A. Introduction

This case presents the question of the admissibility in employment discrimination cases of evidence from non-parties that they experienced discrimination by the same employer as the plaintiff, though the individuals doing the discriminating were different.

B. The Facts

Ellen Mendelsohn sued her employer, Sprint/United Management Company (“Sprint”), for age discrimination when it terminated her employment as part of a company-wide reduction in force.

Mendelsohn sought to introduce testimony by five other former Sprint employees who claimed that their supervisors had discriminated against them because of age. Three of the witnesses alleged that they heard one or more Sprint supervisors or managers make remarks denigrating older workers. One claimed that Sprint’s intern program was a mechanism for age discrimination and that she had seen a spreadsheet suggesting that a supervisor considered age in making layoff decisions. Another witness was to testify that he had been given an unwarranted negative evaluation and “banned” from working at Sprint because of his age, and that he had witnessed another employee being harassed because of her age. The final witness alleged that Sprint had required him to get permission before hiring anyone over age 40, that after his termination he had been replaced by a younger employee, and that Sprint had rejected his subsequent employment applications.

Sprint , 2008 U.S. LEXIS 2195 at 4-5.

Sprint moved to exclude the non-parties’ evidence on the grounds that it was not relevant because the witnesses had different supervisors from Mendelsohn and therefore were not “similarly situated” to her. Sprint also argued that the probative value of the proposed testimony was substantially outweighed by the factors in Federal Rule of Evidence 403: unfair prejudice, confusion of the issues, misleading of the jury, and undue delay. The district court granted Sprint’s motion, excluding evidence of “discrimination against employees not similarly situated to plaintiff.” Id. at 6. The district court defined “similarly situated” as having the same decision-maker responsible for the alleged adverse action, and “temporal proximity.” Id.

The Court of Appeals for the Tenth Circuit concluded that the district court had applied a “per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination” in an age discrimination case, and on that basis reversed. Id. at 7. The appellate court found that the evidence “was relevant and not unduly prejudicial, and reversed and remanded for a new trial.” Id.

C. The Legal Question

Did the district court apply a per se rule barring from employment discrimination cases evidence from non-parties that the plaintiff’s employer discriminated against them, though different individuals were responsible for the discrimination? If so, was that the proper rule?

D. The Supreme Court

The Supreme Court vacated the Tenth Circuit’s opinion and remanded the case to the district court with instructions to “clarify the basis for its evidentiary ruling,” id. at 15, on the grounds that the appellate court “erred in concluding that the District Court applied a per se rule,” id. at 8. The Supreme Court found nothing in the district court’s opinion suggesting that it had applied a per se rule, and faulted the appellate court for failing to show the proper deference to the lower court, which had greater “familiarity with the details of the case and … greater experience in evidentiary matters.” Id.

The Supreme Court remanded to the district court so that it could undertake its own balancing of relevance and prejudice under Federal Rule of Evidence 403 because that kind of analysis is “for the District Court to determine in the first instance.” Id. at 13.

Most interesting for practitioners of employment law, the Supreme Court noted that, “had the District Court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion.” Id. at 14. Because questions of relevance are “fact based” and depend “on many factors,” the Court concluded, “Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible.” Id. at 15.

E. From the Employer’s Perspective

This unanimous opinion addresses a common aspect of employment discrimination trials: “me too” evidence of other employees claiming to have been victimized by the same or similar discrimination. Fortunately for employers, the Court did not uphold the Tenth Circuit’s ruling that would have allowed this “me too” evidence from employees of other supervisors. As referenced above, however, the Court did not set forth any per se rule of admissibility or inadmissibility for such evidence. Rather, the Court emphasized that: 1) questions about the relevance, probative value and prejudicial effect of such evidence turn on the facts of each case; and 2) district courts are uniquely situated to analyze these facts and therefore to decide questions of admissibility of “me too” evidence. One noteworthy distinction in Sprint (perhaps unlike other stronger discrimination cases) is that the non-parties wishing to offer evidence had different supervisors than Mendelsohn, had not worked in her department, and had no evidence of discriminatory remarks by anyone in her chain of command. Id. at 5. Sprint’s arguments of irrelevance and prejudice here were arguably more persuasive than in other discrimination cases.

Two practice points for defense litigators: first, never underestimate the power of the motion in limine. As demonstrated in Sprint, the district court’s ruling on the employer’s motion in limine significantly curtailed the potential parade of horrors of other employees who believed they were victimized by age discrimination. Early rulings, such as this one, help simplify the issues for the jury and narrow the front(s) of attack by the plaintiff – all of which make defending a case much easier. Secondly, if an early evidentiary ruling is favorable to the defense, ensure that the trial judge articulates the proper reasoning for the ruling on the record. In Sprint, if the trial judge had performed the Rule 403 balancing test of the probative value of the evidence versus its prejudicial effect explicitly on the record, then the Supreme Court could have had grounds to simply affirm the district court’s ruling for the defense, rather than having to remand for the district court to “clarify the basis for its evidentiary ruling.” Id. at 15.

Finally, while the Court did not adopt or reject any per se rule of inadmissibility, it was very clear that district courts should be afforded great deference in their evidentiary rulings (especially under Rule 403) and that the Tenth Circuit improperly conducted its own balancing of the probative value and prejudicial effect of the “me too” evidence in Sprint. The Court’s rationale here will be helpful to whichever party prevails on evidentiary rulings at the trial level, assuming the district court has not abused its discretion.

F. From the Employee’s Perspective

The Court’s equivocal ruling that evidence of discrimination by the same employer against non-party employees is neither admissible nor inadmissible per se leaves the door open for plaintiffs in employment discrimination cases to offer such evidence. Also heartening is the Court’s implication that every district court presented with such evidence must carefully analyze the question of admissibility in the context of the facts before it.

Evidence that the plaintiff’s employer has discriminated against other employees on the basis of age can be highly probative in an age discrimination lawsuit. An employer’s culture of or tolerance for discrimination against older workers lends credence to a plaintiff’s allegation that the employer discriminated against her as well. The Supreme Court recognized the importance of such evidence in Miller-el v. Cockrell, 537 U.S. 322, 347 (2003), according “some weight” to evidence of a “culture of discrimination” in the office of a prosecutor charged with using peremptory challenges discriminatorily to exclude minorities from a jury. The Court explained,

[t]his evidence, of course, is relevant to the extent it casts doubt on the legitimacy of the motives underlying the State's actions in petitioner's case. Even if we presume at this stage that the prosecutors in Miller-El's case were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it.

Miller-el at 347.

In the same way, evidence of age discrimination against other employees deserves “some weight” in an age discrimination case even if the individuals taking the specific adverse actions at issue were not the same as those who discriminated in the past.

The Supreme Court’s opinion is also useful to a plaintiff fighting the inevitable motion for summary judgment: it offers one more reminder to district courts that employment discrimination cases are highly fact-specific, and that in most cases, a fact-finder must be allowed to weigh the evidence.

Piper Hoffman, Esq. is a partner of Outten & Golden LLP in New York City, which represents employees exclusively. She is a member of the ABA’s Section of Labor and Employment Law, Employee Rights and Responsibilities Committee, and Co-Chair of the ERR Class Action Subcommittee.

Rachel Esposito, Esq. represents public and private employers with Cranfill Sumner & Hartzog LLP in Raleigh, North Carolina. She is a member of the ABA’s Section of Labor and Employment Law, Employment Rights and Responsibilities Committee.