                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 DAVID WEIL,                                      No. 16-35813
                  Plaintiff-Appellant,
                                                   D.C. No.
                    v.                        2:15-cv-00835-JLR

 CITIZENS TELECOM SERVICES
 COMPANY, LLC; FRONTIER                             OPINION
 COMMUNICATIONS
 CORPORATION,
           Defendants-Appellees.


         Appeal from the United States District Court
            for the Western District of Washington
          James L. Robart, District Judge, Presiding

              Argued and Submitted June 5, 2018
                     Seattle, Washington

                         Filed April 29, 2019

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,
           and John Antoon II,* District Judge.

                 Opinion by Judge N.R. Smith;
                   Dissent by Judge Bybee

     *
       The Honorable John Antoon II, Senior United States District Judge
for the Middle District of Florida, sitting by designation.
2           WEIL V. CITIZENS TELECOM SERVS. CO.

                            SUMMARY**


           Employment Discrimination / Hearsay

    The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of defendant employers
in an employment discrimination action under Title VII,
42 U.S.C. § 1981, and the Washington Law Against
Discrimination.

    Reversing the district court’s summary judgment on a
failure-to-promote claim, the panel held that the district court
erred in excluding on hearsay grounds a statement proffered
by the plaintiff. The panel held that, under Federal Rule of
Evidence 801(d)(2)(D), hearsay does not include statements
offered against a party, made by that party’s employee on a
matter within the scope of that employee’s employment, so
long as the statement was made while the employee was still
employed by that employer. There is no requirement that the
declarant still be in the same position that resulted in the
matter being within the scope of the employment relationship.
The panel held that, properly considering the statement as
admissible evidence of pretext, the plaintiff met his burden on
summary judgment.

    Affirming the district court’s summary judgment on
plaintiff’s termination claim, the panel held that plaintiff
failed to raise a genuine dispute of material fact as to that
claim because he did not present evidence that he was
performing satisfactorily or that defendants treated a similarly

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         WEIL V. CITIZENS TELECOM SERVS. CO.             3

situated employee who was not a member of plaintiff’s
protected class differently.

    Dissenting in part, Judge Bybee wrote that the district
court properly excluded the proffered statement because it
was not within the scope of the declarant’s employment when
she made it after having been relieved of her hiring and
promoting duties. Judge Bybee concurred in the majority
opinion insofar as it affirmed summary judgment on the
termination claim.


                       COUNSEL

Terry A. Venneberg (argued), Gig Harbor, Washington;
Kenneth R. Friedman, Friedman Rubin, Bremerton,
Washington; for Plaintiff-Appellant.

Lindbergh Porter Jr. (argued), Littler Mendelson P.C., San
Francisco, California; James G. Zissler and Breanne Sheetz
Martell, Littler Mendelson P.C., Seattle, Washington; for
Defendants-Appellees.
4         WEIL V. CITIZENS TELECOM SERVS. CO.

                         OPINION

N.R. SMITH, Circuit Judge:

    Hearsay does not include statements offered against a
party, made by that party’s employee on a matter within the
scope of the employee’s employment, so long as the
statement was made while the employee was still employed
by that party. Fed. R. Evid. 801(d)(2)(D). Because the district
court excluded such a statement proffered by Plaintiff David
Weil on hearsay grounds, it erred in granting summary
judgment to Weil’s employers, Citizens Telecom Services
and Frontier Communications (collectively, Frontier),
regarding Weil’s failure-to-promote claim. However, the
district court properly granted summary judgment to Frontier
on Weil’s termination claim, because Weil failed to produce
evidence that raised a genuine dispute of material fact as to
that claim. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm in part and reverse in part.

                              I.

    David Weil’s employment by Frontier (and its corporate
predecessors) began in 1999. In 2011, Weil was promoted to
Call Center Manager of a Frontier call center. In his 2011
performance review, Weil was praised for his leadership
skills and received high overall scores.

    In September 2012, Weil became the interim acting
director of the call center, reporting directly to L.H., the
            WEIL V. CITIZENS TELECOM SERVS. CO.                         5

Senior Vice President of Call Centers.1 As Weil’s supervisor,
L.H. conducted Weil’s 2012 performance review, which
showed declines in several categories. Although L.H.
provided positive feedback about Weil’s leadership and
initiative, Weil’s overall performance rating, as well as his
own self-rating, decreased from his 2011 ratings.

    After naming Weil the interim acting director, Frontier
began the process of hiring a permanent director. L.H. was
the person responsible for filling the permanent director
position. Frontier received roughly 150 applications,
including one from Weil. Weil was among the 7 to
10 applicants Frontier considered qualified for the position.
L.H. interviewed Weil and two other candidates, thereafter
ranking him second out of the three. In January 2013, L.H.
emailed her supervisor recommending that Weil be allowed
to present materials to the broader team for consideration for
the position.

    On January 14, 2013, Frontier removed L.H. as Vice
President and moved her into a specialized role. Her
replacement, Becky Potts, took over responsibility for filling
the director position and became Weil’s direct supervisor.
Potts reviewed materials from the hiring process prior to her
appointment, including L.H.’s review of Weil and an email
from L.H. giving him a strong review. However, Potts
ultimately selected Jennifer Brown (a white woman) in March
2013, despite Weil’s complaint alleging Brown was never




    1
     L.H. is identified in the record, but she is not a party, nor was she
deposed in this action. Because the court discusses facts concerning her
employment record, L.H.’s full name is omitted.
6          WEIL V. CITIZENS TELECOM SERVS. CO.

interviewed for the position.2 Brown had fifteen years of
experience at Frontier, with five years of managerial
experience. However, her 2012 performance rating was
slightly lower than Weil’s score for that year and, unlike
Weil, she did not have a Bachelor’s Degree (which was listed
as a preferred qualification for the position).

    On April 1, 2013, Weil was notified he had not been
selected for the promotion. Also in April, Potts prepared a
Development Action Plan (DAP) for Weil, which identified
areas for improvement, and Weil agreed to follow through on
several “action items.” Later that month, Weil spoke with
L.H., who was then working for Frontier in her new capacity.
In his deposition, Weil described what L.H. told him as
follows:

        She had made it a – that the statement saying
        that she felt I was qualified for the job. She
        tried to get me into the director role; had three
        things that were against me, and her exact
        verbiage – I remember this clearly – is ‘You
        have three things going against you. You’re a
        former Verizon employee, okay. You’re not
        white. And you’re not female.’

L.H. was later terminated in June 2013.

    Weil failed to meet the DAP deadlines and complete
action items. In June 2013, he was put on a Performance
Improvement Plan (PIP) for a 60-day period to end on August



    2
      In his deposition, HR director Kevin Mailloux could not recall
whether Brown was ever interviewed.
          WEIL V. CITIZENS TELECOM SERVS. CO.                 7

26, 2013. The PIP outlined that Weil faced possible
termination if his performance failed to improve.

