Keisling v. SER-JOBS ( 1994 )


Menu:
  •                UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 93-1406
    DANIA R. KEISLING,
    Plaintiff, Appellee,
    v.
    SER-JOBS FOR PROGRESS, INC., ET AL.,
    Defendants, Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. Raymond J. Pettine, Senior U.S. District Judge]
    Before
    Breyer, Chief Judge,
    Boudin, Circuit Judge,
    and Pollak,* Senior District Judge.
    Paul L. Foster for appellants.
    Alicia Murphy with whom Rosemary Healey  and Edwards & Angell were
    on brief for appellee.
    March 29, 1994
    * Of the Eastern District of Pennsylvania, sitting by designation.
    POLLAK, District Judge.  This  case involves a claim under the
    Age  Discrimination in  Employment  Act  ("ADEA"),  29  U.S.C.
    sections  621  et seq.  (1988),  with  a pendent  claim  under
    sections 28-5-1 et seq. of the Rhode Island General Laws.  The
    plaintiff,  Dania  Keisling, claims  that  her  firing by  the
    corporate defendant, SER-Jobs for Progress, Inc.  ("SER"), was
    the result of unlawful  age discrimination on the part  of SER
    and  individual defendants Alma  F. Green and  Lois K. Turner.
    Finding  liability both  under ADEA  and under state  law, the
    jury  (1) awarded  Keisling  $32,874  in compensatory  damages
    against all three defendants, and (2) awarded Keisling $50,000
    in exemplary  damages against  defendant Green and  $25,000 in
    exemplary  damages against defendant  Turner.   Memorandum and
    Order  at 1 (D.R.I. Mar.  11, 1993).   Appendix of Defendants-
    Appellants  (hereinafter "A.")  121.1   SER, Green  and Turner
    now appeal.  Because we conclude that the district court erred
    1         Rhode Island law  permits the  award of  "punitive
    damages"  in  cases  of discrimination  involving  "reckless
    indifference" to the plaintiff's rights.  See R.I. Gen. L.
    28-5-29.1.   Keisling sought an additional  award of $32,874
    in "liquidated  damages" pursuant to  the ADEA, 29  U.S.C.
    626(c).   The district court denied  this request, reasoning
    that because liquidated damages  under the ADEA are punitive
    in nature, permitting Keisling both liquidated damages under
    federal  law  and punitive  damages  under  state law  would
    result in a double recovery for a single wrong. A. 121-23.
    -2-
    in excluding testimony proffered by the defendants, we reverse
    and remand for a new trial.
    I.  FACTS
    The record developed at trial would  support factual
    findings as follows:
    SER  is  a non-profit  Rhode  Island social  service
    agency whose operations are primarily geared to Rhode Island's
    Hispanic  population.    Dania Keisling  became  an  associate
    director of SER in 1984.  From 1984 until mid-1989, Keisling's
    work was supervised by Carlos Pedro, SER's executive director.
    Keisling also had extensive dealings with Alma Green, who  was
    the president of SER's  board of directors.  During  this time
    period, Keisling received regular increases in pay, and as SER
    expanded   its   services   Keisling's  job   responsibilities
    increased  dramatically.    Keisling did  not  receive  formal
    evaluations of  her performance; she testified,  however, that
    "[m]any times" Green "said  that I was always there  and I was
    doing a real good job" and "that I was always actually running
    that   agency."       Transcript   of    Defendants-Appellants
    (hereinafter "T.") 45.
    -3-
    In  July 1989, Pedro resigned as executive director,
    and  SER began  the  chore of  finding  a replacement.    Both
    Keisling  and Lynn  Trudell, SER's  other associate  director,
    applied to fill  the vacancy.   Keisling testified that  after
    she  applied   for  the   position  she   had  at   least  two
    conversations  with  Green  in  which  Green made  age-related
    comments.  As recounted by Keisling, the comments were:
    Sure,  you can run that agency but do you want to do
    that at your age?
    Sure, you can run  this agency and you have  done it
    but do  you want to  do that  and do  you want  that
    aggravation at your age?
    T.  49.    Two  other  witnesses,  an  independent  bookkeeper
    employed by SER and the executive director of a sister agency,
    testified that  Green made similar comments  about Keisling to
    them  during the  time  that  SER  was  searching  for  a  new
    executive director.  T. 182, 218.
