In Sharpe-Miller v. Walmart, Inc., No. 24-2055, 2026 WL 2015375 (10th Cir. July 13, 2026), the court, inter alia, reversed the district court’s award of summary judgment to defendant on plaintiff’s hostile work environment claim under Title VII of the Civil Rights Act of 1964.
Specifically, the court held that plaintiff provided evidence that he was subjected to a significant amount of anti-gay discrimination at work, including at least two outrageous acts, and that the district court mistakenly excluded or discounted multiple relevant discriminatory acts, and relied on an incomplete statement of the law when it stated that a hostile-work-environment claim can only succeed if the plaintiff is subjected to a “steady barrage” of discrimination.
Among other aspects of the court’s analysis it its assessment of the hearsay issue:
The district court also stated that “several derogatory comments [Mr. Sharpe-Miller] heard … cannot be considered by this Court” because “these comments are hearsay without an exception.” Aplt.’s App., Vol. II, at 311. Mr. Sharpe-Miller argues that comments he heard are not hearsay because they are not offered for their truth. “ ‘Hearsay’ means a[n out-of-court] statement that … a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). The district court did not specify which comments it considered inadmissible. However, we would be hard pressed to conclude that any derogatory comments Mr. Sharpe-Miller testified to hearing firsthand were offered for their truth and therefore qualified as hearsay. For example, the fact that coworkers used language including “faggot,” “butt pirate,” and “Jerry the fairy” were certainly not offered by Mr. Sharpe-Miller to prove that he or anyone else accurately fit that description. These slurs and insults contribute to a hostile work environment because they were said, not because they were accurate.
This, held the court, was among “several errors that caused it to improperly discount or disregard alleged instances of discrimination relevant to whether a rational jury could find a hostile work environment.”