Blackburn v. United Parcel Ser ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
6-7-1999
Blackburn v. United Parcel Ser
Precedential or Non-Precedential:
Docket 98-6075
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Filed June 7, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 98-6075
BENJAMIN BLACKBURN,
Appellant
v.
UNITED PARCEL SERVICE, Inc.;
PATRICIA KNOWLES
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 95-cv-04709)
District Judge: Honorable Maryanne Trump Barry
Argued: February 9, 1999
Before: BECKER, Chief Judge, McKEE, Circuit Judges
and LEE, District Judge.*
(Filed June 7, 1999)
WALTER A. LUCAS, ESQUIRE
(ARGUED)
GLEN D. SAVITS, ESQUIRE
LISA NEMETH, ESQUIRE
Lucas, Savits & Marose, LLC
50 Northfield Avenue
West Orange, NJ 07052
Counsel for Appellant
_________________________________________________________________
*Honorable Donald J. Lee, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
KATHLEEN M. McKENNA, ESQUIRE
(ARGUED)
DAVID W. MacGREGOR, ESQUIRE
Proskauer, Rose, LLP
1373 Broad Street
P.O. Box 4444
Clifton, NJ 07105-4444
Counsel for Appellees
OPINION OF THE COURT
BECKER, Chief Judge.
In this diversity case, we are asked to review the District
Court's grant of summary judgment for defendant United
Parcel Service ("UPS"), which was grounded on the view
that the conduct of plaintiff Benjamin Blackburn did not
constitute protected activity under the New Jersey
"whistleblower" statute, the Conscientious Employee
Protection Act ("CEPA"), N.J. Stat. Ann. SS 34:19-1 to -8.
Being doubtful of the correctness of this conclusion of the
District Court, we will assume that Blackburn has met his
burden of establishing a prima facie case of retaliation
under CEPA. We will instead affirm the District Court's
judgment on the alternative ground that Blackburn has
failed to offer sufficient admissible evidence to rebut UPS's
proffered legitimate justification for his discharge--his
putative violation of UPS's anti-nepotism, favoritism,
integrity, and accountability policies. In order to reach the
pretext issue, and so as to determine which evidence of
Blackburn's might be admissible at trial, we must consider
the contours of a number of exceptions to the rule against
admitting hearsay evidence. In particular, we must
interpret the seldom-invoked exception for reputation
evidence concerning family relationships, see Fed. R. Evid.
803(19), which bears on Blackburn's defense to the
nepotism charges. Ultimately, we conclude that an
insufficient quantum of evidence would be admissible at
trial to rebut UPS's proffered legitimate justification for
discharging Blackburn; hence, we affirm.
2
I. Facts & Procedural History
Blackburn worked for UPS1 for approximately eight years.
He began work as a driver in June 1986, and was promoted
several times, first becoming a manager in 1990. In early
1992, Blackburn was transferred to a division of the
company that priced UPS products and services. His duties
included development of a flexible pricing project, the
Incentive Administration System ("IAS"). In September
1993, he was promoted to Marketing User Representative
for the Marketing Information Group in Mahwah, New
Jersey. In this position, his responsibilities included
addressing, through the IAS or otherwise, UPS's loss of
accounts and significant amounts of business to a
competitor, Roadway Package Service. His principal
supervisor at that time was Gary Hopwood, who was based
in Atlanta. Hopwood's supervisor was Nicholas Bain, who
was also Atlanta-based.
A. Blackburn's Complaints to His Supervisors
In November 1993, Blackburn first expressed to the IAS
project manager, Rich Cooley, his concerns regarding
possible antitrust violations arising out of customer
discounts given through the IAS.2 Blackburn's concerns
allegedly intensified when, in early 1994, UPS began to
modify its pricing system and combined ground contracts
with air contracts, a "bundling" practice that he alleged
_________________________________________________________________
1. Also named as a defendant was Patricia Knowles, a supervisor in
UPS's Human Resources Department. The District Court found that
there was no basis for any claims against Knowles and dismissed her
from the suit. Blackburn does not appear to contest this ruling, focusing
his discussion on his claims against UPS. We likewise will confine our
discussion to the issues concerning UPS, and therefore refer to the
singular defendant throughout.
2. In this appeal from summary judgment in favor of defendant, "we view
the facts as they are set forth [in the record], in the light most
favorable
to the non-moving party [i.e., Blackburn], in order to determine whether
there are material issues of disputed fact." Bechtel v. Robinson, 886 F.2d
644, 647 (3d Cir. 1989). References in this opinion to "App." refer to
Blackburn's Appendix, while references to "S.A." refer to the
Supplemental Appendix filed by UPS.
3
allowed even unprofitable ground customers to be enticed
with air discounts. Blackburn believed that the IAS project
was generally falling apart because of inadequate resources
and a lack of management and direction.
On March 22, 1994, Blackburn first put his concerns in
writing, sending a memo to his supervisor, Hopwood. This
memo stated, in relevant part:
As per our recent phone conversation, I'm detailing
here areas where I believe that we may run into
significant problems with respect to Anti-Trust issues
going forward.
I would appreciate your running these by [UPS in-
house attorney] Joel Creamer in order to determine
whether these issues will present legal obstacles.
1) No security check exists at present to authenticate
or assure that the information entered by field users is
either accurate or valid. As you know, it is important
that user information be subject to some type of
validation process or, the worst case scenario, we may
be providing a discount level that could easily be
interpreted as predatory in nature.
While I am unsure as to the extent of our obligation
in this area, it seems to me that we must have some
type of system in place that will authenticate, to some
reasonable degree, the input data that our sales reps
are entering in order to develop prices. To leave this to
their discretion is, I believe, flirting with disaster under
the present scenario.
Obviously, Creamer will have a much better sense
about the company's obligation here but to expound
upon my concern a bit more, it occurs to me that a
challenge to our pricing methodology cannot be
defended merely by the company taking the position
that it didn't know what its sales reps were doing in
developing discounts. That is to say, it is difficult for
me to see where a posture of "see no evil, hear no evil
. . ." is especially wise given our current position in the
Ground marketplace. I urge you to take action to
determine whether this [is] as significant as I fear it
may be down the road.
4
2) The present combination of Mark Matulavicus and
Leslie Gilstrap working as representatives of the
Strategic Cost groups causes me grave concerns as I
have been unable, as you know, to get any real
commitment from their manager as to the level of
comfort we should have in determining whether their
costing methodology is indeed in line with regularly
accepted costing practices or whether the Incentive
Administration System is intended to be built using
trial methodology.
App. at 60 (ellipsis in original).
On April 18, 1994, Blackburn sent another memo to
Hopwood about his discomfort with the status of IAS. He
suggested that it could not be properly validated and that
there were many internal failures, including the improper
billing of hundreds of customers. He expressed concern
that releasing IAS to customers in its present state could
cause "significant" liability, and "we ought to try and get
things straightened out before we end up having to explain
ourselves to someone outside of our organization." Id. at 62.
On June 3, 1994, Blackburn wrote to Bain, expressing the
view that the IAS project "will have gravely negative
implications for the organization. . . . Both Rich Cooley and
I have serious reservations as to whether the system we are
building is indeed functioning properly and the potential
outcome of this may be significant both internally and
externally." Id. at 63.
On June 15, 1994, Blackburn wrote another memo to
Hopwood, stating that "I have serious concerns about the
rate we are moving and what I believe to be the gross
negligence of our group in assuring that the system works
properly and, dare I say, within the confines of ordinary
accepted business principles." Id. at 64. He could not "in
good conscience" sign off on the system without reasonable
testing:
Our billing problems have, I believe, only beg[u]n to
show themselves for what they truly will be come yet
another release of the system and I am extremely
uncomfortable with the idea of signing off on
something that is not only wrong but very likely illegal
in the way that it is used.
