                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0180p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                               X
                                                -
 GREGORY COBBINS,
                                                -
                                 Plaintiff-Appellant,
                                                -
                                                -
                                                    No. 07-6491
          v.
                                                ,
                                                 >
                                                -
                                                -
 TENNESSEE DEPARTMENT OF

                       Defendant-Appellee. -
 TRANSPORTATION,
                                                -
                                               N
                 Appeal from the United States District Court
               for the Middle District of Tennessee at Columbia.
               No. 06-00073—Robert L. Echols, District Judge.
                                   Argued: December 4, 2008
                                                                     *
                               Decided and Filed: April 2, 2009

                 Before: MERRITT, MOORE, and COLE, Circuit Judges.

                                      _________________

                                            COUNSEL
ARGUED: David E. Danner, Antioch, Tennessee, for Appellant. Steven B. McCloud,
OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee. ON BRIEF: David E. Danner, Antioch, Tennessee, for Appellant. Steven B.
McCloud, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        MERRITT, Circuit Judge. This is an appeal from a jury verdict in favor of
defendant, Tennessee Department of Transportation, in an action for race discrimination by
plaintiff, Gregory Cobbins, pursuant to Title VII, 42 U.S.C. § 2000e et seq. On appeal,


        *
          This decision was originally issued as an “unpublished decision” filed on April 2, 2009. The
court has now designated the opinion as one recommended for full-text publication.


                                                  1
No. 07-6491            Cobbins v. Tennessee Dep’t of Transp.                                       Page 2


Cobbins claims error in two evidentiary rulings by the district court: (1) the exclusion of an
exhibit offered by plaintiff as hearsay due to the lack of an appropriate witness to lay the
proper foundation for the document, and (2) the granting of a motion in limine in which the
district court prohibited the admission of certain evidence from a prior action between the
same parties. Because both rulings were in error, we reverse the judgment of the district
court.

                                                     I.

         Plaintiff Greg Cobbins is an African-American male who has been employed by
defendant Tennessee Department of Transportation as a maintenance worker in Lawrence
County, Tennessee, since February 1994. In March 2004, plaintiff submitted an application
to the Tennessee Department of Human Resources seeking promotion to one of several
“career service” positions at the Department of Transportation. The Department of Human
Resources is responsible for reviewing applications to verify that the applicants meet the
minimum qualifications for the posted job. Applicants who meet the minimum requirements
for a particular classification receive a civil service score based upon the applicable
                                                                1
Department of Human Resources examination process. The examination process assigns
the score based on education, training and work experience typically required or
associated with the job being sought. When an agency like the Department of
Transportation needs to fill a “career service” position, the agency requests a “Certificate
of Eligibles” from the Department of Human Resources. This is a list of the eligible
applicants for the position in rank order by civil service score.

         There are two types of certificates available to Tennessee agencies:
“employment” (commonly referred to as “appointment”) and “promotional.” An agency
may request either or both types of certificates when filling vacant positions.
“Employment” certificates include the names of all eligible applicants listed in rank
order of examination score and appointments from these certificates must be made from


         1
           The same applicant can have a different civil service score for different positions, depending on
how well the applicant’s education and prior work experience match up with the requirements for a
specific job. For example, plaintiff had a score of 70, the minimum qualifying score, for the job of
Highway Maintenance County Superintendent 1, but had a score of 93 for the position of Highway
Maintenance Worker 2.
No. 07-6491            Cobbins v. Tennessee Dep’t of Transp.                                      Page 3


the five highest ranking eligible applicants. “Promotional” certificates include only
applicants who are already state employees with career status listed in rank order of
examination scores. Appointments from these certificates must be made from the three
highest ranking eligible applicants.