    Weil’s 2013 mid-year performance review showed further
declines from his 2011 and 2012 reviews. He met with Brown
twice in early August to discuss his performance issues.
Following these meetings, Brown sought Frontier Vice
President Donna Loffert’s support to terminate Weil. Frontier
terminated Weil on August 15, 2013, prior to the end of his
PIP.

    Weil brought suit against Frontier under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Section
1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the
Washington Law Against Discrimination, Wash. Rev. Code
§ 49.60.010 et seq., for wrongful and discriminatory failure-
to-promote and termination. After discovery, Frontier moved
for summary judgment. In opposing summary judgment, Weil
presented L.H.’s statement and argued that it precluded the
grant of summary judgment, because it was direct evidence
of employment discrimination or at least evidence of pretext.
Frontier then filed a motion in limine requesting, in part, that
the court exclude L.H.’s statement as inadmissible hearsay.
Weil countered that the statement was not hearsay under
Federal Rule of Evidence 801(d)(2)(D), asserting that L.H.
made this statement in April 2013, when she was still a
Frontier employee, though she had been moved to a different
role with the company by that time.

    The district court determined that the statement offered by
Weil was inadmissible under Federal Rule of Evidence
801(d)(2)(D) for lack of foundation, because L.H. was not
employed in the supervisor position at the time L.H. made the
statement to Weil. After excluding the statement, the district
8         WEIL V. CITIZENS TELECOM SERVS. CO.

court then reviewed Weil’s failure-to-promote claim. It
assumed (without deciding) that Weil met his prima facie
burden but concluded that, having excluded the statement,
Weil failed to produce admissible evidence that Frontier’s
reasons for not promoting him were pretextual. Finally, the
district court assessed Weil’s wrongful termination claim and
concluded that Weil had not presented a prima facie case.
Weil appealed.

                             II.

    Because we may only consider admissible evidence when
reviewing a motion for summary judgment, Orr v. Bank of
Am., NT & SA, 285 F.3d 764, 773–75 (9th Cir. 2002), we take
up the evidentiary issue first. Under the general rule of
evidence, all relevant evidence is admissible unless, inter
alia, the Federal Rules of Evidence provide otherwise. Fed.
R. Evid. 402. Here, we determine whether the district court
properly excluded otherwise admissible relevant evidence
under Federal Rule of Evidence 801. We review the district
court’s construction of Rule 801 de novo. See United States
v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). The district
court misconstrued Rule 801(d)(2)(D) when it required Weil
(as foundation for the statement) to show that L.H.’s
statement related to a matter within the scope of her
employment at the time the statement was made.

    Under Federal Rule of Evidence 801(d)(2)(D), a
statement is not hearsay and may be admitted against an
opposing party if the statement “was made by the party’s
agent or employee on a matter within the scope of that
            WEIL V. CITIZENS TELECOM SERVS. CO.                          9

relationship and while it existed.”3 The Rule sets forth three
elements necessary for admitting a statement that would
otherwise be excluded as hearsay: (1) the statement must be
made by an agent or employee of the party against whom the
statement is being offered; (2) the statement must concern a
matter within the scope of that employment relationship; and
(3) the statement must be made while the declarant is yet
employed by the party.4 There is no additional requirement
that the declarant must still be in the same scope of
employment at the moment the statement is made. The Rule’s
language is unambiguous. The second element requires that
the statement concern a matter that was at some time within
the scope of the declarant’s employment. The third element
requires only that the statement be made while the declarant
is yet employed; it does not require that the declarant still be
in the same position that resulted in the matter being within
the scope of the employment relationship.

   With respect to the second element, a statement may
concern a matter within the scope of employment—even
though the declarant is no longer involved with that particular
matter when the statement is made—so long as the declarant

    3
     Unless otherwise stated, all references to the “Rule” refer to Federal
Rule of Evidence 801(d)(2)(D).
    4
       The dissent characterizes these three factors as “too broad” in
contrast to the Second Circuit’s reading, which it calls “too narrow.”
However, the Second Circuit reads the Rule as we do. See Marcic v.
Reinauer Transp. Cos., 397 F.3d 120, 128–29 (2d Cir. 2005) (“In order to
introduce evidence of an out-of-court statement as nonhearsay under
Rule 801(d)(2)(D), a party must lay sufficient foundation by establishing
(1) the existence of the agency relationship, (2) that the statement was
made during the course of the relationship, and (3) that it relates to a
matter within the scope of the agency.” (internal quotation marks
omitted)).
10        WEIL V. CITIZENS TELECOM SERVS. CO.

was involved with that matter at some prior point in his or her
employment. See In re Sunset Bay Assocs., 944 F.2d 1503,
1519 (9th Cir. 1991) (“[S]tatements need only concern
matters within the scope of the agency; they need not be
made within the scope of the agency.”) (emphasis in
original). Additionally, a matter may fall within the scope of
a declarant’s employment even though the declarant did not
have final decision-making authority on that matter. See
Stiefel v. Bechtel Corp., 624 F.3d 1240, 1246 (9th Cir. 2010);
cf. Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir.
1986) (finding statements inadmissible in absence of
evidence showing declarants were involved in discharge).

    Our sister circuits have similarly focused the scope
inquiry on whether the declarant was involved in a process
leading up to a challenged decision, rather than focusing on
whether the declarant was a final decision-maker. See, e.g.,
Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir. 2003)
(focusing on “whether the declarant was involved in any of
the critical appraisals of [plaintiff’s] performance that
preceded her leaving work[] – not whether the declarant was
a direct decision maker”) (first alteration in original, internal
quotation marks omitted)); Simple v. Walgreen Co., 511 F.3d
668, 670–72 (7th Cir. 2007) (holding that a declarant’s
statement was admissible under the Rule, because the
declarant was “involved in the process that led up to [the
hiring decision], by being consulted about the appointment”);
Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001)
(recognizing that “it is not necessary that [the declarants] be
the actual decision-makers” so long as they were involved in
“a process leading to a challenged decision”) (citing EEOC
v. Watergate at Landmark Condo., 24 F.3d 635, 640 (4th Cir.
1994)); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1208 (11th
Cir. 2013) (requiring foundation that the declarant
            WEIL V. CITIZENS TELECOM SERVS. CO.                       11

“participated–at least to some extent” in the company’s hiring
decision).5

    Turning now to the third element, the Rule’s legislative
history and intent support our reading that the Rule requires
only that the statement be made when the declarant is yet
employed. When the Federal Rules of Evidence were enacted
in 1975, Rule 801(d)(2)(D) excluded from the definition of
hearsay a statement offered against a party made “by his
agent or servant concerning a matter within the scope of his
agency or employment, made during the existence of the
relationship.” (Emphasis added). The Rule, as it existed then,
required that the declarant’s statement be made while the
employment relationship existed, not within a specific scope
of that relationship.

