Cheney v. New England Newspapers, Inc., No. 509-10-12 Wmcv (Wesley, J. Feb. 26, 2014) (Motion in Limine). 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.] 

VERMONT SUPERIOR COURT 

SUPERIOR COURT CIVIL DIVISION 

Windham Unit Docket No. 509-10-12 Wmcv 

Christine Cheney, 

Plaintiff. 

v. 

New England Newspapers, Inc. 

Defendants. 

Opinion and Orders 

 Granting in Part and Denying in Part Plaintiff’s Motion in Limine & 

 Granting Plaintiff’s Motion to Amend Complaint 

Four motions await decision by the Court. The Court concurrently issues a separate order 

in response to the cross-motions for summary judgment. In this order, the Court considers 

Plaintiff’s motion in limine and Plaintiff’s motion to amend complaint. As explained below, the 

Court will allow admission of the challenged Department of Labor report subject to redactions of 

Plaintiff’s testimony and a limiting instruction. At trial, the Court may require additional 

authentication of the report. The Court also grants Plaintiff’s motion to amend complaint. 

I. Admissibility of the Department of Labor Report under V.R.E. 803(8)(A) 

Plaintiff, a former employee, seeks recovery for an alleged violation of the Federal 

Family and Medical Leave Act and the Vermont Parental and Family Leave Act. Plaintiff 

alleges she took medical leave and Defendant did not offer her an equivalent position when she 

returned. Plaintiff believes the offered position was not equivalent because it involved more 

travel during the work day. To support her claim, Plaintiff offers a report prepared by the U.S. 

Department of Labor. 

In 2011, the Department of Labor investigated Plaintiff’s claims. Plaintiff claimed her 

position was not equivalent because she would receive lower commissions, have less seniority, 

and have to travel more during the work day. The investigator spoke with Plaintiff and Edward 

Woods, a representative of Defendant. The report describes what Plaintiff and Defendant said. 

The investigator rejected Plaintiff’s claims that she would receive fewer commissions and have 

less seniority; however, the report found the increase in travel changed her job. The report 

recommended Defendant pay Plaintiff $13,869.62 in back wages, which Defendant refused. 

The official status of the report within the Department of Labor is unclear. First, neither 

the report, nor any ancillary foundational document, indicates how the matter resolved with 

Department of Labor, or whether the report was final. Second, the name of the investigator is 

redacted; although, Plaintiff asserts both parties know the name of the investigator. The report is 

not on letterhead and is unsupported by other evidence that it is official. 
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The evidentiary issue raised by the motion in limine is whether the Court may admit the 

report under V.R.E. 803(8). Plaintiff seeks admission of the entire report. Defendant raises 

several objections to the report.1

 Defendant objects to Plaintiff’s statements within the report as 

hearsay, arguing that the exception under V.R.E. 803(8) does not encompass legal conclusions. 

Defendant further contests the report as untrustworthy because the report is anonymous, the 

investigator did not hold a hearing, and the investigator did not list the investigator’s 

qualifications. 

Under V.R.E. 803(8)(A), “records, reports, statements, or data compilations[,] or factual 

findings resulting from an investigation made pursuant to authority granted by law,” are not 

hearsay. Vermont’s 803(8) follows the uniform rule. See V.R.E. 803, Reporter’s Notes—1985 

Amendment. The federal rule is similar. See F.R.E. 803(8). The parties rely heavily on three

cases to interpret the rule. 

The U.S. Supreme Court examined the scope of F.R.E. 803(8) in Beech Aircraft Corp. v. 

Rainey, 488 U.S. 153 (1988). In Beech, the plaintiff sued an aircraft manufacturer for the death 

of his wife in a navy airplane crash. Id. at 156. The trial focused on whether the crash was caused 

by equipment malfunction or pilot error. Id. at 157. Defendant offered a report by the Navy’s 

Judge Advocate General that included findings of fact and suggested the crash was probably 

caused by pilot error. Id. at 157–58. Analyzing the report’s admissibility under F.R.E. 803(8), the 

Court noted the circuits had split on how broadly to allow opinions within reports. Id. at 162. The 

Court held “factually based conclusions or opinions are not on that account excluded from the 

scope of Rule 803(8)(C)”, overruling the 9th Cicuit opinion that the District Court erred in 

admitting the Judge Advocate General’s findings. Id. In determining whether to admit a specific 

set of opinions, courts should look to the trustworthiness of the report. Id. at 167–68. To 

evaluate trustworthiness, courts may consider: “(1) the timeliness of the investigation; (2) the 

investigator's skill or experience; (3) whether a hearing was held; and (4) possible bias when 

reports are prepared with a view to possible litigation.” Id. at 167, fn. 11. 

The Vermont Supreme Court examined the scope of V.R.E.803(8) when considering the 

admissibility of a record based on a governmental inquiry in a products liability trial. See 

Needham v. Coordinated Appeal Grp., 174 Vt. 263, 265 (2002). In Needham, the plaintiff sued a 

clothing manufacturer because her shirt caught on fire. Id. at 266. The plaintiff offered a 

transcript of a Congressional subcommittee hearing about the Flammable Fabrics Act. Id. at 269. 