    In November  1989, SER hired  Dr. Lois K.  Turner as
    executive consultant to the Board of Directors, a position  in
    which  Turner  functioned  essentially  as  interim  executive
    director,  supervising the  daily operation  of the  agency in
    consultation  with Green.  Among  other duties, Dr. Turner was
    responsible  for   performing  an  extensive  review   of  the
    functioning of SER and  for assisting in the  hiring of a  new
    executive director.  A. 164-65.  In reviewing the operation of
    -4-
    the agency, Turner  purportedly discovered some  problems with
    Keisling's  performance.  On January 19, 1990, Turner met with
    Keisling  and advised her of matters that had come to Turner's
    attention.   Specifically,  Turner  told  Keisling that  staff
    members had  complained that Keisling  had yelled at  them and
    had used profanity and obscene gestures.  Turner also asserted
    that  Keisling had failed  to complete some of  her tasks in a
    timely manner.  T. 58-9.
    Turner memorialized the meeting  with Keisling in  a
    memorandum  dated  February  1,  1990  --  a  memorandum  that
    Keisling  stated she received  on February 9.   The memorandum
    repeated the  charges of inappropriate behavior,  and also set
    forth   a  number  of   alleged  deficiencies   in  Keisling's
    performance.    In  the  memorandum, Turner  gave  Keisling  a
    thirty-day probationary period, beginning February 1, in which
    to   demonstrate  appropriate  professional  behavior  and  to
    improve her performance.  A. 133, 135.   Keisling responded to
    the  February 1 memorandum with  memoranda of her  own, one to
    the Board of Directors and one to her personnel file, in which
    she attempted to refute Turner's allegations.  A. 136, 138.
    On March  2, at  the conclusion of  the probationary
    period, Turner and  Green met with  Keisling and informed  her
    that  her employment  was to  be terminated.   They  presented
    -5-
    Keisling with a memorandum, dated March  2, stating that Green
    and  the  Executive Committee  of  SER  had endorsed  Turner's
    decision to  terminate Keisling's employment.   A. 144.   They
    also presented Keisling with a letter from Turner, also  dated
    March   2,   detailing   additional   instances   of   alleged
    inappropriate  behavior and  inadequate  performance. A.  141.
    Keisling was given an opportunity to appeal her termination to
    the  Board of Directors, which upheld the termination.  At the
    time she was terminated, Keisling was over 40 years old.
    II.  ANALYSIS
    From  the  jury's  verdict  in  favor  of  plaintiff
    Keisling, the  three defendants  have appealed.   Four grounds
    for appeal are  advanced.  Of  these, it is only  necessary to
    address  two in  detail.2   First, defendants  claim that  the
    district  court erred  in  failing to  grant their  post-trial
    motion for judgment as  a matter of  law.  Second, they  argue
    that  the  district  court   committed  prejudicial  error  in
    excluding testimony regarding age-related statements allegedly
    made  by  defendant  Green  and  by  Keisling  herself.  These
    arguments will be addressed in turn.
    A.        Denial of Motion for Judgment as a Matter of Law
    2         The remaining two issues are discussed infra, note
    10.
    -6-
    Defendants  argue that  the district court  erred in
    denying their motion  for judgment as  a matter of law.   They
    claim  that Keisling  failed  to introduce  evidence at  trial
    sufficient   even  to   establish  a   prima  facie   case  of
    discrimination,  much less  to  carry her  ultimate burden  of
    proof.
    Defendants' argument suffers from two flaws.  First,
    as Keisling  points out,  defendants failed to  preserve their
    argument properly for appeal  by failing to make a  motion for
    judgment as  a matter of  law at  the close  of all  evidence.
    Rule 50(a) of the  Federal Rules of Civil Procedure  permits a
    motion for judgment as a matter of law to be made "at any time
    before  submission of the case  to the jury."   Defendants, in
    compliance with this  rule, made  a motion for  judgment as  a
    matter of law  at the close of Keisling's case.  T. 289.  That
    motion, however,  was insufficient to preserve  the issue that
    defendants  are  now  seeking to  present  on  appeal.   If  a
    defendant wishes to renew a motion for judgment as a matter of
    law at the post-trial  stage, with a view to  having denial of
    that  motion considered by the court of appeals, the defendant
    is required to  have moved for judgment as a  matter of law at
    -7-
    the  close of  all  the evidence.   Fed.  R.  Civ. P.  50(b).3
    Requiring  the  motion to  be  made at  the  close of  all the
    evidence gives the opposing party an opportunity to respond to
    any evidentiary deficiencies noted by the motion by seeking to
    reopen the evidence  prior to  submission of the  case to  the
    jury.  See  Fed. R.  Civ. P. 50(a)  advisory committee's  note
    (1991).   This  court  therefore has  held  that it  will  not
    consider claims of  insufficient evidence unless  the district
    court was presented with a motion  for judgment as a matter of
    law at  the close of all  the evidence.  See  Jusino v. Zayas,
    
    875 F.2d 986
    , 991 (1st Cir. 1989).
