Monday, December 3, 2007
I have just had the chance to review the oral argument transcript in the important employment discrimination evidence case of Sprint/United Management Co. v. Mendelsohn. As this guest post points out over at the ACS Blog, a lot is at stake in this ADEA case, including whether certain circumstantial evidence is admissible in a pattern and practice case.
To the transcript to read the tea leaves:
1. Sprint's attorney relies on the concept of foundation to explain why "other supervisor" and "cultural/atmosphere" evidence should not be admitted into evidence. To the point, only decisionmaker bias is relevant and therefore, evidence of bias by others in the organization is not probative of the legal issue at stake. Indeed, it should be presumptively irrelevant, although not completely barred. Justice Breyer points out, however, that the way the case was specifically handled here, there appears to be an absolute bar for these types of evidence.
2. Justice Scalia makes a good point that the district court's granting of the motion in limine did not mention whether it relied upon Federal Rule of Evidence 401 (relevancy) or 403 (balancing probative value vs. prejudicial effect), but Sprint's lawyer believes the judge relied on both in keeping the evidence out. There seems to be a lot of confusion among many of the Justices exactly what the district court held. The district court's order is somewhat cryptic on why the evidence was excluded. Justice Scalia does not think this is crucial either because this type of evidence should be absolutely banned under 401, or the Court should rule that it would have been an abuse of discretion for the trial court to have allowed this type of evidence in under 403. Justice Alito appears to concur in this point.
3. From the start, Justice Souter's questioning suggests that he thinks "other supervisor" evidence is highly probative of a pattern and practice of discrimination: "Well, if you have three supervisors, and one is discriminating and another is discriminating, isn't that some evidence that you're in an industrial situation in which discrimination goes on, and therefore doesn't it have the tendency that amounts to relevance under 401?" Justice Souter seems put off by Sprint's counsel's non-responsiveness to his questions.
4. No surprise here given Justice Ginsburg's background in employment discrimination law, but she is not buying the petitioner's "foundation" or "nexus" theory, that there has to be a connection between the decisionmaker and another biased official in the sense that they conferred or directions were given. Thus: "more importantly, the other supervisors were persons that were not shown to have any connection with the decisionmaker with respect to this plaintiff."
5. Justice Scalia seems to suggest that this case should be about the appropriate standard of review for the appellate court: "If there's any basis on which the district court's decision would have been correct, the district court's decision is upheld." Justice Alito follows this line later: "[If comes down to 403 question and] find that it would not have been abuse of discretion, then how could we affirm the Tenth Circuit [and find this evidence admissible]?"
6. Scalia also seems unhappy with petitioner's argument and lends him a hand: "I don't see that one can tell from the district court's order whether the district court was relying on 401 or 403. And certainly, you just don't want to defend 403. I think you're digging a hole for yourself."
7. Aligning himself with his normal allies on the court, Stevens seems to be on the side of respondent: "I am somewhat puzzled. How many bad actors does there have to be before you can draw an inference that someone superior to the bad actors had a motivating part in the whole situation?" I don't think it is ever good for a Supreme Court oralist to hear from Justice Stevens that he is puzzled.
8. But importantly, and perhaps decisively, Justice Kennedy seems to believe in the nexus or foundation theory: "The inference they are trying to prove is there was somebody upstairs that told everybody what to do." With lack of that type of evidence, there should not be admission of other supervisor or culture evidence.
8. Rule 404 comes up and Justice Kennedy asks if this real evidence about the character of the corporation, but Justice Stevens points out that Rule 404 has never been applied to corporate character evidence before. Apparently, neither parties briefed the 404 character issue.
9. The United States, supporting Sprint, takes the position that although this evidence is not always non-admissible, it was properly not admitted in this case. Although marginally relevant under 401, the government attacks the case under 403. Justice Scalia clearly wants this to be an open and shut 401 case, not dependent on 403: "[Referring to the fact of this case]: It is hard to see what wouldn't be marginally relevant if you think that's marginally relevant." Again, Justice Kennedy appears to agree with Justice Scalia here in his own questioning of the government.