    In 2011, the Rule was amended to its current form. The
advisory committee notes to the 2011 amendment were clear:
“These changes are intended to be stylistic only. There is no
intent to change any result in any ruling on evidence
admissibility.” Fed. R. Evid. 801 advisory committee’s note
to 2011 amendment. Thus, the wording of the Rule has been

    5
       The dissent cites to Kidd as being “nearly on all fours” with our
case. There, HR manager Rolison made a statement to the plaintiff that the
company refused to consider American candidates. The court found that
the statement’s admissibility turned on “the scope of Rolison’s
involvement in the decisionmaking process leading up” to the hiring
decision. Id. at 1210–11. “If . . . Rolison was consulted by Mando’s
management (or otherwise included in the decisionmaking process),” his
statement may be admissible. Id. at 1210. The court there held that “some
kind of participation” must be shown, but that final decisionmaking was
not necessary. Id. at 1208–10 (citing Simple, 511 F.3d at 672, Yates,
267 F.3d at 802). We merely apply that same rule here. Weil was required
to (and did) lay foundation that L.H. was involved with and participated
in the process leading up to the decision.
12        WEIL V. CITIZENS TELECOM SERVS. CO.

amended, but the substance of the Rule itself remains
unchanged. The 2011 amendment did not add a requirement
that the declarant maintain the same scope of employment at
the time the statement is made; the Rule requires (as it always
has) only that the statement be made “during the existence of
the [employment] relationship.” Fed. R. Evid. 801(d)(2)(D)
(1975).

    The agency principles underlying this statutory non-
hearsay category also bolster this interpretation of the Rule.
“Typically the [employee] is well informed about acts in the
course of the business, the statements are offered against the
employer’s interest, and while the employment continues, the
employee is not likely to make the statements unless they are
true.” 2 McCormick on Evidence § 259 (7th ed.) (emphasis
added). Neither an employee’s knowledge nor her loyalty to
her employer disappears at the moment the employee’s job
description changes. Accordingly, so long as the employment
relationship continues to exist, we can presume the declarant
is unlikely to make damaging statements unless they are true,
even if the declarant is no longer actively involved with the
particular “matter” at issue. Consequently, “the predominant
view [has been] to admit a statement by an agent if it
concerned a matter within the scope of the declarant’s
employment and was made before that relationship was
terminated.” Id. (emphasis added).

    To read the Rule otherwise could lead to absurd results.
For instance, if a supervisor—just after being promoted—
made a statement admitting to a discriminatory motive for
terminating an employee the day before, the alternative
reading of the Rule would exclude that statement, merely
because the statement concerned a matter that was perhaps no
longer within the scope of that supervisor’s employment.
           WEIL V. CITIZENS TELECOM SERVS. CO.                    13

Such a reading disregards the agency principles on which the
Rule is predicated and would potentially allow employers to
avoid liability by merely changing employees’ positions or
narrowly redefining the scope of their employment.
Accordingly, we read the third element of the Rule to require
that the statement be made while the employment relationship
still exists, without regard to the declarant’s specific scope of
employment at the time the statement is made.

    Applying this unambiguous Rule, L.H.’s statement is
admissible. Weil laid sufficient foundation to establish each
of the three required elements. First, the proffered statement
of Frontier’s employee, L.H., was offered against Frontier.
Second, the statement concerned a matter within the scope of
L.H.’s employment. The statement concerned why Weil was
not promoted to the director position.6 Although L.H. did not
make the final decision, she was significantly involved in the
process leading to the decision—not only was L.H.
responsible for filling that position while she was Vice
President, but during that time she specifically considered
Weil for the job, even conducting his performance review and
interview. Third, the statement was made in April 2013 when
L.H. was still employed by Frontier. Because all three
elements of the Rule are met, the statement is admissible
under Rule 801(d)(2)(D), and the district court erred in
excluding it.




    6
      The dissent appears to read L.H.’s statement as speaking to why
Brown was hired and makes much of the fact that L.H. was demoted
before Brown was considered and the final decision was made. However,
L.H.’s statement concerned only why Weil was not hired and did not
speak directly to Brown’s hiring or her qualifications.
14        WEIL V. CITIZENS TELECOM SERVS. CO.

    The dissent’s arguments are misplaced when considering
the admission of this statement. Those arguments instead
focus on topics more appropriately addressed in cross-
examination. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 596 (1993) (“Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”). The dissent
emphasizes that L.H. was involuntarily demoted from the
hiring position, that Potts may have had good reasons for
choosing Brown over Weil, and that the source of L.H.’s
statement in this case is Weil’s own deposition rather than
from L.H. herself, because she was never deposed. These
observations go directly to the weight of L.H.’s statement.
However, they are misplaced in determining the statement’s
threshold admissibility under the Rule on summary judgment.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986) (“[A]t the summary judgment stage the judge’s
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.”). On cross-examination, Frontier will
have its opportunity to discredit and oppose the statement, but
these issues do not determine a statement’s admissibility.

                             III.

    We review a district court’s grant of summary judgment
de novo. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112
(9th Cir. 2004). “The [district] court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must
“view the facts and draw reasonable inferences in the light
          WEIL V. CITIZENS TELECOM SERVS. CO.                 15

most favorable to the [non-moving] party.” Scott v. Harris,
550 U.S. 372, 378 (2007) (internal quotation marks omitted).

    In reviewing motions for summary judgment in the
employment discrimination context, a court must “zealously
guard[] an employee’s right to a full trial, since
discrimination claims are frequently difficult to prove without
a full airing of the evidence and an opportunity to evaluate
the credibility of the witnesses.” McGinest, 360 F.3d at 1112.
“[V]ery little . . . evidence is necessary to raise a genuine
issue of fact regarding an employer’s motive; any indication
of discriminatory motive . . . may suffice to raise a question
that can only be resolved by a factfinder.” Schnidrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir. 1996)
(internal quotation marks and citation omitted, last alternation
in original).

    Title VII prohibits employers from discriminating against
any individual on the basis of race, color, religion, sex, or
national origin. 42 U.S.C. § 2000e-2(a)(1). We analyze
Title VII claims, as well as § 1981 and state law employment
discrimination claims, under the McDonnell Douglas burden-
shifting framework. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Surrell v. Cal. Water Serv.
Co., 518 F.3d 1097, 1105 (9th Cir. 2008); Kastanis v. Educ.
Emps. Credit Union, 859 P.2d 26, 30 (Wash. 1993). First, the
plaintiff must make out a prima facie case. McDonnell
Douglas Corp., 411 U.S. at 802. Once the prima facie case is
made, a presumption of unlawful discrimination is created
and the burden shifts to the defendant to articulate a
“legitimate, nondiscriminatory reason” for its action. Id. If the
defendant meets that burden, the plaintiff must produce
evidence that the defendant’s “proffered nondiscriminatory
reason is merely a pretext for discrimination.” Dominguez-
16          WEIL V. CITIZENS TELECOM SERVS. CO.

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.
2005).