5
You have indicated to me that I should "relax" about
this and stated that the issues are too complex for
ordinary folks to understand. I must say that while I
agree that the issues are indeed complex, it won't take
a rocket scientist to figure out that the methodology
we've used in creating this system lacks a basic
integrity that is at the core of any worthwhile endeavor.
I fear that the result will not only be a loss of
confidence by our customers but also willingly and
knowingly violates fundamental obligations we have as
an organization to our fellow employees, our customers
and the public.
It certainly wouldn't take a genius to pick apart the
cost model as it stands at present and I suspect that
we could easily find glaring departures from commonly
accepted costing practices. . . .
Last but not least, I believe strongly that any
challenge to the practices in place would not stand a
legal litmus test. For this reason, I urge you on this
count to not only discuss the implications of this with
the legal staff but to also take another crack at making
the Strategic Costing group aware of the potential
impact should additional qualified resources not be
assigned to work on the project.
Id. at 64-65. Blackburn sent a final memo to Hopwood on
August 12, 1994:
Yesterday we had [a meeting] at your request. I've
written up the following summarization in order to
highlight the key points of what became a very
disturbing discussion.
. . . In reviewing my performance, you indicated that
I am performing at a very high level technically . .. .
You also indicated that you feel I need to improve in
the area of "being a team player".
As you stated, your concern regards my continued
criticism of the methodology used in IAS to apply
pricing formulas which may violate Anti-Trust
regulations.
. . . .
6
I believe that I have an obligation to raise these
concerns and your demand that I "not discuss these
with others" is especially difficult in light of the fact
that my concerns have been on-going for some time.
. . . .
You have agreed on numerous occasions with both
Pat Toomey and myself that this situation must be
corrected immediately if we are to avoid a significant
set of legal problems going forward. . . .
. . . I must nevertheless continue to remind you of
our obligation to assure proper pricing practices in
light of our role as the marketplace leader in the
ground segment.
As I have mentioned to you numerous times, the
stress that this subject has caused me is tremendous
and has been instrumental in the development of
serious health problems that originally led me to
request a transfer from the Marketing Information
group.
While I believe that I have been a solid "team player"
throughout my career, I am deeply bothered by your
clear message that my success on this project depends
more on my willingness to [toe] a line of silence amid
seriously questionable and unethical pricing and
management practices than on traditional measures of
accountability.
Your references to me as an "unimaginative stick in
the mud", a "snitch" and most interestingly, as a "nosy,
bean counting Jew" are unwanted, embarrassing and
frankly, unprofessional.
Id. at 66-67.
Blackburn was fired by UPS on September 29, 1994,
approximately seven weeks after his last memo was sent to
Hopwood. He alleges that he was fired for raising with his
supervisors the possible illegality of UPS's pricing system,
and that his firing violates CEPA.
7
B. UPS's Stated Reason for Blackburn's Firing
The position of UPS is twofold. First, it asserts that
Blackburn's conduct in complaining to his superiors about
problems with the IAS did not constitute protected activity
under CEPA. Second, UPS contends that Blackburn was
fired not for his complaints regarding the IAS, but for
violations of UPS's anti-nepotism, favoritism, integrity, and
accountability policies.
UPS has had an anti-nepotism policy in its Policy Book
for management employees since 1965. The 1992 version,
in effect during the period in question, states:
We Strictly Limit the Employment of Relatives. .. .
. . . .
. . . [W]e prohibit hiring--for either full-time or part-
time employment--relatives of active employees . .. .
For the same reasons, we discourage continuation of
the full-time or part-time employment of any employee
who marries another employee while either person
holds a management position in the same district, the
same region office or Corporate Headquarters.
S.A. at 118. The Policy Book does not define "relatives." The
favoritism policy states, "We Treat Our People Fairly and
Without Favoritism. . . . We have the responsibility to avoid
any relationship that may result in actual or perceived
favoritism." Id. at 123. The integrity policy states:
We Insist Upon Integrity in Our People. . . .
. . . We insist on integrity in the preparation and
approval of all reports.
We expect our people to be honest with respect to
intangible things as well--in the time, effort, and full
performance of their jobs; in fair play in dealing with
others; and in the acknowledgment of mistakes or
other shortcomings.
. . . [W]hen we do discover a dishonest person in our
organization, we deal with that individual quickly and
firmly.
8
Id. at 134. Finally, the accountability policy states:
We Are All Accountable for Compliance With Our
Policies. As individuals, we do not have the authority to
change or disregard any of our company's policies. We
are expected to follow existing policies, even if not
always in complete agreement with them. We must be
careful not to misinterpret or violate a policy's spirit
and intent. If in doubt, we should check with others for
guidance.
. . . .
Our managers and supervisors set the example for
carrying out our policies. . . . They, therefore, are
expected to lead the way for other UPS people--by word
and action--in living up to our policies.
Id. at 110. As a management employee, Blackburn received
a copy of the Policy Book and was aware of these policies.
Blackburn married Loren Morrissey in April of 1990. On
September 29, 1993, Linda Shepard, Morrissey's sister,
applied for a job at UPS's Mahwah facility. Shepard stated
on her employment application that she did not have any
relatives employed by UPS. In December of 1993, Shepard
was hired as a Methods Analyst at Mahwah, and began
work in the same building as Blackburn. Blackburn was
aware that Shepard had applied for and gotten the job, and
at times commuted to work with Shepard and had contact
with her during the workday by, for example, meeting her
for lunch. At no time before September 1994 did Blackburn
disclose his relationship with Shepard to UPS. See id. at 14
(Pl.'s Dep. at 182-83). At various times after Shepard's
hiring, and before September 1994, Blackburn
recommended Shepard for other UPS positions without
informing those to whom he made the recommendations
that Shepard was his sister-in-law.
On September 14, 1994, UPS's Loss Prevention
Department received an anonymous complaint, forwarded
to Patricia Knowles of UPS's Human Resources Department
at Mahwah, that Blackburn was Shepard's brother-in-law.
The complaint also expressed concern that Shepard might
be promoted because of Blackburn's influence. That same
9
day, Knowles and UPS manager Nigel Watson met with
Shepard and questioned her regarding her relationship with
Blackburn. After initially denying that Blackburn was her
brother-in-law, Shepard eventually admitted that he was
married to her sister. However, she gave an incorrect date
for Blackburn's marriage to her sister, claiming that they
were married in April 1994, after Shepard had been hired
by UPS.
After verifying the actual date of Blackburn's marriage
(through UPS's Human Resources Department in Atlanta),
Knowles confronted Blackburn on September 15, 1994.
Blackburn denied that he was "related" to Shepard but
admitted that he was married to her sister. He also
expressed disbelief that the relationship was of concern to
UPS. On September 16, Knowles met again with Shepard,
who claimed that Blackburn was aware that Shepard was
interviewing with UPS when she originally sought a job
there. On September 29, 1994, UPS offered Shepard a
chance to resign, on the grounds that she had lied on her
application (by indicating that she was not related to
anyone at UPS) and had lied to Knowles when confronted
with this information. Shepard resigned on September 30,
1994.
Also in September, Blackburn's supervisor, Hopwood,
was informed of the events surrounding Shepard's hiring
and her relationship to Blackburn. Hopwood spoke with
Blackburn and, upon learning the identity of Blackburn's
sister-in-law, realized that she was the person Blackburn
had recommended to him and another manager for
openings in the department without informing them that
she was his sister-in-law. Blackburn allegedly refused to
acknowledge that his conduct was inappropriate, and told
Hopkins that UPS would regret it if it pursued the matter.