         In May 2004, the Highway Maintenance County Supervisor position for
Lawrence County became available and a certificate was issued for the position.2
Plaintiff was not among the top five candidates and was not interviewed for the position
at that time. However, in April 2005, after two higher-ranking applicants had declined
the position, a third certificate was issued for the position and plaintiff was on the list of
eligible applicants with a score of 76. Three other applicants were on the list, and all
three had higher scores than plaintiff.3 Two of the eligible applicants advised that they
were not interested in the position, leaving plaintiff and Bradford Staggs, a white male
with a score of 81, as the only two applicants interviewed for the job. Staggs was
recommended for the promotion to the Highway Maintenance County Supervisor
position. In a letter to the Director of Affirmative Action for the Department of
Transportation, Winston Gaffron, a Regional Director with the Department of
Transportation, noted Staggs’ education, three more years of experience than plaintiff
as a Highway Maintenance Worker 2, which is the level directly below the Supervisor
position, and supervisory experience. Gaffron noted that plaintiff had less education,
less work experience in the Highway Maintenance Worker 2 position, and no
supervisory experience. Letter dated May 10, 2005, from Winston Gaffron to Sherrae
Hall, Director of Affirmative Action for Tennessee Department of Human Resources.
(J.A. at 97-98) Plaintiff also had several oral and written warnings in his work file. (J.A.
91-96) Staggs had no record of disciplinary action.




         2
          The position of Highway Maintenance County Supervisor requires the successful applicant to
assign, supervise and evaluate lower-level highway workers, supervise roadway and bridge preparation
for paving and maintenance, supervise snow and ice removal from bridges and roadways, supervise
maintenance and operation of small and heavy-duty machinery and other duties.
         3
          The record does not reflect why only four instead of five candidates were on the list of eligible
applicants for this position.
No. 07-6491             Cobbins v. Tennessee Dep’t of Transp.                                         Page 4


         Plaintiff claims that he was deprived of the opportunity to fairly compete for the
promotion to supervisor based on the bias and discrimination toward him due to race by
his former supervisor, Wayne Yocum. The warnings in plaintiff’s file were all received
between 1998 and 2002 when Yocum, whom plaintiff had accused of racial
discrimination in an earlier lawsuit, was plaintiff’s supervisor. Plaintiff claims that
Yocum improperly marred his work record with unfounded complaints, refused to give
him supervisory responsibilities and generally treated him more harshly than white
employees.

         Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission on April 20, 2005, which alleged that he had been subjected
to continuing discrimination based upon race and had been retaliated against for having
previously filed a charge and bringing a lawsuit against the Department of
Transportation in 2004.4 He received a right-to-sue letter on June 23, 2006, and filed
his complaint in the Middle District of Tennessee on September 21, 2006, claiming
denial of promotion, disparate treatment concerning the application process and
retaliation for a protected activity. The district court granted in part and denied in part
defendant’s motion for summary judgment on September 25, 2007, leaving only the
claim for discrimination in relation to promotion to go to trial. A two-day trial was held
in November 2007, and the jury returned a verdict for defendant. Plaintiff filed a timely
notice of appeal to this Court. On appeal, plaintiff challenges the district court’s grant
of a motion in limine that excluded certain evidence from plaintiff’s earlier
discrimination action against defendant and an evidentiary ruling at trial finding the
promotion application of Bradford Staggs inadmissible as hearsay.




         4
           Summary judgment was granted to the Department of Transportation and the prior lawsuit
dismissed in 2005 due to plaintiff’s failure to file a response to the Department of Transportation’s
summary judgment motion. Cobbins v. Tenn. Dep’t of Trans., No. 3:04-1056 (M.D. Tenn. Oct. 7, 2005).
Plaintiff claims that his failure to file a response was due to the district court’s then-new electronic filing
system, which did not process his response to the summary judgment motion. Despite this claim, after
receiving notice of judgment for the defendant, plaintiff did not move to reopen or reconsider for almost
a year. While we state no opinion as to the appropriateness of the dismissal in the earlier action, the
judgment was essentially a sanction for failure to respond to defendant’s summary judgment motion and
cannot be construed as a judgment on the merits.
No. 07-6491           Cobbins v. Tennessee Dep’t of Transp.                                      Page 5


                                                  II.

