Pregnant Pause: Eastern District of Michigan Misapplies Adoptive Admission Rule in FMLA/Title VII Action

The recent opinion of the United States District Court for the Eastern District of Michigan  in Huck v. Greenspan, 2009 WL 224682 (E.D. Mich. 2009), contains what I feel is a disastrous misapplication of the adoptive admission rule, with similarly disastrous results.

I won’t regale you with all of the extensive facts of  Greenspan, but the relevant ones are that:

-Laura Huck worked for Elliot I. Greenspan, D.O., P.C. & Associates, starting on September 17, 2001, first as a medical biller and then as, “effectively,” an office co-manager;

-In December 2004, Mark LeBlanc, an attorney whom Greenspan consults on business operations and legal matters, recommended as a cost cutting measure that Greenspan not renew contracts for two physicians and terminate Huck’s employment;

-Dr. Greenspan did not take any action on this recommendation, and Huck subsequently became pregnant with twins, also in December 2004;

-In January 2005, after complications with her pregnancy, Huck requested and was granted two-weeks FMLA  leave;

-After returning, Huck was given different duties, with a dispute on the question of to what extent she requested those changes;

-Huck submitted a 12 week  FMLA  leave request on March 29, 2005, that was approved;

-“At some point in time shortly thereafter, several employees reported to LeBlanc and Greenspan that Huck had lost her temper on several occasions and was causing disruptions in the office” (Huck herself admitted that she “‘may have raised [her] voice’ on occasion”);

-Dr. Greenspan fired Huck on May 13, 2005; and

-Huck sued Dr. Greenspan, LeBlanc, and the medical practice,  alleging Title VII  and Elliott-Larsen  claims of pregnancy discrimination; hostile work environment; and retaliation; as well as claims of violation of the  FMLA  and discrimination and retaliation under the  FMLA.

During a deposition, LeBlanc indicated that Karen Lajko, who was in charge of sales and marketing for the occupational medical division, was one of the employees who reported concerns about Huck’s temper and that she actually presented her concerns at the meeting where Dr. Greenspan decided to fire Huck.  During that deposition, the following exchange occurred:

Q: Do you remember when the decision was made by Dr. Greenspan to lay her [Plaintiff] off?

A: I do.

Q: When was that?

A: During that meeting where Karen, it was in his office the one we just discussed, on Tuesday prior to the Friday she [Plaintiff] was laid off, and after Karen finished her speech. I think with no one else speaking in between I looked at Dr. Greenspan and I said “my recommendations from the beginning of the year remain the same. And do with it what you will.” And he then protested the recommendation by saying words to the effect of, I’m not quoting him but this is as close as I can come, “no, because if I lay her off she’s the type that’s going to sue and we’re going to have to deal with that.” I responded to him in some fashion. He said that she’s pregnant and that she will sue us. He mentioned the pregnancy. I said, “pregnancy is not a factor here. Pregnancy is not a consideration here. And you can’t let the fact that someone might sue you run your business decisions.” He was silent for an extended period of time and finally he said, “fine, we will lay her off.”

According to other employees, the day after Huck was fired,  “Lajko spoke at a staff meeting which had ostensibly been convened to boost morale, and allegedly told other employees at that meeting that Huck was terminated because of her pregnancy. According to employees who were present at the meeting, Lajko said that Huck was let go because, being pregnant, she ‘needed to relax a little bit.'”

In Lajko’s deposition, she did not deny these allegations and instead indicated that:

“The office meeting was actually supposed to be…we were supposed to all gather basically it was about, you know, bringing up morale, kind of getting things done. I remember basically, my, my-I was opening. I was basically the very first person to speak. And again, knowing the girls, the girls like I know the girls, I basically when I first walked up I said, ‘you know what, there’s a big elephant in the room, let’s get it out.’ Basically what had always been kind of… what had always been kind of what they’d done at Wixom Health is things would happen and nobody would ever explain them. You know, Laura was a friend of people’s and people cared about Laura, and there was already enough anger in the place they needed to understand that, you know what, it’s not time to be angry, it’s time to move forward. And basically what I did was I shared with them my story about [my pregnancy with] the girls [twins] and I just said, ‘you know what, again, she’s going to be taken care of, she just needs to relax and we all need to basically support her in that.’ Just you know what, she is-because she was upset. She was calling everybody. Again, she just needed to stop, she needed to stop.”

LeBlanc was present at  the meeting where Lajko made these comments “but did not comment in response to any of Lajko’s remarks.”  According to LeBlanc’s deposition, “he did not hear Lajko’s reference to pregnancy and would have protested had he heard the comment.”

