Sixth Circuit Clarifies Rule 801(d)(2)(D): HR Employees Who Merely Deliver Termination Decisions Are Not Opposing-Party Declarants

Introduction

In Pearlie R. Hill v. TK Elevator Manufacturing, Inc., the Sixth Circuit affirmed summary judgment for the employer on Title VII and 42 U.S.C. § 1981 retaliation claims. Two issues framed the appeal: (1) whether a human resources (HR) employee’s statement relaying a termination decision and supposed motive fits the opposing-party-statement exclusion to the hearsay rule under Federal Rule of Evidence 801(d)(2)(D), and (2) whether the plaintiff’s evidence sufficed to reach a jury on retaliation. The court answered both in the negative.

At the heart of the evidentiary dispute was a classic double-hearsay problem. The employee (Hill) testified that, during her termination meeting, an HR representative (Butler) told her that the termination decisionmaker (Sullivan) fired her because she was “causing trouble” by complaining about sexual harassment and race discrimination and by planning to use the Family and Medical Leave Act (FMLA). The district court excluded this as inadmissible double hearsay; the Sixth Circuit agreed. Judge Mathis dissented, concluding the statement was admissible and created a triable issue of retaliation.

Case Background and Key Facts

• Parties: Plaintiff–Appellant Pearlie R. Hill (Black woman) worked on the paint line at TK Elevator’s Middleton, Tennessee facility from 2014 to 2021. Defendant–Appellee is TK Elevator Manufacturing, Inc.
• Governing policies: Hill’s employment was subject to a collective-bargaining agreement (CBA) with progressive discipline for “occurrences” (attendance violations) over a 12‑month rolling period. FMLA-qualifying absences (with proper notice) did not count. The parties disputed how the 12‑month window runs during non-work periods, but the appellate court viewed facts in Hill’s favor.
• Prior discipline and reinstatement: In 2020, Hill advanced through the progressive discipline steps and was terminated on July 15, 2020, for attendance. She grieved, claiming relevant absences were FMLA-protected. In November 2020, the parties settled with a conditional reinstatement agreement (CRA), reinstating Hill with a 180‑day probation. The CRA stated that any infraction would result in immediate termination, but it also specified that attendance points and discipline “will be per CBA” and did not reverse prior discipline.
• Post-reinstatement events: Between November 2020 and March 2021, Hill had several minor tardies/early departures and requested intermittent FMLA leave. Hartford (the plan administrator) later found her ineligible for FMLA due to hours. The record shows no new written discipline issued between November 17, 2020, and March 29, 2021.
• Complaints: Hill reported a coworker’s inappropriate touching to her supervisor in November 2020 and again raised concerns about discomfort and alleged comments on March 30, 2021. On March 15, 2021, after HR told her Hartford denied FMLA, Hill complained that she believed the denial and workplace actions were retaliatory for her harassment and race-discrimination complaints and for intending to use FMLA.
• Termination: On March 23, 2021, TK Elevator emailed Hartford to confirm the FMLA denial because it intended to move forward with termination for attendance policy violations. On March 30, less than two hours after Hill reported renewed concerns about the coworker, HR and her supervisor met with her and terminated her for attendance violations. Hill testified that, when the supervisor stepped out, HR representative Butler said Sullivan (manager of labor relations) decided Hill should be fired because she was “causing trouble” by complaining and planning to use FMLA.
• Procedural posture: Hill sued for Title VII and § 1981 discrimination and retaliation and FMLA retaliation. She opposed summary judgment only on retaliation theories under Title VII and § 1981. The district court granted summary judgment for the employer, excluding Hill’s account of Butler’s statement as inadmissible double hearsay. Hill appealed only the Title VII/§ 1981 retaliation claims.