A. Exclusion of Staggs’ Promotion Application as Hearsay

         Plaintiff attempted to enter into the record the promotion application of Bradford
Staggs, the person who ultimately received the Supervisor position. Plaintiff alleges that
Staggs lied about his educational level on his promotion application, thereby giving
Staggs an unfair advantage in the promotion process over plaintiff. Specifically, Staggs
stated on his application that he had “postsecondary education after high school” during
the years 1991-1995. Staggs did not graduate from high school until 1995, so any
education between 1991 and 1995 could not have been “postsecondary” education.
Plaintiff’s plan at trial was to impute knowledge of this alleged falsehood to the neutral
decisionmakers who chose Staggs over plaintiff for the position.5 Plaintiff’s counsel
attempted to introduce the document through plaintiff. The document was a form
provided by the state and completed by Staggs. Defendant objected to the document as
hearsay. Plaintiff’s counsel stated during a sidebar that he believed the document to be
a “public record” and, therefore, an exception to the hearsay rule under Federal Rule of
Evidence 803(8).6 The district court suggested that perhaps counsel could get the
document in under the business records exception to the hearsay rule using a state
employee as a custodian of records. However, no witness present had sufficient
knowledge of the state’s recordkeeping system to qualify as a custodian of records under

         5
           In the employment discrimination context, what is known as the “cat’s paw” theory refers to a
situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased
decisionmaker to make an adverse hiring decision, thereby hiding the subordinate’s discriminatory intent.
EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006),; see also Arendale v. City of
Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008) (“When an adverse hiring decision is made by a
supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who
was motivated by such bias, this Court has held that the employer may be held liable under a ‘rubber-
stamp’ or ‘cat’s paw’ theory of liability.”).
         6
          Federal Rule of Evidence 803, Hearsay Exceptions, states that “[t]he following are not excluded
by the hearsay rule, even though the declarant is available as a witness:
          ...
         (8) Public records and reports. Records, reports, statements, or data compilations, in any
         form, of public offices or agencies, setting forth (A) the activities of the office or
         agency, or (B) matters observed pursuant to duty imposed by law as to which matters
         there was a duty to report, excluding, however, in criminal cases matters observed by
         police officers and other law enforcement personnel, or (C) in civil actions and
         proceedings and against the Government in criminal cases, factual findings resulting
         from an investigation made pursuant to authority granted by law, unless the sources of
         information or other circumstances indicate lack of trustworthiness.
No. 07-6491        Cobbins v. Tennessee Dep’t of Transp.                           Page 6


Federal Rule of Evidence 803(6). Staggs’ promotion application was never entered into
the record.

       On appeal, plaintiff claims that his case-in-chief was greatly harmed by his
inability to enter Staggs’ allegedly false application into the record and it was error to
exclude the document. He argues that an employment application submitted to the state
is required to be received and maintained by the State in accordance with certain
personnel rules and it is, therefore, admissible as a public record. Moreover, the parties
stipulated to the authenticity of the document. Amended Joint Proposed Stipulations,
Cobbins v. Tenn. Dep’t of Trans., No. 1:06-cv-00073, (M.D. Tenn. Oct. 24, 2007) (J.A.
at 140).

       We first question whether this document constitutes hearsay at all — that is, was
it introduced to prove the truth of the matter asserted about the discriminatory intent of
the State in not promoting plaintiff? Although plaintiff did not make this argument at
trial or on appeal, the allegedly false application does not seem to go to the alleged
discriminatory intent by either Yocum or the State. Plaintiff may have been merely
trying to point out a mistake in the records the State decisionmaker used to make the
promotion decision and possibly allude to the bad character of Staggs in filing a false
application. As this argument was not addressed by the parties, it is difficult for us to
make the call here except to note that the document may not even be hearsay. In any
event, even if the document is hearsay, it should have been admitted under one or more
exceptions to the hearsay rule.

