I am convinced that the unidentified person's declaration should have been excluded under Fed.R.Evid. 403, if not Fed.R.Evid. 402. In the alternative, if it were admissible, it should have been accompanied by a cautionary instruction. It is quite possible that unknown declarant's statement affected defendant's substantial rights. Therefore, a new trial must be granted.
Defendant also contends that the unidentified person's statement should have been excluded because Kinlin, when recounting the discussion to Parzick, was not speaking of a matter within the scope of his (Kinlin's) employment. See Fed.R.Evid. 801(d)(2)(D). For the sake of completeness, I will explain why this aspect of defendant's objection is without merit. Parzick testified, before the disputed testimony was admitted, that Kinlin was plaintiffs' immediate supervisor. Kinlin's supervisory status carries with it the inference that it was within the scope of Kinlin's duties to talk to Parzick about the circumstances surrounding plaintiffs' layoff. Precisely the same foundation existed in Carden. 850 F.2d at 1001. The district court held that foundation to be adequate to satisfy Fed.R.Evid. 801(d)(2)(D), and the Court of Appeals for the Third Circuit said nothing later which suggests that the district court's holding was incorrect in that respect. (The appellate court found the other part of the double hearsay statement infirm.) Id.
Parzick also testified that Kinlin attended a meeting during which Parzick and two others were told by Mr. Borden, the acting department manager, that they were being laid off because their position was being eliminated. N.T. Day 1:93-95. Since Kinlin was privy to that meeting, this reinforces my conclusion that the subject of Parzick's layoff was a matter within the scope of his employment. Similarly, it is significant that Kinlin reportedly heard the exchange between the unidentified person and Kulokoski while attending a management meeting. Since Kinlin was privy to that management meeting, at which the layoffs were discussed, the subject of plaintiffs' layoff presumably was a matter within the scope of Kinlin's employment. This is far different from a case in which Kinlin might have overheard two higher managers discussing the layoffs by the water cooler.
Defendant argues that Hill v. Spiegel advises the opposite conclusion. 708 F.2d 233 (6th Cir. 1983). The plaintiff in Hill was an executive before he was discharged. Several fellow employees allegedly had told him that he was discharged because of his age. While those employees were identified as managers, none was identified as a superior of the plaintiff. Nor was there any evidence that they had attended meetings in which the plaintiff's discharge had been discussed. Therefore, Hill must be distinguished from this case.
III. Subsequent Layoffs of Availability Assurance Engineers
During the liability phase of the bifurcated trial and again during the damages phase, defendant sought to introduce evidence that availability assurance ("AA") engineers had been laid off soon after plaintiffs were laid off. N.T. Day 2:114-118 (liability); Day 8:151-157(damages). Both times, I sustained plaintiffs' objection on the ground that what happened to the AA engineers was irrelevant. That remains my view with respect to the liability phase of the trial. I now conclude, however, that I should have permitted defendant to introduce its evidence during the damages phase of the trial.
The AA engineers were, as a group, younger than plaintiffs, who were called negotiation engineers. The duties of AA engineers were, according to plaintiffs' testimony, similar to those which plaintiffs performed. Plaintiffs' theory of liability was that defendant could have laid off the younger AA engineers and allowed plaintiffs to perform their duties. Defendant chose to retain the AA engineers because the negotiation engineers were older, plaintiffs claimed.
That defendant later laid off the AA engineers was irrelevant to the liability issue. Plaintiffs admitted that defendant's business had declined generally, requiring layoffs. Plaintiffs' contention was that the negotiation engineers were laid off sooner than others because plaintiffs were older. Defendant never offered evidence that AA engineers were laid off before or simultaneously with the negotiation engineers.
Evidence that defendant laid off AA engineers after plaintiffs were laid off was relevant, however, to damages. If plaintiffs would have been laid off for permissible reasons sometime after December 1982, then plaintiffs' damages should have been limited accordingly. Any subsequent loss of pay simply was not caused by defendant's discrimination. Helbling v. Unclaimed Salvage & Freight Co., Inc., 489 F. Supp. 956, 963 (E.D.Pa. 1980)(back pay cut off at the time when the store in which plaintiff had worked as manager, was closed); Welch v. University of Texas, 659 F.2d 531, 535 (5th Cir. 1981)(back pay cut off at time when the grant which had funded plaintiff's position ended); cf. Dillon v. Coles, 746 F.2d 998, 1006 (3d Cir. 1984)(suggesting front pay should be of limited duration when plaintiff probably would have been fired for permissible reasons).
The remaining question is whether this erroneous exclusion of evidence warrants a new trial as to damages. In McQueeney v. Wilmington Trust, the Third Circuit held that a new trial was necessary where the erroneously excluded evidence "might have persuaded the jury to award significantly less damages in lost earnings than it in fact did." 779 F.2d at 930. I am persuaded that a similar situation exists here. Therefore, a new trial is required.
For the reasons I have stated, I will grant defendant's motion for a new trial.
AND NOW, this 22 day of March, 1989 it is ORDERED that defendant's motion for a new trial is GRANTED.