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Justices Require Fact-Intensive Analysis to Decide Admissibility of 'Me, Too' Evidence

In a long anticipated decision, the U.S. Supreme Court in Sprint/United Mgmt. Co. v. Mendelsohn recently held that testimony by other employees who had been a part of a reduction in force (RIF) and who reported to different supervisors that they also were discriminated against because of their age is neither always admissible nor always inadmissible incases brought under the Age Discrimination in Employment Act.

Rather, such testimony "requires a fact-intensive, context-specific inquiry."

Ellen Mendelsohn sued Sprint for violation of the ADEA after she was laid off in 2002 at age 51 as part of a companywide RIF.  Before the trial began in the U.S. District Court for the District of Kansas, Mendelsohn indicated that she planned to offer the testimony of five other RIF'd employees about alleged age discrimination. Significantly, none of the five employees worked in Mendelsohn's group or worked under the same chain of command, and their proffered testimony did not involve Mendelsohn's superiors.

Three of the witnesses intended to testify that they had heard Sprint supervisors or managers making denigrating remarks about older workers.  One witness alleged that the company's internship program was a mechanism for age discrimination and that she had seen a spreadsheet suggesting that a supervisor considered employees' ages in making layoff decisions.  Another witness alleged that he received a poor evaluation and was banned from the company because of his age and that he had witnessed another employee being harassed because of her age.  Another witness alleged that Sprint had instructed him not to hire anyone over age 40, that he was replaced following his RIF by a younger employee, and that the company rejected his later employment applications.

Sprint moved to exclude the evidence, and the district court held in a two-sentence order that the "me, too" evidence, offered by the five other RIF'd Sprint employees was inadmissible.  The Tenth Circuit reversed, holding that such evidence is not per se inadmissible and that it was admissible under the Federal Rules of Evidence in this case.

Writing for a unanimous Supreme Court, Justice Clarence Thomas found "it is not entirely clear" whether or not the district court applied a per se rule and also concluded that the appeals court should not have conducted its own admissibility analysis. Rather, he said, the appeals court should have directed the trial court to clarify its reasoning.  Justice Thomas did note, however, that the Supreme Court would have rejected any per se rule.  He wrote, "[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules."

Bottom Line: The admissibility of "me, too" evidence will depend on the facts of each case leaving the trial court judge with lots of latitude to make these determinations. The moral of the srory should be that all supervisors should adhere to the highest principles of equal employment opportunity at all times.  If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group.



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