* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PHYLLIS ADKINS,

Plaintiff-Appellant,

v. TOWER CORPORATION, doing business as Executive Tower Inn, a Colorado corporation,

Defendant-Appellee. No. 97-1108 (D.C. No. 96-WY-371-CB) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, appellee’s-2-

request for oral argument is denied, and the case i s ordered submitted without oral argument. Plaintiff Phyllis Adkins brought this action agains t defendant Tower Corporation, d/b/a Executive Tower Inn (Tower), all eging retaliatory discharge in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Plaintiff also brought state law claims for violation of the public policy of the State of Colorado and for outrageous conduct. Following tri al, a jury found in favor of
Tower. On appeal, plaintiff asserts two evidentiary errors : (1) that the district court erred in admitting hearsay testimony into evi dence, and (2) that the district court erred in refusing to limit the scope of the c ross examination of plaintiff’s rebuttal witness pursuant to Fed. R. Evid. 611. Fo llowing careful consideration of the briefs and designated record in this appeal, we affirm.

I. Facts On or about April 8, 1994, plaintiff was hired by T ower as Director of Sales at the Executive Tower Inn in Denver, Colorad o. She was hired by the general manager at the time, Rabah Khatib. Approxi mately one month later, upon the recommendation of plaintiff, Tower hired AndreaKnight as a sales manager.-3-

Plaintiff described Ms. Knight as of Hispanic origi n, and as hearing impaired. Plaintiff contended that after Ms. Knight was hired , the Assistant General Manager, Debbie Hartman, began treating Ms. Knight in a less favorable manner in that she “spoke rudely to Knight, inadequately t rained her, and reassigned Knight’s delegated job duties to a white sales mana ger.” Appellant’s Opening Br. at 4. Plaintiff claimed that in the summer of 1994 , Ms. Hartman told her to terminate Ms. Knight, but after discussing Ms. Knig ht’s performance with Mr. Khatib, plaintiff refused to do so. Plaintiff contended that while plaintiff was out of town, Ms. Hartman audited her sales files and “targeted Knight” with unsubstantiated notations. Id. at 5. Being of the opinion that Ms. Hartman’s atti tude toward Ms. Knight was discriminatory, plaintiff alleged that she had seve ral other discussions with Mr. Khatib about the problem. Plaintiff claimed that d espite Ms. Knight’s superior job performance, due to the intensity of Ms. Hartman’s discriminatory attitude, Ms. Knight resigned in October 1994. Following Ms. Knight’s resignation, plaintiff alleg ed she was instructed to draft a statement documenting her perception of the problems with Ms. Knight. Plaintiff contended that in her original written st atement she documented her belief that Ms. Knight was treated in an unfair and discriminatory manner by Ms. Hartman. At a subsequent meeting with Ms. Hartman and Mr. Khatib, Ms.-4-

Hartman denied the allegations in plaintiff’s state ment, and plaintiff alleged that Mr. Khatib ordered her to rewrite the statement. Plaintiff’s second draft was faxed by Mr. Khatib to Tower’s president, Herbert Wasserman. According to plaintiff, Mr. Was serman then drafted his own statement for plaintiff to sign, deleting all of pl aintiff’s statements regarding Ms. Hartman’s treatment of Ms. Knight. Plaintiff alleg ed that because she expressed a high level of discomfort in signing the statement p repared by Mr. Wasserman, the statement was once again redrafted to state that Ms . Knight was always treated fairly. Still refusing to sign, plaintiff asserted that the statement was finally redrafted to state that plaintiff always treated Ms. Knight fairly. Plaintiff signe d this draft on November 1, 1994, in front of a notary public. On November 4, 1994, plaintiff was terminated by Mr. Khatib. In h er complaint, plaintiff claimed, inter alia, that her termination was in retaliation for her objections to the discriminatory treatment of Ms. Knight. Following trial, a jury found in favor of Tower. Plaintiff appeals, and we affirm.

