Sprint/United Management v. Mendelsohn (06-1221)
Oral argument: Dec. 3, 2007
Appealed from: United States Court of Appeals, 10th Circuit (Nov. 1, 2006)
DISCRIMINATION, AGE DISCRIMINATION, EVIDENCE, FEDERAL RULES OF EVIDENCE, RELEVANCE, EMPLOYMENT LAW
In her Age Discrimination in Employment Act (ADEA) suit against Sprint, Ellen Mendelsohn sought to use the testimony of other Sprint employees who claimed to have experienced age discrimination at Sprint. This evidence falls into the category sometimes called "me too" testimony, because the employees did not share a supervisor with Mendelsohn and were not parties in Mendelsohn's litigation. The district court rejected the "me too" testimony, interpreting a past Tenth Circuit ruling to mean that testimony of other employees was admissible only if the other employees worked under the same supervisor and were fired around the time Sprint fired Mendelsohn. The Tenth Circuit reversed, holding that the same-supervisor requirement only applied in discriminatory discipline actions, not in cases like Mendelsohn involving allegations of company-wide discrimination.� Currently, four circuits hold that "me too" evidence is irrelevant and thus inadmissible, while another five circuits hold that such evidence is excludable at the discretion of the court. The Tenth Circuit's holding departs from both of these views. By deciding Sprint v. Mendelsohn, the Supreme Court will resolve this circuit split regarding "me too" evidence. The Court's decision will affect the ability of employees to prove company-wide discrimination. Its ruling will be particularly important because it will apply not only to ADEA, but also to suits brought under a range of federal anti-discrimination statutes.�
This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by nonparties, alleging discrimination and the hands of persons who played no rule in the adverse employment decision challenged by the plaintiff.�
The Tenth Circuit panel majority held that a court commits reversible error by excluding "me, too" evidence.� This decision conflicts with those of other circuits.� Specifically, four circuits have held "me, too" evidence wholly irrelevant.� Five circuits have held that "me, too" evidence may be excluded under Federal Rule of Evidence 403.� Granting certiorari will resolve the conflict between the circuit courts of appeals on this important question of law.�
When an employee sues her employer for discriminatory treatment under federal statute, should courts exclude testimony from other employees who allegedly suffered similar discrimination at the company, but did not work under the same supervisor?
Mendelsohn was an employee of Sprint from 1989 to 2002, when she was let go as part of company-wide layoffs. Mendelsohn v Sprint/United Management Company, 433 F.3d 1233, 1225 (10th Cir. 2006). Mendelsohn, who was 51 years old at the time of her termination, brought suit under the Age Discrimination in Employment Act (ADEA).� Id.� At trial, Mendelsohn wanted to prove an atmosphere of age discrimination at Sprint by introducing the testimony of five other employees over 40 who were terminated over the course of the same layoff.� Id.� The trial court excluded that testimony, relying on a Tenth Circuit rule that testimony of non-parties about similar treatment is admissible only if it comes from employees who are "similarly situated," which the court interpreted as meaning employees who were discriminated against at the same time by the same decision-maker.� Id.� Because the witnesses were terminated by different supervisors than the one who fired Mendelsohn, the trial court found that their testimony was inadmissible.� Id.� After trial, the jury found for Sprint, and Mendelsohn appealed.� Id.�
The Tenth Circuit reversed and ordered a new trial, finding that its "similarly situated" rule had been misapplied. Mendelsohn, 433 F.3d, at 1228, 1231.� It held that the same supervisor rule only applied in discriminatory discipline cases, such as a case where the plaintiff is trying to prove that a specific supervisor fired a black employee for an infraction for which a white employee would only have received a warning.� Id., at 1227.� Mendelsohn, however, was trying to show a company-wide atmosphere of discrimination in the implementation of the layoff. Id., at 1225. The Tenth Circuit found that the testimony of the other employees therefore was relevant, regardless of who their supervisor was.� Id., at 1230.
The Supreme Court agreed to hear the case to resolve a conflict between the circuits on whether to apply the same-supervisor rule to this type of case to exclude evidence like that which Mendelsohn wanted to use.� Supreme Court Question Certified for Certiorari,� Docket No. 06-1221.
The Age Discrimination in Employment Act (ADEA), is one of several federal statutes that protect employees from discrimination. Although states may also enact anti-discrimination statutes, the federal statutes establish a threshold for what constitutes actionable discrimination. See e.g. LII Wex: Employment Discrimination, American Bar Association: The Bar and Your Job.� Federal laws also give plaintiffs the opportunity to sue in federal court, with any advantages that federal rules of evidence and procedure might provide. In 2006, 75,768 discrimination claims were brought under federal statutes, of which 16,548 were ADEA claims. U.S. Equal Employment Opportunity Commission Enforcement Statistics and Litigation: (All Statutes); (ADEA Claims). While Mendelsohn is one of those thousands of employees seeking redress alleged age discrimination, the decision in this case will have a widespread impact on many types of federal employment litigation. It will determine limits on the evidence available to plaintiffs in cases ranging from age discrimination to retaliation to racial discrimination. Brief of Amici Curiae Lawyers' Committee for Civil Rights Under Law, Asian American Justice Center, et al. ("Lawyers' Committee Brief") at 7-8.
