On February 26, 2008, the United States Supreme Court announced its decision in Sprint/United Management Co. v. Mendelsohn, which was one of the most closely watched employment discrimination cases of the current Supreme Court term. At issue in Mendelsohn was whether the trial court must exclude “me, too” evidence—testimony that other company employees were similarly discriminated against, but by different supervisors within the company.
Many employment lawyers viewed the Mendelsohn case as an opportunity for the Supreme Court to decide whether such “me, too” evidence was relevant in discrimination cases or whether it was not relevant at all. If the latter, such evidence would be per se inadmissible in discrimination cases in federal court. The Supreme Court, however, did not decide Mendelsohn with such a sweeping brush.
In a unanimous opinion delivered by Justice Thomas, the Supreme Court rejected the notion that “me, too” evidence is either “per se admissible” or “per se inadmissible.” To the contrary, the Supreme Court essentially left the admissibility of such evidence to be determined in the trial courts—on a case-by-case basis, in the trial court’s discretion and based upon the context of the particular facts and circumstances before the court. At the end of the day, Mendelsohn provided neither employers nor employees with a sea change in their favor.
Background of the case
The plaintiff, Ellen Mendelsohn, worked for the defendant, Sprint/United Management Company, for 13 years. Sprint terminated Mendelsohn’s employment in 2002 as part of a company-wide reduction in force (“RIF”). Mendelsohn sued Sprint for age discrimination under the federal Age Discrimination in Employment Act (“ADEA”), alleging that she was singled out for the RIF due to her age.
In support of her age discrimination case, Mendelsohn sought to introduce testimony from five former Sprint employees, all of whom also claimed that Sprint had discriminated against them on the basis of age. None of these five witnesses had worked in the same business group as Mendelsohn; nor had any of them worked under the supervisors in Mendelsohn’s “chain of command” at Sprint.
Before trial, Sprint asked the trial court to exclude the testimony of the five witnesses, arguing that (1) the evidence was irrelevant under Federal Rules of Evidence 401 and 402, and therefore inadmissible, because none of the employees was “similarly situated” to Mendelsohn and (2) even if the testimony was somehow relevant, it should be excluded under Federal Rule of Evidence 403 because any value was “substantially outweighed” by the dangers of unfair prejudice, misleading the jury, confusing the issues, or unduly delaying the course of trial.
The trial court granted Sprint’s motion, excluding evidence of “discrimination against other employees not similarly situated to plaintiff.” The trial court defined “similarly situated” to mean that the employees in question must have been supervised by the same supervisor as Mendelsohn. Accordingly, none of the five former employee witnesses was allowed to testify at trial. A jury ultimately returned a verdict in favor of Sprint.
Mendelsohn appealed to the U.S. Tenth Circuit Court of Appeals. On appeal, Mendelsohn argued that the trial court should not have excluded the testimony of the five former employee witnesses. The court of appeals agreed with Mendelsohn and sent the case back for a new trial. In doing so, the court of appeals deemed the trial court to have decided that “me, too” evidence is never admissible unless the same supervisor was involved.
The court of appeals rejected that rule and went on to evaluate whether the testimony of the five witnesses should have been allowed at trial. Conducting its own weighing of the evidentiary value of the testimony against the risks of unfairly prejudicing Sprint, misleading the jury, confusing the issues, or delaying the trial, the court of appeals held that the evidence was admissible. Accordingly, the court of appeals overturned the jury verdict and sent the case back to the trial court for a new trial.
Sprint appealed to the U.S. Supreme Court, which granted review in order to determine whether, in an employment discrimination case, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination by persons who played no role in the adverse employment action challenged by the plaintiff.
Sometimes Admissible, Sometimes Not
On appeal to the Supreme Court, much of the parties’ arguments focused on whether the court of appeals correctly deemed the “me, too” evidence to be (1) relevant within the meaning of Federal Rule of Evidence 401 and/or (2) not unduly prejudicial so as to be inadmissible under Rule 403. The court of appeals had resolved both of these issues in favor of allowing the evidence. The Supreme Court, however, rejected the court of appeals’ approach to these issues.
The court of appeals’ first mistake, according to the Supreme Court, was to interpret the trial court’s exclusion of the “me, too” testimony from the five former employees as applying a “per se rule” that such testimony is inadmissible absent the same supervisor being involved. Noting that a court of appeals must generally be deferential to a trial court’s determination of whether evidence is relevant and admissible, the Supreme Court deemed it inappropriate for the Tenth Circuit to have read the trial court’s ruling so broadly. Under the Supreme Court’s reading, there was nothing in the trial court’s order that definitively established application of a “per se rule” of inadmissibility. At best, the trial court’s ruling was ambiguous. But rather than assume that the trial court intended to employ an incorrect legal analysis, “the better approach in this case” would have been for the court of appeals to send the case back to the trial court for clarification of its rationale.
The court of appeals’ second mistake, according to the Supreme Court, arose directly from the first one. Because it incorrectly deemed the district court to have applied a “per se rule” of excluding the sort of “me, too” evidence offered in Mendelsohn’s case, the court of appeals inappropriately engaged in the second step of deciding whether the evidence was relevant under the circumstances of the case and balancing the value of the evidence against its potential prejudicial effect. The Supreme Court chided the Tenth Circuit for engaging in this analysis because such analysis is the job of the trial courts to do in the first instance.
Though rejecting the Tenth Circuit’s approach, the Supreme Court agreed with one aspect of its analysis. The Supreme Court’s opinion noted: “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.” This observation was important, as it expressed the Supreme Court’s unanimous view that the admissibility of “me, too” evidence is evaluated “in the context of the facts and arguments in a particular case” and is not amenable to a per se rule of admissibility or inadmissibility. In other words, “me, too” evidence will sometimes be admissible and sometimes not. Whether it is or is not depends upon the particular evidence at issue, the circumstances of the case, and—inevitably—the persuasiveness of the trial lawyers’ arguments for or against admissibility.
The Effect of Mendelsohn
In one sense, the defendant/employer in Mendelsohn “won”: the Supreme Court vacated the court of appeals’ judgment, meaning that Sprint (for the moment) has its defense verdict back. But the Supreme Court also ordered the case to be sent back to the trial court with instructions to clarify why it excluded the “me, too” testimony Mendelsohn had sought to introduce. If the trial court did apply a “per se rule” of inadmissibility as the basis for its decision, the court will need to take a second look at whether the evidence should have been admitted under a correct mode of analysis. Thus, there remains a chance that Mendelsohn could be given an opportunity to introduce her “me, too” evidence at a new trial.
Though employment attorneys kept a close eye on Mendelsohn for a potential change in the way employment discrimination cases are tried, the Supreme Court gave neither employers nor employees a sweeping evidentiary rule in their favor. More than anything else, Mendelsohn simply solidifies the notion that trial courts have a high degree of discretion in determining the admissibility of evidence presented to the jury. Employers should now know, however, that they cannot avoid “me, too” evidence in employment discrimination lawsuits merely by arguing that such evidence involved supervisors other than the plaintiff’s.
The case is Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (decided February 26, 2008). A full copy of the opinion is available at: www.supremecourtus.gov/opinions/07slipopinion.html.