The transcript included testimony by witnesses. Id. at 269–70. The trial court admitted the 

transcript under V.R.E. 803(8). See id. at 272–73. The trial judge also noted his conclusion that 

the plaintiff was not offering all of the testimony for its truth, but rather to demonstrate the 

pressures faced by politicians at the time. Id. at 273. The Vermont Supreme Court reversed. The 

Supreme Court found that, while the transcript itself was generally admissible under 803(8), the 

testimony of the witnesses contained within the transcript should have been excluded as “double 

hearsay”. Id. at 274–75. The Supreme Court also rejected the trial court’s characterization of the 

testimony as not being offered for the truth of the matters asserted, despite the trial judge’s belief

that it was admissible to show the political pressures. Id. at 275–76. 

 

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 Among other objections, Defendant raises a claim about the Plaintiff’s duty to mitigate. However, Defendant 

establishes no authority making the duty mitigate relevant to the admissibility of the Department of Labor report. 
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Finally, a Ninth Circuit decision directly addressed the potential use of a Department of 

Labor report in a suit over the Family Medical Leave Act. See Sullivan v. Dollar Tree Stores, 

Inc., 623 F.3d 770, 776–77 (9th Cir. 2010). The suit focused on whether the plaintiff’s new 

employer was a successor in interest to her old employer. Id. at 774. The report, which plaintiff 

offered under F.R.E. 803(8), offered an opinion that the employee was a successor in interest. 

See id. at 776–77. The Ninth Circuit acknowledged Beech allowed admission of opinions of fact, 

but concluded that the ruling did not examine opinions of law. Id. at 777. The Ninth Circuit held 

pure legal conclusions are not admissible under F.R.E. 803(8). Id. The Ninth Circuit also upheld 

the district court’s exclusion of the report as untrustworthy, because the author is unidentified 

and the report did not appear to be a final draft. Id. at 778. 

In this case, relying on Needham, Defendant argues the testimony of Plaintiff contained 

within must be excluded as double hearsay. See 174 Vt. at 274–75. Plaintiff counters she offers 

her testimony not for its truth, but for context of the report. The investigator rejected many of 

Plaintiff’s statements, including her assertions that she would receive fewer commissioners and 

had less seniority. 

While as further discussed below, parts of the report may be admissible under Rule 

803(8), such admission must be subject to the redaction of Plaintiff’s testimony contained in the 

report. Notwithstanding Plaintiff’s assertion of the need for “context”, plainly her testimony is 

an out-of-court statement offered for its truth, and Plaintiff specifies no other permissible 

purpose to which it might be relevant. See id.; see also. V.R.E. 801(c), Reporter’s Notes. 

Plaintiff’s argument is analogous to the trial court’s reasoning rejected by the majority in 

Needham that the witnesses’ testimony showed political pressures rather than the truth of the 

statements. See id. at 275–76. 

Next, Defendant argues the Court should exclude the report because the report contains 

legal conclusions. Defendant’s argument relies on Ninth Circuit’s analysis in Sullivan. See 623 

F.3d at 777. This Court does not find the analysis in Sullivan persuasive in the present 

circumstances. The U.S. Supreme Court allows for opinions of fact. See Beech, 488 U.S. at 162. 

The U.S. Supreme Court did not decide the admissibility of legal conclusions and Vermont has 

not addressed the issue. Yet, any agency that investigates a violation of a statute or regulation is 

bound to conduct a legal analysis, and the final determination of the agency is likely to be a 

mixed question of fact of law. As discussed in the Court’s decision on the cross-motions for 

summary judgment, issued contemporaneously, the question of whether Defendant changed 

Plaintiff’s job requires a jury determination. While Defendant may be entitled to a cautionary 

instruction that the investigator’s conclusions are neither conclusive nor binding, they are 

nonetheless competent evidence under the exception created by V.R.E.803(8) which the jury is 

entitled to consider in making its own determination. 

Even though it might otherwise meet the test for the Rule 803(8) exception from hearsay, 

Defendant assails the document as untrustworthy. In part, Defendant characterizes the report as 

untrustworthy because it disagrees with the factual and legal conclusions of the investigator. Yet, 

these issues go to the heart of the case. Disputing the facts of the report is not sufficient to render 

the report inadmissible. Rather, the Court turns to the factors listed in Beech for guidance in 
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conducting a trustworthiness analysis. See 488 U.S. at 167, fn. 11. The report is dated 8/11/11 

and the alleged violation of the FMLA occurred on 3/17/11. Those factors are informed by the 

following facts. Plaintiff first contacted the investigator on 6/8/11. The investigation occurred a 

few months after the events, which is timely. The investigator does not describe the 

investigator’s skills and experience. No hearing was held. The investigator has no apparent bias 

although the investigator must have known the case could head toward litigation. 

