SHARON KELLY O'BRIEN VS. TELCORDIA TECHNOLOGIES, INC. Â (L-5516-03, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3251-14T1
SHARON KELLY O'BRIEN,
Plaintiff-Appellant,
v.
TELCORDIA TECHNOLOGIES, INC.,
Defendant-Respondent.
___________________________________
Argued January 10, 2017 – Decided July 17, 2017
Before Judges Fisher, Ostrer and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-5516-03.
Kevin Barber argued the cause for appellant
(Niedweske Barber Hager, LLC, attorneys; Mr.
Barber and Christopher W. Hager, of counsel
and on the briefs).
Colleen M. Duffy argued the cause for
respondent (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Francis X. Dee and
Ms. Duffy, on the brief).
PER CURIAM
This appeal returns to us after a remand. O'Brien v.
Telcordia Techs., Inc., 420 N.J. Super. 256 (App. Div.), certif.
denied, 210 N.J. 479 (2011). The case began in 2003 when Sharon
O'Brien sued her former employer, Telcordia Technologies, Inc.,
alleging it discriminated against her based on her age when it
laid her off. We reversed the trial court's initial grant of
summary judgment in defendant's favor on narrow grounds: namely,
that it failed to adequately consider a certification containing
hearsay statements by company officers discussing an explicitly
discriminatory force adjustment policy.
On remand, the trial court conducted a Rule 104 hearing on
the certification's contents, which included testimony from some
of the hearsay declarants and the certification's signor. The
court then ruled that the certification was inadmissible and again
granted summary judgment in defendant's favor. We affirm.
I.
We need not thoroughly review the facts, as we reviewed them
at length in our previous opinion. O'Brien, supra, 420 N.J. Super.
at 260-62. Suffice it to say, plaintiff was a long-time Telcordia
employee who served as a managing director in its customer service
department. She was laid off in 2002 along with 786 others, while
defendant was in the midst of major multi-year force reduction.
Plaintiff, who was fifty-one at the time, alleged she was
fired because of her age. After years of litigation, the trial
court granted summary judgment in defendant's favor.
2 A-3251-14T1
Specifically, the court concluded that plaintiff had failed to
demonstrate that defendant's legitimate business reasons behind
the layoff were pretextual. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668,
677-80 (1973). We reversed the trial court's grant of summary
judgment, but not for any positive error in the court's findings.
Indeed, in an unpublished portion of our opinion, we reviewed at
length and affirmed the court's conclusions that Telcordia had a
legitimate business reason to lay off plaintiff and that plaintiff
had failed to provide "substantial evidence of pretext." O’Brien
v. Telcordia Techs., Inc., No. A-4021-07 (App. Div. June 13, 2011)
(slip op. at 19-31), certif. denied, 210 N.J. 479 (2011).
Nevertheless, we reversed the trial court because we were
concerned that it incompletely considered the admissibility of a
three-page certification signed by another Telcordia employee,
Stephen Sperman.1 Sperman worked in the same customer service
1
In addition to being potentially relevant under a McDonnell
Douglas analysis, the certification also may have supported a
factual claim that Telcordia had mixed motives for terminating
plaintiff. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-
47, 109 S. Ct. 1775, 1787-89, 104 L. Ed. 2d 268, 284-86 (1989).
We questioned but declined to decide whether the mixed motives
framework was appropriate for analyzing an age discrimination case
brought under the New Jersey Law Against Discrimination, N.J.S.A.
10:5-1 to -42. If the Sperman certification were found to be
inadmissible, that would moot this legal question because the
record would lack sufficient evidence of discrimination under any
standard. O'Brien, supra, 420 N.J. Super. at 270.
3 A-3251-14T1
department as plaintiff when he was laid off in November 2002.
He, like plaintiff, sued defendant for age discrimination, but
ultimately lost in arbitration.
