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Supreme Court Rules That Admissibility Of "Me Too" Evidence Is Case-By-Case Determination
Labor and Employment Update
March 4, 2008
A recurring issue in employment discrimination cases is whether a plaintiff should be allowed to bolster his/her bias claim by using evidence of alleged discrimination against other employees; especially when different supervisors are involved in the adverse action taken against them. Recently confronted with this important question in Sprint v. Mendelsohn, No. 06-1221 (February 26, 2008), the U.S. Supreme Court held that the admissibility of so-called “me too” evidence depends on the specific facts of each case.
In the case before the Court, Ellen Mendelsohn, a 13-year employee of Sprint, was terminated at age 51 as part of a companywide reduction-in-force. She then sued the company, alleging that she was fired because of her age, in violation of the Age Discrimination in Employment Act (ADEA).
In support of her claim, Mendelsohn sought to offer at trial testimony from five other former employees, who also lost their jobs as a result of the RIF, and who, while not parties to Mendelsohn’s lawsuit, asserted that they, too, had been discriminated against by their supervisors on account of their age. Sprint argued that the evidence should be excluded because none of these former employees had worked in Mendelsohn’s department; none had been supervised by any of Mendelsohn’s superiors; and none claimed to have heard discriminatory remarks by any of her supervisors. Sprint further contended that, under these circumstances, the admission of such testimony would be unduly prejudicial to the company.
The district court in Kansas agreed with Sprint and held that the “me too” evidence was inadmissible. The court stated that for “me too” evidence to be admissible, the employees offering it had to be “similarly situated” to Mendelsohn. Further, to meet this standard, their testimony would have to show that (1) Mendelsohn’s direct supervisor was the decision-maker in any adverse employment action taken; and (2) the adverse action was taken in “temporal proximity” to Mendelsohn’s termination.
Following a jury verdict for Sprint, Mendelsohn appealed. The U.S. Court of Appeals for the Tenth Circuit interpreted the district court’s ruling as the application of a per se, or blanket, rule that evidence from employees with different supervisors is irrelevant to proving age bias in a RIF case. Rejecting this standard, the appellate court tossed out the jury verdict and conducted its own evaluation of the “me too” evidence. The Court of Appeals then decided that the testimony was relevant and that its admission at trial would not unduly prejudice Sprint. Accordingly, it ordered a new trial where Mendelsohn would be allowed to present her “me too” evidence.
The Supreme Court, granting Sprint’s request for review, ruled that, contrary to the appellate court’s finding, it was “unclear” whether the district court had applied a per se rule. Stressing that a trial court’s evidentiary rulings are entitled to significant deference by a reviewing court, the Court held that the case should have been remanded to the trial court to explain its decision. In so finding, the Court further emphasized that if the trial court had in fact applied a per se rule, such action would have been an abuse of discretion. As the Court explained, “me too” evidence is neither per se admissible nor per se inadmissible. Rather:
The question of whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.
Thus, depending on how the trial court interprets this mandate when it reconsiders its initial ruling on the “me too” evidence, Sprint may still face a second trial on Mendelsohn’s age bias claim.
The Court’s instruction to trial courts to engage in a “fact-intensive, context-specific inquiry” in determining the admissibility of “me too” evidence may ultimately prove advantageous to plaintiffs. Although Mendelsohn had been permitted to proceed to trial even though her “me too” evidence was disallowed, oftentimes, a trial court’s exclusion of such evidence will help an employer win a pre-trial motion for summary judgment. Now, however, trial courts may be reluctant to exclude “me too” evidence and more such cases may proceed to trial. Moreover, the introduction of such evidence often results in “mini trials” within the main trial, allowing evidence not directly involving the plaintiff, but clearly unfavorable to the employer, to become a focal point for the jury.