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On Dec. 3, 2007, the U.S. Supreme Court heard oral argument in Sprint/United Management Co. v. Mendelsohn, No. 06-1221, which is likely the most important employment law case the court will decide this term. At issue in Mendelsohn is whether a district court can permissibly exclude from an employment discrimination trial what is often called “me, too” evidence � specifically, testimony by other employees of the same employer who, like the plaintiff, were allegedly discharged, demoted or otherwise adversely affected because of the same protected characteristic, but who worked in other parts of the company and for different supervisors. The “me, too” evidence � or “other supervisor” evidence � in Mendelsohn was intended to support the plaintiff’s contention that the employer had a companywide policy to discriminate against older workers, which, in turn, bolstered her individual claim, since the existence of such a policy would support a jury finding that the decision to select her for layoff in a companywide reduction-in-force (RIF) was motivated, at least in part, by intentional age animus on the part of her own supervisor. While a companywide policy to discriminate is relevant to the ultimate issue of discrimination against a particular plaintiff, the use of “me, too” evidence to attempt to show that such a policy exists commits the logical fallacy of circular reasoning, as it presumes precisely the proposition it is intended to prove. ‘Me, too’ evidence prolongs and complicates a trial Personal testimony by co-workers who say that they, too, were the victims of the same type of discrimination as the plaintiff, albeit from elsewhere in the employer organization, is very powerful, but of perhaps modest probative value with respect to whether the supervisor who actually made the challenged decision was himself motivated, in any part, by invidious discrimination. Such “me, too” evidence also complicates and prolongs the discrimination trial, as there must be a de facto minitrial within the trial for each “me, too” witness, in which the employer counters that witness’s testimony as to whether what happened was actually tainted by illegal discrimination. As Justice Antonin Scalia intimated in oral argument, the trial complexity required by “me, too” testimony may strongly motivate the defending employer to settle a case it might otherwise have been prepared to take to the jury. Much of the focus of the Supreme Court oral argument was on whether “me, too” evidence should be excluded under Fed. R. Evid. 403, which permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” More fundamentally, however, is whether such testimony actually passes the threshold standard of relevance under Rule 401. While the plaintiff’s counsel in Mendelsohn and perhaps some justices believed it obviously did, that view is, it seems to us, mistaken. The excluded “me, too” evidence in Mendelsohn consisted of proposed testimony of five former employees who were laid off as part of the same RIF as the plaintiff and believed that they were selected for layoff due to their own supervisors’ age bias. None of those supervisors, however, worked in the same area of the company as the plaintiff, Ellen Mendelsohn, or were even in the same “chain of command” as her supervisor. Nor was there any evidence of communication between the “me, too” supervisors and Mendelsohn’s supervisor about the RIF or anything else. The 10th U.S. Circuit Court of Appeals overturned the district court’s exclusion of the “me, too” testimony and suggested that such evidence was always relevant and perhaps always admissible. 466 F.3d 1223, 1228-30 (10th Cir. 2006). The dissent reasoned, however, that the testimony was properly excluded because the record was “devoid of independent evidence that Sprint had company-wide discriminatory policies” and, therefore, “[w]hile Sprint may well have had policies designed to discriminate against older employees, without more, the excluded evidence does nothing to establish that fact.” Id. at 1233. The proponents of “me, too” evidence generally rely on that portion of Fed. R. Evid. Rule 401 that brings within the ambit on relevance, evidence having “any tendency” to make the existence of any material fact “more probable or less probable than it would be without the evidence.” Commentators explain that relevance under Rule 401 critically depends on “whether a reasonable person might believe the probability of the truth of the consequential fact to be different if that person knew of the proffered evidence.” See 2 Weinstein’s Federal Evidence � 401.04[2][b] (2d ed. 2007). While a “reasonable person” standard is notoriously amorphous, at least one thing is clear: A reasonable person is not illogical and would not accept any inference based on a logical fallacy. Thus, even under the “any” tendency standard of Rule 401, evidence