The United States Supreme Court held in Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. ___ at *8-9 (2008) (slip op.) (Thomas, J.), that federal district courts have broad discretion to decide whether a plaintiff in an individual discrimination case should be permitted to rely on testimony from other employees who claim to have experienced similar discrimination at the hands of supervisors who did not have supervisory responsibilities for the plaintiff. The admissibility of so-called “me too” evidence, the Court held, turns on the trial court’s discretionary application of federal evidentiary rules governing the admission or exclusion of relevant evidence.
In Mendelsohn, the plaintiff brought an age discrimination suit against her former employer, Sprint, alleging a violation of the Age Discrimination in Employment Act (“ADEA”) in connection with a company-wide reduction in force (“RIF”). Mendelsohn, age 51 at the time of the RIF, was the oldest manager in her work unit. Prior to trial, Mendelsohn sought to introduce testimony of five former Sprint employees who also alleged that their supervisors had discriminated against them based upon their age. None of Mendelsohn’s proffered witnesses worked in Mendelsohn’s work unit, and none of the supervisors alleged to have discriminated against those employees had supervised Mendelsohn.
Sprint successfully moved to exclude this testimony on the basis that the employees were not “similarly situated” to Mendelsohn because they did not share the same supervisor. In excluding the testimony, the district court held that Mendelsohn was required to prove that her supervisor also supervised the other employees. At trial, the jury returned a defense verdict.
Mendelsohn appealed to the United States Court of Appeals for the Tenth Circuit, arguing that it was an error for the trial court to exclude the other employees’ testimony. The Tenth Circuit agreed, holding that the evidence was relevant and that its exclusion was a clear evidentiary error. Mendelsohn v. Sprint/United Mgmt. Co., 466 F.3d 1223, 1226 (10th Cir. 2006). Specifically, the Tenth Circuit found that the district court improperly relied upon Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997), which held that in the context of a discrimination case involving a disciplinary action, plaintiffs must show that they shared the same supervisor as the proffered witness. The appellate court declined to extend Aramburu to claims of company-wide discrimination, such as those involved in a RIF, on the grounds that the testimony of similarly situated employees to demonstrate company-wide discriminatory practices was relevant and admissible. Id. at 1228.
The Supreme Court vacated the Tenth Circuit’s decision on appeal and remanded the case to the district court for further proceedings. The Court held that the Tenth Circuit erred in its analysis of the district court’s decision because it was unclear whether the district court had applied Aramburu as a per se rule of inadmissibility to Mendelsohn’s proffered evidence. The Court found that the Tenth Circuit had improperly substituted its own judgment for the district court’s when it should have remanded the case for clarification. Mendelsohn, 552 U.S. ___ at *4.
The Court went on to hold that no per se rule is applicable to “me too” evidence in individual discrimination cases. Rather, such evidence should be analyzed by the district court on a case-by-case basis under Federal Rules of Evidence 401 and 403 to determine whether the evidence is relevant and whether the evidence, even if relevant, should be excluded because of its prejudicial effect. Id. at *9. The Court observed that this analysis, which examines the relationship between the proffered evidence and the plaintiff’s circumstances, is necessarily fact intensive. Accordingly, the district court has broad discretion to admit or exclude “me too” evidence based on the facts and circumstances of the particular case. Id.
The Court’s decision in Mendelsohn clarifies little regarding the admissibility of “me too” evidence in discrimination cases beyond its pronouncement that no categorical rule exists. The practical effect for employers, however, may be that, in some instances, they are faced with litigating multiple discrimination claims as employees reach farther and farther to show evidence of an employer’s alleged discriminatory animus. As the Fifth Circuit has held under circumstances similar to Mendelsohn, the admission of this type of anecdotal evidence can substantially prejudice an employer by creating “several ‘trials within a trial.’” Wyvill v. United Co. Life Ins. Co., 212 F.3d 296, 303 (5th Cir. 2000) (quoting Mooney v. Aramco Serv., 54 F.3d 1207, 1220-21 (5th Cir. 1995). The Second, Third and Sixth Circuits also have recognized that this type of evidence can be unfairly prejudicial to employers under Federal Rule of Evidence 403. See, e.g., Schrand v. Fed. Pacific Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988); Haskell v. Kaman Corp., 743 F.2d 113, 121-22 (2d Cir. 1984); Moorhouse v. Boeing Co., 501 F. Supp. 390, 394 (E.D.Pa. 1980), aff’d by 639 F.2d 774 (3d Cir. 1980) (table). The Eighth Circuit, by contrast, has permitted the introduction of such evidence to aid the jury’s assessment of whether an employer was likely to have acted with an unlawful motive. Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988), superseded on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Of course, it is too soon to know whether Mendelsohn will actually result in the increased admission of “me too” evidence in discrimination cases, but the decision may encourage employees to try to rely upon it with greater frequency. Employers must be prepared to respond to these allegations by demonstrating the dissimilarities between the facts and circumstances of the employee’s case and those of the proffered “me too” witnesses.