Summary of the Opinion

The Sixth Circuit (Judge Boggs, joined by Judge McKeague) affirmed. The court held:

• Hill’s proffered statement—that Butler told her that Sullivan told Butler he fired Hill due to her complaints—was inadmissible double hearsay. The first layer (Sullivan’s alleged statement) qualified as an opposing-party statement under Rule 801(d)(2)(D) because Sullivan was the termination decisionmaker. But the second layer (Butler’s recounting to Hill) did not qualify because communicating decisions in a ministerial capacity did not place Butler’s statement “within the scope” of her employment for purposes of the rule.
• Without that statement, Hill lacked direct evidence of retaliation. On circumstantial proof, she could not establish a causal connection between protected activity and termination. A four‑month gap from the November 2020 complaint was too long without other evidence. The March 30 complaint could not have caused a termination decision already in motion by March 23. As to the March 15 HR complaint, temporal proximity alone was insufficient where the employer had known of Hill’s complaints for months.

Judge Mathis dissented. He would hold that Butler’s statement fell within Rule 801(d)(2)(D) because Butler’s job included conducting termination meetings and explaining the reasons for termination. He viewed the statement as direct evidence of retaliation, creating a triable dispute.

Analysis

Precedents Cited and How They Shaped the Holding

• Rule 801(d)(2)(D) framework:
  • Back v. Nestlé USA, Inc., 694 F.3d 571 (6th Cir. 2012), and Carter v. Univ. of Toledo, 349 F.3d 269 (6th Cir. 2003): The Sixth Circuit recognizes that “scope of employment” can extend beyond the literal decisionmaker when an employee has broad HR oversight or responsibilities touching termination or workforce composition. In Back, the acting HR Director’s remarks about a plan to fire older workers were within scope. In Carter, a vice provost’s remarks about “whitewashing” faculty were within scope given his oversight of affirmative action compliance and role in broader personnel processes.
  • Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073 (6th Cir. 1999): A non-decisionmaker’s relayed warning qualified under 801(d)(2)(D) due to specific delegation—the supervisor expressly instructed the intermediary to “pass the message along.”
• Scope-limiting precedents:
  • Jacklyn v. Schering-Plough, 176 F.3d 921 (6th Cir. 1999): A former supervisor’s relayed comment lacked the necessary scope—he was not involved in performance reviews leading to the separation; mere title not enough.
  • Hill v. Spiegel, Inc., 708 F.2d 233 (6th Cir. 1983): Statements by managers unrelated to the plaintiff’s discharge fell outside scope; “manager” status alone cannot bootstrap scope.
  • Huffman v. Speedway LLC, 621 F. App’x 792 (6th Cir. 2015): Co-workers not in HR and not involved in accommodation decisions lacked scope.
  • Thompson v. City of Lansing, 410 F. App’x 922 (6th Cir. 2011): The court distinguished between substantive involvement in the decision versus ministerial tasks (e.g., preparing a background report). Ministerial roles are not “involved in the decision-making process.”
  • Garrett v. Southwest Med. Clinic, 631 F. App’x 351 (6th Cir. 2014): Without a duty to relay management’s comments, an employee’s statements about management’s views do not fall within scope.
• Hearsay admissibility and standards:
  • Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603 (6th Cir. 2003): Inadmissible hearsay cannot be considered at summary judgment.
  • United States v. Fox, 134 F.4th 348 (6th Cir. 2025): Hearsay determinations are reviewed de novo.
  • Rule-based: Fed. R. Evid. 801(d)(2)(D) (opposing-party agent/employee statements), 805 (hearsay within hearsay), and 802 (rule against hearsay).
• Retaliation causation and temporal proximity:
  • Williams v. Memphis Light, Gas & Water, No. 23-5616, 2024 WL 3427171 (6th Cir. July 16, 2024): Four months between protected activity and adverse action is “too lengthy” to establish causation without other evidence.
  • Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008): In “immediate” retaliation cases, very close temporal proximity can suffice because no other evidence can accrue between complaint and swift adverse action. The panel distinguished this case because the employer had known of Hill’s harassment complaints for months.
  • Summary judgment and evidence standards: Celotex Corp. v. Catrett, 477 U.S. 317 (1986); United States v. Diebold, Inc., 369 U.S. 654 (1962).