       The disputed evidence could conceivably fall into either of two long-established
exceptions to the rule against hearsay, those for business or government records. The
question is whether the fact that the application, a business document maintained by a
state agency, an act which implies some endorsement of its authenticity, is such an
adequate assurance of trustworthiness that the contested document may be admitted
under 803(8) without further foundation. Looking to the plain language of Rule 803(8),
the employment application of a specific person may fall within that body of records
generally considered under the public records exception. See generally United States
No. 07-6491           Cobbins v. Tennessee Dep’t of Transp.                                            Page 7


v. Regner, 677 F.2d 754, 761 (9th Cir.1982); Brown v. ASD Computing Ctr., 519 F.
Supp. 1096 (D. Ohio 1981). However, Rule 803(6),7 the business record exception,
appears as the most relevant hearsay exception to permit admission of Staggs’
application into the record.

        The business records exception is based on the indicia of reliability that attaches
to a record created or maintained by an employer in the ordinary or regular course of
their business. An employer’s independent motivation for creating and maintaining
reliable business records obviates the need for sworn testimony and cross-examination.
A business record is admissible under Rule 803(6) where a sufficient foundation for
reliability is established. Business records are properly admitted under the business
records exception to the hearsay rule if they satisfy four requirements: (1) they must
have been made in the course of regularly conducted business activities; (2) they must
have been kept in the regular course of business; (3) the regular practice of that business
must have been to have made the memorandum; and (4) the memorandum must have
been made by a person with knowledge of the transaction or from information
transmitted by a person with knowledge. Redken Labs, Inc. v. Levin, 843 F.2d 226, 229
(6th Cir. 1988).

        The district court erred in refusing to allow plaintiff to introduce into the record
the employment application of a coworker. The document, if hearsay at all, falls within
the exception for business records and possibly public records as well. Moreover, the
authentication of the document through the parties’ stipulation minimizes any question
about the trustworthiness of the document and obviates the need to introduce the record


        7
          Federal Rule of Evidence 803(6) identifies one of the exceptions to the general hearsay
prohibition:
        Records of regularly conducted activity. A memorandum, report, record, or data
        compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or
        near the time by, or from information transmitted by, a person with knowledge, if kept
        in the course of a regularly conducted business activity, and if it was the regular practice
        of that business activity to make the memorandum, report, record or data compilation,
        all as shown by the testimony of the custodian or other qualified witness, . . . unless the
        source of information or the method or circumstances of preparation indicate lack of
        trustworthiness. The term “business” as used in this paragraph includes business,
        institution, association, profession, occupation, and calling of every kind, whether or not
        conducted for profit.
No. 07-6491        Cobbins v. Tennessee Dep’t of Transp.                            Page 8


through someone who had actual knowledge of its content, such as Staggs himself, or
through a custodian of records for the State. United States v. Pluta, 176 F.3d 43, 49 (2d
Cir.1999); United States v. Robbins, 197 F.3d 829, 838 (7th Cir.1999); United States v.
Chang, 207 F.3d 1169, 1176 (9th Cir.2000) (all stating that the proponent of evidence
has the burden of proof and must lay appropriate foundation). Therefore, the document
should have been admissible under Federal Rule of Evidence 803(6), the business
records exception, and possibly other exceptions as well.

B. Excluded Testimony Concerning Plaintiff’s Prior Claims of Race Discrimination

       Before trial, defendant filed a motion in limine seeking to exclude “any testimony
or documentary presentation” regarding “the factual claims and allegations that Plaintiff
asserted in a prior lawsuit against TDOT.” The prior lawsuit was between the same
parties and contained claims of discrimination in the form of disparate discipline, unfair
job assignments, and racial harassment. Defendant was granted summary judgment in
that case because plaintiff failed to file a timely response to defendant’s motion for
summary judgment. Specifically, defendant sought to exclude in this case factual
evidence involved in the prior action regarding discipline that was or was not imposed
by plaintiff’s then-supervisor, Wayne Yocum. Plaintiff opposed the motion, arguing that
a supervisor’s discriminatory animus may be imputed to the neutral decision-maker
concerning the promotion.