On September 29, 1994, Hopwood's supervisor Bain and
Human Resources manager James Daniels met with
Blackburn, who stated that he was not "related" to Shepard
but that he was her brother-in-law. He denied any
misconduct in permitting her to be hired, recommending
her for positions without revealing the nature of their
relationship, and claiming not to be related to her. Bain
advised Blackburn that he had violated the anti-nepotism
10
policy and the policies on favoritism, integrity, and
accountability. That day, after consultation with Daniels
and two Human Resources coordinators, Bain fired
Blackburn.
C. The Ensuing Litigation
In August 1995, Blackburn filed suit in New Jersey state
court, claiming that UPS had fired him in violation of CEPA,
and seeking compensatory and punitive damages,
attorneys' fees, costs, and such other relief as the court
might provide. UPS removed the case to the District Court
for the District of New Jersey on the basis of diversity
jurisdiction. See 28 U.S.C. S 1332. 3 Following discovery,
UPS moved for summary judgment under Federal Rule of
Civil Procedure 56(b).
The District Court found that Blackburn's conduct was
not covered by CEPA, and it therefore granted summary
judgment for UPS. See Blackburn v. United Parcel Serv.,
Inc., 3 F. Supp. 2d 504, 514-17 (D.N.J. 1998). The District
Court's conclusion that Blackburn's complaints regarding
the IAS did not constitute protected activity under CEPA
was based on a number of factors. First, the court stated
that it "must determine, as a matter of law, whether there
_________________________________________________________________
3. Blackburn was a citizen of Connecticut at the time suit was filed. UPS
is a citizen of New York. Knowles is a citizen of New Jersey. Therefore,
complete diversity exists and subject-matter jurisdiction is proper.
However, we note that this case was technically not removable under 28
U.S.C. S 1441 (1994), as a civil action in which jurisdiction is based on
diversity of citizenship may be removed "only if none of the parties in
interest properly joined and served as defendants is a citizen of the
State
in which such action is brought." Id.S 1441(b). Here, one of the
defendants is a citizen of the state in which the action was brought.
Nonetheless, under 28 U.S.C. S 1447(c) (Supp. II 1996), this defect is
waived if not raised within 30 days after the notice of removal is filed.
No
motion to remand having been filed within this period, jurisdiction in the
District Court was properly exercised. Cf. Korea Exch. Bank v. Trackwise
Sales Corp., 66 F.3d 46, 50-51 (3d Cir. 1995) ("Because removal by a
forum defendant in noncompliance with section 1441(b) does not deprive
a federal court of subject matter jurisdiction, it is clear under section
1447(c) that this irregularity must be the subject of a motion to remand
within 30 days after filing the notice of removal.").
11
exists a clear expression of law, either in a statute or rule
or in a regulation promulgated pursuant to a statute, that
`would be violated if the facts as alleged are true.' " Id. at
514 (citation and emphasis omitted). It then held that
Blackburn had not provided the court "with a scintilla of
evidence . . . that would permit [the] court to conclude, as
a matter of law, that any antitrust law would be violated if
the facts, as described by plaintiff, were true." Id. The court
found instead that Blackburn had only complained to his
supervisors "that a law might someday be violated if certain
precautions [were] not taken or certain changes [were] not
made," and that this complaint about potential future
violations of the law was not covered by CEPA. Id.
The court also held that no reasonable trier of fact could
find that Blackburn reasonably believed that the conduct
he complained of to his supervisor violated the antitrust
laws. See id. at 515. The court found that all of the
evidence, even viewed in a light most favorable to
Blackburn, demonstrated that he "merely questioned and
disagreed with UPS's pricing practices and was concerned
about the potential legal impact." Id. at 517. It concluded
that "[t]hese type of complaints do not constitute
`whistleblowing,' particularly where the vague references to
potential illegalities are mixed with and, indeed, dwarfed by
a potpourri of other unrelated complaints." Id. (citation
omitted). For these reasons, the court granted UPS's motion
for summary judgment. The District Court did not reach
the pretext issue on which we base our decision,finding
that a genuine issue of material fact existed regarding
UPS's claimed reason for firing Blackburn. See id. at 508
n.2.
Blackburn filed a timely notice of appeal. We have
jurisdiction to hear the appeal under 28 U.S.C. S 1291. We
exercise plenary review over a grant of summary judgment,
"construing all evidence and resolving all doubts raised by
affidavits, depositions, answers to interrogatories, and
admissions on file in favor of the non-moving party." Iberia
Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).
12
II. The New Jersey Conscientious Employee
Protection Act
A. Introduction
The New Jersey Conscientious Employee Protection Act,
enacted in 1986, provides in relevant part:
An employer shall not take any retaliatory action
against an employee because the employee does any of
the following:
a. Discloses, or threatens to disclose to a supervisor
or to a public body an activity, policy or practice of the
employer . . . that the employee reasonably believes is
in violation of a law, or a rule or regulation
promulgated pursuant to law . . .;
. . . .
c. Objects to, or refuses to participate in any activity,
policy or practice which the employee reasonably
believes:
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law . . .;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public
policy concerning the public health, safety or welfare or
protection of the environment.
N.J. Stat. Ann. S 34:19-3 (1988 & Supp. 1999)."Retaliatory
action" includes discharge, suspension, demotion, or other
adverse action involving an employee's terms and
conditions of employment. See id. S 34:19-2(e).
The New Jersey courts have repeatedly held that CEPA
was enacted "to protect employees from retaliatory actions
by employers," Abbamont v. Piscataway Township Bd. of
Educ., 650 A.2d 958, 964 (N.J. 1994), and that it is
"remedial legislation" that should be liberally construed to
effectuate the legislature's protective intent, see Young v.
Schering Corp., 660 A.2d 1153, 1158 (N.J. 1995); see also
Barratt v. Cushman & Wakefield, Inc., 675 A.2d 1094, 1098
(N.J. 1996) ("[C]ourts should construe CEPA liberally to
13
achieve its remedial purpose."). Like the New Jersey Law
Against Discrimination ("LAD"), CEPA "seeks to overcome
the victimization of employees and to protect those who are
especially vulnerable in the workplace from the improper or
unlawful exercise of authority by employers." Abbamont,
650 A.2d at 964. In interpreting CEPA's various provisions,
New Jersey courts have held that its protections should be
construed broadly and its exceptions and limitations read
narrowly:
The words used may be expanded or limited according
to the manifest reason and obvious purpose of the law.
. . . The language is not to be given a rigid
interpretation when it is apparent that such meaning
was not intended. The rule of strict construction
cannot be allowed to defeat the evident legislative
design.
Crusco v. Oakland Care Ctr., Inc., 702 A.2d 1363, 1367
(N.J. Super. Ct. App. Div. 1997) (internal quotation
omitted).
B. Elements of a CEPA Case
Our analysis of a retaliatory discharge claim under CEPA
is similar to our analysis of a retaliation claim under federal
discrimination law. Cf. Velantzas v. Colgate-Palmolive Co.,
536 A.2d 237, 238 n.1 (N.J. 1988) (citing federal court
decisions on retaliatory discharge in a case arising under
New Jersey law); Kolb v. Burns, 727 A.2d 525, 530-31 (N.J.
Super. Ct. App. Div. 1999) (adopting the federal court
analysis of retaliation claims "as legally sound and
consistent with New Jersey's general treatment of claims
asserted under anti-discrimination [legislation]"). First, the
plaintiff must make out a prima facie case of retaliatory
discharge. The court in Kolb held that a CEPA plaintiff
must demonstrate four elements to meet this initial burden:
(1) that he or she reasonably believed that his or her
employer's conduct was violating either a law or a rule
or regulation promulgated pursuant to law; (2) that he
or she performed whistle-blowing activity described in
[CEPA]; (3) an adverse employment action was taken
against him or her; and (4) a causal connection exists
14
between the whistle-blowing activity and the adverse
employment action.
