Admissibility of ‘me too’ evidence in employment cases considered

The U. S. Supreme Court will soon decide whether an employee suing for alleged age discrimination can introduce evidence of discriminatory conduct by company managers who supervised other employees, but not the plaintiff.
The case, Sprint/United Management Co. v. Mendelsohn, No. 06-1221, concerns former Sprint employee Ellen Mendelsohn. She sued after being let go as part of a reduction-in-force plan that resulted in more than 14,000 company-wide layoffs. Mendelsohn claimed that she was laid off because of her age in violation of the Age Discrimination in Employment Act.
She sought to introduce the testimony of five other Sprint employees who said they were also laid off because of their age, although the decision to let them go was not made by Mendelsohn’s supervisor. Sprint moved to exclude the evidence before trial, and the court granted the motion, ruling that only testimony from “similarly suited” employees – those laid off by the same supervisor – was admissible.
In a 2-1 decision, the 10th Circuit reversed, holding that the trial court shouldn’t have excluded the testimony.

Where to draw the line

During oral arguments before the Supreme Court last month, Paul W. Cane, a San Francisco attorney representing Sprint, argued the testimony was properly excluded under the Federal Rules of Evidence. He cited Rule 401, which requires that evidence be relevant, and Rule 403, which allows even relevant evidence to be excluded if its probative value is outweighed by the danger of unfair prejudice or confusion.
“An employment decision is made by the person who made it, the decision-maker,” Cane told the justices. “If some other person harbors bias, that’s unfortunate, but it is not probative of claims by a plaintiff who is not affected by it.”
Justice David Souter pressed to find where the line falls between irrelevant or non-probative evidence, and evidence that demonstrates discriminatory practices.
“If you have three supervisors, and one is discriminating … isn’t that some evidence that you’re in an industrial situation in which discrimination goes on?” Souter asked. “Doesn’t it have the tendency that amounts to relevance under [Rule] 401?”
“No, it doesn’t,” Cane replied. “A pattern or practice is not established by anecdotes.”
He argued that evidence needs a foundational showing of “some linkage between the decision making supervisor and the supervisor whose acts or conduct is assailed by the plaintiff.”
Here, he said, “there’s no showing of nexus other than the fact that they both happen to draw a paycheck from Sprint.”
“What do you mean by ‘nexus’?” asked Justice Ruth Bader Ginsburg. “If they both work in the same physical facility, is that a nexus?”
“No,” Cane replied. “I think the nexus requires more than a common zip code.”
Deputy Solicitor General Gregory G. Garre argued on behalf of the United States as amicus curiae while his bosses U. S. Attorney General Michael Mukasey and Solicitor General Paul D. Clement looked on. He said that evidence of other supervisors’ deeds should pass muster under Rule 401 as relevant, and it should be left to the trial judge’s discretion whether it could be excluded under Rule 403.
“We think that the dissenting judge in the court of appeals was right to say that evidence of that kind is at least marginally relevant, which would then put the focus on whether this evidence could be excluded under [Rule] 403,” Garre said.
Justice Antonin Scalia interjected, questioning if such a reading of Rule 401 was too broad.
“It is hard to see what wouldn’t be marginally relevant if you think that’s marginally relevant,” Scalia said.
Garre emphasized the commonality of the evidence.
“You have evidence that all of the proffered witnesses were terminated under the same company-wide reduction in force. You’ve got a common catalyst. You got employees who worked in [the] same office complex or at least the same vicinity … carrying out the same plan, providing the same distinct explanations in similar circumstances. A reasonable juror might infer [discrimination was the reason,]” he said.
Dennis Egan, a Kansas City attorney arguing on behalf of Mendelsohn, said that the bar for relevant evidence – even weak relevant evidence – is low. Determining the weight of the evidence comes later at trial, he said.
“The number of events [of alleged discrimination by other supervisors] goes to weight,” Egan said. “All the weaknesses and frailties of the evidence go to weight. And we never got to [the point] of determining the weight of the evidence.”
But Souter questioned if the plaintiff was asking for too broad of a rule.
“What concerns me is that, at the end of the day … there is reason to believe that the proof itself is not going to be anything close to overwhelming,” Souter said. “We will have had a potentially confusing trial on this subsidiary third-party evidence. And we seem to be very close, if we have not gotten over the line, of the subsidiary evidence being substantially misleading or prejudicial.”
A decision is expected later this term.