Brown v. Town of Chapel Hill ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MAGGIE A. BROWN,
Plaintiff-Appellant,
v.
TOWN OF CHAPEL HILL, NORTH
CAROLINA; LOIS J. MAGNELL,
No. 95-1247
individually and in her official
capacity as Transportation
Department Operations
Superintendent,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CA-93-497-1)
Submitted: November 28, 1995
Decided: March 19, 1996
Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Daniel F. Read, Durham, North Carolina, for Appellant. Randall M.
Roden, Daniel W. Clark, THARRINGTON & SMITH, Raleigh,
North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Maggie Ann Brown appeals from the district court's order of judg-
ment in favor of Defendant in her racial discrimination suit brought
under Title VII, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994). We
find no reversible error by the district court; therefore, we affirm.
Brown, who is African-American, works for the Town of Chapel
Hill as a bus driver. She applied for a Bus Driver II position posted
internally by the Department of Transportation. The Department
selected a white applicant for the job. After unsuccessfully pursuing
a grievance with the Town, Brown filed a complaint with the Equal
Employment Opportunity Commission (EEOC). The EEOC found no
evidence of racial bias in the promotion decision and notified Brown
of her right to sue. Brown then filed her present action. A jury found
that she was not a victim of unlawful discrimination, and the district
court entered judgment in accordance with the verdict. Brown noted
her appeal.
Brown contends that the trial court improperly described certain
witness testimony as "speculative." Specifically, Brown refers to the
testimony of her fifth witness, Anita Hackney, another African-
American bus driver. Brown's counsel asked Hackney about state-
ments made by Superintendent Lois Magnell referring to her as one
of "you people." Brown and two other witnesses testified that they
understood Magnell's use of "you people" to describe African-
Americans in a derogatory manner. The court remarked that Hack-
ney's perception of Magnell's intent in referring to her in this manner
would be "speculative."
Brown lodged no contemporaneous objection to the judge's aside.
This court will not ordinarily consider grounds of objection not made
in the trial court. United States v. Anderson , 481 F.2d 685, 694 (4th
2
Cir. 1973), aff'd, 417 U.S. 211 (1974). In the absence of plain error,
a party's failure to object contemporaneously to an evidentiary ruling
waives her right to review. Fed. R. Evid. 103(a)(1), (d).
We find no such error in this case. Federal trial judges are entitled
to comment upon, explain, or emphasize certain evidence to the jury.
Quercia v. United States, 289 U.S. 466, 469 (1933). The judge "may
express his opinion upon the facts, provided he makes it clear to the
jury that all matters of fact are submitted to their determination." Id.However, the judge may not "distort" evidence,"add to it," or offer
unsupported conjecture as fact. Id. at 470. Here, the judge's comment
was isolated and fairly characterized the inherent nature of the evi-
dence. The judge did not prevent Brown's witnesses from explaining
their reading of Magnell's comments. Moreover, the trial judge
clearly instructed the jury at the close of the trial that they were the
ultimate arbiters of fact and were to "disregard anything [he] may
have said during the trial in arriving at [their] findings as to the facts."
(R. Vol. 4 at 3-5); see United States v. Duncan , 598 F.2d 839, 864
(4th Cir.), cert. denied, 444 U.S. 871 (1979). Brown's claim of impro-
priety by the trial court is meritless.
Brown's remaining claims concern the use of certain evidence at
trial. We review a district court's evidentiary and procedural rulings
for abuse of discretion. Persinger v. Norfolk & W. Ry., 920 F.2d 1185,
1189 (4th Cir. 1990); Gill v. Rollins Protective Servs. Co., 836 F.2d
194, 196 (4th Cir. 1987). Brown asserts that the district court erred
in admitting into evidence two hearsay memoranda written by Mag-
nell, who did not testify at trial due to illness. The first memorandum,
Exhibit 19, is a list of the hiring criteria for the advertised Bus Driver
II position, dated August 24, 1992, addressed to Personnel Analyst
Betsy Harris. The second challenged document, Exhibit 29, is
addressed to Director of Transportation Robert Godding and contains
Magnell's hiring recommendation and her item-by-item analysis of
each applicant's rating on the criteria listed in Exhibit 19.* Counsel
noted timely objections to both documents at trial.