       The district court granted defendant’s motion to prohibit plaintiff from
introducing evidence as it relates to facts and allegations involved in the prior case. The
district court found evidence concerning Yocum’s bias toward plaintiff was not relevant
to this action because it was resolved in defendant’s favor in the prior action and could
not be imputed to the decisionmakers in this case because Yocum was not plaintiff’s
supervisor at the time he applied for the Highway Maintenance County Supervisor
position. The district court also ruled that even if relevant, such evidence should be
excluded under Rule 403 as more prejudicial than probative.

       On appeal, plaintiff argues that the trial court committed reversible error by
excluding evidence of his former supervisor’s “discriminatory animus and motive”
No. 07-6491            Cobbins v. Tennessee Dep’t of Transp.                                      Page 9


toward African-Americans. Plaintiff argues that this disparate treatment in discipline by
his former supervisor is relevant in the current proceeding because Yocum’s conduct
marred his work record and his opportunity for promotion. Plaintiff is not seeking to
relitigate the claims from the earlier suit. Plaintiff seeks only to demonstrate that certain
conduct and actions of his supervisor at that time impacted his work record and
promotion chances; and such evidence is, therefore, relevant in this case.

         We agree with plaintiff. Contrary to defendant’s argument, collateral estoppel
does not bar evidence of plaintiff’s former supervisor’s animus that may have adversely
impacted his work record and chances for promotion because the judgment in the first
lawsuit was not on the merits.8 The judgment was not a dismissal on the merits, but a
dismissal for failure to prosecute.

         Issue preclusion, or collateral estoppel, bars subsequent relitigation of a fact or
issue where that fact or issue was necessarily adjudicated in a prior cause of action and
the same fact or issue is presented in a subsequent suit. See Restatement (Second) of
Judgments § 13 (1982) (“ for purposes of issue preclusion . . ., ‘final judgment’ includes
any prior adjudication of an issue in another action that is determined to be sufficiently
firm to be accorded conclusive effect.”); Restatement (Second) of Judgments § 27 (1982)
(“When an issue of fact or law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a different
claim.”). Four specific requirements must be met before collateral estoppel may be
applied to bar litigation of an issue: (1) the precise issue must have been raised and
actually litigated in the prior proceedings; (2) the determination of the issue must have
been necessary to the outcome of the prior proceedings; (3) the prior proceedings must
have resulted in a final judgment on the merits; and (4) the party against whom estoppel
is sought must have had a full and fair opportunity to litigate the issue in the prior
proceeding. N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass’n, 821 F.2d 328,

         8
           As explained above, plaintiff did not respond to defendant’s summary judgment motion in the
first lawsuit because he claims he did not receive notice of defendant’s filing. However, plaintiff waited
over a year after the case had been dismissed to file a Motion to Set Aside the Order of Dismissal.
No. 07-6491         Cobbins v. Tennessee Dep’t of Transp.                          Page 10


330 (6th Cir. 1987). In determining whether the defensive use of collateral estoppel is
appropriate, the court must also consider whether the party against whom the judgment
is pled had a full and fair opportunity to litigate the issue, and whether it would be
otherwise unfair under the circumstances to permit the use of collateral estoppel.
Restatement (Second) Judgments § 29 (1982).

        It is clear that the prior lawsuit was dismissed for plaintiff’s failure to respond
to the summary judgment motion. Even if it can be argued that the dismissal was
plaintiff’s fault because he had a “full and fair opportunity to litigate” the issue and did
not exercise it, there is no question that the suit was dismissed without a judgment on the
merits and without a decision on any issue apart from plaintiff’s failure to prosecute the
prior lawsuit.

        For the foregoing reasons, the judgment of the district court is reversed and the
case remanded to the district court for proceedings consistent with this opinion.