whose probative value rests on a fallacious inference is, necessarily, not relevant. Five instances of anything does not, without more, support, even slightly, an inference of anything in particular. Five rock stars struck dead by lightning would not support an inference of divine disdain for rock music. Such an inference requires some unstated assumptions about how the cosmos is organized � assumptions that are not proved by the evidence but are presumed to give it inferential effect. That “other supervisors” in Mendelsohn’s company discriminated against older workers has no “tendency” to say anything about what motivated her supervisor’s layoff decision. (That racist Sam in shipping used a companywide RIF to lay off his only three African-American employees says nothing about the decisions of Al in accounting who, as part of the same RIF, laid off one of his six African-American subordinates. That there are five racist Sams in the company still, by itself, has no tendency to say anything about Al’s motivation.) If, however, the “other supervisor” layoffs were in furtherance of an ageist company policy, then there is some reason (or a greater probability) to believe that Mendelsohn’s supervisor was motivated in part by that policy when he laid her off as part of the same RIF. But if the only evidence of the purported ageist policy is the five purported instances of its application � or as the Mendelsohn dissenter put it, the record is “devoid of independent evidence” of such a policy � then the proponent of that evidence is inviting the jury to reason in a circle. The “me, too” testimony is admissible due to the existence of a discriminatory policy, but the existence of such a policy is precisely what that testimony is purported to prove (or at least make more probable). Case lacked statistical evidence of disparate effect There is, of course, a body of sciences devoted to the study of whether the occurrence of a certain sequence of events is only coincidence or evidence of some unseen pattern. That science is called statistics. Strikingly absent from Mendelsohn’s case was any statistical evidence � for which expert testimony is required � that the employer’s RIF affected older workers in a way that was not likely to be random. The logical positivists used to say that if a purported hidden phenomenon makes no difference in observable events in the perceivable world, the rational inference is that the purported phenomenon does not exist. If, after discovery, Mendelsohn had no statistically valid evidence of the RIF’s disparate effect on older workers � and there are judicially recognized standards for admissibility of such evidence � then the existence of five “me, too” witnesses (even if they testified as to actual discrimination, not just subjective belief) increases the likelihood of nothing at all. Though the Rule 401 standard of relevance is broad, a party may not “parade past the jury a litany of potentially prejudicial similar acts that have been . . . connected to the [purported wrongdoer] only by unsubstantiated innuendo.” Huddleston v. U.S., 485 U.S. 681, 689 (1988). In admitting the “me, too” testimony, the 10th Circuit was especially concerned that, without it, potential plaintiffs could not support their claims by circumstantial evidence of an employer policy or practice to discriminate. But courts routinely allow statistical evidence, tell-tale company documents and bias-evincing comments of managerial personnel to support a finding that such a policy or practice existed. See, e.g., Lyons v. England, 307 F.3d 1092, 1115-16 (9th Cir. 2002); Kirsch v. Fleet Street Ltd., 148 F.3d 149, 162-64 (2d Cir. 1998). Without such substantiating evidence, a reasonable person would not find the “me, too” evidence probative of anything other than coincidence. Statistical evidence of a handful of instances of discrimination against older laid-off workers would not be admitted if it did not control for other variables, did not account for the number of older workers who have been retained in the RIF, or did not compare the “observed instances” of discrimination to the number of employees susceptible to layoff. A plaintiff’s effort to proffer such a potentially skewed sample would never survive a Daubert motion. It is difficult to see how such testimony would � without more � be probative of what Mendelsohn’s counsel called a “corporate culture” hostile to older employees. What the Supreme Court decides in Mendelsohn and how it decides it will have dramatic implications for how employment discrimination cases will be tried � and on what terms they settle � for years and years to come. Michael Starr (mstarr@hhlaw.com) is a partner in the labor and employment group of Hogan & Hartson, resident in New York. Christine M. Wilson (cmwilson@hhlaw.com) is an associate in that group, also resident in New York.

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