Mar. 8, 2008
In Mendelsohn, the plaintiff sued Sprint alleging a company-wide pattern of age discrimination. Mendelsohn wanted to introduce testimony by five former Sprint employees who claimed that their supervisors had discriminated against them because of their age. This type of evidence is known as “me too” evidence. None of the witnesses worked in the same department as Mendelsohn, had the same supervisors as Mendelsohn, or reported hearing discriminatory remarks by Mendelsohn’s supervisors. In other words, the former employees were going to tell the jury that they were discriminated against, too, even if it was by different supervisors.
Sprint asked the trial court to exclude the testimony because the other employees were not “similarly situated” to Mendelsohn in that they did not have the same supervisor. The District Court excluded the evidence because the other employees were not “similarly situated” to Mendelsohn. The District Court offered no explanation for its decision. The jury ruled in Sprint’s favor and Mendelsohn appealed to the Tenth Circuit Court of Appeals.
The Tenth Circuit said the District Court was wrong because, as a matter of law, it was incorrect to apply a blanket rule excluding the “me too” evidence in an age discrimination case. The Tenth Circuit said the evidence was relevant and sent the case back to the trial court for a new trial. Sprint appealed the decision to the U.S. Supreme Court.
The Supreme Court decided that “me too” evidence is neither per se admissible nor per se inadmissible. The Court held that the admission of such evidence “depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case.” Thus, according to the Supreme Court, trial courts must carefully weigh the facts and circumstances of each case in deciding if “me too” evidence is admissible. Perhaps more importantly, the Supreme Court said that trial courts are in the best position to make admissibility decisions regarding “me too” evidence, and that unless a trial court clearly abused its discretion, an appellate court should uphold the trial court’s decision. The Supreme Court vacated the Tenth Circuit’s order and sent the case back to the trial court so that the trial court judge could explain the basis for the decision to exclude the evidence. The trial court likely will think hard about excluding the evidence on remand.
Some commentators suggest that this opinion is a “non-decision.” Employers, however, must be wary of this ruling because a savvy plaintiff will plead his or her case in a way that will best position him or her to offer “me too” evidence at trial. For instance, plaintiffs may allege company-wide patterns of discrimination just to allow them the possibility of offering “me too” evidence at trial. Given the Supreme Court’s statement that trial courts must carefully weigh all facts and circumstances before excluding “me too” evidence, trial courts may be less inclined to exclude the evidence altogether. Instead, thorough explanations for the exclusion of “me too” evidence will be required. “Me too” evidence can have a powerful effect on juries because it can provide a jury the basis for the belief that discrimination was pervasive in the workplace, lending credibility to a plaintiff’s claims. If nothing else, this opinion demonstrates the need for all employers to implement non-discrimination policies and procedures, train employees about those policies, and address complaints of discrimination in a prompt and consistent fashion.
After Mendelsohn, defense attorneys are well advised to identify a plaintiff’s “me too” evidence early in discovery and make every effort to discover facts and documents which demonstrate that the plaintiff’s “me too” evidence is dissimilar to the plaintiff’s circumstances or theory of the case. The use of motions in limine to obtain a pretrial exclusion of “me too” evidence is an advisable tactic if the case goes to trial.