Id. at 530; see also Young v. Schering Corp., 645 A.2d 1238,
1244 (N.J. Super. Ct. App. Div. 1994) [Young I] (listing two
elements for prima facie case: a " `belief that illegal conduct
was occurring [that] had an objectively reasonable basis in
fact' " and an adverse employment action that was causally
connected to the plaintiff's disclosure or threatened
disclosure of the illegal conduct to a supervisor or public
body (citation omitted)), aff'd, 660 A.2d 1153 (N.J. 1995);
cf. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177
(3d Cir. 1997) (holding that a plaintiff in a federal
retaliation case "must show 1) that she engaged in
protected activity, 2) that the employer took adverse action
against her, and 3) that a causal link exists between the
protected activity and the employer's adverse action").
In addition to the prima facie case, the well-established
burden-shifting analysis that is used in federal
discrimination cases involving "pretext" claims is
appropriately used in a CEPA case. See Kolb, 727 A.2d at
530-31 (outlining the burden-shifting analysis under Title
VII and LAD). Once the plaintiff meets his prima facie
burden, "the burden of production shifts to the defendant
to `articulate some legitimate, nondiscriminatory reason' for
its actions." Woodson v. Scott Paper Co., 109 F.3d 913, 920
n.2 (3d Cir.) (quoting McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)), cert. denied, 118 S. Ct. 299
(1997). Once the defendant articulates a legitimate reason
for the adverse employment action, the presumption of
retaliatory discharge created by the prima facie case
disappears and the burden shifts back to the plaintiff. See
id. Then, "[t]o prevail at trial, the plaintiff must convince
the factfinder `both that the reason [given by the employer]
was false, and that [retaliation] was the real reason.' " Id.
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993) (emphasis omitted)).
For summary judgment purposes, the court must
determine whether the plaintiff has offered sufficient
evidence for a reasonable jury to find that the employer's
proffered reason for the discharge was pretextual and that
retaliation for the whistleblowing was the real reason for
15
the discharge. See Sempier v. Johnson & Higgins , 45 F.3d
724, 728 (3d Cir. 1995) ("[T]o defeat a summary judgment
motion based on a defendant's proffer of a
nondiscriminatory reason, a plaintiff who has made a prima
facie showing of discrimination need only point to evidence
establishing a reasonable inference that the employer's
proffered explanation is unworthy of credence."). Typically,
the types of evidence that the plaintiff must point to are
"inconsistencies or anomalies that could support an
inference that the employer did not act for its stated
reasons." Id. at 731; see also Kolb , 727 A.2d at 531 (citing
Third Circuit Title VII case law regarding plaintiff's burden
to show pretext at summary judgment stage).
III. Blackburn's CEPA Claim
A. Prima Facie Case
In this case, the District Court found that Blackburn had
failed to make out a prima facie case because he had not
shown that he had engaged in protected whistleblowing
activity. Given New Jersey case law and the intent of the
legislature in enacting CEPA, we have some doubt as to the
correctness of the District Court's conclusion on this point.4
_________________________________________________________________
4. As noted in the text supra, the District Court relied primarily on the
fact that Blackburn had not clearly articulated the precise law that UPS
would be violating if its actions were as he alleged, and that he only
complained of potential future violations of the law, rather than ongoing
violations. We note, however, that New Jersey courts have held that a
CEPA plaintiff need not cite "any specific statute, rule or regulation
which was allegedly violated" when disclosing employer wrongdoing or
even when filing a CEPA action. Regan v. City of New Brunswick, 702
A.2d 523, 528-29 (N.J. Super. Ct. App. Div. 1997). For example, in
Mehlman v. Mobil Oil Corp., 707 A.2d 1000 (N.J. 1998), the plaintiff
complained about his employer's conduct without being aware of any
specific laws, guidelines, or government policies that his employer was
violating. The court nonetheless held that "[s]pecific knowledge of the
precise source of public policy [allegedly violated] is not required. The
object of CEPA is not to make lawyers out of conscientious employees
but rather to prevent retaliation against those employees who object to
employer conduct that they reasonably believe to be unlawful or
indisputably dangerous to the public health, safety or welfare." Id. at
1015-16.
16
However, rather than engage in a lengthy exegesis on the
matter, we will assume that Blackburn presented sufficient
evidence to meet his prima facie burden at the summary
judgment stage, and will dispose of this appeal on the
alternative ground that he has presented insufficient
evidence of pretext to survive summary judgment.
_________________________________________________________________
Further, while CEPA is not intended to protect chronic complainers or
those who simply disagree with their employer's lawful actions, it does
protect those persons who disclose their employer's activities when,
"given the circumstantial evidence, a reasonable lay person would
conclude that illegal activity was going on." Young I, 645 A.2d at 1244
(internal quotation omitted); see also Mehlman v. Mobil Oil Corp., 676
A.2d 1143, 1156 (N.J. Super. Ct. App. Div. 1996) ("The sine qua non of
a CEPA claim is not the actual occurrence of a violation of promulgated
authority or public policy, but rather the existence of a reasonable
belief
to the effect that such authority or policy has been breached."), aff'd,
707 A.2d 1000 (N.J. 1998). Finally, the New Jersey Supreme Court has
refused to engraft either temporal or geographic limitations onto CEPA
claims, holding that disclosure of past violations of law or complaints
regarding violations of another nation's laws are both protected under
the statute. See Mehlman, 707 A.2d at 1016-17; Barratt, 675 A.2d at
1100 ("CEPA protects more than the disclosure of illegal acts that are
ongoing. To require employees to confirm that the illegal conduct was
ongoing would inhibit them from reporting that conduct. Disclosure of
illegal conduct that is past, moreover, like that of ongoing conduct, can
be in the public interest.").
On the other hand, while the New Jersey courts have construed CEPA
broadly, it is clear that much of Blackburn's lamentation involved
internal disputes over funding and staffing. More importantly, his
allegations regarding one of the most complex and difficult-to-prove
areas of antitrust law--predatory pricing--are undermined by his patent
lack of sophistication in this area. In fact, Blackburn conceded that "all
I know about anti-trust is what I've learned at UPS." App. at 53. Despite
being liberally construed by the New Jersey courts, CEPA is not intended
to shelter every alarmist who disrupts his employer's operations by
constantly declaring that illegal activity is afoot--or, as in this case,
is
about to be afoot. Therefore, we believe it is a close question whether
the
District Court correctly concluded that Blackburn's activity was not
protected whistleblowing under the Act, and we decline to reach this
difficult issue, as our ultimate decision in this case makes it
unnecessary to do so.
17
B. UPS's Stated Reason for the Discharge
UPS's stated reason for firing Blackburn was his violation
of the company's anti-nepotism, favoritism, integrity, and
accountability policies, which it placed in the record. UPS
adduced evidence that Blackburn failed to divulge that
Shepard was his relative, and that he recommended her for
positions within UPS without disclosing to the relevant
decisionmakers that she was his sister-in-law. UPS also
offered evidence that it has consistently enforced its anti-
nepotism policy, which supports its proffer that
Blackburn's violation of this policy was the actual reason
he was discharged.5 Indeed, Blackburn himself conceded at
his deposition that UPS has regularly enforced the anti-
nepotism policy (although, as we detail below, he offers
purported examples of the policy's nonenforcement).