The defendants moved for summary judgment dismissing Huck’s complaint, with a key issue being whether Lajko’s remarks could  “be attributed to her employer as an ‘adoptive admission’ by virtue of the presence of…LeBlanc at the meeting when the remarks were made and his not having rebutted or disputed the statements.”  According to Huck, “because LeBlanc was a participant in the decision-making process concerning [her] firing, this ‘adoptive admission’ constitutes direct evidence of discrimination on the Medical Practice’s part.”

The court began by citing the adoptive admission rule — Federal Rule of Evidence 801(d)(2)(B), which indicates that “[a]  statement is not hearsay if…[t]he statement is offered against a party and is…a statement of which the party has manifested an adoption or belief in its truth.”

Then, as have most courts, the court in  Greenspan  found that a party can only be deemed to have adopted an admission if she fails to respond to a statement (or responds but does not rebut it), and the plaintiff can prove that “the party heard the statement,…understood the statement,…was able to respond to the statement,…and had the motive and opportunity to respond-i.e., the statement was made under circumstances reasonably calling for an answer.”

If the court had reason to address these last three elements, I am sure that it would have found them satisfied based upon LeBlanc’s own admission that he would have protested had he heard Lajko’s statement(s).  But the court did not address these elements because it concluded that Huck had failed to present evidence that LeBlanc heard the statement(s) and thus failed to satisfy her burden of proof on this element.

And my response is that of course Huck did not have any evidence that LeBlanc heard Lajko’s statements.  Almost every adoptive admission case deals with a party not responding to an incriminatory statement and thus being deemed to have adopted it.   And, of course, if that party fails to respond, there is not going to be any direct evidence that the party heard the statement. Now, it is true that the party could later discuss the statement with someone else, but then her statements made  during that discussion  would be affirmative admissions of a party-opponent under Federal Rule of Evidence 801(d)(2)(A), and there would be no reason to rely on the adoptive admission rule.

So, how do courts typically conclude that a party heard the statement(s) at issue for adoptive admission purposes?   The answer is that they typically rely upon inference, which is usually based upon the simple fact that the party was  in the same room with the speaker at the time the alleged (adoptive) admission was made.     And when that party claims that  she did not hear the statement at issue (and even if she presents some supporting evidence), the court does not simply put blind faith in  her denial (and certainly not on a motion for summary judgment), but instead allows the jury to resolve the dispute.

Indeed, the recent opinion of the First Circuit in United States v. Duval, 496 F.3d  64 (1st Cir. 2007), reveals  both the way that courts typically deal with this issue and the inadequacy of the court’s approach in Greemspan.   In Duval,  the court found that  

[i]n the present case, Dyott testified as to the incriminating nature of Doucette’s statement and placed Duval at the scene of the conversation. Duval argues that these foundational facts-which were proffered by the Government-were insufficient to prove that he heard  the statement, and thus for it to be admitted as an adoptive admission. While in some cases, the paucity of facts introduced at trial precludes any reasonably grounded finding of actual acquiescence,…we have left the resolution of substantial yet conflicting testimony for the jury….This same principle applies to cases in which the facts give rise to conflicting but plausible inferences.

In the present case, the trial court properly found that the Government laid an adequate foundation for the admission of Dyott’s testimony by offering testimony that the conversation between Dyott and Doucette took place in a small room, and that Duval was in that room, testimony from which it could be reasonably inferred that Duval heard  Doucette’s statements. Although Duval offered the contrary testimony of Ramos, who stated that he did not hear the conversation between Dyott and Doucette, the ultimate question of whether to believe Ramos’s testimony and to infer from it that Duval also did not hear Doucette was properly left to the jury. Because the court properly found that a foundation existed for the admission of Dyott’s testimony against Duval, we see no basis for concluding that the district court erred, plainly or otherwise, in admitting his testimony against Duval.

Now, unfortunately, the court in Huck didn’t indicate the size of the room where Lajko made her statements, but most staff meetings don’t take place in very large rooms.   The opinion also doesn’t tell us why LeBlanc was at the meeting, but given  that he was  as a legal and cost-cutting consultant, you would have to think that his main purpose for attending the meeting would have been to ensure that nothing incriminatory was said about  Huck’s firing, especially given Dr. Greenspan’s  comments about the probability of Huck suing.   I could see another employee zoning out during the meeting, but not LeBlanc.   And even if LeBlanc did zone out at some point, I doubt that it was during Lajko’s opening speech, when she was addressing  the “big elephant in the room.”

But despite these facts, the court found no triable issue of fact on the issue of whether LeBlanc heard the statement(s), accordingly found the adoptive admission rule inapplicable, and granted almost all aspects of the defendants’ motion for summary judgment (the only part that it denied was Huck’s claim relating to the change in her job duties after her first FMLA  leave).   And based upon the above, I would say that this was a serious miscarriage of justice.  

-Colin Miller