Collectively, these authorities underpin the majority’s core move: drawing a line between employees who are substantively involved in making personnel decisions (or given explicit authority to transmit specific messages central to those decisions) and HR professionals who serve ministerial roles in communicating or documenting decisions made by others. Only the former group can bring their statements within Rule 801(d)(2)(D) for employer-opponent admissions about termination motives.

Legal Reasoning

The panel first rejected TK Elevator’s assertion that Hill “waived” (or forfeited) her evidentiary argument under a local rule because the district court reached the merits; the Sixth Circuit therefore addressed admissibility de novo.

Turning to hearsay, the court parsed the two layers:

• Layer 1 (Sullivan to Butler): Non-hearsay under Rule 801(d)(2)(D), because Sullivan, the decisionmaker, spoke on a matter within the scope of his role.
• Layer 2 (Butler to Hill): Hearsay. Although Butler’s job unquestionably included telling employees that and why they were being terminated and handling the paperwork, the court emphasized that this was a ministerial function. Butler was not involved in deciding whether or why to terminate Hill and had no specific authorization to communicate anything beyond the official reason. There was no evidence of the “something more” required by the case law—either broad HR oversight (as in Back and Carter) or specific delegation to pass along the particular message (Moore).

The majority observed that a contrary rule would effectively transform messengers into mouthpieces for illegal motives: “No employer would tell its employee: ‘Your job is to deliver all our termination-related info, including secretly informing terminated employees about any illegal acts that your boss has committed.’” That rhetorical point illustrates the court’s limiting principle—Rule 801(d)(2)(D) requires a nexus between the employee’s responsibilities and the content of the statement that rises above mere delivery of decisions made elsewhere.

With the hearsay excluded, no direct evidence remained. On circumstantial evidence, Hill’s prima facie case failed on causation:

• November 2020 complaint to supervisor: A four-month gap to termination is too attenuated by itself (Williams).
• March 30, 2021 complaint: The record showed the employer decided to move forward with termination no later than March 23; a later complaint cannot logically cause an earlier decision.
• March 15, 2021 HR complaint: Even assuming close timing, temporal proximity alone did not suffice because TK Elevator had known for months about Hill’s harassment concerns, placing this case outside the narrow Mickey scenario where immediate retaliation is the only available proof.

The Dissent’s View

Judge Mathis would admit Butler’s statement under Rule 801(d)(2)(D). He emphasized that:

• Courts should focus on whether the statement concerns a matter within the declarant’s responsibilities, not whether the declarant is the final decisionmaker. He cited a range of circuit authorities reflecting this broader approach, including decisions from the Ninth, Eleventh, Seventh, Eighth, D.C., and Third Circuits.
• At TK Elevator, Butler worked in HR, tracked attendance, issued progressive discipline to bargaining-unit employees, and conducted termination meetings where she told employees they were being terminated and why. That is “some authority to speak” about terminations.
• Because Butler’s role included explaining the reason for termination, her statement about the decisionmaker’s stated reason (retaliation for protected complaints) fell within the scope of her employment. In the dissent’s view, the majority’s “decisionmaker/broad oversight/specific delegation” test is not found in the text of Rule 801(d)(2)(D) and narrows the rule in tension with its purpose and case law.

On the merits, the dissent would treat Butler’s statement as direct evidence that Hill’s protected activity was a motivating factor, shifting the burden to the employer to prove it would have made the same decision regardless. The dissent also identified a triable factual dispute over whether TK Elevator’s attendance policies (as constrained by the CBA and the CRA’s “per CBA” clause) actually authorized termination when Hill was fired.

Impact and Practical Implications

Although designated “Not Recommended for Publication,” the decision meaningfully crystallizes Sixth Circuit law on a recurring evidentiary problem in employment cases:

• HR “messenger” statements are out: In the Sixth Circuit, a human resources representative who merely communicates the fact and the stated reason for termination—without participating in the decision or possessing broad HR oversight—does not qualify as a Rule 801(d)(2)(D) declarant for purposes of admitting a supervisor’s or decisionmaker’s alleged motive.
• What works under 801(d)(2)(D): Plaintiffs should aim to secure statements from:
  • Decisionmakers themselves; or
  • HR personnel or other managers with broad oversight whose responsibilities include substantive involvement in performance management, compliance, promotions/tenure, or termination policy; or
  • Intermediaries who received a specific delegation to convey the precise message at issue (as in Moore), or who are explicitly authorized to speak on the subject (Rule 801(d)(2)(C)).
• Deposition and affidavit strategy: Plaintiffs should depose decisionmakers and those with substantive HR roles; obtain admissions about who decided, who contributed, and who was authorized to explain reasons. Defense counsel should clarify and document the boundary between decisionmaking and ministerial delivery to minimize Rule 801 exposure.
• Documentation discipline: Employers should keep clear records of the timing of decisions, particularly when temporal proximity might otherwise imply causation. The March 23 email to Hartford was pivotal in undercutting causation for the March 30 complaint.
• Temporal proximity limits: Even short intervals will not suffice where the employer already knew of protected activity for months, and where evidence shows the adverse decision predates the protected event.
• CBA/CRA intersections: When a CRA claims “any infraction” is terminable but also says attendance discipline remains “per CBA,” expect factual disputes over how many occurrences and what window applies. The dissent flagged this as a genuine dispute of material fact.

Because other circuits frame Rule 801(d)(2)(D) more broadly (as the dissent notes), multijurisdictional litigants should be attentive to regional variations. Within the Sixth Circuit, however, this opinion underscores a relatively strict, role-based approach: messenger HR is not enough.

Complex Concepts Simplified

• Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Generally inadmissible unless an exception or exclusion applies.
• Double hearsay: Hearsay within hearsay (e.g., A says that B said X). Each layer must independently fit an exception or exclusion to be admitted. Here, the decisionmaker’s statement (Layer 1) qualified; the HR messenger’s repetition (Layer 2) did not.
• Rule 801(d)(2)(D) (opposing-party statements by agents/employees): A statement is not hearsay if made by the opposing party’s agent/employee on a matter within the scope of the relationship and during its existence. The Sixth Circuit’s gloss requires that the declarant have a role substantively connected to the content—decisionmaking, broad oversight, or specific delegation—not merely a ministerial duty to deliver decisions.
• Ministerial vs. decisionmaking involvement: Ministerial tasks (processing paperwork, reading decisions, scheduling) are not the same as participating in, advising on, or shaping the decision. Only the latter typically brings statements within Rule 801(d)(2)(D) in this context.
• Direct vs. circumstantial evidence of retaliation:
  • Direct evidence: If believed, proves unlawful motive without inference (e.g., “We are firing you because you complained.”)
  • Circumstantial evidence: Requires inferences and is analyzed under the McDonnell Douglas burden-shifting framework (prima facie case; employer’s legitimate reason; pretext).
• Temporal proximity: Close timing between protected activity and adverse action can suggest causation. But in the Sixth Circuit, gaps of several months are usually insufficient without other proof, and proximity alone may not suffice when the employer already knew of the protected activity long before the adverse action.

Conclusion

The Sixth Circuit’s decision sets a clear evidentiary boundary: HR personnel who merely deliver termination news—without participating in the decision or possessing broad HR oversight—do not bring their statements about decisionmakers’ motives within the Rule 801(d)(2)(D) opposing-party exclusion. In double-hearsay scenarios, plaintiffs must either tie the intermediary to substantive decisionmaking or obtain the evidence directly from the decisionmaker or a clearly authorized spokesperson.

On the merits, the court reaffirmed the limits of temporal proximity as a proxy for causation and showed how contemporaneous documentation (here, the pre-termination communication with the FMLA administrator) can break the causal chain. The dissent’s contrary view highlights an emerging tension: whether Rule 801(d)(2)(D) should be read to encompass HR officials whose duties include explaining termination reasons, even if they do not make the decisions themselves.

For practitioners in the Sixth Circuit, the takeaways are practical and immediate: build the evidentiary record with statements from true decisionmakers or those with substantive HR authority; be wary of relying on HR “messenger” statements to prove motive; and recognize that timing alone rarely carries a retaliation claim where the employer’s decision predates the protected act or where awareness of protected activity long predated the termination.