Monday, June 11, 2007

Supremes Take "Me Too" Employment Discrimination Case

4united_states_supreme_court_1129_3 In a busy day for labor & employment lawyers everywhere (2 unanimous decisions (here and here) and 1 cert.!), the Supreme Court has decided to weigh in on another important issue under employment discrimination law.

Ross Runkel at Supreme Court Times describes the case, Sprint/United Management Co. v. Mendelsohn, 06-1221, this way:

This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by non-parties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. The Tenth Circuit panel majority held that a court commits reversible error by excluding "me, too" evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held "me, too" evidence wholly irrelevant. Five circuits have [held] that "me, too" evidence may be excluded under Federal Rule of Evidence 403. The US Supreme Court granted certiorari to review the 10th Circuit's judgment. Oral arguments will be scheduled for October 2007 or later.

The 2-1 10th Circuit decision below, Mendelsohn v. Sprint/United, 05-3150 (10th Cir. Nov. 1, 2006), is availabe here, and the certiorari briefs can be found here.

This is an interesting case because it involves a reduction-in-force (RIF) and subsequent ADEA challenge.  The 10th Circuit majority suggests that because the plaintiff was terminated under a company-wide RIF, it should not matter that she was not terminated by the same supervisor because the other individual's testimony helps to establish a discriminatory environment at the employer.  The majority concluded that: "Age as a motivation for Sprint's selection of Mendelsohn to the RIF becomes more probable when the fact-finder is allowed to consider evidence of (1) an atmosphere of age discrimination, and (2) Sprint's selection of other older employees to the RIF."

Early impression: look for the majority of the Supreme Court to agree with the dissenting circuit court judge and find that, "testimony from other employees not similarly situated is [not] admissible . . . where the plaintiff has made no independent showing of a company-wide policy of discrimination."  In other words, judges should be free to apply F.R.E. 403 and exclude this evidence without appellate court interference.

The important phrase here is "independent showing," which refers apparently to a showing beyond the testimony of the plaintiff or the proposed evidence from others she seeks to have admitted.  This seems to be a heavy, and unnecessary, burden in a circumstantial case such as this, but given Ledbetter and especially Justice Alito's cramped views of employment discrimination law, this is where I initially (oral argument may change my mind) think the Court will (wrongly) come out.


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