Brown asserts that the district court abused its discretion in admit-
ting these documents under the business records exception to the
_________________________________________________________________
*Magnell listed Appellant as her second choice for the promotion.
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hearsay rule. See Fed. R. Evid. 803(6). She suggests that they were
prepared after-the-fact as a means of legitimating Magnell's discrimi-
natory actions. In addition, Brown asserts that these memoranda are
by their nature insufficiently trustworthy to fall within the hearsay
exception contemplated by Rule 803(6). Brown notes that the docu-
ments are not date-stamped, are computer printouts rather than busi-
ness forms, and are not signed or dated by hand.
Magnell's memoranda were prepared out of court and were offered
by the defense to prove the truth of the contents. Therefore they are
hearsay. Fed. R. Evid. 801(c). However, Rule 803(6) provides that
certain records kept in the ordinary course of business are admissible
as an exception to the hearsay rule. The nature of the records may be
established by a "qualified witness," who has sufficient knowledge of
the record-keeping system and the creation of the contested record to
establish their trustworthiness. Fed. R. Evid. 803(6); see Elizarraras
v. Bank of El Paso, 631 F.2d 366, 374 n.24 (5th Cir. 1980). The Sev-
enth Circuit has held that employee disciplinary records are admissi-
ble as business records in a Title VII action. Coates v. Johnson &
Johnson, 756 F.2d 524, 549-50 (7th Cir. 1985); cf. Paxton v. Union
Nat'l Bank, 688 F.2d 552, 567 (8th Cir. 1982) (giving weight to
defendant's "employment records which listed the reason why each
employee with less than two years of service had been discharged"),
cert. denied, 460 U.S. 1083 (1983).
We find that the district court did not abuse its discretion in admit-
ting these exhibits. Town Personnel Director Pat Thomas's descrip-
tion of the Town's personnel practices and her familiarity with the
exhibits show that, unlike accident reports prepared with an eye
toward litigation, these records were "routine reflections of the day to
day operations" of the Town's personnel and transportation depart-
ments. Palmer v. Hoffman, 318 U.S. 109, 114 (1943). Although the
truthfulness of documentation can always be called into question,
such possibilities are insufficient to discredit the district court's find-
ing that these memoranda were sufficiently trustworthy as a routine
part of Town hiring practices to come in under the Rule.
Brown also raises the issue of authenticity of the documents in not-
ing that they are merely computer printouts, rather than signed or
stamped forms. However, "[p]rovided a proper foundation is laid,
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computer-generated evidence is no less reliable than original entry
books and should be admitted under the exception." JOHN W.
STRONG ET AL., MCCORMICK ON EVIDENCE § 294 (4th ed. 1992);
United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982). Moreover,
Thomas clarified that internal documents were generally not stamped.
We find Thomas's testimony sufficient to establish that the memo-
randa offered as exhibits were those submitted by Magnell and were,
therefore, authentic. See Rosenberg v. Collins , 624 F.2d 659, 665 (5th
Cir. 1980).
Brown faults the district court for honoring the jury's request to
submit the EEOC's determination letter into the jury room during
deliberations. Brown concedes that the submission of the EEOC
determination letter to the jury was within the discretion of the trial
judge. Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976); Cox
v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972). Nothing
in the judge's statements on the record indicate that his decision was
based upon a misunderstanding of the law or was otherwise errone-
ous. Brown did not object to the document's admission into evidence,
and we find no abuse of discretion in sending it into the jury room.
For the reasons discussed above the district court's judgment in
favor of Defendant is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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