Therefore, UPS has met its burden of production at the
second step of the burden-shifting analysis. See Woodson,
109 F.3d at 920 n.2 ("The defendant's burden at this stage
is relatively light: it is satisfied if the defendant articulates
any legitimate reason for the discharge . . . ."). It is thus
incumbent upon Blackburn to offer sufficient admissible
evidence that this justification is pretextual and that the
real reason that he was fired was for complaining about
UPS's possible antitrust violations to survive UPS's motion
for summary judgment. In other words, he must show
" `weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
legitimate reasons.' " Kolb, 727 A.2d at 531 (quoting
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)).
_________________________________________________________________
5. While Blackburn has suggested that the anti-nepotism policy does not
apply to his situation because Shepard is not a blood relation, he does
not press this point, relying instead on UPS's purported nonenforcement
of the policy. However, UPS alleges that Blackburn's conduct also
violated its favoritism, integrity, and accountability policies, and he
has
offered little evidence in response to this proffer.
18
C. Pretext
1. Blackburn's Evidence
In order to meet his burden, Blackburn must point to
admissible evidence in the record "showing that there is a
genuine issue for trial." Fed. R. Civ. P. 56(e). In attempting
to show that UPS's stated reason for firing him was
pretextual, Blackburn claims that he never hid his
relationship with Shepard. Rather, he testified that he
regularly commuted to and from work with her, entered the
building with her each day, often met her for lunch and
breaks, displayed a wedding picture prominently on his
desk with Shepard in the wedding party, and was otherwise
open about the relationship, including the fact that they
shared an address. Similarly, Shepard testified that she
told colleagues about the relationship and even inquired
about it at her initial interview, and nothing was done.
Blackburn also testified that he assumed that the
prohibition on the hiring of "relatives" included only blood
relatives.6
We find the foregoing less than persuasive evidence to
support Blackburn's burden, even at summary judgment,
of proving that UPS's stated reason was pretextual. The
only portion of this evidence that is probative of pretext--
i.e., that UPS knew of Blackburn's relationship to Shepard
but did nothing about it, and later fired him for his
whistleblowing activity under the pretext of its anti-
nepotism policy--is Shepard's allegation that, when she
applied for a job at UPS, she informed the initial interviewer
that her brother-in-law worked for UPS. There is no
indication that the decisionmakers who fired Blackburn for
his violations of the anti-nepotism and related policies were
informed of Shepard's comments at her interview. In fact,
_________________________________________________________________
6. Although UPS's policy was less than clear in defining the prohibited
relationships, the clarity of the policy or the reasonableness of
Blackburn's alleged misreading of the policy are not necessarily relevant
to the pretext issue. If the policy actually covered relationships such as
Blackburn and Shepard's, and if this (along with the concomitant
violations of the other policies) was the real reason that Blackburn was
discharged, Blackburn's CEPA case must fail.
19
the record evidence overwhelmingly supports the
conclusion that the relevant UPS managers were unaware
of Blackburn's relationship with Shepard until the
anonymous tip was received in September 1994, at which
time immediate action was taken against both Shepard and
Blackburn. Cf. Delli Santi v. CNA Ins. Cos., 88 F.3d 192,
201-02 (3d Cir. 1996) (holding that jury could find that
employer had retaliatory intent because relevant
decisionmakers were aware of plaintiff's discrimination
complaints).
Blackburn's stronger argument for pretext--and one that
would be sufficient to preclude summary judgment, if
supported by adequate admissible evidence--is that UPS
did not consistently enforce its anti-nepotism policy, which,
according to UPS, was the primary basis for his discharge.
If Blackburn has presented admissible evidence that would
raise a fact question whether UPS enforced its anti-
nepotism policy, it would be for a jury to decide whether
UPS's proffered reason for firing him was pretextual. Given
our assumption that Blackburn has presented sufficient
evidence to meet his prima facie burden under CEPA, we
would have to reverse summary judgment in UPS's favor if
a fact issue regarding pretext existed.
In support of his pretext argument, Blackburn provides
numerous examples of UPS employees who were related to
other employees yet allegedly were not disciplined or
terminated for this apparent violation of the anti-nepotism
policy. His examples include brothers-in-law, siblings,
spouses, uncles and nephews, fathers and sons, and
intimate relationships between employees who were dating
or living together. UPS responds with evidence that, within
the last five years, twenty-nine people at Mahwah left UPS
in accordance with the anti-nepotism policy, and that no
exceptions currently exist there.
In order to resolve this issue, we must first determine
whether any of Blackburn's evidence in this regard is
admissible, based as it is on hearsay and, in some
instances, multiple hearsay. See Philbin v. Trans Union
Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996) (noting that a
hearsay statement that is not capable of being admissible
at trial should not be considered on a summary judgment
20
motion). Then, we must determine whether the hearsay
evidence that might be admissible at trial is sufficient to
defeat UPS's summary judgment motion or whether
judgment was properly entered in favor of UPS. See
Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co., 998
F.2d 1224, 1234 n.9 (3d Cir. 1993).
Blackburn's testimony regarding UPS employees he
believes to be related includes the following. We take the
descriptions of these allegedly related persons from
Blackburn's appellate briefs, see Appellant's Br. at 16-17;
Suppl. Br. at 1-3, with citations to the place in the record
in which the evidence is presented:
(1) Bill and Tim Jawor, a father and son (App. at 109);
(2) Jackie and Sal Biancardi, a married couple who
work at the UPS facility in Morristown (id.);
(3) Larry Zileski and Mr. Manzi, brothers-in-law (id. at
95);
(4) Barry Graziano and Tim Krill, relation not identified
(id. at 96);
(5) Steve Collamore and Eileen O'Connor, husband and
wife (id. at 97);
(6) an uncle and nephew working together at a UPS
facility in Parsippany (id. at 103-04);
(7) two brothers in New York (id.);
(8) Mark Hopkins and his wife, Beth (id. at 97);
(9) Bill and Art Weyrauch, brothers (id. at 96-97);
(10) Don McKenny and Vern Cormie, relation not
identified (id. at 97);
(11) Joe Rossano, Jack Davies, and Joe Reynolds,
relation not identified (id.);
(12) Lorrain Curley and Dan Grace, relation not
identified (id.);
(13) Karen Montemarano and another driver in a
Yorktown, New York, UPS facility (id.);
21
(14) Kathleen Jewell and someone else, relation not
identified (id. at 101); and
(15) Howard Kaufman and "Mindy," in the Mt. Vernon
facility (id. at 101-02).
Blackburn has no personal knowledge of any of the
alleged relationships listed above. See Fed. R. Evid. 602.
Rather, he testified in his deposition that he was told of
these relationships by other persons. The alleged
relationships are offered for their own truth. Therefore,
Blackburn's information is based on hearsay, see Fed. R.
Evid. 801(c), and in some cases on multiple hearsay, so
that it must fall within an exception to the rule against
hearsay to be admissible. See Fed. R. Evid. 802 (providing
that hearsay is not admissible unless it falls under a
particular exception); Fed. R. Evid. 805 (providing that
multiple hearsay is admissible "if each part of the combined
statements conforms with an exception to the hearsay
rule").
When asked by us to comment on the admissibility of his
pretext evidence, and in particular on the applicability of
Federal Rule of Evidence 803(19), Blackburn responded
that this evidence was admissible as admissions by a party-
opponent, Fed. R. Evid. 801(d)(2)(A), admissions by a party-
opponent's agent, Fed. R. Evid. 801(d)(2)(D), statements
against interest, Fed. R. Evid. 804(b)(3), or reputation
evidence concerning family history, Fed. R. Evid. 803(19).
