
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1406                                  DANIA R. KEISLING,                                 Plaintiff, Appellee,                                          v.                         SER-JOBS FOR PROGRESS, INC., ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                Boudin, Circuit Judge,                                        _____________                         and Pollak,* Senior District Judge.                                      _____________________                                 ____________________            Paul L. Foster for appellants.            ______________            Alicia Murphy with whom Rosemary Healey  and Edwards & Angell were            _____________           _______________      ________________        on brief for appellee.                                  ____________________                                    March 29, 1994                                 ____________________        _____________________        * Of the Eastern District of Pennsylvania, sitting by designation.             POLLAK, District Judge.  This  case involves a claim under the                     ______________             Age  Discrimination in  Employment  Act  ("ADEA"),  29  U.S.C.             sections  621  et seq.  (1988),  with  a pendent  claim  under                            _______             sections 28-5-1 et seq. of the Rhode Island General Laws.  The                             _______             plaintiff,  Dania  Keisling, claims  that  her  firing by  the             corporate defendant, SER-Jobs for Progress, Inc.  ("SER"), was             the result of unlawful  age discrimination on the part  of SER             and  individual defendants Alma  F. Green and  Lois K. Turner.             Finding  liability both  under ADEA  and under state  law, the             jury  (1) awarded  Keisling  $32,874  in compensatory  damages             against all three defendants, and (2) awarded Keisling $50,000             in exemplary  damages against  defendant Green and  $25,000 in             exemplary  damages against defendant  Turner.   Memorandum and             Order  at 1 (D.R.I. Mar.  11, 1993).   Appendix of Defendants-             Appellants  (hereinafter "A.")  121.1   SER, Green  and Turner             now appeal.  Because we conclude that the district court erred                                              ____________________             1         Rhode Island law  permits the  award of  "punitive             damages"  in  cases  of discrimination  involving  "reckless             indifference" to the plaintiff's rights.  See R.I. Gen. L.                                                         ___             28-5-29.1.   Keisling sought an additional  award of $32,874             in "liquidated  damages" pursuant to  the ADEA, 29  U.S.C.               626(c).   The district court denied  this request, reasoning             that because liquidated damages  under the ADEA are punitive             in nature, permitting Keisling both liquidated damages under             federal  law  and punitive  damages  under  state law  would             result in a double recovery for a single wrong. A. 121-23.                                             -2-             in excluding testimony proffered by the defendants, we reverse             and remand for a new trial.             I.  FACTS                       The record developed at trial would  support factual             findings as follows:                       SER  is  a non-profit  Rhode  Island social  service             agency whose operations are primarily geared to Rhode Island's             Hispanic  population.    Dania Keisling  became  an  associate             director of SER in 1984.  From 1984 until mid-1989, Keisling's             work was supervised by Carlos Pedro, SER's executive director.             Keisling also had extensive dealings with Alma Green, who  was             the president of SER's  board of directors.  During  this time             period, Keisling received regular increases in pay, and as SER             expanded   its   services   Keisling's  job   responsibilities             increased  dramatically.    Keisling did  not  receive  formal             evaluations of  her performance; she testified,  however, that             "[m]any times" Green "said  that I was always there  and I was             doing a real good job" and "that I was always actually running             that   agency."       Transcript   of    Defendants-Appellants             (hereinafter "T.") 45.                                           -3-                       In  July 1989, Pedro resigned as executive director,             and  SER began  the  chore of  finding  a replacement.    Both             Keisling  and Lynn  Trudell, SER's  other associate  director,             applied to fill  the vacancy.   Keisling testified that  after             she  applied   for  the   position  she   had  at   least  two             conversations  with  Green  in  which  Green made  age-related             comments.  As recounted by Keisling, the comments were:                       Sure,  you can run that agency but do you want to do                       that at your age?                       Sure, you can run  this agency and you have  done it                       but do  you want to  do that  and do  you want  that                       aggravation at your age?             T.  49.    Two  other  witnesses,  an  independent  bookkeeper             employed by SER and the executive director of a sister agency,             testified that  Green made similar comments  about Keisling to             them  during the  time  that  SER  was  searching  for  a  new             executive director.  T. 182, 218.                       In November  1989, SER hired  Dr. Lois K.  Turner as             executive consultant to the Board of Directors, a position  in             which  Turner  functioned  essentially  as  interim  executive             director,  supervising the  daily operation  of the  agency in             consultation  with Green.  