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The Supreme Court will hear oral argument this morning, Dec. 3, in Sprint v. Mendelsohn. In its ruling, the Court will have the opportunity to adopt a standard that bars the admission of entirely irrelevant evidence commonly relied upon by plaintiffs in employment discrimination cases. Lacking any evidence that the decision-makers acted with discriminatory intent, plaintiffs often search for “me too” witnesses — disgruntled former employees who will testify that they believe that they too suffered mistreatment by their former employer. In appellate circuits that admit this type of testimony, even the weakest discrimination claims have survived summary judgment or pulled in substantial jury verdicts. The Supreme Court should limit this evidence to situations where it shows the intent or motives of the actual decisionmakers. FIVE NEW FRIENDS The Sprint case is an age discrimination action challenging the 51-year-old plaintiff’s termination in connection with a reduction in force in her department. Sprint laid off 15,000 employees in a series of RIFs over 14 months in 2002 and 2003. One of the plaintiff’s supervisors, Paul Reddick, selected Ellen Mendelsohn for layoff in connection with the RIFs in his department because she had the lowest performance evaluation of all of the employees in her unit. At trial, Mendelsohn offered the testimony of five former employees of Sprint. None of these employees had ever reported to Jim Fee, Mendelsohn’s direct supervisor, Reddick, or Reddick’s boss, Vice President Bill Blessing. None had even worked in the same group as they. Each witness admitted that he or she did not know any of these supervisors and had no information regarding Reddick’s decision to select Mendelsohn for layoff. All these employees were prepared to testify that they believed that they had been subjected to age discrimination in connection with the layoff decisions within their individual units. In addition, three of these witnesses were prepared to testify that they had heard ageist remarks by other Sprint supervisors in other departments. One would have testified that he had been replaced by a younger employee and that his post-RIF job applications had been rejected. Another was prepared to testify that he had seen another supervisor with a spreadsheet that identified the ages of employees on it. One witness would have testified that he was given a false evaluation to justify his termination and that he had seen another employee harassed because of his age. Finding that all this was not relevant and would be prejudicial, the district court excluded the testimony, and the jury found in favor of Sprint on Mendelsohn’s age-discrimination claim. OFF ON A TANGENT The U.S. Court of Appeals for the 10th Circuit reversed, holding that the district court abused its discretion in excluding the testimony. The court found that, in RIF situations, “me too” evidence — i.e., testimony by a former employee that he too was subjected to discrimination — must be admitted if there is “independent evidence” of a company-wide policy of discrimination. Because the “me too” evidence offered by Mendelsohn itself satisfied that standard, it should have been admitted. The dissent warned that the majority’s rule suggests that “even the most tangentially relevant and prejudicial testimony by former employees is per se admissible.” The 10th Circuit’s standard was inconsistent with that of a majority of the federal appellate circuits. Most circuits have held that testimony of other employees and former employees is not admissible unless their circumstances were truly comparable to the plaintiff’s. For instance, “me too” evidence generally is not admissible unless the witness worked for the same supervisors in the same department and held a comparable position or the plaintiff can show that discrimination was so rampant that the treatment of the witness was part of a clear “pattern or practice” of discrimination at the company. Evidence of stray remarks has not been admitted unless the alleged remark was made by the decision-maker and is material to the challenged employment decision. THE RELEVANT DECIDER The Sprint case will allow the Supreme Court, consistent with its prior precedent and Rules 401 and 403 of the Federal Rules of Evidence, to clarify and appropriately limit the standards for the admission of “me too” evidence and other evidence concerning the treatment of other employees. The Supreme Court has repeatedly recognized that it is the motives and actions of the actual decision-maker — not any random manager within the company — that are relevant in an employment-discrimination case. In Reeves v. Sanderson Plumbing Products (2000), Desert Palace v. Costa (2003), and Ash v. Tyson Foods (2006), the Court focused on the actions, knowledge, and statements of the decision-maker in determining if the plaintiffs could satisfy their burden of proving discriminatory intent. Testimony of former employees who do not have any knowledge or information concerning the motivations of the decision-makers is not relevant evidence under Rule 401. The five “me too” witnesses offered by Mendelsohn at trial, for instance, simply were not prepared to offer any testimony material to whether Reddick and the other managers