We consider the first, second, and fourth of these
contentions below. We dismiss as without merit
Blackburn's attempt to admit any of the evidence he has
presented under the exception for statements against
interest. Not only do we find the contention that the
particular statements at issue were "against interest" to be
baseless within the meaning of the Rule,7 but there is no
_________________________________________________________________
7. A statement is against interest when it "is so far contrary to [the
declarant's] pecuniary, proprietary or penal interest that `a reasonable
person in the declarant's position would not have made the statement
unless believing it to be true.' " United States v. Boyce, 849 F.2d 833,
836 (3d Cir. 1988) (quoting Fed. R. Evid. 804(b)(3)). Blackburn has
offered no evidence that unavailable declarants made"statements which
are damaging to themselves," Fed. R. Evid. 804(b)(3) advisory
committee's note, so as to come under the exception in the Rule.
22
indication that the hearsay declarants are unavailable, as
required by Rule 804.
2. Rule 801(d)(2)(A): Admissions by Party-Opponent
Under Rule 801(d)(2)(A), a statement offered against a
party is not hearsay if it is the party's own statement.
Blackburn claims that the first two relationships listed
above fall within the terms of Rule 801(d)(2)(A), because
these relationships were identified by defendant Patricia
Knowles at her deposition. Admissions by a party-opponent
need not be based on personal knowledge to be admitted
under Rule 801(d)(2). See United States v. Ammar, 714 F.2d
238, 254 (3d Cir. 1983). Therefore, we need not be
concerned here that the basis for Knowles's statement is
likely hearsay--i.e., she was told by someone (or discerned
from a written document) that Bill and Tim Jawor were
father and son, and that Jackie and Sal Biancardi were
married--which would ordinarily require an additional
exception to make her statements admissible. See Fed. R.
Evid. 805.
Although these statements are admissible as admissions
by a party-opponent,8 only one is arguably relevant to the
pretext issue. Knowles testified that the Jawors worked at
UPS in 1973, more than twenty years before Blackburn was
fired and before UPS's current anti-nepotism policy was in
force. We therefore find the testimony regarding the Jawors
immaterial to the pretext issue.9 On the other hand,
_________________________________________________________________
8. We note, however, that the statements by Knowles might be more
appropriately admitted under Rule 801(d)(2)(D), as statements of an
agent concerning a matter within the scope of her agency, as Knowles is
technically no longer a party to this case. Further, if the statements
were
admissible under Rule 801(d)(2)(D), they would be admissible against
UPS, while the statements would be admissible under Rule 801(d)(2)(A),
if at all, only against Knowles.
9. Although he appears to have abandoned his reliance on it,
Blackburn's initial testimony regarding two sets of brothers--the Caseys
and the Oberkotters--is indicative of the lack of relevance of much of his
pretext evidence. Both of these sets of brothers worked for UPS in the
1920s, many decades before the company established its current anti-
nepotism policy.
23
Knowles testified that the Biancardis remain UPS
employees, Jackie as an administrative assistant and Sal as
a driver. This could therefore be probative evidence in
support of Blackburn's pretext argument. However, the
anti-nepotism policy prohibits only the hiring of related
persons, and the continued employment of persons who
marry while working for UPS when one of them is a
management employee. The Biancardis reportedly were
married after both had begun working for UPS, and neither
holds a management position, so their continued
employment does not appear to come within the
prohibitions of the anti-nepotism policy.
3. Rule 801(d)(2)(D): Admissions by
Party-Opponent's Agent
Blackburn argues that testimony regarding the
relationships of Larry Zileski and Mr. Manzi; Barry
Graziano and Tim Krill; Steve Collamore and Eileen
O'Connor; the unnamed uncle and nephew working
together at the UPS facility in Parsippany; and the
unnamed brothers in New York, are all admissible as
admissions by UPS's employees, under Rule 801(d)(2)(D).
Blackburn reads the Rule much too broadly, however, and
fails to establish that most of these statements were made
by UPS's agents or employees "concerning a matter within
the scope of the agency or employment." Fed. R. Evid.
801(d)(2)(D). We discuss each alleged relationship in turn.
First, Blackburn testified that a UPS employee, John
Cipriani, informed him that UPS employees Larry Zileski
and a Mr. Manzi were brothers-in-law. Cipriani's position is
not identified, however, and there is no indication that the
statement was made concerning a matter within the scope
of Cipriani's agency or employment with UPS.10 Blackburn
testified that Zileski himself told Blackburn that Manzi was
his brother-in-law. This statement too is inadmissible
hearsay under Rule 801(d)(2)(D). Although Zileski may be
able to so testify on the basis of Rule 803(19), see infra,
_________________________________________________________________
10. It is also clear that Cipriani is not a party-opponent, and there is
no
indication that he either is authorized by UPS to speak for it or is its
coconspirator. See Fed. R. Evid. 801(d)(2).
24
there is again no indication that he was speaking for UPS
on a matter within the scope of his agency or employment
so that Blackburn could testify as to what Zileski told him.11
Blackburn testified that UPS Operations Manager
Michael Lattari informed him that Graziano and Krill were
somehow related. While Lattari may have been speaking
about a matter within the scope of his agency or
employment, Blackburn has offered no evidence of the
actual relationship between Graziano and Krill, whether it
was one that was covered by the UPS policy, and whether
UPS addressed any violation of the policy by discharging
one of the employees. Therefore, while this may be
appropriate Rule 801(d)(2)(D) evidence, it would be
immaterial to prove that UPS's stated reason for
discharging Blackburn was pretextual.
Blackburn testified that Steve Collamore told him that
Collamore's wife, Eileen O'Connor, also worked for UPS.
However, Blackburn admitted that at some point after they
got married, O'Connor left UPS, and there is no indication
that they were both allowed to remain at UPS in violation
of the anti-nepotism policy. Finally, while Linda Shepard
testified that she was told of certain related employees by
the person who interviewed her for a job at UPS, these
employees are not even identified by name and no
testimony was provided as to whether they were disciplined
for violating UPS's anti-nepotism policy. We find this
evidence plainly inadmissible to prove pretext, both because
Blackburn has failed to establish that it is proper Rule
801(d)(2)(D) evidence and because, without more details
regarding the alleged relationships and UPS's failure to act
on them, they are clearly irrelevant to the pretext issue.
_________________________________________________________________
11. Blackburn's testimony about what Zileski told him might be
admissible as a "statement concerning the declarant's own . . .
relationship by . . . marriage." Fed. R. Evid. 804(b)(4) (hearsay
exception
for statements of personal or family history). However, under Rule
804(b), such a statement is admissible only "if the declarant is
unavailable as a witness." Here, unless there is some indication in the
record that Zileski will be unavailable, Blackburn's statement about
what Zileski told him does not fall within an exception to the rule
against hearsay.
25
4. Rule 803(19): Reputation Concerning Personal or
Family History
As all of Blackburn's evidence that we are considering
here involves "personal or family history," the hearsay
exception in Rule 803(19) would appear to be a particularly
appropriate basis for finding the evidence admissible. The
Rule allows for the admission of otherwise excludable
hearsay, regardless of the declarant's availability (or lack
thereof), when it consists of:
Reputation among members of a person's family by
blood, adoption, or marriage, or among a person's
associates, or in the community, concerning a person's
birth, adoption, marriage, divorce, death, legitimacy,
relationship by blood, adoption, or marriage, ancestry,
or other similar fact of personal or family history.
Fed. R. Evid. 803(19).
a. Background Principles
The matters of personal and family history that are
within the ambit of Rule 803(19) are often difficult to prove
through personal knowledge. For example, if a witness has
not been present at someone's wedding, or has not
personally seen that person's valid marriage license and
executed marriage certificate, see, e.g., N.J. Stat. Ann.