Among  other duties, Dr. Turner was             responsible  for   performing  an  extensive  review   of  the             functioning of SER and  for assisting in the  hiring of a  new             executive director.  A. 164-65.  In reviewing the operation of                                           -4-             the agency, Turner  purportedly discovered some  problems with             Keisling's  performance.  On January 19, 1990, Turner met with             Keisling  and advised her of matters that had come to Turner's             attention.   Specifically,  Turner  told  Keisling that  staff             members had  complained that Keisling  had yelled at  them and             had used profanity and obscene gestures.  Turner also asserted             that  Keisling had failed  to complete some of  her tasks in a             timely manner.  T. 58-9.                       Turner memorialized the meeting  with Keisling in  a             memorandum  dated  February  1,  1990  --  a  memorandum  that             Keisling  stated she received  on February 9.   The memorandum             repeated the  charges of inappropriate behavior,  and also set             forth   a  number  of   alleged  deficiencies   in  Keisling's             performance.    In  the  memorandum, Turner  gave  Keisling  a             thirty-day probationary period, beginning February 1, in which             to   demonstrate  appropriate  professional  behavior  and  to             improve her performance.  A. 133, 135.   Keisling responded to             the  February 1 memorandum with  memoranda of her  own, one to             the Board of Directors and one to her personnel file, in which             she attempted to refute Turner's allegations.  A. 136, 138.                       On March  2, at  the conclusion of  the probationary             period, Turner and  Green met with  Keisling and informed  her             that  her employment  was to  be terminated.   They  presented                                           -5-             Keisling with a memorandum, dated March  2, stating that Green             and  the  Executive Committee  of  SER  had endorsed  Turner's             decision to  terminate Keisling's employment.   A. 144.   They             also presented Keisling with a letter from Turner, also  dated             March   2,   detailing   additional   instances   of   alleged             inappropriate  behavior and  inadequate  performance. A.  141.             Keisling was given an opportunity to appeal her termination to             the  Board of Directors, which upheld the termination.  At the             time she was terminated, Keisling was over 40 years old.             II.  ANALYSIS                       From  the  jury's  verdict  in  favor  of  plaintiff             Keisling, the  three defendants  have appealed.   Four grounds             for appeal are  advanced.  Of  these, it is only  necessary to             address  two in  detail.2   First, defendants  claim that  the             district  court erred  in  failing to  grant their  post-trial             motion for judgment as  a matter of  law.  Second, they  argue             that  the  district  court   committed  prejudicial  error  in             excluding testimony regarding age-related statements allegedly             made  by  defendant  Green  and  by  Keisling  herself.  These             arguments will be addressed in turn.             A.        Denial of Motion for Judgment as a Matter of Law                       ________________________________________________                                              ____________________             2         The remaining two issues are discussed infra, note                                                              _____             10.                                           -6-                       Defendants  argue that  the district court  erred in             denying their motion  for judgment as  a matter of law.   They             claim  that Keisling  failed  to introduce  evidence at  trial             sufficient   even  to   establish  a   prima  facie   case  of                                                    ____________             discrimination,  much less  to  carry her  ultimate burden  of             proof.                       Defendants' argument suffers from two flaws.  First,             as Keisling  points out,  defendants failed to  preserve their             argument properly for appeal  by failing to make a  motion for             judgment as  a matter of  law at  the close  of all  evidence.             Rule 50(a) of the  Federal Rules of Civil Procedure  permits a             motion for judgment as a matter of law to be made "at any time             before  submission of the case  to the jury."   Defendants, in             compliance with this  rule, made  a motion for  judgment as  a             matter of law  at the close of Keisling's case.  T. 289.  That             motion, however,  was insufficient to preserve  the issue that             defendants  are  now  seeking to  present  on  appeal.   If  a             defendant wishes to renew a motion for judgment as a matter of             law at the post-trial  stage, with a view to  having denial of             that  motion considered by the court of appeals, the defendant             is required to  have moved for judgment as a  matter of law at                                           -7-             the  close of  all  the evidence.   Fed.  R.  Civ. P.  50(b).3             Requiring  the  motion to  be  made at  the  close of  all the             evidence gives the opposing party an opportunity to respond to             any evidentiary deficiencies noted by the motion by seeking to             reopen the evidence  prior to  submission of the  case to  the             jury.  See  Fed. R.  Civ. P. 50(a)  advisory committee's  note                    ___             (1991).   