                   A. Failure-to-Promote Claim

    Taking into consideration L.H.’s statement as admissible
evidence, we proceed to review the district court’s grant of
summary judgment. The district court assumed—without
deciding—that Weil established his prima facie case, but
determined that Weil failed to produce evidence that
Frontier’s legitimate, nondiscriminatory reasons for not
promoting him were pretext. The district court made that
determination after erroneously excluding L.H.’s statement.
When the statement is properly considered as admissible
evidence of pretext, Weil meets his burden.7

    As the district court did, we assume for the purposes of
summary judgment analysis that Weil established his prima
facie case. The burden then shifts to Frontier to produce a
legitimate, nondiscriminatory reason for its decision not to
promote Weil. Frontier points to various concerns about

     7
      In opposing a motion for summary judgment, a plaintiff asserting a
Title VII claim may either produce direct or circumstantial evidence that
a discriminatory reason motivated the defendant’s employment decision,
or alternatively may establish a prima facie case under the McDonnell
Douglas burden-shifting framework. McGinest, 360 F.3d at 1122. “[I]t is
not particularly significant whether [a plaintiff] relies on the McDonnell
Douglas presumption or, whether he relies on direct or circumstantial
evidence of discriminatory intent to meet his burden. Under either
approach, [the plaintiff] must produce some evidence suggesting that [the
defendant]’s failure to promote him was due in part or whole to
discriminatory intent . . . .” Id. at 1123. L.H.’s statement is evidence
suggesting that Frontier’s failure to promote Weil was in part
discriminatory. Thus, Weil created a triable question of fact such that the
grant of summary judgment was improper under either approach.
            WEIL V. CITIZENS TELECOM SERVS. CO.                         17

Weil’s leadership abilities, identified in his performance
reviews, as legitimate, nondiscriminatory reasons for not
promoting Weil. The burden then shifts back to Weil to
produce evidence that Frontier’s reasons were pretextual.

    Viewing the facts and reasonable inferences therefrom in
the light most favorable to Weil, as we must on summary
judgment, L.H.’s statement is evidence that Frontier’s reasons
were merely prextext. The statement suggests that Frontier
discriminated against Weil on the basis of his sex and race
when it chose not to promote him. Such evidence “creates a
triable issue as to [Frontier’s] motive in failing to promote
[Weil], even if the evidence is not substantial.” Dominguez-
Curry, 424 F.3d at 1038 (internal quotation marks omitted).8
Because Weil met his burden of producing evidence of
pretext and creating a genuine dispute of material fact, the
district court erred in granting summary judgment on Weil’s
failure-to-promote claim. Thus, we reverse summary
judgment as to this claim.

                        B. Termination Claim

    The district court granted summary judgment to Frontier
on Weil’s termination claim, because Weil failed to produce
evidence to support his prima facie case. After review, we
conclude that the district court did not err in determining
Weil did not present evidence that he was performing

    8
      The district court acknowledged the significance of L.H.’s statement
at the summary judgment phase: “Granting all reasonable inferences in
favor of Mr. Weil, a factfinder could read [L.H.]’s statement to indicate
that Mr. Weil’s skin color and gender played a role in the decision not to
hire him.” Because this statement alone is sufficient evidence to create a
triable issue as to pretext, we need not discuss Weil’s other circumstantial
evidence of pretext.
18        WEIL V. CITIZENS TELECOM SERVS. CO.

satisfactorily or that Frontier treated a similarly situated
employee who was not a member of Weil’s protected class
differently.

    In a termination claim, the plaintiff may make a prima
facie case by offering proof that: (1) he belongs to a protected
class; (2) he was performing his job satisfactorily; (3) he
suffered an adverse employment action; and (4) his employer
treated him differently than a similarly situated employee
who does not belong to the same protected class. McDonnell
Douglas Corp., 411 U.S. at 802. The parties do not dispute
the first and third elements. Weil is a member of a protected
class, because he is a man of East Indian descent. And Weil
suffered adverse employment action when he was terminated.

    Reviewing the record in the light most favorable to Weil,
he has not met the second element. Although the requisite
level of proof necessary for a plaintiff to establish a prima
facie Title VII case at the summary judgment stage “is
minimal and does not even need to rise to the level of a
preponderance of the evidence,” Wallis v. J.R. Simplot Co.,
26 F.3d 885, 889 (9th Cir. 1994), the plaintiff still must
produce evidence, not just pleadings or argument. An
employee’s self-assessment of his performance, though
relevant, is not enough on its own to raise a genuine issue of
material fact. See Aragon v. Republic Silver State Disposal
Inc., 292 F.3d 654, 660 (9th Cir. 2002).

    The undisputed evidence, including Weil’s performance
reviews and his own self-ratings, shows that Weil’s
performance was steadily declining from 2011 to 2013.
Weil’s 2013 mid-year review shows an objective total self-
report score of 2.6 out of 5, which Weil admitted reflected
performance that was unsatisfactory. Weil does not dispute
          WEIL V. CITIZENS TELECOM SERVS. CO.             19

that he missed deadlines and failed to complete action items
in his DAP, nor does he dispute that he was placed on a PIP
to address his performance and warned that termination was
a possible outcome if his performance failed to improve. On
this record, Weil has not shown that his performance was
satisfactory. Therefore, he has not met the second element.

    Weil also failed to meet the fourth element. It is not
enough for employees to be in similar employment positions;
rather, the plaintiff and the comparator employee must be
“similarly situated . . . in all material respects.” Moran v.
Selig, 447 F.3d 748, 755 (9th Cir. 2006). Employees are
similarly situated if they have “similar jobs and display
similar conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d
634, 641 (9th Cir. 2003). Here, Weil failed to produce
evidence of a similarly situated employee who displayed
similar conduct. Although Weil introduced evidence that no
white female directors were placed on PIPs or terminated
during the relevant management period, Weil did not
introduce evidence that any of those employees failed to meet
deadlines and complete tasks or had steadily declining
performance reviews.

                            IV.

    The judgment of the district court is AFFIRMED in part
and REVERSED in part, and this case is remanded to the
district court for further proceedings consistent with this
opinion. Each party shall bear its own costs and fees.
20        WEIL V. CITIZENS TELECOM SERVS. CO.

BYBEE, Circuit Judge, dissenting in part:

    Federal Rule of Evidence 801(d)(2)(D) provides an
exclusion from hearsay for certain statements by a party
opponent. In this case, Weil seeks to offer a statement he
says his former supervisor, L.H., made to him concerning
why he was not promoted by Frontier. Weil argues that
L.H.’s statement is not hearsay because Weil is offering the
statement against Frontier and it “was made by the party’s
agent or employee on a matter within the scope of that
relationship and while it existed.”          FED. R. EVID.
801(d)(2)(D). The real nub of our disagreement is whether
L.H.’s statement made in April 2013 was within the scope of
her employment when she made the statement. The majority
concludes that because L.H. had been involved in
interviewing candidates (including Weil) in October 2012 for
the position Weil says he was wrongfully denied, she was
competent to declare that Frontier didn’t promote Weil in
March 2013 because he was male and not white. The district
court concluded that Weil hadn’t laid a sufficient foundation
for admitting L.H.’s statement: Although L.H. had been
involved in making hiring decisions at one time, Weil failed
to show how L.H. knew why Weil was not promoted when
she had been relieved of her hiring and promoting duties in
January, the candidate ultimately promoted wasn’t even
interviewed until February, and the decision to promote was
made by a committee in March.