Sperman's certification, submitted in October 2007, reported
statements by two officers of the company: John Musumeci, his
immediate supervisor, and Linda Apgar, a recruiting manager in the
human resources department. According to the certification,
Musumeci announced at a staff meeting in the summer of 2002 that
the company was implementing a "going forward" force adjustment
policy that would incorporate an employee's age and pension
eligibility in layoff decisions. He allegedly stated that
"Telcordia's human resources department mandated" the policy.
When Sperman challenged the policy's propriety, Musumeci
reportedly responded that "he was told by . . . Telcordia's human
resources to follow this 'going forward' policy and he was going
to follow those orders." Sperman certified he relayed his concern
over the policy to Apgar, who also informed Sperman the policy was
"to be followed."
We noted that the trial court had not sufficiently addressed
the admissibility of these hearsay statements within the
certification. O'Brien, supra, 420 N.J. Super. at 269. We also
lacked a sufficient record "to independently evaluate" the
evidence's admissibility and weight. Ibid. We thus kept
4 A-3251-14T1
plaintiff's cause of action alive, "hanging by the slender thread"
of the evidence in the Sperman certification, and required the
trial court to examine the admissibility of that evidence. Id.
at 272.
On remand, the trial court held a Rule 104 hearing at which
Musumeci, Apgar, and Sperman testified. Musumeci and Apgar both
denied they made the statements attributed to them in the
certification. They further asserted they played no role in
plaintiff's firing: Musumeci was never plaintiff's supervisor, and
Apgar's role in the company solely involved recruitment and
employee placement at the time.2
At the hearing, Sperman's account of Musumeci's statements
differed markedly from his certification. Sperman denied Musumeci
explicitly "said he wanted [to fire] people based upon pension
eligibility." Instead, he testified that Musumeci repeatedly
asked the directors which of their employees were pension eligible.
Sperman explained that the certification recorded his
"understanding [of] what [Musumeci] was driving at" from those
questions. The hearing also reviewed transcripts from Sperman's
arbitration hearing, in which he offered an even less troubling
2
We previously noted, Musumeci and Apgar "played no role in the
lay-off of plaintiff, and indeed, Musumeci appears to have been
laid off prior to plaintiff." O'Brien, supra, 420 N.J. Super. at
269-70.
5 A-3251-14T1
account of Musumeci's words. However, Sperman denied the accuracy
of this prior summary from the arbitration hearing.
After reviewing the testimony, the court concluded the
certification was inadmissible on three independent grounds:
First, Sperman effectively recanted the certification, making it
a sham affidavit. Second, having lost significant evidential
value in light of the hearing, the certification was unduly
prejudicial under N.J.R.E. 403. Third, the certification
contained inadmissible hearsay. The court granted defendant's
motion for summary judgment a second time. As we agree with the
trial court's hearsay analysis, which provides an independent
basis to reject the certification, we affirm.
II.
"[T]he decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010).
Accordingly, we review evidentiary decisions for abuses of that
discretion. We are to uphold such decisions when supported by
sufficient credible evidence in the record. Ibid. We also defer
to factual findings made pursuant to a Rule 104 hearing. State
v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif.
denied, 205 N.J. 78 (2011). Conversely, if the trial court applies
the wrong legal test when analyzing admissibility, we apply de
6 A-3251-14T1
novo review. Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div.
2012).3
Rule 1:6-6 requires that all certifications "set forth only
those facts which are admissible in evidence." Accordingly, any
certification that includes hearsay "may only be considered if
admissible pursuant to an exception to the hearsay rule." New
Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 317
(App. Div. 2014); Pressler & Verniero, Current N.J. Court Rules,
cmt. 1 on R. 1:6-6 (2017). When a statement includes multiple
layers of hearsay, each layer must independently meet an exception.
N.J.R.E. 805; Estate of Hanges, supra, 202 N.J. at 375 n.1; Konop,
supra, 425 N.J. Super. at 402. The proponent of the hearsay bears
the burden. See State v. Miller, 170 N.J. 417, 426 (2002).
Plaintiff argues that Musumeci's and Apgar's statements
constitute admissions by a party's agent as defined by N.J.R.E.