    At oral argument, defendants contended that the rule
    of Jusino should not apply in the present case.   They claimed
    that the comments of the district judge in denying defendants'
    motion  at the close of  plaintiff's case led  them to believe
    that their motion was preserved for post-verdict consideration
    by  both the  district court  and this  court, and  that their
    3         Rule 50(b) of the Federal Rules of Civil Procedure
    states:
    Whenever a motion  for a  judgment as a  matter of  law
    made at the close of all the evidence is  denied or for
    any  reason is not granted, the court is deemed to have
    submitted  the action  to the jury  subject to  a later
    determination  of  the legal  questions  raised  by the
    motion.
    -8-
    reasonable reliance on  the district judge's  comments removed
    the necessity for  a renewed motion  at the close  of all  the
    evidence.4
    We are far from  persuaded that the district judge's
    comments could reasonably  have been taken as  an assurance by
    the  judge that  defendants need  not move  for judgment  as a
    matter  of law at  the close  of all  the evidence.   However,
    assuming arguendo that defendants did  not read too much  into
    the judge's comments, defendants'  asserted reliance on  those
    comments was,  nonetheless, insufficient  to obviate  the need
    for conformity with  the requirement that the adequacy  of the
    4         The  comments  of  the  district  judge  on  which
    defendants  claim to  have relied were  as follows:   First,
    after hearing argument on  the defendants' motion, the court
    stated:
    That's  a  tough standard  and  I  think applying  that
    standard,  I  think,  counsel  for  the  plaintiff  was
    correct  in her assertions and  I will deny your motion
    in that regard and of course note an exception for you.
    T.  309.   Shortly thereafter,  after a  brief discussion  of the
    standards   for  the   imposition  of   punitive  damages   on  a
    corporation, the court stated:
    Maybe we are not going to resolve this case until after
    the jury returns a  verdict.  If they return  a verdict
    for  the plaintiff, I can  see where I'm  going to have
    some  very  interesting  post-trial  briefs.    If they
    return a verdict for  the defendant, then the Appellate
    Court can worry about it from that point on.
    Appendix at T. 313.
    -9-
    plaintiff's  case  be  challenged  at  the close  of  all  the
    evidence.   To  be  sure, the  obligation  to conform  to  the
    requirement  is not  absolute, but  this court  has emphasized
    that only  very unusual circumstances will  justify treating a
    motion at the close of the plaintiff's case as a surrogate for
    a   motion  at  the  close   of  all  the   evidence.    Those
    circumstances  --  which, we  have  said,  constitute a  "very
    narrow  exception," Della  Grotta  v. Rhode  Island, 
    781 F.2d 343
    ,  350 (1st  Cir. 1986),  to the  rule that  the motion  be
    renewed at the close of all the evidence --  are presented "in
    a   case   ...   combining   judicial   assurance   concerning
    preservation of rights at the time of the motion and ... brief
    and  inconsequential evidence  following  the motion.  . .  ."
    Bayamon Thom McAn,  Inc. v. Miranda, 
    409 F. 2d 968
    ,  972 (1st
    Cir.  1969); Beaumont v. Morgan,  
    427 F.2d 667
    ,  670 (1st Cir.
    1970).  In  the present case,  whatever reliance the  district
    court's  statements  may  have   induced,  the  evidence  that
    defendants presented following the  district court's ruling on
    their motion  was undeniably  substantial and relevant  to the
    issues  raised  in  the   motion.    If  defendants  believed,
    following the presentation of their case, that the totality of
    the evidence  permitted only one conclusion,  it was incumbent
    upon them to make that belief known to the court and to permit
    -10-
    Keisling an opportunity to respond prior  to the submission of
    the case  to the jury.  Having failed to come within the "very
    narrow  exception"  of  Della Grotta,  Bayamon  and  Beaumont,
    defendants have waived the right to contend before this  court
    that they are entitled to judgment as a matter of law.