This  court  therefore has  held  that it  will  not             consider claims of  insufficient evidence unless  the district             court was presented with a motion  for judgment as a matter of             law at  the close of all  the evidence.  See  Jusino v. Zayas,                                                      ___  _______________             875 F.2d 986, 991 (1st Cir. 1989).                         At oral argument, defendants contended that the rule             of Jusino should not apply in the present case.   They claimed                ______             that the comments of the district judge in denying defendants'             motion  at the close of  plaintiff's case led  them to believe             that their motion was preserved for post-verdict consideration             by  both the  district court  and this  court, and  that their                                              ____________________             3         Rule 50(b) of the Federal Rules of Civil Procedure             states:                    Whenever a motion  for a  judgment as a  matter of  law                    made at the close of all the evidence is  denied or for                    any  reason is not granted, the court is deemed to have                    submitted  the action  to the jury  subject to  a later                    determination  of  the legal  questions  raised  by the                    motion.                                            -8-             reasonable reliance on  the district judge's  comments removed             the necessity for  a renewed motion  at the close  of all  the             evidence.4                       We are far from  persuaded that the district judge's             comments could reasonably  have been taken as  an assurance by             the  judge that  defendants need  not move  for judgment  as a             matter  of law at  the close  of all  the evidence.   However,             assuming arguendo that defendants did  not read too much  into                      ________             the judge's comments, defendants'  asserted reliance on  those             comments was,  nonetheless, insufficient  to obviate  the need             for conformity with  the requirement that the adequacy  of the                                              ____________________             4         The  comments  of  the  district  judge  on  which             defendants  claim to  have relied were  as follows:   First,             after hearing argument on  the defendants' motion, the court             stated:                    That's  a  tough standard  and  I  think applying  that                    standard,  I  think,  counsel  for  the  plaintiff  was                    correct  in her assertions and  I will deny your motion                    in that regard and of course note an exception for you.          T.  309.   Shortly thereafter,  after a  brief discussion  of the          standards   for  the   imposition  of   punitive  damages   on  a          corporation, the court stated:                    Maybe we are not going to resolve this case until after                    the jury returns a  verdict.  If they return  a verdict                    for  the plaintiff, I can  see where I'm  going to have                    some  very  interesting  post-trial  briefs.    If they                    return a verdict for  the defendant, then the Appellate                    Court can worry about it from that point on.          Appendix at T. 313.                                           -9-             plaintiff's  case  be  challenged  at  the close  of  all  the             evidence.   To  be  sure, the  obligation  to conform  to  the             requirement  is not  absolute, but  this court  has emphasized             that only  very unusual circumstances will  justify treating a             motion at the close of the plaintiff's case as a surrogate for             a   motion  at  the  close   of  all  the   evidence.    Those             circumstances  --  which, we  have  said,  constitute a  "very             narrow  exception," Della  Grotta  v. Rhode  Island, 781  F.2d                                 _______________________________             343,  350 (1st  Cir. 1986),  to the  rule that  the motion  be             renewed at the close of all the evidence --  are presented "in             a   case   ...   combining   judicial   assurance   concerning             preservation of rights at the time of the motion and ... brief             and  inconsequential evidence  following  the motion.  . .  ."             Bayamon Thom McAn,  Inc. v. Miranda, 409  F. 2d 968,  972 (1st             ___________________________________             Cir.  1969); Beaumont v. Morgan,  427 F.2d 667,  670 (1st Cir.                          __________________             1970).  In  the present case,  whatever reliance the  district             court's  statements  may  have   induced,  the  evidence  that             defendants presented following the  district court's ruling on             their motion  was undeniably  substantial and relevant  to the             issues  raised  in  the   motion.    If  defendants  believed,             following the presentation of their case, that the totality of             the evidence  permitted only one conclusion,  it was incumbent             upon them to make that belief known to the court and to permit                                          -10-             Keisling an opportunity to respond prior  to the submission of             the case  to the jury.  Having failed to come within the "very             narrow  exception"  of  Della Grotta,  Bayamon  and  Beaumont,                                     ____________   _______       ________             defendants have waived the right to contend before this  court             that they are entitled to judgment as a matter of law.                       