SS 37:1-2, 37:1-17 (1968 & Supp. 1999), he or she
presumably could only testify regarding the marriage on the
basis of hearsay. However, "[m]arriage is universally
conceded to be a proper subject of proof by evidence of
reputation in the community." Fed. R. Evid. 803(19)
advisory committee's note. This is no doubt because a well-
grounded belief that two persons are married--by those
who know them, have attended their family functions, and
have regarded them as a married couple--is sufficiently
reliable evidence to prove the fact of the marriage. Other
matters of personal and family history also "seem to be
susceptible to being the subject of well founded repute." Id.
That two community members are brothers or that a
member of the community is another member's father are
likely to be matters that have been discussed within the
community and that have become well-established "facts" if
26
no reason has been presented to doubt their truth.
Therefore, reputations regarding relationships and other
personal and family matters within a well-defined
community are considered to have the circumstantial
guarantee of trustworthiness that justifies a hearsay
exception. See 3 Stephen A. Saltzburg et al., Federal Rules
of Evidence Manual 1699 (7th ed. 1998) ("[G]eneral
reputation about facts of interest to the community is
probably trustworthy . . . .").
In applying the Rule 803(19) exception to Blackburn's
evidence of relatives working at UPS, we must answer at
least two questions. First, does a person's place of work
come within the Rule's coverage? And second, what
foundation is required for testimony to be admitted under
Rule 803(19)? In other words, is Blackburn's evidence
sufficiently based on actual "reputation," or is it based on
some other, less reliable foundation such as rumor or
speculation?
b. Relevant Community for Reputation
On the first question, we believe that Rule 803(19), in
referring to "reputation . . . among a person's associates, or
in the community," encompasses one's reputation at a
place of work. The advisory committee certainly foresaw
this application of the exception in Rule 803(19): "The
`world' in which the reputation may exist . . . has proved
capable of expanding with changing times from the single
uncomplicated neighborhood, in which all activities take
place, to the multiple and unrelated worlds of work,
religious affiliation, and social activity, in each of which a
reputation may be generated." Fed. R. Evid. 803(19)
advisory committee's note. In the context of reputation
evidence of a person's character, "courts have readily
extended the concept of community to include the
community in which one works, as well as where one lives."
United States v. Oliver, 492 F.2d 943, 946 (8th Cir. 1974).12
_________________________________________________________________
12. We of course do not decide here whether a witness could testify
regarding someone's reputation for good (or bad) character within a work
community, cf. Fed. R. Evid. 803(21) (providing a hearsay exception for
"[r]eputation of a person's character among associates or in the
community"), as this issue is not before us.
27
Both before and since enactment of the Federal Rules,
commentators have made the same point. See 5 Wigmore
on Evidence S 1616, at 591 (James H. Chadbourn rev.
1974) ("The traditional requirement about `neighborhood'
reputation was appropriate to the conditions of the time;
but it should not be taken as imposing arbitrary limitations
not appropriate in other times."); 5 Weinstein's Federal
Evidence S 803.24[2] (Joseph M. McLaughlin ed., 2d ed.
1999) ("Allowing such proof [under Rule 803(19)] to come
from `associates' reflects the fact that nowadays a person's
reputation may no longer exclusively be found in the place
where the person lives, but frequently can only be
ascertained from coparticipants in the varied activities that
make up a modern person's world.").
c. Trustworthiness of Reputation Evidence Concerning
Family History; Foundational Requirements
As for the basis of the reputation evidence regarding
relationships within a workplace, we find little guidance in
the sparse case law surrounding Rule 803(19).13 We believe,
however, that the principle behind admitting such evidence
despite its hearsay origin--i.e., "that general reputation
about facts of interest to the community is probably
trustworthy," Saltzburg et al., supra, at 1699--requires that
a proponent of Rule 803(19) evidence establish that the
reputation testimony arises from sufficient inquiry and
discussion among persons with personal knowledge of the
_________________________________________________________________
13. This court has cited Rule 803(19) in holding that a witness's
testimony regarding her own age "can be considered reputation
concerning personal or family history, for which an exception has been
made to the hearsay rule under the Federal Rules of Evidence."
Government of V.I. v. Joseph, 765 F.2d 394, 397 n.5 (3d Cir. 1985). A
district court within our circuit has held that family members'
statements that a particular person lived with the plaintiff, supported
her financially, and held her out as his child, were admissible under
Rule 803(19) in a proceeding to determine if the plaintiff was the
person's child. See McBride v. Heckler, 619 F. Supp. 1554, 1561-62
(D.N.J. 1985). More recently, the Second Circuit invoked the Rule to find
that testimony by a criminal defendant's father regarding his belief as to
where the defendant was born was admissible. See United States v. Jean-
Baptiste, 166 F.3d 102, 110 (2d Cir. 1999).
28
matter to constitute a trustworthy "reputation." Rumors
and speculation are clearly insufficient in this regard.
Testimony by a declarant that he heard, from some
unknown source, that two people were related in some way
would be inadmissible under Rule 803(19). Rather, what is
required is the laying of a foundation of knowledge
grounded in inquiry, discussion, interactions, or familiarity
"among a person's associates, or in the community" in
which he works.
We find support for our reading of the Rule in a number
of places. In discussing the rationale behind the Rule,
Weinstein notes that "it is likely that these matters have
been sufficiently inquired about and discussed with
persons having personal knowledge so that a trustworthy
consensus has been reached." Weinstein's Federal
Evidence, supra, S 803.24[1]. Weinstein continues:
Before a witness can testify to reputation, the
witness must be qualified by showing membership in a
group that could have been familiar with the personal
or family history of the person in question, namely,
family, associates or community. . . . The judge should
consider . . . not only the foundation that has been laid
for the reception of this reputation evidence, but also
such factors as the significance and nature of the fact
towards which the proof is directed, the availability of
other evidence, and the nature of the litigation.
Id. S 803.24[3] (footnote omitted). In discussing the similar
hearsay exception in Rule 803(20), for reputation
concerning boundaries or general history, Saltzburg
explains:
[I]t is considered unlikely that a falsehood could
become generally accepted as truth in the community,
where the matter is of importance to the community.
. . . [T]he testimony must report a general consensus
in the community, an assertion of the group as
opposed to one or a few of its constituents. The fact
that the information has been considered by and was
subject to the general scrutiny of the community is an
essential guarantee of reliability for the exception.
29
Saltzburg et al., supra, at 1699. As these comments
indicate, when a matter has been sufficiently discussed
within a well-defined community so that its truth has
obtained "circumstantial guarantees of trustworthiness,"
Fed. R. Evid. 807, it is properly the subject of reputation
testimony.
We find further support for our interpretation of the
requirements of Rule 803(19) in the more extensive
discussion of the required foundation for testimony
regarding character reputation. See Fed. R. Evid. 404(a),
405(a), 803(21). We acknowledge that reputation about
someone's character and reputation of family relationships
are, in many ways, very different concepts. The first might
be thought of as a collective community opinion, while the
second involves a factual issue. Both, however, require a
foundation that is trustworthy and a well-defined
"community" that is capable of, in a figurative sense,
forming an opinion or discerning a fact. Cf. Webster's Third
New International Dictionary 1929 (1966) (defining
reputation as "a particular character in popular estimation
or ascription"). We therefore find persuasive those
authorities that have discussed the foundation that must
be laid before a witness may testify about the community's
opinion of someone.
The leading case in this area predates the Federal Rules
of Evidence, but is helpful nonetheless. In Michelson v.
United States, 335 U.S. 469 (1948), the Supreme Court
discussed character evidence in the context of a criminal
trial. It noted that a witness who testifies about a
defendant's character is "allowed to summarize what he has
heard in the community, although much of it may have
been said by persons less qualified to judge than himself."