    Second,  even if defendants  had preserved the right
    to present their argument  to this court, they have  failed to
    meet  the  stringent standards  necessary  for  judgment as  a
    matter of  law.  A court  is without authority to  set aside a
    jury verdict and direct the entry of a contrary verdict unless
    the evidence points so strongly and overwhelmingly in favor of
    the moving party that no reasonable jury could have returned a
    verdict  adverse to that party.  See Acevedo-Diaz v. Aponte, 
    1 F.3d 62
    , 66  (1st Cir.  1993).   In determining  whether this
    standard  has been met, the court must examine the evidence in
    the light most favorable to the non-moving party; in addition,
    the  non-moving  party  is  entitled to  "the  benefit  of all
    inferences  which the  evidence fairly  supports, even  though
    contrary inferences  might reasonably be drawn."   Cochrane v.
    Quattrocci, 
    949 F.2d 11
    , 12  n.1  (1st Cir.  1991)  (quoting
    Continental  Ore Co. v. Union Carbide & Carbon Corp., 
    370 U.S. 690
    , 696  (1962)), cert. denied, --- U.S. ---, 
    112 S. Ct. 2965
    (1992).
    -11-
    Under the now-familiar  standard first set  forth in
    McDonnell  Douglas Corp. v.  Green, 
    411 U.S. 792
    , 802 (1973),
    and  later adapted for cases  under the ADEA,  a plaintiff may
    establish a prima facie case by showing  that (1) she was over
    40 years of  age, (2) she suffered an  adverse job action, (3)
    her  job  responsibilities  were  assumed  by another  person,
    demonstrating the employer's continuing need for an individual
    of the plaintiff's skills,  and (4) she was qualified  for the
    position  that she held and performing well enough to rule out
    the possibility that the adverse job action was for inadequate
    job  performance.5  See  Olivera v. Nestle  Puerto Rico, Inc.,
    
    922 F.2d 43
    ,  45 (1st  Cir. 1990).   Defendants  concede that
    Keisling established the first two elements of the prima facie
    case, namely  that she was over  40 years of age  and that she
    was terminated  by SER.   They argue,  however, that  Keisling
    failed to introduce sufficient evidence to establish the final
    two  elements of  the  prima facie  case,  and that  they  are
    therefore entitled to judgment as a matter of law.
    5         This court does not  require a plaintiff under the
    ADEA  to establish, as an  element of her  prima facie case,
    that she was replaced by an individual younger than herself,
    or  by someone outside the  protected class.   See Hebert v.
    Mohawk Rubber Co., 
    872 F.2d 1104
    , 1110 n.10 (1st Cir. 1989).
    -12-
    Defendants argue that  Keisling failed to  establish
    the  third element of the  prima facie case,  namely, that her
    job responsibilities were assumed by  another.  In making this
    argument, defendants note that SER did not hire a  replacement
    for  Keisling.   This  fact,  however,  is not  determinative.
    Keisling presented  evidence  that Lynn  Trudell, SER's  other
    associate director, assumed Keisling's duties after Keisling's
    discharge.   This  evidence is  sufficient  to show,  for  the
    purpose of establishing  a prima  facie case, that  SER had  a
    "continued  need for the same  services and skills."   Loeb v.
    Textron, Inc., 
    600 F.2d 1003
    , 1013 (1st Cir. 1979);  see also
    Kale v. Combined  Ins. Co. of America, 
    861 F.2d 746
    , 760 (1st
    Cir. 1988).  Keisling was not required to show that  SER hired
    a replacement or specifically designated an existing  employee
    as such.   See Loeb, 
    600 F.2d at
    1013 n.11.   Defendants have
    failed  to show  that, viewing  the evidence  in a  light most
    favorable to Keisling, no  reasonable jury could conclude that
    Keisling  established the  third  element of  the prima  facie
    case.
    Defendants  also  argue  that  Keisling   failed  to
    establish the fourth element of  the prima facie case, namely,
    that  her performance  was sufficient  to meet  the legitimate
    expectations  of  SER.    Defendants  contend  that  the  only
    -13-
    evidence  Keisling offered  of her acceptable  job performance
    was  her own  assessment  of her  achievements and  abilities.