The Court will decide whether a plaintiff can use testimony by employees who worked under a different supervisor ("me too" evidence). If "me too" evidence is inadmissible, plaintiffs will be unable to introduce it for any purpose, including to prove discriminatory culture or practices. Brief for the Respondent at 18. Modern employers are often large corporations that spread out layoffs across the company. Therefore, an employee might be the only worker under her supervisor who is laid off based on discriminatory criteria, but might be one of many such employees company-wide. In this situation, circumstantial evidence such as "me too" testimony is vital to the plaintiff's case in the absence of overt discrimination. Id. at 29-30. Without it, an employee trying to prove his layoff was discriminatory will have to rely on overtly discriminatory acts or policies, and may be more prone to having his case dismissed judgment for failure to state a factual basis for his claim. See Washington Legal Foundation, Conversations With.Series, Supreme Court Jurisprudence and Practice at 7.�
Civil rights groups, including groups seeking to ensure minorities and the elderly receive fair treatment, argue that an exclusionary rule would be especially detrimental because other kinds of circumstantial evidence, such as statistics and expert witnesses, are expensive. Brief Amicus Curiae of AARP at 26; Lawyers' Committee Brief at 8, 12-13. The overall effect would be to undermine the intent of Congress in establishing non-discrimination employment laws. Nowadays, blatant discrimination is less likely to occur than more subtle forms, so barring "me too" evidence would leave corporations free to flout anti-discrimination laws by crafting facially neutral policies, such as distributing discriminatory terminations over many divisions. Lawyers' Committee Brief at 13.�
Though the importance of "me too" evidence to plaintiffs may cast Mendelsohn in a David-and-Goliath light, employers could suffer unwarranted liability if "me too" evidence is admissible. Large corporations such as AT&T argue that they already face many employment discrimination suits, and an adverse decision would open the floodgates. Brief of AT&T Mobility LLC, Honeywell International, Inc., and Lockheed Martin Corp. as Amici Curiae in Support of Petitioner ("Brief of AT&T) at 2. Employers would face frivolous suits by plaintiffs who could bring a parade of employees before the jury simply by alleging a company-wide policy of discrimination. Id. at 4; Amicus Curiae Brief of the Federation of National Independent Business Legal Foundation at 16-17. Sprint discharged 14,000 employees over 14 months; even in smaller layoffs, plaintiffs would not face much difficulty finding several other employees discharged under similar circumstances. See Brief for Petitioner at 36. Sprint contends that drawn out, expensive "trials within trials" would result as employers would need to defend against "me too" testimony with evidence showing that they fired employees for legitimate reasons. Brief for Petitioner at 40. �
Large companies argue that "me too" evidence irreparably prejudices employers. Juries who hear a series of employees testify that they believe their employer discriminatorily discharged them may be far more willing to find the company liable in order to punish it, even when individual plaintiffs do not carry their burden of proof. See Brief for Petitioner at 38, Brief of AT&T �at 2-3. Alternatively, juries might confuse the issue of a corporation's liability in the plaintiff's case with its potential guilt in another testifier's case. Sprint argues that a per se rule of admissibility robs courts of their discretion under Federal Rule of Evidence 403 to exclude prejudicial evidence, when in fact "me too" testimony is often more prejudicial than probative under the rule -and therefore excludable. Brief for Petitioner at 39, 43-44. The Supreme Court's ruling will determine whether courts will institute a "bright line" rule or take a more flexible approach by requiring that courts make case-by-case determinations about whether "me too" evidence is relevant under Federal Rule of Evidence 401, and whether its prejuducial effect merits its exclusiom under Federal Rule of Evidence 403.��
In this case, the Supreme Court is deciding whether testimony of coworkers who complain of discrimination similar to that claimed by the plaintiff, but at the hands of a different supervisors, is admissible.� The testimony was excluded by the trial court, but the court of appeals ordered it admitted. �Mendelsohn v Sprint/United Management Company , 433 F.3d 1233 (10th Cir. 2006). The Supreme Court's analysis of this question will have to be done in two parts: first by evaluating relevance under Federal Rule of Evidence 401, and second, if it finds the testimony admissible under 401, by balancing its probative value against possible delay, waste of time, confusion of the issues or prejudice under Federal Rule of Evidence 403.�
Relevance Under Rule 401
Evidence is relevant if it tends to prove or disprove a "fact" which is important to the dispute.� Federal Rule of Evidence 401.� Evidence that is relevant is generally admissible (meaning it can be presented at trial as proof), unless there is an independent reason to exclude it.� Federal Rule of Evidence 402. Evidence which is not relevant is not admissible. Id. The trial court found that the key issue in the case was whether Mendelsohn's supervisor acted with a discriminatory intent.� Mendelsohn, 433 F.3d at 1225. Since the experiences of Sprint employees under other supervisors had no tendency to prove that fact, the district court found the testimony inadmissible. Id. The Court of Appeals for the Tenth Circuit reversed, finding that limiting testimony of other employees to those who shared a supervisor excluded testimony which was relevant to proving that an atmosphere of discrimination existed and that the given reasons for Mendelsohn's firing were merely pretext.� Id. at 1230.�
Sprint argues that the Court of Appeals should be reversed, because the trial court was correct in finding the proper issue to be the motivation of the decisionmaker - in this case Mendelsohn's supervisor.� Brief for Petitioner, at 11-19. Since the testimony of the other employees relates to their supervisors rather than Mendelsohn's, in Sprint's view (and the district court's) the testimony is not relevant. Id., at 10. In a number of employment discrimination cases, the Supreme Court has pointed to the state of mind of the supervisor as the determining factor.� See, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502, 520 (1993); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000).
