the earlier suit. Plaintiff seeks only
to demonstrate that certain conduct and actions of his supervisor at that time impacted his work record
and promotion chances; and such evidence is, therefore, relevant in this case.
We agree with plaintiff. Contrary to defendant’s argument, collateral estoppel does not bar
evidence of plaintiff’s former supervisor’s animus that may have adversely impacted his work record
-10- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
and chances for promotion because the judgment in the first lawsuit was not on the merits.8 The
judgment was not a dismissal on the merits, but a dismissal for failure to prosecute.
Issue preclusion, or collateral estoppel, bars subsequent relitigation of a fact or issue where
that fact or issue was necessarily adjudicated in a prior cause of action and the same fact or issue is
presented in a subsequent suit. See Restatement (Second) of Judgments § 13 (1982) (“ for purposes
of issue preclusion . . ., ‘final judgment’ includes any prior adjudication of an issue in another action
that is determined to be sufficiently firm to be accorded conclusive effect.”); Restatement (Second)
of Judgments § 27 (1982) (“When an issue of fact or law is actually litigated and determined by a
valid and final judgment, and the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a different claim.”).
Four specific requirements must be met before collateral estoppel may be applied to bar litigation of
an issue: (1) the precise issue must have been raised and actually litigated in the prior proceedings;
(2) the determination of the issue must have been necessary to the outcome of the prior proceedings;
(3) the prior proceedings must have resulted in a final judgment on the merits; and (4) the party
against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the
prior proceeding. N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n, 821 F.2d 328, 330 (6th
Cir. 1987). In determining whether the defensive use of collateral estoppel is appropriate, the court
must also consider whether the party against whom the judgment is pled had a full and fair
8 As explained above, plaintiff did not respond to defendant’s summary judgment motion in the first lawsuit because he claims he did not receive notice of defendant’s filing. However, plaintiff waited over a year after the case had been dismissed to file a Motion to Set Aside the Order of Dismissal.
-11- No. 07-6491 Cobbins v. Tennessee Dep’t of Transp.
opportunity to litigate the issue, and whether it would be otherwise unfair under the circumstances
to permit the use of collateral estoppel. Restatement (Second) Judgments § 29 (1982).
It is clear that the prior lawsuit was dismissed for plaintiff’s failure to respond to the summary
judgment motion. Even if it can be argued that the dismissal was plaintiff’s fault because he had a
“full and fair opportunity to litigate” the issue and did not exercise it, there is no question that the suit
was dismissed without a judgment on the merits and without a decision on any issue apart from
plaintiff’s failure to prosecute the prior lawsuit.
For the foregoing reasons, the judgment of the district court is reversed and the case remanded
to the district court for proceedings consistent with this opinion.
-12-