Yesterday, an unusually unanimous Supreme Court finally ruled in a case involving whether “me-too” evidence (i.e., testimony by a plaintiff’s co-workers that they also felt discriminated against) is admissible in an employment discrimination lawsuit. However, rather than establish clear rules about the relevance of this problematic evidence, the Court punted the entire question back to trial courts to rule how they see fit in their own discretion. Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (2/26/08).
The particular case involved an age discrimination plaintiff who lost her job in a company-wide reduction in force. The plaintiff sought to buttress her case by introducing “me-too” testimony by other former employees who had lost their jobs in the same RIF that they too believed they had lost their jobs because of age discrimination even though they had different supervisors and decisionmakers. The plaintiff’s hope is that the jury will be more likely to attribute a decision to age discrimination if more employees make the same argument. However, in a mere two sentences, the trial court excluded the “me-too” evidence – presumably on the grounds (asserted by the defendant employer) that it was unfairly prejudicial to the employer and the witnesses were not sufficiently similarly- situated to the plaintiff to make their testimony particularly relevant or material. In other words, whether or not these employees were discriminated against by their supervisors was not relevant to whether the plaintiff’s supervisor discriminated against her in selecting her for the RIF. The court of appeals reversed on the grounds that it assumed that the trial court had made a per se rule that such “me-too” evidence is always inadmissible. While the appellate court agreed about the propriety of such a per se exclusionary rule in the run-of-the-mill discriminatory treatment case (i.e., discipline, termination for cause, etc.), the appellate court believed that in a company-wide RIF, the excluded testimony would be relevant to show that age discrimination pervaded the company to such an extent that it was more likely than not that many supervisors (not just the plaintiff’s supervisor) were influenced to use age as a factor in laying off employees. Following such an argument, such pervasive discrimination could have influenced the plaintiff’s supervisor to select her for the RIF on account of her age.
The Supreme Court reversed on the grounds that the appellate court should not have second-guessed the trial court’s discretion in making evidentiary rulings by assuming the basis for the trial court’s decision. Rather, the appellate court should have remanded the matter back to the trial court for further explanation before concluding that it had abused its discretion in excluding the evidence. The Court established no guidance for the trial court (or attorneys) as to the potential relevance of “me-too” testimony. Writing for an unusually unanimous Supreme Court, Justice Thomas concluded:
“We conclude that such evidence is neither per se admissible nor per se inadmissible. . . . . . We note 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. Relevance and prejudice under Rules 401 [making relevant evidence admissible] and 403 [excluding evidence that is unfairly prejudicial] 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. . .. . The question 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 plai ntiff's circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.” (emphasis added).
With this in mind, employers should always remember that it is possible that disgruntled former employees may return to haunt them in a lawsuit brought by a former co-worker and that plaintiffs’ attorneys are more likely to seek discovery about these disgruntled co-workers in order to introduce possible “me-too” testimony. While courts may exclude such testimony on the grounds that it would unfairly influence the jury and shed little light on the ultimate question in the case (i.e., the legality of the plaintiff’s treatment), the trial court alternatively could find it relevant to the plaintiff’s theory of the case.
Insomniacs can read the full decision at http://www.supremecourtus.gov/opinions/07pdf/06-1221.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