involved in the layoff decisions in Mendelsohn’s unit harbored discriminatory intent. They were merely prepared to testify that they believe that managers in different units had discriminatory motives against them. It is entirely unclear how this testimony would have proved that managers who they do not know and never worked with discriminated against Mendelsohn or other employees over the age of 40 in her unit. The admission of evidence concerning other managers and employment decisions would undoubtedly cause prejudice to employers and confuse juries. If the types of evidence offered by Mendelsohn were admissible per se, employers would have to focus their formal and informal discovery efforts on identifying the potentially numerous “me too” witnesses who the plaintiff relies upon and then developing evidence justifying the job actions against these other workers. Employers also may feel compelled to present “not me” witnesses who were not terminated or who can offer their opinions that they were not subjected to discrimination. The presentation of this evidence on summary judgment and at trial would result in burdensome and confusing trials within a trial concerning the employment decisions cited by these “me too” and “not me” witnesses. In addition, “me too” testimony could be used by plaintiffs to prejudicially inflame the passions of the jury. With a large employer like Sprint, it would not be difficult for any given plaintiff to identify a number of disgruntled former employees who believe that they were treated unfairly. Even the weakest employment discrimination claim could be validated by a long line of former employees offering sympathetic testimony concerning their treatment during a RIF by a large employer. As one federal district court explained, in these circumstances, “even the strongest jury instructions could not have dulled the impact of a parade of witnesses, each recounting his contention that defendant has laid him off because of his age.” The Sprint case itself demonstrates why limiting the evidence to the employment decision challenged by the plaintiff and the motivations of the actual decision-makers results in a fair factual determination on the issue of motive. Mendelsohn had the opportunity to present evidence on the decisions made by Reddick and his boss, Blessing. The jury heard evidence on the justifications for the RIF, the process and criteria used by Reddick and Blessing in making selections, and the individual selection decisions. The plaintiff was allowed to admit a spreadsheet that identified the age of each employee considered in the RIF and to question Reddick about the selection of two age-protected employees. Reddick and other supervisors testified that Mendelsohn was selected for layoff because she received the lowest performance ratings of the employees in her unit. Sprint also presented evidence establishing that the oldest employee in each job unit was retained and that the RIF doubled the number of employees over the age of 50. Based on this evidence, the jury concluded that Reddick and Blessing did not terminate Mendelsohn because of her age. It is unclear how extensive and confusing evidence concerning decisions and alleged statements by other managers concerning employees in other units would have assisted the jury in reaching this conclusion. It is likely that the Supreme Court in Sprint will reverse the 10th Circuit’s decision adopting a per se rule of admission for this type of evidence. The Court should also take the opportunity to adopt a clearly delineated standard for the admission of this evidence. In its most recent decisions, the Court has recognized that the discrimination laws should be limited to and construed consistent with their express text. In Burlington Northern v. White (2006), the Court, based on the text of Title VII, defined the job actions that a plaintiff could challenge in a retaliation action. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), it relied upon the statute’s text to limit Title VII discrimination actions to job actions identified in a timely charge of discrimination. If it takes on this task again in Sprint, the Court should limit the admission of this evidence to situations where the witness has personal knowledge — not personal opinions — concerning statements or conduct by one of the decision-makers that shows his own motivations for the challenged employment decision. Otherwise, the evidence has no bearing on whether the decision-makers made the challenged employment decision “because of” the plaintiff’s protected status, an essential element mandated by the text of the Age Discrimination in Employment Act and each of the other federal employment statutes. Personal opinions of disgruntled former employees concerning the potential motivations of other supervisors in other departments relating to other job actions have no place in an employment-discrimination case.
Connie N. Bertram is a partner in the D.C. office of Winston & Strawn. In 2004, she was named a Leading Lawyer in labor and employment law by Legal Times and then chosen the top Leading Lawyer among the group by a vote by the D.C. legal community. Winston & Strawn filed an amicus brief for Employers Group in the Sprint case.

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