Second,  even if defendants  had preserved the right             to present their argument  to this court, they have  failed to             meet  the  stringent standards  necessary  for  judgment as  a             matter of  law.  A court  is without authority to  set aside a             jury verdict and direct the entry of a contrary verdict unless             the evidence points so strongly and overwhelmingly in favor of             the moving party that no reasonable jury could have returned a             verdict  adverse to that party.  See Acevedo-Diaz v. Aponte, 1                                              ___ ______________________             F.3d  62, 66  (1st Cir.  1993).   In determining  whether this             standard  has been met, the court must examine the evidence in             the light most favorable to the non-moving party; in addition,             the  non-moving  party  is  entitled to  "the  benefit  of all             inferences  which the  evidence fairly  supports, even  though             contrary inferences  might reasonably be drawn."   Cochrane v.                                                                ___________             Quattrocci, 949  F.2d  11, 12  n.1  (1st Cir.  1991)  (quoting             __________             Continental  Ore Co. v. Union Carbide & Carbon Corp., 370 U.S.             ____________________________________________________             690, 696  (1962)), cert. denied, --- U.S. ---, 112 S. Ct. 2965                                ____________             (1992).                                          -11-                       Under the now-familiar  standard first set  forth in             McDonnell  Douglas Corp. v.  Green, 411 U.S.  792, 802 (1973),             __________________________________             and  later adapted for cases  under the ADEA,  a plaintiff may             establish a prima facie case by showing  that (1) she was over                         ___________             40 years of  age, (2) she suffered an  adverse job action, (3)             her  job  responsibilities  were  assumed  by another  person,             demonstrating the employer's continuing need for an individual             of the plaintiff's skills,  and (4) she was qualified  for the             position  that she held and performing well enough to rule out             the possibility that the adverse job action was for inadequate             job  performance.5  See  Olivera v. Nestle  Puerto Rico, Inc.,                                 ___  ____________________________________             922  F.2d 43,  45 (1st  Cir. 1990).   Defendants  concede that             Keisling established the first two elements of the prima facie                                                                ___________             case, namely  that she was over  40 years of age  and that she             was terminated  by SER.   They argue,  however, that  Keisling             failed to introduce sufficient evidence to establish the final             two  elements of  the  prima facie  case,  and that  they  are                                    ___________             therefore entitled to judgment as a matter of law.                                              ____________________             5         This court does not  require a plaintiff under the             ADEA  to establish, as an  element of her  prima facie case,                                                        ___________             that she was replaced by an individual younger than herself,             or  by someone outside the  protected class.   See Hebert v.                                                            ___ _________             Mohawk Rubber Co., 872 F.2d 1104, 1110 n.10 (1st Cir. 1989).             _________________                                          -12-                       Defendants argue that  Keisling failed to  establish             the  third element of the  prima facie case,  namely, that her                                        ___________             job responsibilities were assumed by  another.  In making this             argument, defendants note that SER did not hire a  replacement             for  Keisling.   This  fact,  however,  is not  determinative.             Keisling presented  evidence  that Lynn  Trudell, SER's  other             associate director, assumed Keisling's duties after Keisling's             discharge.   This  evidence is  sufficient  to show,  for  the             purpose of establishing  a prima  facie case, that  SER had  a                                        ____________             "continued  need for the same  services and skills."   Loeb v.                                                                    _______             Textron, Inc., 600 F.2d  1003, 1013 (1st Cir. 1979);  see also             _____________                                         ________             Kale v. Combined  Ins. Co. of America, 861 F.2d  746, 760 (1st             _____________________________________             Cir. 1988).  Keisling was not required to show that  SER hired             a replacement or specifically designated an existing  employee             as such.   See Loeb, 600  F.2d at 1013 n.11.   Defendants have                        ___ ____             failed  to show  that, viewing  the evidence  in a  light most             favorable to Keisling, no  reasonable jury could conclude that             Keisling  established the  third  element of  the prima  facie                                                               ____________             case.                       Defendants  also  argue  that  Keisling   failed  to             establish the fourth element of  the prima facie case, namely,                                                  ___________             that  her performance  was sufficient  to meet  the legitimate             expectations  of  SER.    Defendants  contend  that  the  only                                          -13-             evidence  Keisling offered  of her acceptable  job performance             was  her own  assessment  of her  achievements and  abilities.             