Weil v. Citizens Telecom Servs. Co., 2019 WL 1891796 (9th Cir. 2019)

David Weil sued Citizens Telecom Services for wrongful termination and discriminatory failure to promote under Title VII and related statutes. In support of his failure-to-promote claim, Weil testified in his deposition that his former supervisor (identified in the opinion as “L.H.”) told him that he did not receive the promotion because “You have three things going against you: You’re a former Verizon employee, okay. You’re not white. And you’re not female.” At the time L.H. made this statement to Weil, she was still working for the company though she was no longer Weil’s supervisor. The district court excluded L.H.’s statement on the ground that it was inadmissible hearsay, and in the absence of other evidence of discrimination, the district court granted Citizens’ summary judgment motion. The Ninth Circuit reversed, holding that L.H.’s statement was not inadmissible hearsay pursuant to Fed. R. Evid. 801(d)(2)(D) because L.H. was still employed by the company (albeit in a different capacity) at the time she made the statement. Based upon L.H.’s statement, the Ninth Circuit reversed the summary judgment that had been entered with respect to Weil’s failure-to-promote claim. However, the Ninth Circuit affirmed summary judgment with respect to Weil’s wrongful termination claim on the ground that Weil failed to produce evidence that he was performing satisfactorily or that the employer treated a similarly situated employee who was not a member of Weil’s protected class differently.