Hearsay 101

This discrimination case provides a mini-tutorial on hearsay. Plaintiff sues Walmart for race and age discrimination, but the case was dismissed because he lacked evidence of discrimination. The Court of Appeals affirms, and the case is gone.

The case is Hayden v. Walmart Stores, Inc., a summary order decided on October 15. Plaintiff says that a decisionmaker, Pagini, said that plaintiff was too slow and/or forgetful. This evidence would support the age discrimination case. The problem is how to prove that Pagini said this. Hayden testified in deposition that a former co-worker, Byrd, told him that Pagini made this statement. The official definition of hearsay is "an out of court statement offered for the truth of the matter asserted." The plain English definition is "someone told me something and therefore it's true." Since you cannot cross-examine a second-hand statement, most hearsay is inadmissible at trial. Since plaintiff did not provide an affidavit or sworn testimony from Byrd that quoted the ageist statement from a decisionmaker, he cannot use it in support of his case.

Who knows why plaintiff did not include a sworn statement from Byrd in opposition to the motion for summary judgment. Maybe Byrd was nowhere to be found. Maybe Byrd did not want to get involved. Maybe Byrd would not sign the affidavit because it did not accurately describe what she had actually said. Whatever the reason, Byrd's statement to plaintiff about what Pagini said cannot be used at trial. Which is why the age discrimination case is dismissed.

The racial discrimination case is also dismissed because plaintiff offered evidence that a white co-worker did something wrong but only got a verbal warning and was not fired like plaintiff. This argument has an evidentiary deficiency also. Not only did plaintiff try to prove it through hearsay (someone else told him about it), but plaintiff did not provide enough information about this white colleague to suggest that he was a comparable co-worker for purposes of proving disparate treatment.