    Defendants are correct that  such evidence, standing alone, is
    insufficient  to establish  the  fourth element  of the  prima
    facie case; indeed, were evidence  of this type sufficient, it
    is a rare plaintiff  who would fail to establish a prima facie
    case.   Defendants  fail, however,  to take  into  account the
    entirety  of  Keisling's evidence.    Keisling testified  that
    while  employed at  SER, her  responsibilities  were increased
    substantially,  she received  positive  feedback  (e.g.,  from
    defendant Green)  regarding her performance, and  she received
    regular pay  increases.  Keisling also  introduced a favorable
    letter of  recommendation  written by  SER's former  executive
    director,  Carlos Pedro.  It  is true that  this evidence does
    not extend fully to the time at which Keisling was discharged.
    The  evidence  does,  however,   support  an  inference   that
    Keisling's  job performance at  the time of  her discharge was
    adequate  to  meet  SER's  legitimate needs.    Keisling  thus
    succeeded  in establishing  the  fourth element  of the  prima
    facie case.
    Defendants note that  they introduced evidence that,
    at the  time of her discharge, Keisling's  job performance was
    inadequate.  They argue that  Keisling failed to overcome this
    -14-
    evidence,  and  that this  failure  amounted to  a  failure to
    establish  a  prima  facie  case.    This  argument  fails  to
    apprehend  the  burden-shifting  structure of  an  ADEA  case.
    Under  McDonnell  Douglas,  the  burden initially  is  on  the
    plaintiff to  establish all  the elements  of the  prima facie
    case.    Once  the  plaintiff  has  done  so,  the  burden  of
    production shifts  to the  defendants, and the  defendants are
    required  to present evidence  of a legitimate  reason for the
    adverse job action taken  against the plaintiff, evidence that
    explodes  the presumption  of  discrimination  created by  the
    prima facie case.   If  the defendants carry  their burden  of
    production,  the  plaintiff must  respond  to  the defendant's
    evidence and  demonstrate that the adverse  action suffered by
    the   plaintiff   was   indeed   the   product   of    illegal
    discrimination.   See St. Mary's Honor Ctr. v. Hicks, --- U.S.
    ---, 
    113 S. Ct. 2742
    , 2747 (1993).  The shifting of the burden
    of production  in  an ADEA  case  does not  always  correspond
    neatly  to  the orderly  presentation  of  evidence at  trial.
    Thus,  it is not unusual  for a plaintiff  to introduce in her
    case-in-chief  evidence  that,  within  the  McDonnell Douglas
    framework,  is  best  understood  as  responsive  to  evidence
    introduced by defendants to counter the prima facie case.  The
    fact that a plaintiff introduces such evidence in her case-in-
    -15-
    chief, rather than waiting for the defendants to present their
    case,  does not  mean that  anticipation  and rebuttal  of the
    defendants'  case constitute  an  element of  the prima  facie
    case.   To  hold otherwise  would belie  the assertion  of the
    Supreme Court  that the burden  of establishing a  prima facie
    case is "not onerous."   See Texas Dep't of  Community Affairs
    v.  Burdine, 
    450 U.S. 248
    ,  253 (1981);  see also  Mesnick v.
    General  Elec.  Co.,  
    950 F.2d 816
    ,  823  (1st  Cir.  1991);
    Villanueva v. Wellesley College, 
    930 F.2d 124
    , 127 (1st Cir.),
    cert. denied, --- U.S. ---, 
    112 S. Ct. 181
     (1991).
    Viewed  in  this  manner, the  proper  question  for
    defendants  to  ask is  not  whether  Keisling has  failed  to
    establish a prima facie case, but rather whether Keisling  has
    failed  to  carry  the  ultimate  burden  of  persuasion  upon
    consideration of all the evidence presented at trial.  For the
    purposes  of  this  appeal,  we must  conclude  that  Keisling
    succeeded  in meeting her  burden.   Granted, the  evidence of
    discrimination   that   Keisling   presented  was   far   from
    overwhelming.   It is certainly conceivable  that a reasonable
    jury, viewing all the evidence, could conclude that Keisling's
    discharge was  a legitimate response  to inappropriate on-the-
    job behavior, or  even that her  discharge, while unfair,  was
    not  the product of illegal  age discrimination.   It seems to
    -16-
    us, however, that a determination of  the cause for Keisling's
    termination  requires  a  weighing   of  the  credibility   of
    defendants'  witnesses,  who   described  Keisling's   alleged
    inappropriate behavior,  against that of Keisling,  who denied
    that  she  ever  behaved  improperly.   Such  assessments  are
    peculiarly  within the  province  of the  jury.   An appellate
    court  may  not  interpose  a  judgment  different  from  that
    obtained at trial simply because it disagrees  with the jury's
    credibility determinations.  See  Nydam v. Lennerton, 
    948 F.2d 808
    , 810 (1st Cir. 1991).
