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Employers predict juror confusion and prejudice, minitrials within trials, and lengthy and costly discovery. Workers warn of meritorious claims lost forever and a major civil rights statute undermined. In a classic confrontation between management and labor, the U.S. Supreme Court on Dec. 3 will hear arguments in a job-bias case with implications far beyond the statute at its core, the Age Discrimination in Employment Act. Sprint/United Management Co. v. Mendelsohnis one of four age-bias-related cases on the high court’s docket this term. It asks the justices whether a district court must admit so-called “me, too” evidence, or testimony by people in the same company as the plaintiff who claim they suffered discrimination from a different supervisor. “There are certain parts of the ADEA that are specific to the ADEA, but this is a more general question about the proof scheme under all employment discrimination cases,” said employment law scholar Paul Secunda of the University of Mississippi School of Law. The decision may apply equally to the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964; race discrimination claims under 42 U.S.C. 1981; and certain parts of the Family and Medical Leave Act, he said. “There is potentially a big impact,” said Secunda. Besides Sprint, a case argued on Nov. 6, Federal Express v. Holowecki, also could resound beyond the ADEA. The justices will decide what constitutes a “charge” of discrimination that a worker must file with the Equal Employment Opportunity Commission before bringing a lawsuit under the ADEA. The two remaining ADEA cases on the docket thus far are ADEA-specific. One asks whether the statute’s federal-sector provision permits retaliation claims against federal employers ( Gomez-Perez v. Potter), and the other asks whether a benefit plan providing lower disability benefits, or denying disability benefits, to workers who are old enough to qualify for ordinary retirement benefits violates the ADEA ( Kentucky Retirement Systems v. EEOC). Four age-bias cases in one term is a significant number given the justices’ relatively small argument docket, but the occurrence may be simply coincidental, say employment litigators and others. A decade ago, cases under the Americans With Disabilities Act dominated the court’s employment/civil rights docket, noted management attorney Frank Morris, partner in the Washington office of Epstein Becker & Green. “Occasionally there is a sense the court wants to visit some other areas,” he said. “But we also have the graying of the work force. I’ve noticed that people bringing a number of the age cases are higher up in the hierarchy of companies. They have more money and their ability to litigate age cases may be greater than in other contexts.” But for now, all eyes are on Sprint. The issue in Sprintarises “all the time,” according to Morris. “If ‘me, too’ evidence is a proper element, every plaintiff will try to introduce it,” he said. “It will force an employer to defend not only the real case but any number of other phantom cases.” But labor-side litigator Paul Mollica of Chicago’s Meites Mulder Mollica & Glink disagreed, saying, “It’s very important to introduce evidence of other discrimination.” Unless the worker has strong circumstantial evidence, he said, the attorney is dependent on showing that the client’s experience fell into a pattern. “A jury will be looking for the same thing,” he noted. “Without evidence of that, you’re taking a very important driver out of the golf bag, and that’s why I think the management bar is very eager to get a decision that you are limited only to what happened with one manager in a very tightly drawn locus of decision-making.” BECAUSE OF AGE? Ellen Mendelsohn was employed as a midlevel manager for Sprint for 16 years. In 2002, while working at Sprint’s headquarters in a suburb of Kansas City, Mo., Mendelsohn, 51 at the time, was laid off as part of the reduction in force (RIF), extending from 2001 through 2003 and resulting in 14,000 terminations. Mendelsohn sued in 2003, alleging that she had been laid off because of her age. Before trial, the district court approved a motion by Sprint to exclude any evidence or reference to allegations of discrimination against Sprint employees if they were not similarly situated � had the same supervisor � as Mendelsohn. Before the close of her evidence, Mendelsohn made an offer of proof: depositions by five Sprint employees who worked at the same location, were terminated in the RIF but by different supervisors, and claimed age discrimination. The district court held the evidence was inadmissible. A jury ruled for Sprint and Mendelsohn appealed. On appeal, the 10th U.S. Circuit Court of Appeals reversed in a 2-1 ruling. The majority noted that, although Mendelsohn and the other employees had different supervisors, Sprint terminated them within a year as part of a companywide RIF. “All the employees were in the protected age group, and their selection to the RIF was based on similar criteria. Accordingly, testimony concerning the other employees’ circumstances was relevant to [the employer's] discriminatory intent.” The appellate court also rejected Sprint’s claim that Federal Rule of Evidence 403 kept Mendelsohn’s evidence out because the risk of unfair prejudice, confusion or waste of time substantially outweighed the probative value of