Id. at 477. The Court limited this rule, however: "[T]he
witness must qualify to give an opinion by showing such
acquaintance with the defendant, the community in which
he has lived and the circles in which he has moved, as to
speak with authority of the terms in which generally he is
regarded." Id. at 478.
In a pre-Federal Rules case applying the hearsay
exception we are considering here (for reputation of family
30
matters), the Ninth Circuit reiterated the Supreme Court's
point in Michelson:
It is not every statement or tradition in the family
that can be admitted in evidence. The tradition must
be from persons having such a connection with the
party to whom it relates, that it is natural and likely,
from their domestic habits and connections, that they
are speaking the truth, and that they could not be
mistaken.
Young Ah Chor v. Dulles, 270 F.2d 338, 344 (9th Cir. 1959)
(internal quotations omitted). In Whiting v. United States,
296 F.2d 512 (1st Cir. 1961), government witnesses had
testified at a criminal trial regarding the defendant's
reputation on the basis of hearsay of unknown origin. The
court of appeals vacated the conviction, finding the
testimony to be inadmissible, as "there must be some
demonstrable basis evincing the competence of the witness
to give his opinion" about the defendant's character. Id. at
517. While we have held that a witness need not know the
defendant personally in order to testify about his character,
we have found it sufficient if the witness "knew of [him] and
his reputation among the community and the persons
making up at least one of the circles which [he] frequented."
United States v. Neff, 475 F.2d 861, 863 (3d Cir. 1973).
From these cases, we discern a clear principle: A witness
who wishes to testify about someone's reputation within a
community must demonstrate that he or she knows of the
person and is truly familiar with the "community" in which
the reputation has been formed, and that the basis of the
reputation is one that is likely to be reliable. Where the
alleged reputation is based on nothing more than rumors of
unknown origins, or a single instance of "someone told me
so," a proper foundation has not been laid for admitting
such evidence under Rule 803(19).14
_________________________________________________________________
14. Of course, if each hearsay link in the communication chain falls
under some exception, the evidence may be admissible. See Fed. R. Evid.
805. For example, if witness A knows nothing of an individual's
reputation, but declarant B, who is qualified under Rule 803(19) to
testify thereto, informs A of the individual's relationship, and the
statement from B to A falls under some hearsay exception, A's testimony
about the individual's relationship would be admissible.
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d. Applying Rule 803(19) to Blackburn's Evidence
We must now determine whether any of Blackburn's
evidence involving allegedly related persons working at UPS
is likely to be admissible under the exception in Rule
803(19). We note preliminarily that our determination that
a workplace may constitute a "community" under Rule
803(19) is limited by the requirement that a proponent of
such evidence establish a reliable foundation for admitting
this hearsay testimony. In other words, allegations
regarding relationships at far-flung facilities of a large
employer such as UPS almost certainly cannot be
admissible as reputation evidence within a community or
among one's associates.15 Blackburn has not, in many
cases, identified the UPS facility at which allegedly related
persons were working. In order to meet his burden of
establishing a reliable basis for the alleged reputations he
invokes, he would need to identify the "community" in
which those reputations exist.16 Because we find that, even
without this identification of the appropriate community,
most of Blackburn's evidence would be inadmissible--and
because, at all events, we conclude that his relevant,
possibly admissible evidence is insufficient for him to
survive summary judgment--we do not dwell on the
shortcomings in his evidence regarding the work location of
most of the allegedly related persons he offers.
Blackburn testified that "[i]t was known by myself,
certainly, and numerous other people, I presume, that Bill
and Art [Weyrauch] were brothers. I believe that it was a
regular topic of discussion." App. at 97. Although the
requirements we have set forth above regarding admission
of such reputation evidence may not be met by Blackburn's
testimony, we will assume that upon further development
of the background to his allegations, this testimony might
_________________________________________________________________
15. UPS currently has 326,800 employees worldwide, and 291,500 in the
United States alone, at more than 1700 facilities. See UPS at a Glance
(visited June 3, 1999) http://www.ups.com/about/glance.html>.
16. We do note that most of Blackburn's examples appear to concern
UPS employees at facilities in Northern New Jersey, which might
constitute an adequate community for Rule 803(19) purposes, assuming
that they are somehow linked to each other.
32
be admissible at trial, see Petruzzi's, 998 F.2d at 1234 n.9,
and we therefore consider it below in our analysis of
whether summary judgment for UPS was properly granted.
As for Don McKenny and Vern Cormie, Blackburn could
not state how they were related, and admitted that the
basis of his information that they were related was
"something that I was told by someone I worked with at
UPS sometime before I left the company." App. at 97. This
clearly fails to meet the standards we have outlined for
reputation evidence under Rule 803(19). Not only does it
appear that Blackburn does not know McKenny and
Cormie (i.e., he could not identify their alleged relationship),
but the source of his information--"something that I was
told by someone"--cannot even be identified, let alone
measured for its trustworthiness.
The same is true of the alleged relationships between Joe
Rossano, Jack Davies, and Joe Reynolds (relationship
unknown, and information based on "something that
someone told [Blackburn]"); between Lorrain Curley and
Dan Grace (source of information unknown); between Karen
Montemarano and an unknown driver; between Kathleen
Jewell and an unnamed relative ("I just remember that she
had a relative of some type working there"); and between
Howard Kaufman and "Mindy" ("it was my understanding"
that they were related). Each of these cases fails to meet
the standard we have established for admitting hearsay
evidence under the exception for reputation concerning
family matters. In each case, Blackburn does not appear to
be familiar with the persons named, fails to identify the
community involved, and does not establish any basis, let
alone a reliable one, for the information that he is offering.
In other words, he has failed demonstrably to identify a
reputation concerning family relationships that would bring
this testimony within the exception in Rule 803(19).
Finally, while we have held that Blackburn may not
testify about what Zileski told him, as this is hearsay not
within any exception, see supra note 11, Zileski himself
could almost certainly testify at trial that Manzi is his
brother-in-law. We will assume that Blackburn's testimony
regarding what Zileski told him was effectively a proffer of
the testimony that Zileski himself would give at trial, and
33
we therefore treat this as evidence capable of being
admitted at trial. However, Blackburn has presented no
evidence that UPS knew of Zileski and Manzi's relationship,
or that the company knew and did nothing about it.
Therefore, this evidence, while potentially admissible under
a hearsay exception, is not probative of pretext.
5. Summary Judgment
We conclude that Blackburn's evidence that UPS
decisionmakers were aware of his relationship to Shepard,
and later fired him for his whistleblowing activity under the
pretext of its anti-nepotism policy, is, without more,
insufficient to overcome summary judgment. As we have
detailed supra Part III.C.2-.4, we find that virtually none of
his evidence regarding other UPS employees who were
allegedly related would likely be admissible at trial as
relevant evidence that falls within a hearsay exception. We
must therefore determine whether Blackburn has offered
sufficient evidence to create a genuine issue of material fact
regarding UPS's stated reason for firing him.
Blackburn concedes that there were numerous instances
in which UPS terminated employees who violated its anti-
nepotism policy. We have held that only the following
pretext evidence might be admissible at trial: Blackburn's
testimony that Bill and Art Weyrauch were generally known
as brothers among UPS employees, and Shepard's
testimony that she informed UPS's interviewer about her
relationship to Blackburn. This scintilla of evidence is
clearly inadequate to create a genuine issue of material fact
on UPS's proffered reason for firing Blackburn. In sum, on
this record, we are satisfied that, even assuming that
Blackburn has met his prima facie burden under CEPA, he
has failed to adequately rebut UPS's proffered reason for
his discharge by pointing to sufficient "inconsistencies or
anomalies that could support an inference that the
employer did not act for its stated reasons." Sempier v.
Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995). The
judgment of the District Court will therefore be affirmed.
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A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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