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Spencer v. Bristol-Meyers Squibb Co.

December 08, 1998

DIANE E. SPENCER, PLAINTIFF-RESPONDENT,
v.
BRISTOL-MEYERS SQUIBB COMPANY, A DELAWARE CORPORATION AND E.R. SQUIBB & SONS, INC., A NEW YORK CORPORATION, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: O'hern, J.

Argued September 14, 1998

On certification to the Superior Court, Appellate Division.

This is an employment discrimination case. At issue is the admission into evidence of a statement by a personnel director to an employee to the effect that the employee was denied promotion because her immediate supervisors did not wish a woman of her age and race to hold the position that the employee sought.

We hold that, because the personnel director's statement identified the supervisors involved, and because the alleged statements by the supervisors fall within the scope of their employment, the personnel director's statement to plaintiff had sufficient reliability to be admitted into evidence as a party admission under N.J.R.E. 803(b)(4). Accordingly, we affirm the judgment of the Appellate Division holding the statement admissible.

I.

For purposes of this appeal, we accept generally the statement of the case set forth in the employer's petition for certification.

In October 1989, Diane E. Spencer was employed as a Director of Strategic Planning by E. R. Squibb & Sons, Inc. At about that time, Squibb merged with Bristol-Meyers Company to form Bristol-Meyers Squibb Company (BMS). As a result of the merger, plaintiff and others in her department were scheduled to lose their jobs.

Just before the effective date of her termination, plaintiff interviewed for the position of Director of Marketing Research within BMS's contemplated hospital marketing and marketing service department. BMS anticipated creating this position to provide intermediate-level managerial support to Ronald Gentile, who was then the director of marketing.

Spencer interviewed with Gentile, Christine Poon, and Michael Walker, BMS's Director of Human Resources. After her interview, plaintiff spoke with Walker about her prospects of obtaining the position. At a later deposition, she testified that Walker said:

[W]e are having a difficult time trying to get that position for you. There is a person in the department the company is concerned about, I don't know if you know her, but her name is Maria Neu. . . . [H]er father is very influential in the company. He is one of the biggest writers of Captan which is the product at the time.

Her father is kind of manipulative and had his hand in her career since she started at the company. To be honest, there is some concern in the company and he didn't say who, concern that if we bring you into the department, her father would be a little concerned about the idea of having a black female of your age as her role model (emphasis added).

In her statement, "he didn't say who," plaintiff apparently indicated that Walker did not say at the time whose concerns he was expressing. Later in the same deposition, plaintiff said that Walker had mentioned Poon, Gentile, and Oaks, who was the Vice President of Marketing. Plaintiff later added, "He [Walker] told me he met with Chris Poon and he talked with her. There was no problem with me from Chris Poon, but there was concern from the others."

When plaintiff was denied the position, she brought an employment discrimination action against BMS. Under the New Jersey Law Against Discrimination (LAD), specifically N.J.S.A. 10:5-12, she alleged age and race discrimination in the termination of her employment under the reduction in force and in BMS's refusal to hire her as assistant director of marketing research within the hospital marketing and marketing services department. At a pretrial hearing, BMS challenged the admissibility of Walker's statements. Plaintiff testified at the hearing regarding the substance and context of Walker's statements to her. Plaintiff was quite specific concerning all the details of the conversation. Plaintiff stated for the first time that Walker had also mentioned Jim Mauzey as one of the concerned managers in the marketing department. She testified that she "asked who specifically [was concerned because of her age and race] and [Walker] told [her]." When asked, "And who did he tell you?," Spencer answered, "He said--he said Rick Gentile, Moe Oaks, and Jim Mauzey." At the Conclusion of the hearing, the trial court excluded the statements attributed to Walker. Because the statements were the only proffered evidence of discrimination, the trial court dismissed plaintiff's complaint. Plaintiff appealed from the dismissal of her complaint. BMS cross- appealed from the denial of its motion for summary judgment.

The Appellate Division reversed the dismissal of plaintiff's case, affirmed the orders denying BMS's motion for summary judgment and remanded for trial. The panel found that plaintiff could avail herself of the vicarious admission exception to the hearsay rule, N.J.R.E. 803(b)(4), for both levels of hearsay, because plaintiff had adequately identified the links in the hearsay chain and had demonstrated the relation of the statements to "the recruitment and hiring process for the position in which plaintiff had evinced an interest." The court concluded that "the triple hearsay problem perceived by the trial court d[oes] not exist," because "the truth or falsity" of Dr. Neu's statements or attitudes was not in issue. The court concluded that the trial court's ruling improperly included an assessment of plaintiff's credibility, where the trial court should have assessed merely whether the "statement ...


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