However, the court has never held that the critical nature of the supervisor's state of mind makes evidence that tends to show a discriminatory atmosphere irrelevant.� Mendelsohn argues that to be admissible evidence need not be conclusive, and that relevance is a low bar to meet.� Brief for Respondent, at 15-17. Mendelsohn would like the Court to adopt the court of appeals' view that the evidence, while not conclusive proof of age discrimination, is "the kind of fact which could cause a reasonable trier of fact to raise an eyebrow." Id. at 51, quoting Mendelsohn, 466 F.3d at 1230. �Mendelsohn believes that this 'reasonable trier of fact standard' articulated by the court of appeals is the correct standard.� Brief for Respondent at 51. Sprint, however, would like the court to hold that evidence of this sort is inadmissible per se because it has no connection to the person who actually decided to terminate the employee bringing the suit.� Brief for Petitioner, at 9.
Balancing Under Rule 403
If the Court finds the testimony relevant under Rule 401, it will next have to decided if is admissible under Federal Rule of Evidence 403.� Rule 403 states that relevant evidence "may be excluded if its probative value 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." Sprint argues for exclusion under three of the reasons in this rule: waste of time, confusion of the issues, and unfair prejudice.� Brief for Petitioner, at 39-45.
Sprint points out that if Mendelsohn had been allowed to present her witnesses, they would have been entitled to call witnesses to rebut their version of events, thus creating "numerous trials-within-a-trial."� Brief for Petitioner, at 40. Sprint argues that this would have amounted to a waste of time which outweighs whatever slight probative value the testimony had to help Mendelsohn's case.� Id., at 41. Mendelsohn disputes this, noting that at the time of trial, Sprint had already decided not to call extra witnesses even if Mendelsohn's witnesses were allowed to take the stand and that the disputed testimony would only have lengthened the trial by two days.� Brief for Respondent, at 59-60.��
Sprint also argues that the disputed testimony would have confused the issues.� Brief for Petitioner, at 41-42. Sprint thinks a jury could be confused by the shift of focus away from Mendelsohn's firing towards a number of other disputed narratives.� Id. However, Mendelsohn points out that juries have long be trusted to sort out complex cases, and if this had been a case with six plaintiffs, instead of a case with one plaintiff and five supporting witnesses, the jury would have been considered competent to hear that case.� Brief for Respondent, at 60-61.��
Finally, Sprint argues the testimony would cause unfair prejudice against it by presenting a string of witnesses with sympathetic stories.� Brief for Petitioner, at 41-42. Here, as above, Mendelsohn responds by stating that juries are expected to be able to hear emotional testimony while remaining impartial.� Brief for Respondent, at 61. When the Court evaluates all of these arguments, it will be weighing them against the probative value of the evidence. Brief for the United States as Amicus Curiae, at 22. Thus, its characterization of the importance of the testimony to Mendelsohn's claim will likely be crucial. Id.
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.
Edited by: Cecelia Sander Cannon
- ABA Journal: Taking On the Job
- Bloomberg News: Workplace Bias Evidence Draws U.S. Supreme Court Scrutiny
- ScotusWiki: Sprint/United Management v. Mendelsohn
- Workplace Prof Blog: Supremes Take "Me Too" Employment Discrimination Case
- Lawmemo.com: Sprint/United Management Company v. Mendelsohn
- Oyez.org: Sprint/United Management Company v. Mendelsohn