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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the
accompanying data included in the Vermont trial cou rt 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 M otion in Limine &

Granting Plaintiff’s Motion to Amend Complaint

Four motions await decision by the Court. The Cour t concurrently issues a separate order in response to the cross-motions for summary judgme nt. 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 Depart ment of Labor report subject to redactions of Plaintiff’s testimony and a limiting instruction. A t 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 und er 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 Parent al and Family Leave Act. Plaintiff alleges she took medical leave and Defendant did no t offer her an equivalent position when she returned. Plaintiff believes the offered position w as not equivalent because it involved more travel during the work day. To support her claim, P laintiff offers a report prepared by the U.S. Department of Labor.

In 2011, the Department of Labor investigated Plain tiff’s claims. Plaintiff claimed her position was not equivalent because she would recei ve lower commissions, have less seniority, and have to travel more during the work day. The in vestigator spoke with Plaintiff and Edward Woods, a representative of Defendant. The report d escribes what Plaintiff and Defendant said. The investigator rejected Plaintiff’s claims that s he would receive fewer commissions and have less seniority; however, the report found the incre ase in travel changed her job. The report recommended Defendant pay Plaintiff $13,869.62 in b ack wages, which Defendant refused.

The official status of the report within the Depart ment 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 fina l. 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 evide nce that it is official.2

The evidentiary issue raised by the motion in limin e is whether the Court may admit the report under V.R.E. 803(8). Plaintiff seeks admissi on 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. 80 3(8) does not encompass legal conclusions. Defendant further contests the report as untrustwor thy because the report is anonymous, the investigator did not hold a hearing, and the invest igator did not list the investigator’s qualifications.

Under V.R.E. 803(8)(A), “records, reports, statemen ts, or data compilations[,] or factual findings resulting from an investigation made pursu ant 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 t he 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 fa ct and suggested the crash was probably caused by pilot error. Id. at 157–58. Analyzing the report’s admissibility un der F.R.E. 803(8), the Court noted the circuits had split on how broadly t o 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 9 th 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 trustwor thiness 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 h earing was held; and (4) possible bias when reports are prepared with a view to possible litiga tion.” 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 i nquiry 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 f ire. 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 conclusi on 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 itse lf was generally admissible under 803(8), the testimony of the witnesses contained within the tra nscript should have been excluded as “double hearsay”. Id. at 274–75. The Supreme Court also rejected the tri al 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 pressu res. Id. at 275–76.

1 Among other objections, Defendant raises a claim a bout the Plaintiff’s duty to mitigate. However, Def endant establishes no authority making the duty mitigate r elevant to the admissibility of the Department of L abor report.3

Finally, a Ninth Circuit decision directly addresse d the potential use of a Department of Labor report in a suit over the Family Medical Leav e Act. See Sullivan v. Dollar Tree Stores,

Inc. , 623 F.3d 770, 776–77 (9th Cir. 2010). The suit fo cused on whether the plaintiff’s new employer was a successor in interest to her old emp loyer. Id. at 774. The report, which plaintiff offered under F.R.E. 803(8), offered an opinion tha t 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 opini ons 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 unt rustworthy, 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 contain ed 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 th at she would receive fewer commissioners and had less seniority.

While as further discussed below, parts of the repo rt may be admissible under Rule 803(8), such admission must be subject to the redac tion of Plaintiff’s testimony contained in the report. Notwithstanding Plaintiff’s assertion of t he need for “context”, plainly her testimony is an out-of-court statement offered for its truth, an d 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 cour t’s reasoning rejected by the majority in

Needham that the witnesses’ testimony showed political pre ssures 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 N inth 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 o pinions of fact. See Beech , 488 U.S. at 162. The U.S. Supreme Court did not decide the admissibi lity of legal conclusions and Vermont has not addressed the issue. Yet, any agency that inves tigates a violation of a statute or regulation is bound to conduct a legal analysis, and the final de termination 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 que stion of whether Defendant changed Plaintiff’s job requires a jury determination. Whil e 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 determinatio n.

Even though it might otherwise meet the test for th e Rule 803(8) exception from hearsay, Defendant assails the document as untrustworthy. I n 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 rende r the report inadmissible. Rather, the Court turns to the factors listed in Beech for guidance in4

conducting a trustworthiness analysis. See 488 U.S. at 167, fn. 11. The report is dated 8/11/1 1 and the alleged violation of the FMLA occurred on 3 /17/11. Those factors are informed by the following facts. Plaintiff first contacted the inv estigator 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 wa s 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 analy sis 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 so urces, mostly employment records, but none of these are crucial to the report. Finally it is u nclear 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, an d the presumption that government reports are trustworthy, the Court rejects Defendan t’s untrustworthiness argument. See Beech

, 488 U.S. at 167. Even the Ninth Circuit holds Depa rtment 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 admissi ble. See Beech , 488 U.S. at 168.

As previously noted, some question remains as to th e 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 trustwort hiness 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 wi th respect to its trustworthiness will be left to t he jury. Of course, absent proper authentication, the report will be excluded

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

Plaintiff also seeks to amend her complaint to incl ude Edward Woods, her supervisor, as a Defendant. According to Plaintiff, a supervisor w ho 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. W oods deprived her of her rights by threatening to return her old job and then move her to a differ ent job minutes later. The alleged violation occurred on March 17, 2011. Plaintiff claims to ha ve been unable to discover grounds for amending her complaint until recently because Mr. W oods 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 th e 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 co nduct on March 17, 2011 and did not file this amendment until years after the events. Second , Defendant believes Plaintiff seeks to add5

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 tria l court has discretion in allowing amendment of a complaint. Shahi v. Madden , 2008 VT 25, ¶ 6, 183 Vt. 320. Courts allow amendm ent where there is no prejudice and the amendment is not obvi ously 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 t o amend her complaint to add Mr. Woods as a defendant. Mr. Woods and his employer h ave had knowledge of these events and

the suit for some time. The motion is not made on t he 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 formal ly assign her jobs and Defendant represent there is a split among other jurisdictions on whether sup ervisors 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. Nevert heless, there is no evidence of bad faith, little prejudice to Defendant, and the claim may ha ve merit. See Shahi , 2008 VT 25, ¶ 6; Bevins

, 143 Vt. at 254–55. Therefore, the Court grants Plai ntiff’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 s atisfy 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