This morning, the U.S. Supreme Court issued its decision in Sprint/United Management Co. v. Mendelsohn. This case raises the important issue of whether so-called "me too" evidence can be introduced in employment discrimination litigation. The high court failed to answer this question, however, deferring to district courts to evaluate whether the probative value of such evidence outweighs the prejudicial effect. Sprint/United Management Co. v. Mendelsohn, No. 06-1221, U.S. Supreme Court (February 26, 2008).

On December 3, 2007, the Supreme Court heard oral argument in this case, brought under the Age Discrimination in Employment Act (ADEA) by an employee who was laid off in a reduction in force (RIF). The question before the high court was whether the district court judge should have allowed the testimony of other laid off employees who perceived that they were discriminated against on the basis of age.

Ellen Mendelsohn was employed by Sprint at its headquarters in Overland Park, Kan., in the Business Development Strategy Group. She was terminated as part of a RIF in November 2002. At the time, Mendelsohn was 51 years old, the oldest manager in her unit, and rated by her supervisor as the weakest performer. Sprint laid off 15,000 employees during this 18-month RIF.

Mendelsohn brought an age discrimination suit against Sprint and sought to present at trial the testimony of five other employees who were over the age of 40 and also selected for layoff. None of these individuals, however, were in the Business Development Strategy Group, nor did they have the same supervisor as she (or work for anyone in the same chain of command for that matter). Further, none of them claimed to have heard anyone who supervised Mendelsohn make any discriminatory remarks.

The district court judge limited the testimony about the company's alleged discriminatory treatment to "Sprint employees who are similarly situated" to Mendelsohn, which was defined as those who were supervised by the same boss and who were terminated at or about the same time as she was. Sprint thereafter defeated Mendelsohn's age discrimination claim at trial.

The Tenth Circuit Court of Appeals reversed the district court's decision on the "me too" evidence, finding that the judge had applied a per se ruling barring such evidence. According to the Tenth Circuit, this was inappropriate "because direct testimony as to the employer's mental processes seldom exists,...[thus] evidence of the employer's general discriminatory propensities may be relevant and admissible to prove discrimination." The Tenth Circuit further held that "the evidence [Mendelsohn] sought to introduce is relevant to Sprint's discriminatory animus toward older workers, and the exclusion of that evidence unfairly inhibited Mendelsohn from presenting her case to the jury."

Before the Supreme Court, Sprint argued that the Tenth Circuit's decision conflicts with other circuits regarding the admissibility of testimony by employees other than the plaintiff that claim they also were discriminated against by the employer. According to Sprint, the "me too" evidence was properly excluded under Federal Rule of Evidence 403 because it was not relevant as to whether Mendelsohn's supervisor was motivated by age when he selected her to be laid off. Rule 403 provides that district courts may exclude evidence "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."

In its ruling issued this morning, the U.S. Supreme Court held that the Tenth Circuit moved too fast in overturning the district court's ruling on the "me too" evidence. Given that district courts have significant discretion in determining the admissibility of evidence, the unanimous court held, the focus of the Tenth Circuit should have been on whether this discretion had been abused as opposed to whether the probative value outweighed the prejudicial effect. Given that the basis for the district court's decision to exclude the evidence was ambiguous, the ruling continued, the Tenth Circuit should have sent the case back down with directions to clarify the ruling.

The Supreme Court did specifically state that this evidence should not be excluded on a per se basis - therefore, in similar situations in the future the district court will have to make the determination, on an individual basis, as to whether the probative value of "me too" evidence outweighs its prejudicial effect. Unfortunately, the Justices gave the district courts little direction in making this assessment.

According to the author of the Court's opinion (Justice Clarence Thomas): "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."

Based on these findings, the Supreme Court overturned the Tenth Circuit's ruling and sent the case back to the district court to clarify the basis for its decision to exclude the "me too" evidence.

According to Patrick Hulla, a shareholder in Ogletree Deakins' Kansas City office: "By declining to provide a clear rule as to when 'me too' evidence is admissible, the Supreme Court essentially left undefined the phrase 'similarly situated.' This missed opportunity has profound ramifications for litigants in discrimination lawsuits. In particular, plaintiffs will no doubt claim district courts should not pre-judge the admissibility of 'me too' evidence by prohibiting its discovery. Employers will argue that the evidence is not relevant to the employment decision at issue in the case and that the admission of 'me too' evidence will spawn 'mini trials.' In other words, if plaintiffs can introduce testimony from workers who allege discrimination by other supervisors, employers will then offer evidence from employees who claim they were not subjected to discrimination. This will serve to significantly increase the time and cost of discrimination litigation."

According to Michael Fox, a shareholder in the firm's Austin office: "Justice Thomas' parting words are the equivalent of a 'judicial mulligan.' For employers appearing in front of judges who are concerned about trials spilling out of control, which includes most federal judges, the fact that the Supreme Court today emphasized the discretionary nature of the ruling should favor employers."

Stay tuned! This is an issue of significant importance on which we are likely to hear more in the future from other district and appellate courts - and it would not be surprising at all if the Supreme Court returned to this question down the road.