Greenlaw v. Su

Background

The Secretary intended to present Kimberly Nelson’s deposition testimony at trial. Rosemary Greenlaw objected to the Secretary’s designated portions on foundation and hearsay grounds. A foundation objection questions whether the evidence is adequately connected to a witness with personal knowledge. A hearsay objection concerns an out-of-court statement offered to prove the truth of what it asserts.

The Secretary argued that the testimony was offered to explain Mr. Dement’s state of mind, his notice of certain matters, and his actions and decisions, including matters relevant to Greenlaw’s claim that the Secretary’s reasons for terminating her were a pretext for disability discrimination. The Secretary also argued that the testimony was not hearsay and could be offered regarding facts within Nelson’s personal knowledge, including things she saw or heard.

Rulings on the Designated Testimony

The court ruled as follows:

- Nelson Dep. at 56:6–12: Greenlaw’s objections were sustained. Testimony about matters Mr. Dement reportedly told Nelson was hearsay and did not appear to be within Nelson’s personal knowledge. The court also found that the statement did not appear to qualify under the cited exception for an earlier consistent statement because it was unclear when Mr. Dement made it, and did not qualify as a statement of his then-existing state of mind. - Nelson Dep. at 58:23–59:4: Greenlaw’s objections were overruled. The testimony was not hearsay and appeared to concern matters within Nelson’s personal knowledge. - Nelson Dep. at 63:18–66:18: Objections to 63:18–65:12 were overruled because the testimony was not hearsay and appeared to concern Nelson’s personal knowledge. Objections to 65:13–66:18, concerning Nelson’s account of statements by Ms. Goto, were sustained. - Nelson Dep. at 74:24–75:8: Greenlaw’s objections were sustained. - Nelson Dep. at 85:13–86:17: Objections to 85:13–86:1 were overruled because the testimony was not hearsay and appeared to concern Nelson’s personal knowledge. Objections to 86:2–17 were sustained. - Nelson Dep. at 87:4–16: Objections to the statement at 87:10–11 that there were complaints about Greenlaw’s barking were sustained. Objections to the remainder of the testimony were overruled. - Nelson Dep. at 97:23–99:24: Objections to 97:23–98:9 and 99:1–3 were overruled. Objections to 98:10–25 and 99:4–24 were sustained.

Effect of the Order

The order determines which identified portions of Nelson’s deposition testimony may be used at trial. It is an evidentiary ruling concerning the admissibility of deposition testimony. The court did not resolve the underlying disability-discrimination dispute or decide whether the Secretary’s stated reasons for Greenlaw’s termination were pretextual.