    The district court has this one right. L.H. surely knew
something about the processes she was involved in. And she
might have even known something about how the final
decisions were made. But once she was excluded from the
decisionmaking process in January, Weil had to offer some
basis for her statement. Otherwise, the statement may be
           WEIL V. CITIZENS TELECOM SERVS. CO.                   21

nothing more than her uninformed opinion, a statement
“made in [that employee’s] capacity as wiseacre only.”
Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 967
(5th Cir. 2016) (quoting Staheli v. Univ. of Miss., 854 F.2d
121, 127 (5th Cir. 1988)). Federal Rule of Evidence
801(d)(2)(D) is not only an exclusion from the hearsay rule,
it is a powerful rule of attribution: If admitted, L.H.’s
statement becomes Frontier’s statement, as L.H. is presumed
to be speaking on behalf of her employer.

    The district court correctly stated the law and did not
abuse its discretion when it refused to accept Weil’s version
of what he said L.H. said without further foundation. I
respectfully dissent.1

                                 I

    In this section, I am going to begin with a brief recitation
of the facts, with a focus on the timeline of the relationship
between Frontier, L.H., and Weil, and including some facts
omitted by the majority. I will then review the district court’s
careful opinion and discuss the standard of review.

                                A

    Frontier named Weil the acting director of the call center
in September 2012, reporting to L.H. In October 2012, L.H.
began the process of hiring a new full-time director. That
same month, L.H. interviewed Weil and two other male
candidates for that position, ranking Weil second. On
January 14, 2013, the circumstances changed. Frontier

    1
      I concur in the majority opinion insofar as it affirms summary
judgment on Weil’s termination claim. Maj. Op. at 17–19.
22          WEIL V. CITIZENS TELECOM SERVS. CO.

demoted L.H., moving her to a so-called “specialized role”
where she was no longer in charge of hiring for the director
position and where she no longer supervised Weil or any
other employee. Less than five months later, on June 1, 2013,
Frontier terminated L.H.

     L.H. was replaced by Becky Potts, who became Weil’s
supervisor and took charge of hiring a call center director. In
February 2013, Potts interviewed additional applicants,
narrowing the field to four leading candidates including
Jennifer Brown, a white woman.2 In late March 2013, Potts,
in consultation with Kevin Mailloux, a human resources
director, and Donna Loffert, a vice president, hired Brown as
the new call center director. Unlike Weil, Brown had over
fifteen years of experience at Frontier, including five years of
managerial experience, and she had “handled more than one
call center for a period of time.” Potts told her superiors by
email that she recommended not promoting Weil because of
his need to (1) develop proactive communication skills;
(2) improve cross-functional collaboration; and (3) increase
accountability, matters that had shown up on his 2012
employee performance review conducted by L.H. Potts noted
in that email that L.H. had given Weil a “strong review
(3.4),” but that L.H.’s evaluation “did agree to some of my
concerns above.” In August 2013, Brown—with support
from Loffert and Mailloux—decided to terminate Weil due to
his “inability to overcome . . . performance gaps.” Mailloux
added that he had favored terminating Weil due to concerns
about his honesty and dependability. Weil filed this suit,



     2
      The record does not disclose who the four leading candidates were
but suggests that Weil was not one of the four, and thus that at least two
of the four were not interviewed by L.H.
              WEIL V. CITIZENS TELECOM SERVS. CO.                     23

alleging failure to promote on the basis of race, color, and
sex.

    In opposition to Frontier’s motion for summary judgment
on his failure to promote claim, Weil presented the district
court with only one piece of direct evidence in support of his
theory that he was denied promotion because of his race and
sex: an out-of-court statement allegedly made to him by L.H.3
The only evidence in the record that L.H. made this statement
comes from Weil’s own deposition, which reads in relevant
part as follows:

         Q:       At Frontier did anyone ever make any
                  inappropriate comments to you
                  regarding your race?

         Weil: Not that I can recall, no.

         Q:       At Frontier did anyone ever make any
                  inappropriate comments to you
                  regarding your gender?

         Weil: I’m not sure if it’s inappropriate or
               not. There was a comment made by a
               former supervisor regarding race and
               gender, but I don’t think it was
               inappropriate. It was more in the


    3
      Curiously, Weil neither deposed L.H. nor obtained a declaration or
affidavit from her. A deposition or statement might have been admitted
as direct evidence, without the recourse to the hearsay exclusion in Rule
801. At the very least, a statement from L.H. might have laid a foundation
for the admission of her supposed statement to Weil. We have no
explanation for this failure.
24        WEIL V. CITIZENS TELECOM SERVS. CO.

              context of explanation and it wasn’t
              like she was saying it to me.

     Q:       Was this –

     Weil: But it wasn’t – I don’t think that it was
           inappropriate – like an attack on me.

     Q:       Was this [L.H.]?

     Weil: Yes, there was – it was her. And I did
           have – yes, it was her.

     Q:       And what did she say to you?

     Weil: She had made it a – that the statement
           saying that she felt I was qualified for
           the job. She tried to get me into the
           director role; had three things that
           were against me, and her exact
           verbiage – I remember this clearly –
           is, “You have three things going
           against you. You’re a former Verizon
           employee, okay. You’re not white.
           And you’re not female.”

     Q:       When do you claim [L.H.] made this
              statement?

     Weil: It was in April. I don’t remember the
           exact day in April.

     Q:       In April of 2013?
     WEIL V. CITIZENS TELECOM SERVS. CO.         25

Weil: Yes.

Q:       And [L.H.] had left the company by
         this time; is that right?

Weil: No.

Q:       She had not been involved in the – in
         the decision, though, right?

Weil: She was involved in the hiring process
      up until January. After that she was
      not involved in the process.

Q:       Because she had moved to a different
         role, correct?

Weil: Yes.

....

Weil: . . . And I mean, if I take a look at,
      you, as far as another example may be
      [L.H.]. It’s like she went from
      someone that had thousands of people
      reporting to her. So all of sudden
      being moved into a specialized role
      where she had no one. And I
      observed – to my observation.

Q:       And so you don’t even know if that
         was voluntary to involuntary, do you?
26           WEIL V. CITIZENS TELECOM SERVS. CO.

        Weil: I know the – the move was
              involuntary.

        Q:       How do you know that?

        Weil: Based on conversations that I had with
              [L.H.], the move was involuntary.

                               B

     The district court recognized that L.H.’s statement was
critical to Weil’s case: “Granting all reasonable inferences in
favor of Mr. Weil, a factfinder could read [L.H.’s] statement
to indicate that Mr. Weil’s skin color and gender played a role
in the decision not to hire him.” The court correctly stated
the rule, that L.H.’s statement was hearsay and could be
admitted only if “it satisfies the carveout for admissions by
party opponents” under Rule 801(d)(2)(D). Quoting our
opinion in Breneman v. Kennecott Corp., 799 F.2d 470, 473
(9th Cir. 1986), the court stated that “[t]his rule ‘requires the
proffering party to lay a foundation to show that an otherwise
excludible statement relates to a matter within the scope of
the agent’s employment.’” The court found that L.H. made
the statement in April 2013, that she was only involved in the
hiring process until January 2013, and, “as Mr. Weil
acknowledges, [L.H.] did not partake in that final decision.”