II. Discussion A. Standard of Review On appeal, the district court’s evidentiary rulings are reviewed for an abuse of discretion, considering the record as a whole. See United States v. Trujillo ,-5-

No. 97-6067, 1998 WL 72152, at *7 (10th Cir. Feb. 2 3, 1998). “Because hearsay determinations are particularly fact and case speci fic, we afford heightened deference to the district court when evaluating hea rsay objections.” Id.

B. Hearsay Plaintiff asserts that the trial court erred in adm itting the hearsay testimony of Mr. Wasserman as to conversations he had with Mr . Khatib regarding plaintiff’s job performance and Mr. Khatib’s intentto fire plaintiff. It appears that at the time of plaintiff’s trial in this matte r, Mr. Khatib had left his employment at the Executive Tower Inn, and, for rea sons unknown to this court, he was being sued by Tower. Although Tower initial ly subpoenaed Mr. Khatib and designated him on its witness list, when Mr. Kh atib, who had since moved out of state, moved to quash the subpoena, Tower did no t oppose the motion. Apparently both Tower and plaintiff deposed Mr. Khatib in preparation for their respective lawsuits. Plaintiff did not subpoena Mr . Khatib to testify in person or by deposition. At trial, Mr. Wasserman testified as to conversatio ns he had with Mr. Khatib regarding the latter’s concern that plaintif f was causing “divisiveness in the sales department,” that “there was a lack of tr aining,” and that Mr. Khatib was generally “dissatisfied with the operations of the department, and . . . with the1 Rule 803(6) provides an exception to the hearsay ru le for records of

regularly conducted business activity, in the form of “[a] memorandum, report, record, or data compilation, . . . made at or near the time by, . . . a person with knowledge.” Rule 803(8) exempts from the rule thos e “[r]ecords, reports, statements, or data compilations, in any form, of p ublic offices or agencies.”

-6- sales results.” Appellant’s App. Vol. 2 at 572. M r. Wasserman testified that he did not learn of plaintiff’s discharge “until afterthe fact,” and although he expressed support, it was Mr. Khatib’s decision to terminate plaintiff. Id. at 574. In response to plaintiff’s objection to this testim ony as hearsay, the court initially stated its intention to allow the testimo ny under the business records exception to the hearsay rule. See id. at 569. Immediately thereafter, in a sidebar discussion of the ruling, the court stated that it was allowing the testimony under the “public records” exception of Fed. R. Evid. 803 (6) and (8) 1 as “information that came to [Wasserman] in the regular course of h is duties, in the form of a report.” Id. at 571. We need not definitively address plaintif f’s argument that Mr. Wasserman’s testimony does not fit under eitherthe business records or public records exception to the hearsay rule, howev er, because we agree with Tower’s argument that the testimony was not hearsay

. “‘Hearsay’ is a statement, other than one made by t he declarant while testifying at the trial or hearing, offered in evid ence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay e vidence cannot be admitted at2 We note that in her reply brief, plaintiff asserts that Faulkneris

distinguishable in that, in Faulkner , the trial court issued a limiting instruction regarding the disputed testimony. See 3 F.3d at 1435. Federal Rule of Evidence 105 requires a limiting instruction “upon request.” Here, there is no evidence that (continued...) -7- trial unless it falls under an exception. See Fed. R. Evid. 802. We agree with Tower’s contention that Mr. Wasserman’s testimony w as not offered to prove the truth of the matter asserted--that plaintiff’s job performance was deficient--but only to show Mr. Khatib’s state of mind in deciding to terminate plaintiff. Once plaintiff had established a prima facie case t hat her termination was in retaliation for her stand against the alleged di scriminatory treatment of Ms. Knight, Tower had to establish legitimate business reasons for the termination.
See Sauers v. Salt Lake County , 1 F.3d 1122, 1128 (10th Cir. 1993) (once a prima facie case of retaliation is established, burden sh ifts to defendant to establish legitimate, nondiscriminatory reasons for the termi nation). The legitimate business reasons offered must be “‘admissible evide nce.’” Faulkner v. Super Valu Stores, Inc. , 3 F.3d 1419, 1434 (10th Cir. 1993) (quoting Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 255 (1981)). “Statements offered for the effect on the listener . . . are generally not hearsay.” Id. In Faulkner , this court held admissible certain out-of-court s tatements which were “offered to establish [defendant’s] stat e of mind in making its hiring decisions and [were] not offered for the truth of the matter asserted.” Id. 2 Here,2 (...continued)