Defendant also draws from the trustworthiness analysis in Sullivan. See 623 F.3d at 778. 

Defendant claims the investigator is anonymous, but a deposition of Mr. Wood indicates the 

parties knew his name. Defendant claims the report is missing its exhibits and is therefore 

incomplete. The report references a few outside sources, mostly employment records, but none 

of these are crucial to the report. Finally it is unclear if the report is a final version. As in 

Sullivan, the report recommends a course of action but does not include a disposition. 

Focusing on the timeliness of the investigation, and the presumption that government 

reports are trustworthy, the Court rejects Defendant’s untrustworthiness argument. See Beech, 

488 U.S. at 167. Even the Ninth Circuit holds Department of Labor reports are generally 

trustworthy and should be admitted absent a showing otherwise. See Franklyn v. Vista Del Mar, 

951 F.2d 359 (Table), 1991 WL 268927, *2 (9th Cir. 1991). Defendant’s attacks against the 

reliability of the report may properly be raised at trial as to the weight the jury should give its 

findings and conclusions, but the Court concludes, except as noted below, that the report is 

sufficiently trustworthy so as to likely be admissible. See Beech, 488 U.S. at 168. 

As previously noted, some question remains as to the status of the report as an official 

document of the Department of Labor. In ruling on Defendant’s motion in limine, the Court has 

not considered those uncertainties in its trustworthiness analysis. Rather, they are properly 

addressed as a matter of authentication at the time of trial. See, V.R.E. 901, 902. Assuming 

Plaintiff authenticates the report, other issues with respect to its trustworthiness will be left to the 

jury. Of course, absent proper authentication, the report will be excluded 

II. Motion to Amend Complaint to Include Edward Woods as a Defendant 

Plaintiff also seeks to amend her complaint to include Edward Woods, her supervisor, as 

a Defendant. According to Plaintiff, a supervisor who acts on behalf of an employer to deprive 

an employee of the employee’s rights under the FMLA may be liable to the employee. See 29 

U.S.C. § 2611(4)(A)(ii)(I). Plaintiff alleges Mr. Woods deprived her of her rights by threatening 

to return her old job and then move her to a different job minutes later. The alleged violation 

occurred on March 17, 2011. Plaintiff claims to have been unable to discover grounds for 

amending her complaint until recently because Mr. Woods described different versions of events 

through this litigation. 

Defendant opposes the motion to amend the complaint. Defendant argues the Court 

should not allow amendment because Plaintiff had the information all along, the motion is made 

in bad faith, the proposed amendment is futile, and Defendant would be prejudiced. Specifically, 

Plaintiff observes Defendant knew of Mr. Woods’s conduct on March 17, 2011 and did not file 

this amendment until years after the events. Second, Defendant believes Plaintiff seeks to add 
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Mr. Woods as an intimidation tactic for Defendant’s defense of this case. Third, there is a split 

on whether the FMLA applies to supervisors and Mr. Woods was not Plaintiff’s direct 

supervisor. Fourth, Mr. Woods would have no right to conduct discovery. 

After twenty days pass from the date of service, “a party may amend the party's pleading 

only by leave of court or by written consent of the adverse party; and leave shall be freely given 

when justice so requires.” V.R.C.P. 15(a). The trial court has discretion in allowing amendment 

of a complaint. Shahi v. Madden, 2008 VT 25, ¶ 6, 183 Vt. 320. Courts allow amendment where 

there is no prejudice and the amendment is not obviously frivolous, made in bad faith, or made to 

cause delay. See id. ¶ 7; Bevins v. King, 143 Vt. 252, 254–55 (1983). 

Despite the delay, the Court will allow Plaintiff to amend her complaint to add Mr. 

Woods as a defendant. Mr. Woods and his employer have had knowledge of these events and 

the suit for some time. The motion is not made on the eve of trial, though this case is over a year 

old. The amendment is not obviously frivolous. Mr. Woods performed some supervisory 

functions over Plaintiff, even if he did not formally assign her jobs and Defendant represent there 

is a split among other jurisdictions on whether supervisors are covered. Defendant makes a valid 

point that Plaintiff has had this information since March of 2011 and did not move to add Mr. 

Woods as a defendant until November of 2013. Nevertheless, there is no evidence of bad faith, 

little prejudice to Defendant, and the claim may have merit. See Shahi, 2008 VT 25, ¶ 6; Bevins, 

143 Vt. at 254–55. Therefore, the Court grants Plaintiff’s motion to amend her complaint. See 

V.R.C.P. 15(a). 

Order

 The Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion in limine. 

The Court will admit the report, if Plaintiff can satisfy foundational requirements, but will redact 

Plaintiff’s testimony within the report. The Court GRANTS Plaintiff’s motion to amend 

complaint. 

Dated and signed electronically at Newfane, Vermont on February 26, 2014. 

 

 

 John P. Wesley 

 Superior Court Judge