    The court then stated, again correctly and citing decisions
from the Sixth and Seventh Circuits, that L.H.’s “lack of
decision-making authority at the time she made the statement
is not dispositive on whether the statement relates to a matter
within the scope of her employment.” See Carter v. Univ. of
Toledo, 349 F.3d 269, 275 (6th Cir. 2003); Nekolny v.
Painter, 653 F.2d 1164, 1171 (7th Cir. 1981). Nevertheless,
          WEIL V. CITIZENS TELECOM SERVS. CO.                27

the district court held that Weil still had the burden to lay a
foundation for L.H.’s statement. Finding that Weil argued
only that L.H. was “still employed” by Frontier in April, the
court concluded that Weil’s statement and evidence “lay no
foundation regarding the scope of [L.H.’s] employment when
she made the statement in question.” “Indeed, based on the
evidence in the record, the court can reasonably infer only
that the scope of L.H.’s employment in April 2013 was
minimal.” On this basis, the court concluded that L.H.’s
statement was hearsay and inadmissible.

                               C

    We review the district court’s interpretation of the
hearsay rule de novo and its decision to admit or exclude
evidence as hearsay for abuse of discretion. Calmat Co. v.
U.S. Dep’t of Labor, 364 F.3d 1117, 1122 (9th Cir. 2004).
The majority concludes that the district court incorrectly
interpreted the rule and resolved the case on de novo review.
However, as I explain below, the district court stated the
correct law. The question before us is thus whether the
district court abused its discretion in excluding the hearsay
statement because Weil failed to lay an adequate foundation.

                               II

    The majority holds that the district court erred as a matter
of law when it required Weil to lay additional foundation for
L.H.’s April 2013 statement. It holds that Weil laid a
sufficient foundation by demonstrating two facts: first, that
L.H.’s statement to Weil related to a matter that was “at some
prior point” within the scope of her employment, and second,
that L.H. was “still employed by Frontier” when she made the
statement. Maj. Op. at 9–10, 13. The majority emphasizes
28        WEIL V. CITIZENS TELECOM SERVS. CO.

that Rule 801(d)(2)(D) requires only that “the statement be
made while the employment relationship still exists, without
regard to the declarant’s specific scope of employment at the
time the statement is made.” Maj. Op. at 13 (emphasis
added). According to the majority, the rule “does not require
that the declarant still be in the same position that resulted in
the matter being within the scope of the employment
relationship,” “only that the statement be made when the
declarant is yet employed.” Maj. Op. at 9, 11, 12.

    According to the majority, Rule 804(d)(2)(D) is
“unambiguous,” both in its meaning and application. Maj.
Op. at 9, 13. But for me, the majority’s reading of Rule 801
is formulaic and its application to this case wooden. Other
courts have recognized that “the law regarding this rule is
‘somewhat muddled,’” United States v. Bloom, 846 F.3d
243, 256 (7th Cir. 2017) (internal marks and citations
omitted), because the rule must be read differently “in
employment cases in which the admission deals with
hiring/firing/promoting/demoting-type decisions.” Aliotta v.
Nat’l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir.
2003); see also Williams v. Pharmacia, Inc., 137 F.3d 944,
950 (7th Cir. 1998) (“The precise reach of Rule 801(d)(2)(D)
is sometimes difficult to discern, as there has been
considerable debate about the justification for classifying
vicarious admissions as non-hearsay.”).

    With all due respect, I believe the majority has missed a
nuanced, but critical point: If it is admissible at all, L.H.’s
statement is admissible against Frontier as evidence of
Frontier’s position only up until the point she was relieved of
             WEIL V. CITIZENS TELECOM SERVS. CO.                          29

her responsibilities in January 2013.4 L.H. told Weil he was
qualified, she tried to get him the directorship, and he had
three things going against him: he was a former Verizon
employee, not white, and not female. If Weil had attempted
to introduce L.H.’s statement as evidence that Weil was not
going to get the job while L.H. was in charge, then the
statement is likely admissible against Frontier. See 4
CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK,
FEDERAL EVIDENCE § 8:53 (4th ed. 2018) (Rule 801(d)(2)(D)
“clearly endorses [admission] . . . where the speaker is
himself the alleged tortfeasor.”). But Weil sought to
introduce the statement as direct evidence that Frontier
ultimately failed to promote him because of his race and
gender. “[D]irect evidence of employment discrimination is
rare,” and, “if believed, proves the fact of discriminatory


    4
      I should note that the Second Circuit has adopted a formulation of
Rule 801(d)(2)(D) that would limit the admission to statements “made
during the course of the [agency] relationship that . . . relate[] to a matter
within the scope of the agency.” Marcic v. Reinauer Transp. Cos., 397
F.3d 120, 129 (2d Cir. 2005) (quoting Pappas v. Middle Earth
Condominium Ass’n, 963 F.2d 534, 537 (2d Cir. 1992)). In contrast, the
majority elicits three elements from the rule: (1) the statement must be
made by an agent or employee of the party against whom the statement is
offered; (2) the statement concerns a matter within the scope of that
employment relationship; and (3) the statement was made while the
declarant was still employed by the party. Maj. Op. at 9. Elements
(1) and (3) are redundant: “an employee” (1) is by definition one “still
employed by the party” (3).

     The Second Circuit’s rule seems too narrow; the majority’s too broad.
Here I am trying to offer a formulation between the two that might
recognize an employee’s competence to speak about historical
facts—matters previously, but not currently, within the employee’s scope
of employment—but would recognize the limitations of the admission.
My view would avoid the majority’s “absurd results” hypothetical. See
Maj. Op. at 12.
30          WEIL V. CITIZENS TELECOM SERVS. CO.

animus without inference or presumption.” Aragon v.
Republic Silver State Disposal, Inc., 292 F.3d 654, 662 (9th
Cir. 2002) (internal citation and alteration omitted) (emphasis
in original). The problem is that Weil himself admitted that
L.H. was long out of the loop when she made the statement:
She was demoted in January and replaced by someone (Potts)
not previously involved in the hiring process. Potts
interviewed candidates L.H. did not (including the successful
candidate, Brown), consulted with management in meetings
L.H. didn’t attend, and hired Brown two months after L.H.
was demoted. Nothing in that chain of events suggests that
L.H. knew why, in March, Frontier passed over Weil and
hired Brown.5

    To be clear, I am not suggesting that the district court had
to exclude L.H.’s statement—only that given the lack of a
foundation Weil laid, it did not abuse its discretion in doing
so. Even after L.H. was removed from her position, her
statement to Weil might still be relevant if Weil had offered
some foundation for how L.H. knew what she said to him.
For example, if L.H. had said to Weil, “Becky Potts asked me
to sit in on some discussions of the final candidates, and it
was clear we were only going to hire a woman,” we would