    In  sum, both because  defendants' post-trial motion
    for judgment as a matter of law was procedurally defective and
    because  it was, on the  record made at  trial, inapposite, we
    conclude  that the district court  did not err  in denying the
    motion.
    B.        Exclusion  of  Testimony  Concerning  Statements  by
    Plaintiff and Defendant Green
    During   the   presentation  of   defendants'  case,
    defendants  presented  testimony  by  SER's  former  executive
    director, Carlos Pedro.   In the course of  Pedro's testimony,
    defendants'  counsel  questioned  Pedro concerning  statements
    made  by   both  Keisling  and  defendant  Alma   Green.    In
    particular, defendants'  counsel sought  to elicit from  Pedro
    -17-
    statements  by  Keisling and  Green  to the  effect  that each
    respectively was  getting too  old to endure  the travails  of
    their jobs.   Defendants'  counsel posed  the question  in two
    forms, as follows:
    Q:   During from [sic] the period of 1987 until 1989
    when you were employed  at the agency, did  you have
    occasion,  while in  the presence  of Alma  Green or
    Dania Keisling, to hear conversation where the words
    to the effect  were [sic] "I'm  getting too old  for
    this crap or too old for this stuff" were used?
    Q:   In 1987  until 1989  when you left  the agency,
    Mr.  Pedro, did  you ever  hear conversation  in the
    agency where reference to age was used?
    T.  514-15.  Keisling's counsel objected  to both questions as
    calling  for  hearsay   responses,  and  the   district  court
    sustained  the  objections.   Defendants  now  claim that  the
    exclusion of the testimony was error warranting a new trial.
    We  agree.   Rule  801(c)  of the  Federal  Rules of
    Evidence  defines hearsay as "a statement, other than one made
    by the  declarant while  testifying at  the trial  or hearing,
    offered  in  evidence  to  prove  the  truth  of  the   matter
    asserted."   In counsel's questions to  Pedro, counsel plainly
    was  attempting to  elicit  from  Pedro  testimony  concerning
    statements  made out  of court;  to that  extent,  the hearsay
    -18-
    rules were  implicated.6   The alleged statements  of Keisling
    and Green were  not being offered  to prove the  truth of  the
    matter asserted, however.  Defendants  did not ask Pedro about
    the  statements in an attempt to prove that Keisling and Green
    were, indeed, too  old for their jobs.   Rather, in seeking to
    elicit Pedro's testimony as to statements by Green, defendants
    would  have invited the  jury to infer that  this was a common
    form of speech for  Green, one that she applied  to herself as
    well as to others, and that when she directed similar comments
    at Keisling she did not do so with discriminatory animus.  And
    if Pedro were to have testified that Keisling herself had made
    similar comments,7 that might have  strengthened the inference
    6         Defendants' assertion  that the questions  did not
    call for a  hearsay response because they  simply required a
    "yes" or  "no" answer is flawed.   A party cannot  evade the
    dictates of the hearsay rules simply by having  an attorney,
    rather than the  witness, present  the alleged  out-of-court
    statement and  then asking  the witness,  "Is that what  you
    heard?"  To the  extent that the questions posed  called for
    Pedro to  affirm  or deny  the  content of  an  out-of-court
    statement,  the questions  fell within  the purview  of Rule
    801.
