Supreme Court Confronts Admissibility of 'Me, Too' Evidence
March 17, 2008
New Jersey Law Journal, Employment and Immigration Law Supplement
Ruling allows courts to access admissibility of discrimination evidence of nonparties
Recently, the Supreme Court of the United States unanimously reversed a controversial 10th Circuit decision, which held that a trial court commits reversible error by excluding "me, too" evidence, i.e., testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. In its reversal, however, the Supreme Court refused to adopt a bright-line rule, concluding that such "me, too" evidence is neither per se admissible nor per se inadmissible. Instead, district courts must assess the relevance of such evidence and conduct its own balancing of its probative value and potential prejudicial effect on a case-by-case basis explicitly and on the record. See Sprint/United Management Co.v.Mendelsohn, No. 06-1221 (Feb. 26, 2008).
The underlying facts involved a 51 year-old plaintiff, Ellen Mendelsohn, who was the oldest manager in her unit at Sprint/United Management Company ("Sprint") when she was selected for termination due to a company-wide reduction in force (RIF). The RIF affected about 15,000 employees over a l4-month period. Mendelsohn sued, claiming that Sprint unlawfully discriminated against her based on her age in violation of the Age Discrimination in Employment Act ("ADEA"). In support of her claim, Mendelsohn sought to introduce the testimony of five other former Sprint employees over the age of 40 that were part of the same RIF and who believed that they were also subject to age discrimination. None of these proposed witnesses worked in the same department as plaintiff and none of these witnesses had the same supervisor as plaintiff.
Prior to trial, Sprint filed a motion in limine seeking to exclude the testimony of the five witnesses. Sprint argued that any proffered testimony of alleged discrimination by any supervisor other than plaintiff's manager (Paul Reddick) was irrelevant to the central issue in the case, which was whether Mendelsohn's age was a substantial motivating factor in Sprint's decision to terminate her. In a minute order, the district court granted Sprint's motion and limited Mendelsohn's evidence to "Sprint employees who are similarly situated to her." To prove that a proffered witness was "similarly situated" to plaintiff, the district court required plaintiff to show that the witness was supervised by Reddick and laid off in close temporal proximity to plaintiff's termination.
Following an eight-day trial, a jury returned a defense verdict, finding that Sprint did not discriminate against Mendelsohn on the basis of her age. After Mendelsohn's motion for a new trial was denied, she appealed to the 10th Circuit, arguing that the district court committed reversible error by requiring her to show that her proffered witnesses shared the same supervisor as a precondition to admissibility.
In reversing and ordering a new trial, the 10th Circuit reasoned that "the evidence [plaintiff] sought to introduce is relevant to Sprint's discriminatory animus toward older workers, and the exclusion of such evidence unfairly inhibited [plaintiff] from presenting her case to the jury." The court determined that the "same supervisor" rule, set forth in Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997) and relied upon by the district court, was limited to cases involving discriminatory disciplinary actions, not to a company-wide RIF. The Court reasoned that 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 addition to finding the proposed "me, too" evidence relevant, the 10th Circuit determined that it was not subject to exclusion under Federal Rule of Evidence 403, which allows a district court to preclude otherwise relevant evidence when concerns of unfair prejudice, confusion, undue delay, or waste of time substantially outweigh its probative value. The majority reasoned that exclusion of otherwise admissible evidence is an extraordinary remedy that should only be used sparingly. While the court acknowledged that the admission of "me, too" evidence would "inconvenience Sprint" as it would have to defend other discrimination claims in this individual suit, it determined that the evidence was not so unduly prejudicial as to require preclusion.
Judge Tymkovich dissented and noted that the "same supervisor" rule should apply to RIF cases unless independent evidence of an enterprise-wide policy, that was separate and apart from the proffered "me, too" evidence, had been sufficiently developed. Judge Tymkovich lamented that the majority created a "rule that suggests even the most tangentially relevant and prejudicial testimony by former employees is per se admissible."