     5
       The majority considers these facts relevant only to the weight
accorded to L.H.’s hearsay statement and not to the threshold question of
admissibility. Maj. Op. at 14. This is a misunderstanding of the hearsay
rule: Because L.H.’s statement may only be admitted against Frontier if
she was an employee who spoke on a matter within the scope of her
employment relationship as defined by Rule 801(d)(2)(D), evidence that
the scope of L.H.’s employment had narrowed by the time of the relevant
events is essential to our determination of whether the statement fell
within that scope—and accordingly, to whether the statement may be
admitted or must be excluded under Rule 802. If the statement were
admitted, these factors could again be relevant on the question of weight.
            WEIL V. CITIZENS TELECOM SERVS. CO.                       31

have a basis for admitting L.H.’s statement against Frontier.
But L.H.’s statement, as related by Weil, not only is
untethered to the final decision, but lacks any connection to
the hiring of a new supervisor to make the decision, the
additional candidate interviews conducted in January and
February, and the final decision made in late March.6 As
Weil himself candidly admitted, L.H. was “not involved in
the process [after January].”

    The district court’s decision to insist on a proper
foundation for L.H.’s statement was proper for an additional
reason. As the district court found, by April 2013, L.H.’s
responsibilities at Frontier were “minimal.” In fact, less than
two months later, L.H. was terminated. Federal Rule of
Evidence 801(d)(2)(D) is not only a rule about hearsay, it is
a powerful rule of attribution. It takes ordinary hearsay and
makes the statement attributable to the employer. At the
heart of the rule is the law of agency, and the touchstone of
agency is the consent of the principal and agent. See FED. R.
EVID. 801(b)(2)(D) 1972 advisory committee’s note;
MUELLER & KIRKPATRICK, supra, § 8:53 & n.1; 2 KENNETH
S. BROWN ET AL., MCCORMICK ON EVIDENCE § 259 & nn.4–5
(7th ed. 2016); see also RESTATEMENT (THIRD) OF AGENCY
§ 1.01 cmt. c (Am. Law. Inst. 2006). Like other agency


    6
      The lack of a foundation for L.H.’s statement leaves us with an
additional dilemma. If L.H. “knew” Weil did not get the promotion on
account of his race and sex because another Frontier official told her so,
then we have a double hearsay problem. In order to admit Weil’s
statement that L.H. told him that someone else told her, Weil would have
to show, at the least, that every link in the hearsay chain satisfied
Rule 801(d)(2)(D). See Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir.
2001). Since we know, by Weil’s own admission, that L.H. was not
involved in the decision to hire Brown instead of Weil, the possibility of
double hearsay is quite real.
32          WEIL V. CITIZENS TELECOM SERVS. CO.

relationships, the scope of employment—its subject matter,
duties, and rights—may be modified through agreement or
otherwise. For that reason, the district court must require
some foundation for the statement; it is not sufficient to show
that the declarant was simply employed at the time the
statement was made. FED. R. EVID. 801(d)(2) (“The
statement must be considered but does not by itself establish
the . . . scope of the relationship under (D).”). See Stephens
v. Erickson, 569 F.3d 779, 793 (7th Cir. 2009) (“[N]ot
everything that relates to one’s job falls within the scope of
one’s agency or employment.” (internal quotation marks and
citation omitted)); Rowell v. BellSouth Corp., 433 F.3d 794,
800 (11th Cir. 2005) (“If it is to be contended that Gillis’s
statements represent the policy of BellSouth, . . . a court
would have to determine by a preponderance of the evidence
that Gilles was speaking as an agent of BellSouth at the time
he made these statements. Nothing . . . supports such a
conclusion. It is in reality nothing but the inadmissible
opinion of Gillis.” (emphasis added)).7



     7
      In 1997 Rule 801(d)(2) was amended in response to the Supreme
Court’s decision in Bourjaily v. United States, 483 U.S. 171 (1987). That
decision concerned the proof required to demonstrate a conspiracy for
purposes of admitting a co-conspirator’s statements pursuant to Rule
801(d)(2)(E). The Advisory Committee noted that the changes made clear
that

         the contents of the declarant’s statement do not alone
         suffice to establish a conspiracy in which the declarant
         and the defendant participated. The court must
         consider in addition the circumstances surrounding the
         statement, such as the identity of the speaker, the
         context in which the statement was made, or evidence
         corroborating the contents of the statement in making
         its determination as to each preliminary question.
            WEIL V. CITIZENS TELECOM SERVS. CO.                      33

     We have long assumed that, out of loyalty, an employee
“is unlikely to make statements damaging to his principal or
employer unless those statements are true.” Nekolny,
653 F.2d at 1172; see Maj. Op. at 12 (“so long as the
employment relationship continues to exist, we can presume
the declarant is unlikely to make damaging statements unless
they are true”); Pappas v. Middle Earth Condo. Ass’n,
963 F.2d 534, 537 (2d Cir. 1992); Joseph T. Ryerson & Son,
Inc. v. H.A. Crane & Bro., Inc., 417 F.2d 1263, 1270 (3d Cir.
1969) (“It has been traditional practice to permit a hearsay
exception where the necessity is great and the reliability
involved in an identifiable class of statements is adequate. . . .
[T]he agent is more likely to be telling the truth in most
instances when he makes an admission . . . .” (citation and
internal alteration omitted)); FED. R. EVID. 801 1972 advisory
committee’s note (“[F]ew principals employ agents for the
purpose of making damaging statements . . . .”). The district
court noted that L.H. had reason to be unhappy with Frontier:
she had been relieved her of all supervisory responsibilities.
In Weil’s own words, “the move was involuntary,” and “she
went from someone that had thousands of people reporting to
her. So all of sudden being moved into a specialized role
where she had no one.” There is no reason to maintain the
fiction that so long as one remains an employee, the
employee may speak on behalf of the employer—especially
where there is evidence that the employee has been demoted,
disciplined, or placed on probation as a prelude to
termination, or that the employee is preparing to resign or


FED. R. EVID. 801 advisory committee’s note to 1997 amendment. “The
Advisory Committee believes it appropriate to treat analogously
preliminary questions relating to the declarant’s authority . . . and the
agency or employment relationship and scope thereof under subdivision
(D).” Id.
34        WEIL V. CITIZENS TELECOM SERVS. CO.

may have an adverse litigation position with respect to the
corporation by, for example, filing a complaint with the
EEOC. In these contexts, the employer and employees may
be adversaries. See Young v. James Green Mgmt., Inc.,
327 F.3d 616, 622–23 (7th Cir. 2003) (statement in letter of
resignation was not admissible; employee “was acting not
only independently of [his employer] but also as its
adversary”); United States v. Summers, 598 F.2d 450, 459
(5th Cir. 1979) (agent’s statements could not be attributed to
principal after the agent began cooperating with the FBI;
“[the agent] could not be working for both the FBI and [the
principal] at the same time”); SEC v. Geon Indus., Inc.,
531 F.2d 39, 43 n.3 (2d Cir. 1976) (suspended employee’s
testimony was properly excluded under Rule 801(d)(2)(D);
employee and employer were “potential defendants [who]
might have conflicting litigating positions”).