803(b)(4). Accordingly, their admissibility hinges on whether the
declarants were agents of defendant speaking on a "matter within
3
We reject plaintiff's contention that we should conduct a de
novo review of the record in reviewing both the trial court's
rejection of the Sperman certification and the grant of summary
judgment. The de novo standard applies only to the summary
judgment decision after applying an abuse-of-discretion standard
of review to the trial court's evidential ruling. See Estate of
Hanges, supra, 202 N.J. at 384-85.
7 A-3251-14T1
the scope of the agency or employment" at that time. N.J.R.E.
803(b)(4).
The exception relies on basic principles of agency, see 4
Wigmore on Evidence § 1078, at 162 (Chadbourn rev. 1972), to
construe a declarant's statement as a "vicarious admission[]" by
the party itself, 2D New Jersey Practice: Evidence Rules Annotated,
comment on N.J.R.E. 803(b)(4) (John H. Klock) (3d ed. 2009). Its
application requires a highly fact-sensitive inquiry into the
statement's subject-matter and the declarant's scope of authority.
See Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455, 462-63
(1998) (permitting the admission of hearsay statements about a
company's hiring decision that was attributed to specific,
identified executives "directly involved in the hiring process"
because "the statements concerned an issue within the scope of
their duties"); see also Griffin v. City of E. Orange, 225 N.J.
400, 419-20 (2016); Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. 4 on N.J.R.E. 803 (2016) (noting that "N.J.R.E.
803(b)(4) sanctions the admissibility of admissions made by
agents, employees, or representatives . . . when the admissions
relate to matters within the performance duties of the agent,
representative, or employee").
To determine if a statement qualifies as a vicarious
admission, the proponent must sufficiently identify the speaker.
8 A-3251-14T1
Identification is important for two reasons. First, without
knowing the declarant's role within a company, the court cannot
determine whether the statement was within his or her employment's
scope. Accordingly, in Beasley v. Passaic County, we rejected an
employee's double hearsay testimony that his supervisor had "told
him that 'downtown' wanted plaintiff fired." 377 N.J. Super. 585,
603-04 (App. Div. 2005). Despite recognizing that "downtown"
likely referred to someone in the County administration, we
concluded "it was impossible to discern the specific declarant and
whether the statement was within that person's scope of
employment." Id. at 603. Cf. Carden v. Westinghouse Elec. Corp.,
850 F.2d 996, 998-1002 (3d Cir. 1988) (double hearsay statement,
in which supervisor told plaintiff "they wanted a younger person
for the job" without further identifying the declarants, was
inadmissible on identical grounds under the parallel federal rule
(emphasis added)).
Second, the declarant must be identified in order to be
subject to cross-examination. Beasley, supra, 377 N.J. Super. at
603; see Nobero Co. v. Ferro Trucking, Inc., 107 N.J. Super. 394,
401-04 (App. Div. 1969) (permitting hearsay observations allegedly
made by one of two possible employees in part because both
employees were identified and testified about the statement). The
unavailability of the declarant is a fundamental basis for the
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general exclusion of hearsay testimony, see James v. Ruiz, 440
N.J. Super. 45, 59-60 (App. Div. 2015), while the availability of
the declarant when the hearsay statement is a party admission
serves as an important justification for its admissibility, see
Biunno, supra, Current N.J. Rules of Evidence cmt. 1 on N.J.R.E.
803(b)(1) (2016) (noting that admissions are excepted from the
hearsay rule because the declarant "cannot complain of his
inability to confront and cross-examine the declarant, since he
himself is the declarant"); 4 Wigmore, supra, at § 1048, at 4-5.4
Applying these principles, the trial court found that the
statements in the certification allegedly related by Musumeci and
Apgar were excludable for the same two reasons. First, the
statements fell beyond the scope of their employment. Second, the
original declarant who made the statements was unidentified and
the scope of his or her employment was unknown. Since we agree
4
Plaintiff misplaces reliance on Nobero and Reisman v. Great Am.