her evidence. The court acknowledged that Sprint might have to defend multiple discrimination claims in this individual suit, but said that was neither unduly prejudicial nor enough of a burden to outweigh the evidence’s value. The dissenting judge would have applied the “same supervisor” rule absent independent evidence of a companywide policy of discrimination. CATEGORICAL RULE In the Supreme Court, Sprint, supported by a host of businesses and business organizations including the U.S. Chamber of Commerce, argues that the high court should articulate a “simple and categorical” rule that “me, too” evidence is always inadmissible absent a demonstrated link between it and the specific decision challenged by the plaintiff. Sprint’s counsel, Paul Cane, a partner in the San Francisco office of Paul Hastings Janofsky & Walker who will argue the case, said the presumption is that “other-supervisor evidence” will be inadmissible because it usually will not shed light on the decision-maker’s intent. “If some other person harbors bias, that is regrettable but not probative of a plaintiff unaffected by it,” he said. He added that there was an offer of proof of what Mendelsohn thought she could show, but “nowhere in that offer did she even allege discriminatory standard operating procedures � only a handful of anecdotes were alleged.” Rule of Evidence 403, he added, is another ground for reversing the 10th Circuit. Mendelsohn’s real purpose in proffering the five witnesses, he charged, was to “sully” Sprint in the jury’s eyes since she lacked accepted forms of proof. The Bush administration also argues for reversal, but doesn’t go as far as Sprint on the proper legal rule. The U.S. solicitor general says in an amicus brief that “other-supervisor” evidence is sometimes, but not always admissible. Evidence is relevant if it has “any tendency to make more probable” that age motivated the decision by the plaintiff’s supervisor, according to the government. “Even a single act of discrimination by another supervisor can satisfy that standard, such as where the evidence concretely suggests that a companywide campaign is afoot,” argues the government. But the government contends that the 10th Circuit erred in ordering the district court to admit Mendelsohn’s evidence. The appellate court instead should have remanded the case to the district court for application of the proper legal standard. “It looks to us that the solicitor general is 95 to 99 percent in agreement with our position,” said Mendelsohn’s counsel, Dennis E. Egan, a partner in Kansas City’s Popham Law Firm. The district court’s blanket, pretrial exclusionary order, said Egan, prohibited four broad categories of evidence: a pattern and/or practice of age discrimination; a culture or history of discrimination; age-biased remarks by any Sprint official except the particular supervisor who assertedly selected Mendelsohn for layoff; and any other evidence of other-supervisor discrimination that might support Mendelsohn’s age claim. In appropriate circumstances, each of these types of other-supervisor evidence can easily satisfy the relevance standard in Federal Rule of Evidence 401, according to Egan, who is supported by AARP (formerly the American Association of Retired People), the Lawyers’ Committee for Civil Rights Under Law and others. “The Supreme Court in even its latest age discrimination cases always talks about the fact the ADEA, along with Title VII, is part of a broad national policy to eradicate discrimination,” said Egan. “To quote [7th Circuit Judge Richard Posner]: ‘The mere notion we should constrict trials because of crabbed notions of relevance and excess mistrust of juries is ironic and wrong.’” Sprint’s alleged fear of lengthy trials has not been borne out in other cases in which this type of evidence has been admitted, and its fear of prejudice, he added, can be easily assuaged by proper jury instructions. Epstein Becker’s Morris noted that, if this evidence is admissible at trial because it is relevant, that could mean it must also be considered on summary judgment as to whether a plaintiff can create a substantial issue of material fact as to discrimination or pretext for discrimination. “Not an enormous number of cases go to trial, but a huge number of cases have summary judgment motions,” said Morris. “If this evidence can be successfully used to keep a summary judgment motion from being granted, its impact [on defendant employers] would be enormous.” From a civil rights lawyer’s point of view, Title VII and the ADEA are statutes about protecting employees against discrimination, “not a scavenger hunt to find bad actors in organizations,” said Mollica of Meites Mulder. “The tort theory most in favor with the management bar is that you have to draw a tight circle around causation and say that unless this manager did this, at this time, for this reason � like in the Ledbetter pay discrimination case last term � then there is no violation,” he said. That theory, added Mollica, defies common experience because workplaces are not isolated that way. “The question is whether the court is going to draw the circle really, really tight, so that a lot of cases are going to drop out because you’re not able to get discovery or proof at trial,” he said. This article originally appeared inThe National Law Journal, a publication of ALM. �

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