Defendants are correct that  such evidence, standing alone, is             insufficient  to establish  the  fourth element  of the  prima                                                                      _____             facie case; indeed, were evidence  of this type sufficient, it             _____             is a rare plaintiff  who would fail to establish a prima facie                                                                ___________             case.   Defendants  fail, however,  to take  into  account the             entirety  of  Keisling's evidence.    Keisling testified  that             while  employed at  SER, her  responsibilities  were increased             substantially,  she received  positive  feedback  (e.g.,  from             defendant Green)  regarding her performance, and  she received             regular pay  increases.  Keisling also  introduced a favorable             letter of  recommendation  written by  SER's former  executive             director,  Carlos Pedro.  It  is true that  this evidence does             not extend fully to the time at which Keisling was discharged.             The  evidence  does,  however,   support  an  inference   that             Keisling's  job performance at  the time of  her discharge was             adequate  to  meet  SER's  legitimate needs.    Keisling  thus             succeeded  in establishing  the  fourth element  of the  prima                                                                      _____             facie case.             _____                       Defendants note that  they introduced evidence that,             at the  time of her discharge, Keisling's  job performance was             inadequate.  They argue that  Keisling failed to overcome this                                          -14-             evidence,  and  that this  failure  amounted to  a  failure to             establish  a  prima  facie  case.    This  argument  fails  to                           ____________             apprehend  the  burden-shifting  structure of  an  ADEA  case.             Under  McDonnell  Douglas,  the  burden initially  is  on  the                    __________________             plaintiff to  establish all  the elements  of the  prima facie                                                                ___________             case.    Once  the  plaintiff  has  done  so,  the  burden  of             production shifts  to the  defendants, and the  defendants are             required  to present evidence  of a legitimate  reason for the             adverse job action taken  against the plaintiff, evidence that             explodes  the presumption  of  discrimination  created by  the             prima facie case.   If  the defendants carry  their burden  of             ___________             production,  the  plaintiff must  respond  to  the defendant's             evidence and  demonstrate that the adverse  action suffered by             the   plaintiff   was   indeed   the   product   of    illegal             discrimination.   See St. Mary's Honor Ctr. v. Hicks, --- U.S.                               ___ ______________________________             ---, 113 S. Ct. 2742, 2747 (1993).  The shifting of the burden             of production  in  an ADEA  case  does not  always  correspond             neatly  to  the orderly  presentation  of  evidence at  trial.             Thus,  it is not unusual  for a plaintiff  to introduce in her             case-in-chief  evidence  that,  within  the  McDonnell Douglas                                                          _________________             framework,  is  best  understood  as  responsive  to  evidence             introduced by defendants to counter the prima facie case.  The                                                     ___________             fact that a plaintiff introduces such evidence in her case-in-                                          -15-             chief, rather than waiting for the defendants to present their             case,  does not  mean that  anticipation  and rebuttal  of the             defendants'  case constitute  an  element of  the prima  facie                                                               ____________             case.   To  hold otherwise  would belie  the assertion  of the             Supreme Court  that the burden  of establishing a  prima facie                                                                ___________             case is "not onerous."   See Texas Dep't of  Community Affairs                                      ___ _________________________________             v.  Burdine, 450  U.S. 248,  253 (1981);  see also  Mesnick v.             ___________                               ________  __________             General  Elec.  Co.,  950  F.2d  816,  823  (1st  Cir.  1991);             ___________________             Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.),             _______________________________             cert. denied, --- U.S. ---, 112 S. Ct. 181 (1991).             ____________                       Viewed  in  this  manner, the  proper  question  for             defendants  to  ask is  not  whether  Keisling has  failed  to             establish a prima facie case, but rather whether Keisling  has                         ___________             failed  to  carry  the  ultimate  burden  of  persuasion  upon             consideration of all the evidence presented at trial.  For the             purposes  of  this  appeal,  we must  conclude  that  Keisling             succeeded  in meeting her  burden.   Granted, the  evidence of             discrimination   that   Keisling   presented  was   far   from             overwhelming.   It is certainly conceivable  that a reasonable             jury, viewing all the evidence, could conclude that Keisling's             discharge was  a legitimate response  to inappropriate on-the-             job behavior, or  even that her  discharge, while unfair,  was             not  the product of illegal  age discrimination.   