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IP Updates

The Supreme Court Speaks: District Courts May Admit "Me Too" Evidence in Employment Discrimination Cases

January 16, 2009

IP Updates

The Supreme Court Speaks: District Courts May Admit "Me Too" Evidence in Employment Discrimination Cases

January 16, 2009

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March 11, 2008

In Sprint/United Management Co. v. Mendelsohn, a unanimous Supreme Court held that deciding whether to admit “me too” evidence in employment discrimination cases (or whether such evidence is irrelevant or prejudicial and should be excluded) should be left to the trial court’s discretion.

What is “me too” evidence?

“Me-too” evidence is testimony from employees other than the plaintiff who allege that they too were subjected to discrimination during their employment. “Me-too” evidence is critical to employees who must often rely on circumstantial evidence to prove alleged bias that occurred behind closed doors. Not surprisingly, however, this evidence strikes fear into most employers because the admission of “me-too” testimony often creates a series of “mini-trials” in which the employer must prove not only that it did not discriminate against the plaintiff, but also that it did not discriminate against the other “me-too” witnesses.

What happened in Mendelsohn’s case?

Ellen Mendelsohn was a manager in Sprint’s business development and support group operations. She was 51 years old when she was terminated as part of a company-wide reduction in force (“RIF”) that affected nearly 15,000 employees over an 18-month time period. After her termination, Mendelsohn sued Sprint for violation of the Age Discrimination in Employment Act (“ADEA”), alleging that her inclusion in the RIF was because of her age.

At trial, Mendelsohn sought to introduce testimony from five other former Sprint employees, all of whom were also over the age of 40, had lost their jobs in the RIF, and believed that they too had been victims of age discrimination. Sprint objected to their testimony, arguing that because none of these employees had the same supervisor as Mendelsohn and many were terminated long-after Mendelsohn, their testimony was not relevant to the alleged age bias of the person who made the decision to discharge Mendelsohn.

The district court agreed with Sprint and issued an ordering that limited trial testimony only to employees who were “similarly situated” to Mendelsohn; that is, employees who had the same supervisor as Mendelsohn and had been terminated in the same time period. The jury returned a verdict for Sprint, and the district court denied Mendelsohn’s motion for a new trial. Soon thereafter, Mendelsohn filed an appeal

On appeal, in a 2-1 decision, the Tenth Circuit court held that the district court had improperly applied the “same supervisor” rule in a way that created a per se bar on “me-too” evidence in company-wide RIF cases. The Tenth Circuit reasoned that a company-wide RIF “is not about individual conduct but about a company-wide policy of which all Sprint’s supervisor were allegedly aware.” The court then evaluated the evidence itself and concluded that it was both relevant and not unduly prejudicial and, therefore, should have been admitted at trial.

On February 26, 2008, the Supreme Court unanimously reversed the Tenth Circuit’s decision. The Court emphasized the wide discretion and deference courts of appeal must give trial courts because it is the trial court which is most familiar with the case details and has deep experience in evidentiary matters. The Court determined that it was not clear whether the trial court was applying a per se bar to “me-too” evidence, as the Tenth Circuits suggested. Therefore, the Court held that the Tenth Circuit should have remanded the case back to the trial court, rather than evaluating the evidence on its own. The Court remedied this error by remanding the case to the district court so that it could clarify its reasons for blocking “me-too” testimony or re-consider its decision and convene a new trial.

How does the Supreme Court’s decision impact employers?

By finding that “me-too” evidence should be permitted or barred on a trial-by-trial basis, the Supreme Court indicated that in some cases, an employee/plaintiff who brings suit against his/her employer for alleged discrimination may be able to rely on testimony from other employees who also believed that they too suffered discrimination in the workplace even though they did not work in the same group, division or department as the plaintiff and who had different supervisors, while in other cases, testimony from employees with different supervisors may be too attenuated from the challenged termination decision.

In essence, the law on “me-too” evidence has reverted back to its state before the Tenth Circuit’s decision. Although there will continue to be disputes about the admissibility of “me-too” evidence, these disputes will be easier for employers because without the Supreme Court’s decision, they would have had to face the Tenth Circuit’s decision, which many plaintiffs were using to argue that “me-too” evidence was per se admissible. And, now, there is no doubt that district court judges are empowered to make these decisions, but should clearly state the reasons for excluding or admitting “me-too” testimony.

The Supreme Court’s refusal to establish a bright line rule on “me-too” evidence-as many commentators had hoped-signals the Supreme Court’s desire to bolster the discretion given to trial judges regarding the admissibility of evidence. Absent a decision that clearly precludes “me-too” evidence, employers should expect that plaintiff’s counsel will continue to devise creative ways to utilize such evidence, particularly in “close call” discrimination cases.

Click here to read the full Supreme Court decision.

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