    7         Keisling contends that defendants did not argue to
    the district  court that Keisling herself  had made comments
    referring to  her age, and that  defendants therefore cannot
    present that argument to  this court.  Keisling's contention
    is  plainly wrong.  Not only does the initial question posed
    by defendants'  counsel  directly  refer  to  statements  by
    Keisling, but  in the colloquy that  followed the questions,
    defendant's  counsel  told the  court,  in  response to  the
    court's determination that the questions called for hearsay,
    -19-
    that Green's comments  were devoid of  animus.  As  defendants
    contend in their  brief, such testimony could have  provided a
    predicate for arguing "that  whatever comments green [sic] and
    Keisling  may have made regarding being 'too old' for this job
    were not reflections of age  'animus' but rather indicative of
    frustration  with  a difficult  job  in  a difficult  economic
    environment."     Appellants'  Brief  at  17.     Because  the
    statements were not offered  to prove the truth of  the matter
    asserted therein,  they were not hearsay within the meaning of
    Rule 801(c).8
    In  addition  to  establishing  that  the  proffered
    testimony was not hearsay, defendants must establish that they
    were  prejudiced by  the  exclusion  of  the testimony.    See
    Fernandez v. Leonard, 
    963 F.2d 459
    ,  465 (1st Cir. 1992).   We
    believe that they have  done so.  As we have  said, Keisling's
    evidence of  discrimination, while  sufficient to withstand  a
    "[I]n  the  case that  those  statements  are attributed  to
    either  a  defendant  or a  plaintiff,  I  believe  they are
    clearly admissible."  T. 515-16.  That argument may not have
    been a model of clarity, and it is true that counsel did not
    elaborate with respect to statements by Keisling.  Counsel's
    presentation  was,  however,  sufficient  to   preserve  the
    argument made on this appeal.
    8   Of course, from  the standpoint of  hearsay doctrine, an
    out of court statement by the plaintiff, when offered by the
    defendant, is not hearsay  even if offered for the  truth of
    the matter asserted.  Fed. R. Evid. 801(d)(2)(A).
    -20-
    motion  for  judgment   as  a  matter   of  law,  was   hardly
    overwhelming.   The  testimony  proffered  by  defendants  and
    erroneously excluded as hearsay  is itself not powerful stuff.
    It is, however,  relevant to the  issue of whether  defendants
    acted with discriminatory animus in discharging the plaintiff.
    The  testimony was  offered in  an attempt  to rebut  the sole
    direct  evidence  of   discriminatory  animus  that   Keisling
    presented.   In a close  case, depending on  the assessment of
    the testimony by the  jury, that testimony might be  enough to
    tip  the balance.9  We therefore  conclude that a new trial is
    warranted.10
    9         Keisling  argues  that  the  testimony,   even  if
    admissible, was duplicative, because Green herself testified
    that she  frequently made comments  along the lines  of "I'm
    getting too old  for this  crap."  To  the extent,  however,
    that the testimony  of Pedro might  have (1) reinforced  the
    credibility of  Green's testimony, which was  plainly in her
    self-interest,  and  (2) shown  that  Keisling  herself made
    similar comments,  the testimony would not  have been simply
    duplicative.
    10        Defendants raise two  additional issues on appeal.
    First, they argue that the district court erred in excluding
    a   document  entitled   "Since  Original   Warning,"  which
    purported to  list 18 deficiencies in Keisling's performance
    following  the  original  warning  that  Keisling  received.
    Defendants  argue  that  the  document is  admissible  as  a
    business record kept in the ordinary course of business that
    was considered by the  SER Board of Directors in  making the
    decision to terminate Keisling.  The district court excluded
    the document.   It  concluded that the  document represented
    cumulative evidence,  because  Turner herself  testified  at
    length   concerning   Keisling's   deficiencies    and   the
    -21-
    III.      CONCLUSION
    Having concluded  that the trial in  this matter was
    flawed due to the prejudicial exclusion of relevant testimony,
    we  vacate  the judgment  entered  by the  district  court and
    remand for a new trial.
    presentation that Turner had made to the Board of Directors.
    In addition, while the court apparently did not rely on this
    point,  the court  noted that  there was  evidence  that the
    document  had been  prepared  after Keisling's  termination.
    Since  we have decided on other grounds  that a new trial is
    warranted,  we  are  not  required  to  resolve  the  issue.
    Nonetheless,  given that the issue is likely to recur in any
    new  trial, we  think it  appropriate to  note that,  on the
    record  before  this court,  it  appears  that the  district
    court's decision  to exclude the document  did not represent
    an abuse of discretion.
    Second,  defendants  argue   that  they   are
    entitled  to a  new  trial because  the  jury's verdict  was
    against the weight of  the evidence.   As we are ordering  a
    new  trial on  other  grounds,  we  find it  unnecessary  to
    address this issue.
    -22-