It seems to                                          -16-             us, however, that a determination of  the cause for Keisling's             termination  requires  a  weighing   of  the  credibility   of             defendants'  witnesses,  who   described  Keisling's   alleged             inappropriate behavior,  against that of Keisling,  who denied             that  she  ever  behaved  improperly.   Such  assessments  are             peculiarly  within the  province  of the  jury.   An appellate             court  may  not  interpose  a  judgment  different  from  that             obtained at trial simply because it disagrees  with the jury's             credibility determinations.  See  Nydam v. Lennerton, 948 F.2d                                          ___  __________________             808, 810 (1st Cir. 1991).                         In  sum, both because  defendants' post-trial motion             for judgment as a matter of law was procedurally defective and             because  it was, on the  record made at  trial, inapposite, we             conclude  that the district court  did not err  in denying the             motion.             B.        Exclusion  of  Testimony  Concerning  Statements  by                       ____________________________________________________                       Plaintiff and Defendant Green                       _____________________________                       During   the   presentation  of   defendants'  case,             defendants  presented  testimony  by  SER's  former  executive             director, Carlos Pedro.   In the course of  Pedro's testimony,             defendants'  counsel  questioned  Pedro concerning  statements             made  by   both  Keisling  and  defendant  Alma   Green.    In             particular, defendants'  counsel sought  to elicit from  Pedro                                          -17-             statements  by  Keisling and  Green  to the  effect  that each             respectively was  getting too  old to endure  the travails  of             their jobs.   Defendants'  counsel posed  the question  in two             forms, as follows:                       Q:   During from [sic] the period of 1987 until 1989                       when you were employed  at the agency, did  you have                       occasion,  while in  the presence  of Alma  Green or                       Dania Keisling, to hear conversation where the words                       to the effect  were [sic] "I'm  getting too old  for                       this crap or too old for this stuff" were used?                       Q:   In 1987  until 1989  when you left  the agency,                       Mr.  Pedro, did  you ever  hear conversation  in the                       agency where reference to age was used?             T.  514-15.  Keisling's counsel objected  to both questions as             calling  for  hearsay   responses,  and  the   district  court             sustained  the  objections.   Defendants  now  claim that  the             exclusion of the testimony was error warranting a new trial.                       We  agree.   Rule  801(c)  of the  Federal  Rules of             Evidence  defines hearsay as "a statement, other than one made             by the  declarant while  testifying at  the trial  or hearing,             offered  in  evidence  to  prove  the  truth  of  the   matter             asserted."   In counsel's questions to  Pedro, counsel plainly             was  attempting to  elicit  from  Pedro  testimony  concerning             statements  made out  of court;  to that  extent,  the hearsay                                          -18-             rules were  implicated.6   The alleged statements  of Keisling             and Green were  not being offered  to prove the  truth of  the             matter asserted, however.  Defendants  did not ask Pedro about             the  statements in an attempt to prove that Keisling and Green             were, indeed, too  old for their jobs.   Rather, in seeking to             elicit Pedro's testimony as to statements by Green, defendants             would  have invited the  jury to infer that  this was a common             form of speech for  Green, one that she applied  to herself as             well as to others, and that when she directed similar comments             at Keisling she did not do so with discriminatory animus.  And             if Pedro were to have testified that Keisling herself had made             similar comments,7 that might have  strengthened the inference                                              ____________________             6         Defendants' assertion  that the questions  did not             call for a  hearsay response because they  simply required a             "yes" or  "no" answer is flawed.   A party cannot  evade the             dictates of the hearsay rules simply by having  an attorney,             rather than the  witness, present  the alleged  out-of-court             statement and  then asking  the witness,  "Is that what  you             heard?"  To the  extent that the questions posed  called for             Pedro to  affirm  or deny  the  content of  an  out-of-court             statement,  the questions  fell within  the purview  of Rule             801.             7         Keisling contends that defendants did not argue to             the district  court that Keisling herself  had made comments             referring to  her age, and that  defendants therefore cannot             present that argument to  this court.  Keisling's contention             is  plainly wrong.  Not only does the initial question posed             by defendants'  counsel  directly  refer  to  statements  by             Keisling, but  in the colloquy that  followed the questions,             defendant's  counsel  told the  court,  in  response to  the             court's determination that the questions called for hearsay,                                          -19-             that Green's comments  were devoid of  animus.  