The Supreme Court of the United Statues granted certification to consider whether a district court must admit testimony by nonparties who allege discrimination at the hands of persons who had no involvement in the adverse employment action challenged by the plaintiff. In reversing the 10th Circuit, the Court focused on procedural issues and ultimately determined that the question presented did not lend itself to a broad per se rule of admissibility or inadmissibility.
Writing on behalf of the Court, Justice Clarence Thomas initially noted the broad deference that is provided to district courts in determining admissibility under the Federal Rules of Evidence, particularly with respect to a Rule 403 balancing. The Court held that the 10th Circuit did not accord the district court appropriate deference under the applicable abuse of discretion standard. In addition, the 10th Circuit erred by interpreting the district court's ruling to be a per se exclusion of "me, too" evidence under Aramburu. Significantly, the Supreme Court noted that the district court did not cite Aramburu in its minute order excluding the evidence and gave no indication that its ruling was based upon that case or that it was applying a per se rule of exclusion. Thus, it was improper for the 10th Circuit to presume that the district court intended an incorrect legal result when the order was equally susceptible to a legally correct reading, particularly under the deferential abuse of discretion standard. Because the district court's language was ambiguous, it was improper for the appeals court to presume that it had reached an incorrect legal conclusion. Instead, the Supreme Court found that the 10th Circuit should have remanded the case to the district court and directed it to clarify its order.
The Supreme Court further noted that determinations of relevance and prejudice under Rules 401 and 403 are fact sensitive and must be determined in the context of the facts and arguments of a particular case. A district court is virtually always in the better position to access such factors. In remanding the case back to the district court, the Supreme Court stated:
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 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. [The Rules of Evidence] do not make such evidence per se admissible or per se inadmissible.
Although the Supreme Court declined to hold "me, too" evidence per se inadmissible, employers defending against discrimination claims can successfully preclude such testimony by demonstrating that the proposed testimony is irrelevant and has no probative value, even under the modest threshold standard of Rule 401. To do so, employers must demonstrate to the district court that the other employees worked in circumstances very different from the circumstances under which the plaintiff worked. For example, the employer may be able to demonstrate that the proposed evidence is completely irrelevant because the plaintiff and the proposed "me, too" witness worked under different supervisors, in different locations, and in different positions. Indeed, other courts have not hesitated to hold that the introduction of "me, too" witnesses was wholly irrelevant in determining whether an employer unlawfully discriminated against an employee. See Wyvill v. United Companies Life Ins. Co., 212 F.3d 296 (5th Cir. 2000); Williams v. Nashville Network, 132 F.3d 1123 (6th Cir. 1997); Haskell v. Kaman Corp. 743 F.2d 113 (2d Cir. 1984); Moorhouse v. Boeing Co., 501 F.Supp. 390 (E.D. Pa.), aff'd, 639 F.2d 774 (3d Cir. 1980).
Even if the "me, too" evidence is deemed relevant under Rule 401, employers can argue that the "me, too" evidence must be barred because of concerns of unfair prejudice, confusion, undue delay and waste of time. The admission of "me, too" evidence often results in undue delay and wasted time since employers are then required to conduct trials-within-a-trial to rebut testimony of nonparties asserting separate allegations that arose under unrelated circumstances. Such "mini-trials" on this tangential evidence can confuse the issues and mislead the jury as it distracts the jury's focus from the merit (or lack thereof) of a plaintiff's claim. These mini-trials also inflict unfair prejudice upon employers, who are then confronted with the unenviable task of defending not only against the individual plaintiff's claims, but also the allegations of other employees who have no connection to the plaintiff. Therefore, even in situations where a court deems "me, too" evidence relevant, it is often subject to exclusion under Rule 403 to avoid delay and prejudice.
Margaret O'Rourke Wood is an associate in the Employment Law Group of Wolff & Samson of West Orange, New Jersey. She can be reached by phone at (973)530-2063 or by email at: email@example.com.
This article is reprinted with permission from the MARCH 17, 2008 Issue of the New Jersey Law Journal © 2008 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.