10. Chief Justice Roberts keeps saying in his question that evidence is relevant only if it turns out to be true. I think the government quite right to correct him: "In the Furnco case, the Court said that -- that the evidence doesn't have to conclusively demonstrate the fact. It simply has to be relevant. We put relevant evidence before juries, we instruct them on the consideration of that evidence, permit the defendants to put that evidence into context, and then we ask juries to draw a conclusion."
11. Mendlesohn's counsel has his worked cut out for him given the way the argument seems to be proceeding - either to a defer to the district court standard or to limit probative evidence of other supervisors to instances where there is a nexus between the various supervisors. Nevertheless, he is game and he argues that the 10th Circuit below suggested that the district court applied an absolute ban on other supervisor evidence and that this is inconsistent with the relatively low threshold of Rule 401. He goes on to point out: "So it depends. In rule 401, there is no categorical bar. In Article IV, if there are areas where there are problems, we list them. 407, 411 -- no mention of liability insurance. 410."
12. Chief Justice Roberts does not apparently see this as a pattern and practice case with a common discriminatory environment: "Well, but doesn't that beg the question? We don't know. This isn't a pattern and practice case. You don't have evidence of a company-wide policy of discrimination." Roberts also does not seem to buy Mendlesohn's culture of discrimination argument.
13. Mendlesohn also believes that plaintiffs should be given leeway in these cases: "We have many intermediary facts to which the evidence relates. They are facts of consequence, and the evidence had a tendency to show these facts of consequence. Justice Souter encourages Respondent in this argument as much as Scalia encouraged the other side.
14. Both Justice Breyer and Souter are concerned that allowing "me too" evidence might lead to mini-trials on whether the other statements were actually said and this will lead to confusion of the issue, such that the evidence will be inadmissible anyway under Rule 403. Roberts seems to agree. The otherwise Mendlesohn-supportive justices appear to believe that Scalia's best point is that we should defer to the trial court absent an abuse of discretion.
15. One more interesting point: the Court asks about whether there is evidence of statistics here and the answer seems to be that the only statistics concerns the other supervisor/culture evidence. I don't know if the Court will address it, but it is an interesting question of whether there can be a pattern and practice case without statistics and merely supported by anecdotal evidence.
I see this case coming out 5-4 in favor of Sprint. A majority opinion by Justice Scalia (joined by Kennedy, Alito, Thomas, and Roberts) saying that the district court should be deferred to in admitting evidence absent an abuse of discretion. Look for the court to also point out that allowing this evidence in would lead to mini-trials on other supervisor statements and so in most cases, this evidence is appropriately excludable under Rule 403. Justice Scalia may also try to get in that he thinks this case rises and falls on Rule 401, but I don't think he has a majority on that point.
Justices Souter might agree in dissent that the trial court must be deferred to, but that since the case was not clearly decide on 401 or 403 grounds, the case should be remanded for a balancing under 403. I think they might also stress that there is not an absolute ban on "me too" evidence under 401, instead a proper balancing must be done on a case-by-case under 403. Finally, Justice Ginsburg may file a separate dissent, joined by Justice Stevens, finding that the "other supervisor" evidence and "culture evidence" is probative on the ultimate issue of age discrimination without being substantially outweigh by prejudicial effect in most cases like this one.
In the end, however, I don't think this case will really accomplish that much, though it will be haled an employer victory. Employment discrimination defendants will continue to file motions in limine to exclude other supervisor evidence and culture evidence, plaintiffs will make offers of proof on other supervisor and culture evidence, and the court will use the 403 balancing to determine admissibility. My sense is that most of these balancings are currently coming out in favor of employment discrimination defendants anyway.
To put a positive spin on this, plaintiff attorneys may be happy if the case just establishes that there isn't an absolute bar to this type of evidence under 401.