Background
Ellen Mendelsohn sued her employer under the Age Discrimination in Employment Act (ADEA), alleging she was terminated by her employer, Sprint, on the basis of age during a reduction in force (RIF). Individual supervisors made the termination decisions. In support of her claim of intentional age discrimination, Mendelsohn proposed to present five witnesses to testified that they also were subjected to age discrimination by the employer during the RIF. The witnesses worked at the same location, and were terminated during the same RIF, but they were terminated by different supervisors. The district court held that the testimony of the five witnesses was inadmissible. The jury eventually returned a verdict for Sprint and Mendelsohn appealed.
On appeal, a divided Tenth Circuit panel held that the exclusion of the witness testimony was an abuse of discretion. The majority rejected Sprint’s contention that the witness’s testimony was irrelevant as a matter of law because the witnesses were not terminated by the same supervisor as Mendelsohn. While the plaintiff had not brought a “pattern and practice†claim, the court concluded that Mendelsohn was still entitled to show that there was an unwritten “company-wide policy†of age discrimination, in which Mendelsohn’s and the others’ supervisors were participating. It was, therefore, sufficient that all of the witnesses were terminated during the same RIF and were all over 40. The majority rejected the dissent’s assertion that reliance on a claim of a company “policy†was permissible only if there was evidence, other than the testimony of the plaintiff and her proposed witnesses, substantiating the existence of such a policy.
Having rejected Sprint’s proposed “same supervisor†rule, the court concluded that the proffered testimony was relevant to Mendelsohn’s discrimination claim. The court noted that evidence of prior discriminatory conduct had long been considered relevant to prove discriminatory motive and concluded that a jury could reasonably find the alleged discrimination was made more likely by proof of “an atmosphere of age discrimination†and “Sprint’s selection of other older employees to the RIF.â€
Finally, the Court rejected Sprint’s claim that the district court’s decision could be sustained under Federal Rule of Evidence 403, which allows exclusion of evidence when the risk of unfair prejudice, confusion or waste of time substantially outweighs the probative value of the evidence. The court acknowledged that rebutting the witness testimony could require Sprint to, in effect, defend against multiple claims of discrimination in the context of this individual suit. However, the court concluded that this burden “is not in itself enough to outweigh the probative value of Mendelsohn’s proffered evidence.†Nor, the court held, was the evidence unduly prejudicial.
Judge Tymkovich dissented. Given the size of Spring and the RIF, he concluded, the fact that Mendelsohn could find five witnesses to testify that they were also subject to discrimination by their supervisors said nothing about whether there was a company-wide policy or discrimination or whether Mendelsohn’s specific supervisor acted on the basis of age. Absent independent evidence of a company policy of discrimination, Judge Tymkovich would have required that any witness complaining of discrimination have been terminated by the same supervisor as the plaintiff.
Sprint petitioned for certiorari, asserting that the Tenth Circuit had established a per se rule requiring the admission of what Sprint called “me, too†evidence, in conflict with the decisions of the Supreme Court and several other courts of appeals. The petition alleged that four circuits – the Second, Third, Fifth, and Sixth – have adopted per se rules holding that evidence that another employee has been subject to discrimination must be excluded as irrelevant unless the witness and the plaintiff were subject to adverse employment actions at the direction of the same supervisor. Sprint further argued that at least five other circuits have held that even if such testimony might be relevant, it is inadmissible under Rule 403, because (a) considerations of undue waste and time – arising from the need to conduct a mini-trial on each witness’s allegation of discrimination – substantially outweigh the evidence’s probative value; (b) the evidence risk confusing the issues or misleading the jury; or (c) the probative value of the witness testimony is substantially outweighed by the risk of undue prejudice.
Mendelsohn’s brief in opposition argued that Sprint has misconstrued the Tenth Circuit’s opinion and mischaracterized the decisions of other circuits. She argued that the Tenth Circuit did not create an per se rule requiring the admission of the so-called “me, too†evidence in even instance. Instead, in her view, the Tenth Circuit simply held that the district court had abused its discretion in light of all the circumstances of this case (including, for example, the fact that Sprint’s own witnesses opened the door to such testimony after asserting that there was no evidence that other older workers had been treated unfairly). The decisions of other courts cited in the petition, Mendelsohn argued, likewise applied a context- and case-specific approach. Accordingly, she asserted, the case presented no issue of general legal significance, but rather a fact-bound dispute over the application of settled law. Finally, the brief in opposition argued that the Rule 403 question was not properly presented by this case because the district court excluded the evidence based solely on its conclusion that the evidence was irrelevant.
Sprint’s petition was supported by amicus briefs from the Equal Employment Council and Society for Human Resource Management, as well as a brief from AT&T Mobility LLC et al.
