Supreme Court Rules Admissibility of "Me, Too" Evidence Not Susceptible to Broad Per Se Rules

Justices Found Tenth Circuit Jumped the Gun on District Court's "Me, Too" Evidentiary Order

February 26, 2008

The United States Supreme Court reversed a decision from the Tenth Circuit Court of Appeals in Denver addressing the admissibility of testimony of non-party former employees alleging discrimination by supervisors who played no role in the action challenged by the plaintiff to show that discrimination against older workers pervaded the workplace and to persuade jurors that plaintiff's layoff also was discriminatory. Sprint/United Management Company v. Mendelsohn, No. 06-1221 (Feb. 26, 2008). The Supreme Court's February 26 decision primarily focused on procedural issues and faulted the Tenth Circuit with improperly assuming that the District Court's exclusion of the evidence amounted to a per se bar without first remanding the case back to the lower court for clarification regarding the intended scope of its exclusion.

The Supreme Court held that the admissibility of "me, too" evidence of discrimination involving other supervisors is a fact-based determination which is not "per se admissible or per se inadmissible." Ultimately, the Supreme Court remanded the matter to the District Court for clarification on the basis for its decision to exclude the evidence.

Ellen Mendelsohn and the Sprint/United Management Company's Reduction in Force

Ellen Mendelsohn was a manager in Sprint/United Management Company's Overland Park, Kansas business development and support group operations. She was 51 years old when she was terminated as a part of a company-wide reduction in force ("RIF") that affected nearly 15,000 employees during an 18-month period. Mendelsohn sued Sprint for violation of the Age Discrimination in Employment Act ("ADEA"), alleging her inclusion in the RIF was because of her age. At trial, Mendelsohn sought to present the testimony of five other former Sprint employees over the age of 40 who had also lost their jobs pursuant to the RIF. These former workers also thought they were victims of discrimination. None of these other employees, however, had the same supervisor as Mendelsohn.

Sprint's Motion to Exclude "Me, Too" Evidence and Victory at Trial

Before the start of Mendelsohn's ADEA trial, Sprint moved to bar the testimony of these other former Sprint employees because, among other reasons, none of them had the same supervisor as Mendelsohn. The trial court agreed with Sprint and limited the testimony at trial only to those employees who were "similarly situated" to Mendelsohn. It defined "similarly situated" to include only those employees who had the same supervisor as Mendelsohn and had been terminated in the same period. The jury returned a verdict for Sprint and the district court judge denied Mendelsohn's motion for a new trial.

Tenth Circuit Reversal – Limiting the "Same Supervisor" Rule

Mendelsohn appealed the District Court's exclusion of testimony. In a 2-1 decision overruling the District Court, the Tenth Circuit held that the lower court had improperly applied the "same supervisor" rule set forth in Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997), to justify a per se bar on "me, too" evidence in the context of a company-wide RIF. While the Tenth Circuit considered Aramburu's "same supervisor" rule appropriate in the context of discriminatory disciplinary actions because divergent treatment by a single supervisor is relevant to show the discriminatory intent of the supervisor, a company-wide RIF "is not about individual conduct but about a company-wide policy of which all Sprint's supervisors were allegedly aware." In this vein, the Tenth Circuit remarked, "Applying Aramburu's 'same supervisor' rule in the context of an alleged discriminatory company-wide RIF would, in many circumstances, make it exceedingly difficult, if not impossible, for a plaintiff to prove a case of discrimination based on circumstantial evidence."

In finding that the District Court had abused its discretion in applying a per se bar in this case, the Tenth Circuit assessed the relevance of the evidence itself and conducted its own balancing of probative value and potential prejudicial effect to find the evidence both relevant and not unduly prejudicial.

Supreme Court Reverses and Remands to District Court for Clarification

The Supreme Court reversed the Tenth Circuit's holding and highlighted the wide discretion and deference courts of appeals must grant district courts because of the lower courts' familiarity with case details and greater experience in evidentiary matters. Because it was not clear that the District Court was in fact applying a per se bar to "me, too" evidence in this case, the Tenth Circuit erred by not respecting the deference typically given district courts in evidentiary matters and not giving the lower court the opportunity to clarify its ruling before the Tenth Circuit took matters into its own hands.

Practical Considerations for Employers

While remanding the case to the District Court for clarification, the Supreme Court noted that had the District Court applied a per se rule excluding the evidence, the Tenth Circuit would have been correct to conclude that the District Court had abused its discretion. The Supreme Court noted that issues of relevance and prejudice are more appropriately determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.

Employers are left with some definitive guidance from the Supreme Court regarding the admissibility of "me, too" evidence: the relevancy and prejudicial effect of such evidence is and will continue to be properly within the domain of the district court to determine on a case-by-case basis.

This case appears to be part of a broader pattern of providing significant discretion to trial judges regarding the admissibility of evidence and, when considered in conjunction with the Supreme Court's decision in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), broadening the scope of retaliation claims (see Rise in Claims Likely After Supreme Court Loosens Standard in Retaliation Lawsuits), potentially paving the way for more trials involving discrimination claims.

The Supreme Court's refusal to apply a broad per se rule should alert employers to the panoply of ways plaintiff's counsel will attempt to utilize such evidence in cases. Even though the Court's decision does not provide employers relief or preventive guidance with respect to "me, too" evidence in a non-disciplinary action setting, it certainly highlights the continued importance of preventive employment practices such as effective workplace investigations and employee training. By demonstrating an employer's commitment to investigations and training, employers will be in a position to contradict any "me too" testimony.

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