    The district court didn’t hold that L.H.’s statement could
not be admitted under Rule 801, only that it would not be
admitted without some explanation for why L.H. could speak
for Frontier in April 2013. See 5 JACK B. WEINSTEIN &
MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE
§ 801.33[2][c] (Matthew Bender 2d ed. 1997 & supp. 2019)
(stating that “the decisionmaking authority of the declarant to
hire, fire, promote or demote may be critical in employment
cases” and that “the declarant must be among the persons
who made the employment decisions in question”—or at least
have “the ability to influence the personnel decision in
question”—“for his or her statements about those decision to
qualify as having been made within the scope of
employment”). That was a perfectly reasonable decision.
Without some foundation, some additional explanation,
L.H.’s April 2013 statement was not within the scope of her
employment when she uttered it just because she had once
          WEIL V. CITIZENS TELECOM SERVS. CO.               35

had a supervisory position and was still employed in some
capacity. The district court was right to be suspicious of the
statement, and it was Weil’s burden to lay that foundation.
See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808,
821 (9th Cir. 2002) (party laid a sufficient foundation to
admit email against employer by showing sender was
employed when she forwarded the email and the contents of
the email were within the scope of her employment);
Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.
2002) (party failed to lay a foundation by merely stating
declarant’s job title without “provid[ing] any description of
[his] job responsibilities” and without “show[ing] that [the]
job duties had anything to do with” the matter at hand); Oki
Am., Inc. v. Microtech Int’l, Inc., 872 F.2d 312, 314 (9th Cir.
1989) (party failed to lay a foundation where declarant “knew
nothing” about the contracts at issue); Breneman, 799 F.2d at
473 (party failed to lay a foundation showing that declarants
“were involved in” her discharge at all).

    A decision from the Eleventh Circuit is nearly on all fours
with this case and demonstrates the reading of Rule
801(d)(2)(D) I would favor. In Kidd v. Mando American
Corp., 731 F.3d 1196 (11th Cir. 2013), Leanne Kidd, a white
female, was an accountant at Mando American Corporation,
a Korean-owned company. When Kidd’s immediate
supervisor, the assistant accounting manager, left the
company, Kidd assumed his responsibilities and indicated
that she wished to be considered for the permanent position.
B.J. Cheong, the accounting manager, told her he would get
her promoted. Cheong and Mando’s president, Tae Kwak,
ultimately interviewed only one candidate for the permanent
position, B.W. Seo, a Korean male. Talking with one of
Mando’s HR managers, Jerry Rolison, Kidd learned that
Rolison had shown Cheong and Kwak four resumes from
36        WEIL V. CITIZENS TELECOM SERVS. CO.

qualified American candidates, but they refused to consider
an American candidate. Kidd resigned and filed suit,
claiming that Mando’s failure to promote her violated Title
VII. Id. at 1200–01. Agreeing with the district court, the
court of appeals found that Kidd made out a prima facie case
of failure to promote and that Mando offered a race-neutral
reason for hiring the sole candidate it interviewed—Seo had
more auditing experience. Id. at 1204–05. The burden then
shifted to Kidd to show that Mando’s explanation was
pretextual. Id. at 1205–06. As the Eleventh Circuit
explained, “The potentially strongest circumstantial evidence
for Kidd is her testimony that Rolison informed her that
Kwak and Cheong ‘refused to even consider an American
candidate’ for the assistant accounting manager job.” Id.
at 1207; see also id. at 1208 (the evidentiary question was
“outcome determinative” as to whether Kidd’s case could
proceed to trial).

    The problem for Kidd was that “the facts surrounding
Rolison’s alleged remark [were] unclear . . . . If Kidd seeks
to introduce Rolison’s alleged remark under Rule
801(d)(2)(D), she needs to show that Rolison participated—at
least to some extent—in Mando’s decision to hire Seo and not
promote Kidd.” Id. at 1208. On the one hand, Rolison was
head of Mando’s HR department, which suggested he might
be authorized to talk about Mando’s hiring practices; on the
other hand, “Rolison was only tangentially involved in
Mando’s decision to hire Seo, and . . . the Mando
decisionmakers didn’t consult with Rolison regarding Seo’s
hire over other eligible candidates.” Id. at 1208–09. The
court made clear that Rule 801(d)(2)(D) does not mean that
“a non-decisionmaker can never be considered an agent,” but
“to be considered an agent for purposes of Rule 801(d)(2)(D),
the record needs to reflect ‘some kind of participation in the
            WEIL V. CITIZENS TELECOM SERVS. CO.                        37

employment decision or policy of the employer.’” Id. at 1209
(quoting Rowell, 433 F.3d at 800).8 Because it was “entirely
unclear whether Rolison’s alleged statement that the Mando
decisionmakers ‘refused to even consider an American
candidate,’ was based on something he observed or heard, or
whether it was his own personal opinion,” the court remanded
to the district court to determine if Rolison’s alleged
statement was admissible. Id. at 1210–11; but see id. at 1212
(Wilson, J., concurring in part and dissenting part) (objecting
that remand gave Kidd a “second opportunity”; Kidd had
conceded that Rolison’s comment was “his own perception”).

    As in Kidd, Weil needed to lay some foundation which
would allow a district court to reach the conclusion that L.H.
was involved in some way in the decision to promote Brown
and not to promote Weil. He failed to do that, even admitting
that L.H. was “not involved in the process.” The district
court faithfully followed our decisions and those from other
circuits. Having construed Rule 801(d)(2)(D) correctly, it did



    8
       See Rowell, 433 F.3d at 800–01 (there must be “some evidence that
the statements reflected some kind of participation in the employment
decision or policy of the employer”; statements by former supervisor that
the company wanted “to keep the youth” was not admissible where there
was “no evidence that [the declarant] was involved in the decisions of how
to structure the reduction in force”); see also Fairchild., 815 F.3d at 967
(Rule 801(d)(2)(D) “does not apply to an employee’s statement
concerning a termination decision when that employee had nothing to do
with that decision,” even where the employee was a managerial employee
(quotation marks and citation omitted)); Stephens v. Erickson, 569 F.3d
779, 793 (7th Cir. 2009) (“For an agent’s statement regarding an
employment action to constitute an admission, she need not have been
personally involved in that action, but her duties must encompass some
responsibility related to the decision making process affecting the
employment action” (quotation marks and citation omitted)).
38        WEIL V. CITIZENS TELECOM SERVS. CO.

not abuse its discretion in excluding Weil’s statement as
hearsay.

                              III

    Rule 801(d)(2)(D) is not so restrictive that it would limit
party admissions to principals but is also not so generous as
to allow employees to speak for their employers on matters
that their employers had deliberately removed from the scope
of their authority. The district court did not commit legal
error in requiring Weil to lay a foundation defining the scope
of L.H.’s authority.

    I would affirm the judgment of the district court. I
respectfully dissent.