In its brief on the merits, Sprint emphasized that under Title VII, liability can only be shown by demonstrating discriminatory intent on the part of the person who made the relevant employment decision (here, the decision to lay Mendelsohn off during the reduction in force. Accordingly, Sprint asserted, evidence of discrimination against workers other than the plaintiff in a Title VII suit should be admitted only when it sheds light on the motivation of the particular decisonmaker responsible for the employment action challenged by the plaintiff. In this case, Sprint argued, the five witnesses Mendelsohn attempted to question had no information showing that Mendelsohn’s supervisor acted with discriminatory intent. Moreover, there was no proof that the various supervisors responsible for the alleged discrimination against the various witnesses were operating pursuant to some common scheme or plan along with Mendelsohn’s supervisor. At the very least, Sprint asserted, the district court had discretion to conclude that the evidence should be excluded, given the broad authority enjoyed by trial courts in making evidentiary rulings.
The Solicitor General filed an amicus brief on behalf of the United States (with the general counsel of the EEOC signing on to the brief as well), urging reversal. The Government argued that “other-supervisor evidence†is “sometimes, but not always, admissible†and that the court of appeals erred in directing the district court to admit the particular evidence in this case. Such evidence is relevant, the SG argued, if it “concretely suggests that a company-wide campaign is afoot†or shows a “pattern or practice†by the company as a whole. But there must be some connection between the acts of other supervisors and the alleged discrimination by the plaintiff’s supervisor. But, the Government continued, even relevant evidence may be excluded if it is unduly prejudicial, distracting or time consuming. In this case, the SG argued, the district court erred in concluding that there was a per se prohibition against other-supervisor evidence, but the court of appeals also erred in ordering the district court to admit the evidence, rather than remanding to allow the district court to decide whether, under the proper legal standard and on the facts of this case, the evidence should be admitted.
Respondent responds by arguing that, as an initial matter, the threshold for “relevance†under Rule 401 of the Federal Rules of Evidence is very low. The district court had, however, precluded the plaintiffs from presenting evidence regarding discrimination by other supervisors across the board. That blanket ruling, the plaintiffs argue, prohibited them from using other supervisor evidence in ways that have been commonly accepted by the courts, including the Supreme Court. First, the evidence could be used to establish a “pattern or practice,†which the Court has previously held is a viable method of proving that a particular worker has been subject to discrimination. Second, such evidence can show a “culture of discrimination†that is relevant to explaining the actions of any particular supervisor. Third, plaintiffs argue, a reasonable jury could conclude that evidence that other supervisors openly make discriminatory remarks reflects their belief that such attitudes are tolerated within the company, which in turn tends to support the view that a supervisor’s action in a particular case is in keeping with the company’s culture of discrimination. Fourth, other supervisor evidence can, respondents argue, show that the proffered reason for a plaintiff’s treatment is pretextual. For example, respondents’ argue, the excuse that an older worker was laid off because of her performance becomes less plausible when the jury is shown that many older workers were laid off and all were given the same excuse. Nor does Rule 403 permit the exclusion of other supervisor evidence in all cases, respondents assert. While Rule 403 may justify exclusion in some cases, respondents acknowledge, the district court erred in holding that it precludes other supervisor evidence across-the-board in all circumstances. Finally, respondents argue that because the Tenth Circuit was faced only with the district court’s per se rule, it did not error in failing to determine whether the specific evidence proffered here should have been excluded. Instead, the court properly left it open to the district court to decide that question during the retrial on remand.
In its reply brief, petition takes issue with the assertion that the district court based its decision on a per-se rule, as opposed to simply finding that respondents had failed to sustain their burden of establishing the admissibility of the particular other supervisor evidence they wanted admitted. For example, respondent argues that petition failed to make any showing that would justify admission of the evidence on the theory that it would show a “pattern or practice†because it was unaccompanied by any statistical evidence. Nor did the proffered instances of discrimination or discriminatory statements add up to a “culture of discrimination,†petition asserts. And even if a foundation were laid, the inevitable “mini-trials†on each alleged instance of other supervisor discrimination would have unduly delayed the completion of the trial and prejudiced the jury. Finally, Sprint disagrees with the Solicitor General that the case should be remanded for the district court to make a more particularized review of the proffered evidence because the proffer is manifestly inadequate to meet the standard of admissibility advanced by the Government.
Oral argument is scheduled for December 3. Petitioner will be represented by Paul W. Cane, Jr., of Paul Hastings in San Francisco. Respondent will be represented by Dennis E. Egan of the Popham Law Firm of Kansas City. Deputy Solicitor General Greg Garre will argue on behalf of the United States as amicus curaie.
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