As  defendants             contend in their  brief, such testimony could have  provided a             predicate for arguing "that  whatever comments green [sic] and                                                                   ___             Keisling  may have made regarding being 'too old' for this job             were not reflections of age  'animus' but rather indicative of             frustration  with  a difficult  job  in  a difficult  economic             environment."     Appellants'  Brief  at  17.     Because  the             statements were not offered  to prove the truth of  the matter             asserted therein,  they were not hearsay within the meaning of             Rule 801(c).8                         In  addition  to  establishing  that  the  proffered             testimony was not hearsay, defendants must establish that they             were  prejudiced by  the  exclusion  of  the testimony.    See                                                                        ___             Fernandez v. Leonard, 963 F.2d 459,  465 (1st Cir. 1992).   We             ____________________             believe that they have  done so.  As we have  said, Keisling's             evidence of  discrimination, while  sufficient to withstand  a                                              ____________________             "[I]n  the  case that  those  statements  are attributed  to             either  a  defendant  or a  plaintiff,  I  believe  they are             clearly admissible."  T. 515-16.  That argument may not have             been a model of clarity, and it is true that counsel did not             elaborate with respect to statements by Keisling.  Counsel's             presentation  was,  however,  sufficient  to   preserve  the             argument made on this appeal.             8   Of course, from  the standpoint of  hearsay doctrine, an             out of court statement by the plaintiff, when offered by the             defendant, is not hearsay  even if offered for the  truth of             the matter asserted.  Fed. R. Evid. 801(d)(2)(A).                                          -20-             motion  for  judgment   as  a  matter   of  law,  was   hardly             overwhelming.   The  testimony  proffered  by  defendants  and             erroneously excluded as hearsay  is itself not powerful stuff.             It is, however,  relevant to the  issue of whether  defendants             acted with discriminatory animus in discharging the plaintiff.             The  testimony was  offered in  an attempt  to rebut  the sole             direct  evidence  of   discriminatory  animus  that   Keisling             presented.   In a close  case, depending on  the assessment of             the testimony by the  jury, that testimony might be  enough to             tip  the balance.9  We therefore  conclude that a new trial is             warranted.10                                              ____________________             9         Keisling  argues  that  the  testimony,   even  if             admissible, was duplicative, because Green herself testified             that she  frequently made comments  along the lines  of "I'm             getting too old  for this  crap."  To  the extent,  however,             that the testimony  of Pedro might  have (1) reinforced  the             credibility of  Green's testimony, which was  plainly in her             self-interest,  and  (2) shown  that  Keisling  herself made             similar comments,  the testimony would not  have been simply             duplicative.             10        Defendants raise two  additional issues on appeal.             First, they argue that the district court erred in excluding             a   document  entitled   "Since  Original   Warning,"  which             purported to  list 18 deficiencies in Keisling's performance             following  the  original  warning  that  Keisling  received.             Defendants  argue  that  the  document is  admissible  as  a             business record kept in the ordinary course of business that             was considered by the  SER Board of Directors in  making the             decision to terminate Keisling.  The district court excluded             the document.   It  concluded that the  document represented             cumulative evidence,  because  Turner herself  testified  at             length   concerning   Keisling's   deficiencies    and   the                                          -21-             III.      CONCLUSION                       Having concluded  that the trial in  this matter was             flawed due to the prejudicial exclusion of relevant testimony,             we  vacate  the judgment  entered  by the  district  court and             remand for a new trial.                                              ____________________             presentation that Turner had made to the Board of Directors.             In addition, while the court apparently did not rely on this             point,  the court  noted that  there was  evidence  that the             document  had been  prepared  after Keisling's  termination.             Since  we have decided on other grounds  that a new trial is             warranted,  we  are  not  required  to  resolve  the  issue.             Nonetheless,  given that the issue is likely to recur in any             new  trial, we  think it  appropriate to  note that,  on the             record  before  this court,  it  appears  that the  district             court's decision  to exclude the document  did not represent             an abuse of discretion.                            Second,  defendants  argue   that  they   are             entitled  to a  new  trial because  the  jury's verdict  was             against the weight of  the evidence.   As we are ordering  a             new  trial on  other  grounds,  we  find it  unnecessary  to             address this issue.                                          -22-