plaintiff requested a limiting instruction as to Mr . Wasserman’s testimony. Therefore, we determine plaintiff’s attempt to dist inguish Faulkneron this point unpersuasive. -8- we conclude that Mr. Wasserman’s testimony as to wh at Mr. Khatib told him regarding plaintiff’s job performance was not offer ed to prove that plaintiff’s job performance was lacking, but only to demonstrate th at Mr. Khatib thought there were legitimate business reasons for his decision t o terminate plaintiff. Therefore, the testimony was not hearsay and was pr operly admitted. C. Scope of Cross-Examination Next, plaintiff argues that the trial court erred i n failing to limit the scope of defendant’s cross examination of Mr. Khatib, pla intiff’s rebuttal witness, pursuant to Fed. R. Evid. 611(b). Rule 611(b) stat es that “[c]ross-examination should be limited to the subject matter of the dire ct examination and the matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” In rebuttal to Mr. Wasserman’s testimony that he di d not direct Mr. Khatib to fire plaintiff, plaintiff called Mr. Khatib to t estify through a deposition taken in a lawsuit brought by Tower against Mr. Khatib. Ove r Tower’s objection, the court allowed the testimony, noting that it had pre viously ruled that Mr. Khatib’s deposition could be used as rebuttal evidence, thatthe rules permitted the use of a-9-

deposition from another case, that Tower was obviou sly aware of the deposition, and that Mr. Khatib was unavailable as beyond the o ne-hundred mile subpoena distance. See Appellant’s App. Vol. 2 at 654-55. Plaintiff thenread into the record a portion of Mr. Khatib’s deposition in whic h he asserts that Mr. Wasserman told him to “get rid” of plaintiff. Id. at 657-59. On cross-examination, the court allowed Tower to ad mit testimony from Mr. Khatib’s deposition taken in plaintiff’s case. Tower read into the record all of Khatib’s deposition testimony regarding his conc erns about plaintiff’s job performance and specific acts of insubordination, c omplaints about plaintiff from other employees, his involvement in requiring plaintiff to draft an affidavit regarding Knight’s resignation, and his eventual te rmination of plaintiff. See id.
at 663-84. A timely objection is necessary in order to preserv e an evidentiary error for appeal. See Fed. R. Evid. 103(a)(1). Because plaintiff made t imely and proper objection to only one deposition question in approx imately twenty-four pages of testimony, the bulk of the challenged testimony can be reviewed on appeal only for plain error. See Wheeler v. John Deere Co. , 862 F.2d 1404, 1409 n.1 (10th Cir. 1988). “The plain error exception in civil ca ses has been limited to errors which seriously affect the fairness, integrity or p ublic reputation of judicial-10-

proceedings.” McEwen v. City of Norman , 926 F.2d 1539, 1545 (10th Cir. 1991) (quotations omitted). Plaintiff contends that her direct examination of M r. Khatib was on the one question of whether, in one conversation, Mr. Wasse rman had directed Mr. Khatib to fire plaintiff. She argues that the court’s ind ulgence in admitting significant portions of Mr. Khatib’s deposition testimony regar ding her job performance and the circumstances of her termination was reversible error as beyond the scope of direct examination. We do not agree. Here, plaintiff elicited testimony from Mr. Khatib which would indicate that he fired plaintiff solely because Mr. Wasserman instructed him to do so. By so doing, plaintiff opened the door to Tower’s inqu iry into the reasons for Mr. Khatib’s termination of plaintiff. It is clear that plaintiff attempted to create a certain impression on the jury. Tower’s attempt, o n cross-examination, to establish the falsity of that impression, certainlywas not beyond the scope of plaintiff’s direct examination. Therefore, admissi on of the testimony was not an abuse of the court’s discretion, see Fed. R. Evid. 611(b), nor can we conclude that the testimony so infected the fairness or integrityof the judgment as to constitute plain error, see McEwen , 926 F.2d at 1545.-11-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge