02-2381 Young v. James Green Management, Inc. (59065)

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“We agree that there is a fundamental deficiency here that does not permit the admission of the statement. Olson was not speaking as an employee on behalf of Green when he resigned from his employment and accused Green of racial discrimination; to the contrary, in a very overt manner, Olson was acting not only independently of Green but also as its adversary. Because Olson’s out-of court statement was made in the context of terminating his employment (and placing himself in an adversarial relationship with Green), the justification for Rule 801(d)(2)(D) does not exist because Olson no longer was ‘inhibited by [his] relationship with the principal from making erroneous or underhanded comments which could harm the principal.’ Hernandez Escalante v. Municipality of Cayey, 967 F. Supp. 47, 51 (D.P.R. 1997). We also believe that, even if the district court had abused its discretion by refusing to admit the evidence, any error would have been harmless because ‘it did not have substantial and injurious effect or influence in determining the jury’s verdict.’ Williams, 137 F.3d at 951. Olson testified fully at trial to all of the matters contained in the letter of resignation.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Ripple, J.