* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, appellee’s
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request for oral argument is denied, and the case is ordered submitted without oral

argument.

Plaintiff Phyllis Adkins brought this action against defendant Tower

Corporation, d/b/a Executive Tower Inn (Tower), alleging 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 trial, 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 evidence, and (2) that the district

court erred in refusing to limit the scope of the cross examination of plaintiff’s

rebuttal witness pursuant to Fed. R. Evid. 611. Following 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 Tower as Director of

Sales at the Executive Tower Inn in Denver, Colorado. She was hired by the

general manager at the time, Rabah Khatib. Approximately one month later, upon

the recommendation of plaintiff, Tower hired Andrea Knight as a sales manager. 
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Plaintiff described Ms. Knight as of Hispanic origin, 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 trained her, and reassigned

Knight’s delegated job duties to a white sales manager.” 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. Knight’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 attitude toward Ms. Knight was

discriminatory, plaintiff alleged that she had several other discussions with Mr.

Khatib about the problem. Plaintiff claimed that despite 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 alleged she was instructed to

draft a statement documenting her perception of the problems with Ms. Knight. 

Plaintiff contended that in her original written statement 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.
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Hartman denied the allegations in plaintiff’s statement, 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. Wasserman then drafted his own

statement for plaintiff to sign, deleting all of plaintiff’s statements regarding Ms.

Hartman’s treatment of Ms. Knight. Plaintiff alleged that because she expressed a

high level of discomfort in signing the statement prepared 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 signed

this draft on November 1, 1994, in front of a notary public. On November 4,

1994, plaintiff was terminated by Mr. Khatib. In her 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,
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No. 97-6067, 1998 WL 72152, at *7 (10th Cir. Feb. 23, 1998). “Because hearsay

determinations are particularly fact and case specific, we afford heightened

deference to the district court when evaluating hearsay objections.” Id.

B. Hearsay

Plaintiff asserts that the trial court erred in admitting the hearsay testimony

of Mr. Wasserman as to conversations he had with Mr. Khatib regarding

plaintiff’s job performance and Mr. Khatib’s intent to fire plaintiff. It appears

that at the time of plaintiff’s trial in this matter, Mr. Khatib had left his

employment at the Executive Tower Inn, and, for reasons unknown to this court,

he was being sued by Tower. Although Tower initially subpoenaed Mr. Khatib

and designated him on its witness list, when Mr. Khatib, who had since moved out

of state, moved to quash the subpoena, Tower did not 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 conversations he had with Mr.

Khatib regarding the latter’s concern that plaintiff was causing “divisiveness in

the sales department,” that “there was a lack of training,” and that Mr. Khatib was

generally “dissatisfied with the operations of the department, and . . . with the
1 Rule 803(6) provides an exception to the hearsay rule 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 those “[r]ecords, reports,

statements, or data compilations, in any form, of public offices or agencies.”

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sales results.” Appellant’s App. Vol. 2 at 572. Mr. Wasserman testified that he

did not learn of plaintiff’s discharge “until after the 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 testimony as hearsay, the court

initially stated its intention to allow the testimony 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 his duties, in the form of a

report.” Id. at 571. We need not definitively address plaintiff’s argument that

Mr. Wasserman’s testimony does not fit under either the business records or

public records exception to the hearsay rule, however, because we agree with

Tower’s argument that the testimony was not hearsay.

“‘Hearsay’ is 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.” Fed. R. Evid. 801(c). Hearsay evidence cannot be admitted at
2 We note that in her reply brief, plaintiff asserts that Faulkner is

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...)

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trial unless it falls under an exception. See Fed. R. Evid. 802. We agree with

Tower’s contention that Mr. Wasserman’s testimony was 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 that her termination was

in retaliation for her stand against the alleged discriminatory 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 shifts to defendant to establish

legitimate, nondiscriminatory reasons for the termination). The legitimate

business reasons offered must be “‘admissible evidence.’” 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 statements

which were “offered to establish [defendant’s] state 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 distinguish Faulkner on this point

unpersuasive.

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we conclude that Mr. Wasserman’s testimony as to what Mr. Khatib told him

regarding plaintiff’s job performance was not offered to prove that plaintiff’s job

performance was lacking, but only to demonstrate that Mr. Khatib thought there

were legitimate business reasons for his decision to terminate plaintiff. 

Therefore, the testimony was not hearsay and was properly admitted.

C. Scope of Cross-Examination

Next, plaintiff argues that the trial court erred in failing to limit the scope

of defendant’s cross examination of Mr. Khatib, plaintiff’s rebuttal witness,

pursuant to Fed. R. Evid. 611(b). Rule 611(b) states that “[c]ross-examination

should be limited to the subject matter of the direct 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 did not direct Mr. Khatib

to fire plaintiff, plaintiff called Mr. Khatib to testify through a deposition taken in

a lawsuit brought by Tower against Mr. Khatib. Over Tower’s objection, the

court allowed the testimony, noting that it had previously ruled that Mr. Khatib’s

deposition could be used as rebuttal evidence, that the rules permitted the use of a
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deposition from another case, that Tower was obviously aware of the deposition,

and that Mr. Khatib was unavailable as beyond the one-hundred mile subpoena

distance. See Appellant’s App. Vol. 2 at 654-55. Plaintiff then read into the

record a portion of Mr. Khatib’s deposition in which he asserts that Mr.

Wasserman told him to “get rid” of plaintiff. Id. at 657-59.

On cross-examination, the court allowed Tower to admit testimony from

Mr. Khatib’s deposition taken in plaintiff’s case. Tower read into the record all

of Khatib’s deposition testimony regarding his concerns about plaintiff’s job

performance and specific acts of insubordination, complaints about plaintiff from

other employees, his involvement in requiring plaintiff to draft an affidavit

regarding Knight’s resignation, and his eventual termination of plaintiff. See id.

at 663-84.

A timely objection is necessary in order to preserve an evidentiary error for

appeal. See Fed. R. Evid. 103(a)(1). Because plaintiff made timely and proper

objection to only one deposition question in approximately 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 cases has been limited to errors

which seriously affect the fairness, integrity or public reputation of judicial
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proceedings.” McEwen v. City of Norman, 926 F.2d 1539, 1545 (10th Cir. 1991)

(quotations omitted).

Plaintiff contends that her direct examination of Mr. Khatib was on the one

question of whether, in one conversation, Mr. Wasserman had directed Mr. Khatib

to fire plaintiff. She argues that the court’s indulgence in admitting significant

portions of Mr. Khatib’s deposition testimony regarding 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 inquiry 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, on cross-examination, to

establish the falsity of that impression, certainly was not beyond the scope of

plaintiff’s direct examination. Therefore, admission 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 integrity of the judgment as to constitute

plain error, see McEwen, 926 F.2d at 1545.
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The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge