Supreme Court Punts Sprint “Me Too” Evidence Case Back to Lower Court
In its recent unanimous decision in Sprint v. Mendelsohn, the Supreme Court largely avoided the tough issue before it, which concerned the admissibility of “me-too” evidence in employment discrimination cases — testimony of other employees who believed they had also been subjected to discrimination by the employer.
The trial court excluded such evidence at trial, and Sprint prevailed. On appeal, two Tenth Circuit judges voted to reverse and order a new trial on the basis that the trial court should have allowed this evidence, but the third judge on the panel wrote a strong dissent supporting its exclusion.
Sprint took the question to the Supreme Court, which reversed, sending the case back to the trial court for further explanation of its exclusion of the “me-too” evidence. The Supreme Court’s brief and unanimous opinion failed to provide a clear answer. Instead, its punt to the lower court (in legal lingo, a “remand”) stated that “me-too” evidence may or may not be admissible, depending on many factors.
This may be a good answer, but will be viewed by many as a non-answer to what has been a recurring issue in employment discrimination litigation for many years.
The following is a fairly detailed summary of the case, along with some of my thoughts about its significance.
Facts
The plaintiff in this case, Ellen Mendelsohn, lost her job with Sprint in a company-wide reduction in force (RIF). She sued, claiming age discrimination, and sought to introduce the following testimony of six other former Sprint employees who believed they too were victims of age discrimination:
Three said they had 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that Sprint had required him to get permission before hiring anyone over age 40, that after his termination he had been replaced by a younger employee, and that Sprint had rejected his subsequent employment applications.
None of these witnesses had worked under the supervisors in Mendelsohn’s chain of command, nor did they report hearing discriminatory remarks by such supervisors.
District Court Proceedings
On a defense motion, the trial judge excluded the testimony of these witnesses, without much explanation. It limited such evidence to Sprint employees “similarly situated” to Mendelsohn, specifically, only those terminated around the same time who had been under the supervision of her immediate supervisor.
The court did allow evidence of spreadsheets showing the names and ages of Sprint employees being considered for termination, and testimony regarding how these documents were used in the RIF process.
Following an eight-day trial, the jury returned a verdict for Sprint, and Mendelsohn appealed.
Tenth Circuit Reversal
The Tenth Circuit U.S. Court of Appeals reversed and ordered a new trial, holding that the exclusion of the “me-too” testimony “deprived Mendelsohn of a full opportunity to present her case to the jury.”
However, the dissenting opinion portrayed a very different view of the issue, highlighting points unresolved by the Supreme Court’s ruling.
Tenth Circuit Majority Opinion
The majority cited cases in which evidence that an employer had terminated other older employees was deemed relevant, as evidence of “a pattern of dismissal based on age,” or as tending to “discredit the employer’s assertion of legitimate motive.”
The majority then addressed Aramburu v. Boeing Co., a previous Tenth Circuit case in which a plaintiff sought to establish discrimination through testimony of other employees “who were treated more favorably for violating the same work rule (or another of comparable seriousness).” Aramburu involved classic “disparate treatment” evidence — evidence of better treatment of employees differing in the protected characteristic at issue (e.g., males in a gender discrimination case brought by a female).
In Aramburu, the Tenth Circuit had limited such testimony to employees who had the same supervisor as the employee claiming discrimination. In Mendelsohn, the majority declined to apply that rule, saying it applied only “in the context of a discriminatory discipline action.” In contrast, the majority said, Mendelsohn was not about allegedly discriminatory conduct of a particular supervisor, “but about a company-wide policy of which all Sprint’s supervisors were allegedly aware.”
The majority concluded the testimony of the other employees was relevant:
The testimony of the other employees concerning Sprint’s alleged discriminatory treatment and similar RIF terminations is “logically or reasonably” tied to the decision to terminate Mendelsohn. . . .
Although Mendelsohn and the other employees worked under different supervisors, Sprint terminated all of them within a year as part of an ongoing company-wide RIF. All the employees were in the protected age group, and their selection to the RIF was based on similar criteria. Accordingly, testimony concerning the other employees’ circumstances was relevant to Sprint’s discriminatory intent.
* * *
The evidence which Mendelsohn seeks to present, “is certainly not conclusive evidence of age discrimination itself, but it is surely the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer’s explanation” for its motive in terminating Mendelsohn. . . .Age as a motivation for Sprint’s selection of Mendelsohn to the RIF becomes more probable when the fact-finder is allowed to consider evidence of (1) an atmosphere of age discrimination, and (2) Sprint’s selection of other older employees to the RIF.
Having concluded the “me-too” evidence was relevant, the majority went on to consider whether it was nonetheless properly excluded under Rule 403 of the Federal Rules of Evidence.
Rule 403 allows exclusion of evidence even though it is relevant, if the relevance is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The majority dealt swiftly with Sprint’s Rule 403 argument that allowing the evidence would require Sprint to defend multiple claims of discrimination. It said 403 exclusion “is an extraordinary remedy [that] should be used sparingly,” that “the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value,” and then concluded without further explanation:
Little doubt exists that the admission of evidence about other alleged episodes of discrimination would inconvenience Sprint. But the fact Sprint would have to rebut this testimony is not in itself enough to outweigh the probative value of Mendelsohn’s proffered evidence. . . . Based on the record before us, we cannot say the evidence is unduly prejudicial.
Tenth Circuit Dissenting Opinion
The dissent’s view was that the trial court did not abuse its discretion in excluding the testimony. The dissenting judge said this was “a classic judgment call,” so that “the court would not have erred in admitting the evidence,” but also “did not abuse its discretion in choosing to exclude it.”
The dissent found it important to consider the context of all the evidence, finding significant the following:
- The trial court admitted “voluminous documents from Sprint’s ‘succession planning’ file, including notes on employees slated for termination pursuant to the company-wide RIF,” which included “information on the gender, ethnicity and age of employees alongside other information on their performance and perceived ‘potential.’”
- These documents included notes showing that other workers over 40, who did not report to Mendelsohn’s supervisor, were terminated as part of the RIF, so although not allowed to testify as to their perceptions and experiences, the fate of these individuals was available for the jury to consider as part of a possible discriminatory pattern.
- A Sprint executive was called as an adverse witness at trial and examined about the policies behind the RIF and the employees identified in the documents.
- The trial court agreed that there had to be some evidence about “what happened to other employees,” and said the focus of the exclusion was only on “prohibit[ing] other employees . . . from coming in and saying, ‘I was RIF’d, it was because of my age and that sort of thing.’”
The dissent emphasized that the trial court explained to the jury that evidence outside of Mendelsohn’s supervisor’s chain of command (though not in the form of the employees’ direct “me-too” testimony) “had been allowed to come in as relevant to the question of pretext.”
In other words, it could be considered in deciding whether the reasons Sprint gave for terminating Mendlesohn were not true, but were just a coverup for age discrimination.
But, the dissent added, the “me-too” testimony itself was “a mixture of hearsay and speculation that would be marginally admissible in any event.”
The dissent also said the “larger problem with the majority’s position is it suggests that anecdotal evidence from employees throughout a large organization will be per se admissible when offered in the context of alleged discrimination in a RIF.”
One problem with this view, the dissent said, is the “lack of any statistical or other direct evidence that supports an inference of enterprise-wide discrimination. Given the size of Sprint, the fact that Mendelsohn found five former employees who believed they were victims of age discrimination is not meaningful until a specific evidentiary foundation has been laid.”
The dissent concluded that the majority holding “creates a rule that suggests even the most tangentially relevant and prejudicial testimony by former employees is per se admissible. Such a rule runs counter to our traditional deference to district courts as the primary arbiters of admissibility.”
The Supreme Court Clarification on “Me-Too Evidence That Had Been Anticipated
Advocates and commentators on both sides of employment discrimination litigation looked for the Supreme Court’s Mendelsohn decision to have a major impact on the status of “me-too” evidence — which has long been a recurrent and problematic one in such lawsuits.
In an excellent summary and analysis published online by the Cornell University Law School Legal Information Institute, Deepa Sarkar and Joe Hashmall anticipated the Supreme Court’s ruling:
The Supreme Court’s decision will resolve a circuit split regarding the admissibility of testimony from employees who work under different supervisors in an individual employee’s federal discrimination suit.
A decision upholding the Tenth Circuit would make such “me too” testimony admissible, while a reversal would instate a per se rule of exclusion for such testimony.
Without the ability to introduce this kind of testimony, employees will find it harder to prove that discrimination in their case was the product of a company wide policy or culture. However, a rule of admissibility may subject corporations to expensive, protracted litigation and unfair prejudice during trials.
Whichever rule the Court upholds, its ruling will have a wide impact because it will affect litigants in all federal employment discrimination cases.
The Supreme Court’s “Punt”
The Supreme Court disappointed everyone — such as the authors quoted above — who anticipated a ruling that would come down squarely on one side or the other.
The Court said:
The parties focus their dispute on whether the Court of Appeals correctly held that the evidence was relevant and not unduly prejudicial under Rules 401 and 403. We conclude, however, that the Court of Appeals should not have engaged in that inquiry.
Rather, . . . the Court of Appeals erred in concluding that the District Court applied a per se rule. Given the circumstances of this case and the unclear basis of the District Court’s decision, the Court of Appeals should have remanded the case to the District Court for clarification.
The Supreme Court emphasized the “broad discretion” afforded to the district (trial) courts in ruling on evidentiary matters, particularly under Rule 403, which requires an “on-the-spot balancing of probative value and prejudice.”
“With respect to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in the better position to assess the admissibility of the evidence in the
context of the particular case before it.”
This discretion means appellate review is limited to whether the trial court abused its discretion. A mere conclusion by the appellate court that it would have ruled differently is insufficient grounds for reversal of such an evidentiary ruling.
The Court found unwarranted the Tenth Circuit’s assumption that the district court had applied a per se rule of inadmissibility. The district court had never expressly said it was doing so, and “[a]n appellate court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential.” Therefore, the Supreme Court punted the issue back to the district court:
When a district court’s language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion. A remand directing the district court to clarify its order is generally permissible and would have been the better approach in this case.
The Supreme Court’s Guidance, in Dictum
Having so concluded that the case should be remanded, the Court could have rested. But it went on to briefly discuss the underlying issue of the admissibility of the evidence. Lawyers and law students would characterize this part of the opinion as obiter dictum — words that lack precedential authority because they are unnecessary to the court’s decision.
However, since everyone was waiting for the Justices’ wisdom on this point, and the issue is an important and frequently-occurring one, my guess is that this part of the opinion may become quite influential.
The Court said that if the District Court had applied a per se rule excluding the evidence, “the Court of Appeals would have been correct to conclude that it had abused its discretion,” because “[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.”
Specifically, the Court said:
[W]hether 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. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.
So, Where Does All of This Leave Us?
The issue will continue to be fought over, starting with the discovery stage when discrimination plaintiffs will continue to seek information regarding other employees.
Lawyers and courts will cite Mendelsohn on this issue — and perhaps other evidentiary issues — as support for respecting and not second-guessing the trial court’s discretion.
Although the Supreme Court did not comment on the Tenth Circuit’s dissenting opinion, that opinion may provide some useful arguments against admissibility of “me-too” evidence. Its requirement of some basis for claiming a pattern of discrimination extending beyond a given supervisor in order to allow “me-too” evidence beyond that supervisor makes sense. By focusing on the particular facts of a case before ruling in this manner, courts could avoid the per se trap.
I would contend that “me-too” evidence (in the form of “I was also a victim of discrimination”) must be shown to actually evidence discrimination against the testifying employee in order to be sufficiently relevant. This means each “me-too” witness essentially must first be able to prove a submissible case. Then this evidence must be somehow connected to the decision against the plaintiff, whether through the same supervisor or some broader discriminatory policy.
Alternatively, “me-too” evidence (in the form of comments about older employees, etc.) must be shown to reflect bias at a level of the organization that would allow an inference that such bias infected the decision involving the plaintiff.
Some have expressed the view that disallowing such evidence in all but the most compelling circumstances would cripple the ability of individuals to prove discrimination. This view is questionable, at best, given the other, more reliable ways discrimination may be proven.
The tried-and-true McDonnell-Douglas paradigm is the best, fairest way to prove discrimination.
If Mendelsohn had truly been the victim of age discrimination, she should have been able to show that the reasons Sprint gave for choosing her for termination lacked credibility (were pretextual). Had she been selected for age, less qualified but younger employees would have been retained.
I assume the jury knew some other older employees had been selected for RIF. It probably also knew that the spreadsheets were evidence not of a discriminatory motive, but of the opposite — of an effort to ensure there was NOT a pattern suggestive of any kind of discrimination. I assume the spreadsheets showed that many older employees were retained — and many younger ones let go.
If these assumptions are true, the “me-too” evidence would have indeed been irrelevant, or at most marginally relevant, and unfairly prejudicial, leading me to conclude that both the judge and the jury in Mendelsohn probably made the right call.
Photo credit: terren in Virginia via flickr
I had the privilege of participating in a panel discussion about this case on LegalTalkNetwork, Me-too Evidence in Age Discrimination (follow the link to listen).
In the UK, the government is thinking of allowing race and gender to be factored into the employer’s decision on whether to employ the candidate. So the Employer can legally choose a woman from a minority group over a male candidate, who is equally qualified. Is this right? Does this not harm race relations? Does it work both ways? Can I legally choose a white male over a woman from a minority group? It would be interesting what your readers think.