Recreation, Inc., 266 N.J. Super. 87 (App. Div.) (affirming
admissibility of statements of unidentified employees, such as
"lift operator at the bottom of the slope[,]" that another
employee, named Mike, had collided with plaintiff on the ski slopes
and they had observed Mike was intoxicated), certif. denied, 134
N.J. 560 (1993). First, the declarants, though unidentified, were
identifiable and could be questioned, and in Nobero, they were.
Nobero, supra, 107 N.J. Super. at 404. Second, the unidentified
declarants reported empirical observations, not statements of
policy that implicated further questions regarding the precise
scope of an employee's responsibilities.
10 A-3251-14T1
that at least one of these two bases applies to each of the two
statements, we affirm the trial court's conclusions.
The certification clarifies that Musumeci's statements are
double hearsay: his description of the age-based policy was merely
a recitation of what he "was told" by "human resources." As the
trial court found, this oblique allusion to the original declarant
places the statement outside N.J.R.E. 803(b)(4)'s protection.
Much like the reference to "downtown" in Beasley, it is impossible
to identify the original speaker with any specificity or discern
whether the statement was within the declarant's scope of
employment or authority. We note that defendant's human resources
department included employees, like Apgar, who had no involvement
in crafting corporate hiring or firing policies. Moreover,
defendant would have no opportunity to bring in this declarant for
cross-examination.
We are unpersuaded by plaintiff's argument that the double-
hearsay statement of the unidentified human resources person is
irrelevant, as Musumeci was himself authorized to articulate
corporate policy. First, according to Sperman's certification,
Musumeci was not expressing his own policy, but one allegedly
stated to him by an unidentified person in human resources. Thus,
proof of the corporate policy depended on the admissibility of the
unidentified declarant's statements, which the court properly
11 A-3251-14T1
excluded. Second, even if the scope of Musumeci's employment were
relevant, we would defer to the trial court's fact-finding that
Musumeci's statement addressed matters outside the scope of his
employment. See Goodman, supra, 415 N.J. Super. at 225. Although
there was conflicting testimony about the scope of Musumeci's
authority, the court relied on sufficient credible evidence in
reaching its conclusion.
As for the statements attributed to Apgar, we affirm the
trial court's conclusion that the hearsay statements were not
within the scope or authority of her employment. As she testified
during the 104 hearing, Apgar's position was solely focused on
recruiting and redeployment within the company. She explicitly
denied having any responsibilities to advise executive directors
about the policy. She was never trained by the company on the
policy, nor did she have any role in the formation or
implementation of the policy. In short, Apgar's position had
neither the appropriate authority or scope to qualify her hearsay
statement regarding defendant's corporate firing policy as a party
admission under N.J.R.E. 803(b)(4).
In sum, we agree with the trial court's conclusion that the
statements in the certification regarding defendant's "going
forward" policy were inadmissible hearsay. Accordingly, the trial
12 A-3251-14T1
court properly granted summary judgment in accordance with our
2011 instructions.
In light of the foregoing discussion, we need not reach the
trial court's two alternative bases for rejecting the
certification: it is a sham affidavit, see Shelcusky v. Garjulio,
172 N.J. 185, 193 (2000), and it is inadmissible under N.J.R.E.
403 for being unduly prejudicial. Both conclusions are based on
the record evidence challenging the veracity of the certification.
That evidence includes Musumeci's and Apgar's direct refutations
during the Rule 104 hearing, as well as Sperman's inconsistent
accounts of his conversations in both the Rule 104 hearing and his
arbitration hearing. We also need not consider whether, in light
of this expanded record, "the evidence is so one-sided that
[defendant] . . . must prevail as a matter of law . . . ." Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).5
Affirmed.
5
Notably, much of the contradictory evidence was not in the record
before us on the previous appeal, which was assembled before the
Rule 104 hearing and also lacked transcripts from Sperman's
arbitration. See O'Brien, supra, 420 N.J. Super. at 269.
13 A-3251-14T1