There's strength in numbers. At least, that's the strategy for many employees who have tried to bolster their claims by offering "me, too" evidence from coworkers who also claim they were discriminated against. Employers have protested that "me, too" evidence bears no relevance to an individual employee's claim and creates undue prejudice when presented to a jury. The U.S. Supreme Court recently addressed the issue but declined to establish clear rules for lower courts to follow.
Facts
The employee in this case claimed Sprint had discriminated against her because of her age when she was laid off as part of a companywide reduction in force (RIF). In support of her claim, she offered testimony from five other former employees who claimed they also had been discriminated against. None of the witnesses worked in the same Sprint division as the employee who sued. Additionally, none worked under her supervisor or Paul Ruddick, the manager who selected her for layoff.
Three of the former employees claimed one or more supervisors or managers had made ageist remarks. One claimed Sprint's intern program was a mechanism for discrimination and said she had seen a spreadsheet suggesting that a supervisor considered age in making layoff decisions. Another alleged he had received an unwarranted evaluation, was banned from working at Sprint, and witnessed another employee being harassed. Finally, one claimed Sprint had required him to get approval before hiring anyone older than 40, replaced him with a younger worker, and rejected his applications for reemployment.
Court's Holding
The trial court excluded the "me, too" evidence based on Sprint's arguments that it was irrelevant and that the danger of unfair prejudice substantially outweighed any probative value. The court further ruled that it would exclude evidence of discrimination against employees not "similarly situated" to the employee who filed the claim.
For employees to qualify as similarly situated, the court required "proof that (1) Paul Ruddick was the decision-maker in any adverse employment action; and (2) temporal proximity." Clarifying the court's position during trial, the judge explained that he "would not bar testimony going to the 'totally different' question 'whether the [RIF], which is [Sprint's] stated nondiscriminatory reason, is a pretext for age discrimination.'"
Sprint prevailed at trial, and the employee appealed. In reviewing the lower court's ruling, the Tenth U.S. Circuit Court of Appeals regarded the judge's order as "a per se [intrinsic] rule that evidence from employees with other supervisors is irrelevant to proving discrimination." Rejecting such a clear-cut rule, the Tenth Circuit determined that the evidence should have been admitted.
On further appeal, the U.S. Supreme Court ruled that the Tenth Circuit "erred in concluding that the District Court applied a per se rule." The Court simply saw nothing in the trial court's opinion indicating that it had ruled in such a broad manner. The Court then determined that the Tenth Circuit erred in undertaking its own independent analysis of admissibility because those types of rulings are for a trial court to make in the first place, subject to review for abuse of discretion. The Court sent the case back to the district court "to conduct the relevant inquiry under the appropriate standard."
So what is the "appropriate standard"? Here, the Supreme Court was less clear. The Court rejected the idea of a clear-cut rule either for or against admissibility. Instead, it said, "Relevance and prejudice . . . are determined in the context of the facts and arguments in a particular case." In terms of additional guidance, the Court stated that "[t]he question whether evidence of discrimination by other supervisors is relevant . . . is fact[-]based and depends on many factors, including how closely related the evidence is to the [employee's] circumstances and theory of the case." Similarly, the question of whether "evidence is prejudicial . . . requires a fact-intensive, context-specific inquiry."
How easily may an employee argue that "me, too" evidence fits her "theory of the case"? At what point will undue prejudice substantially outweigh any probative value of that evidence? For now, the Supreme Court has left those questions to the discretion of the trial court judge. Sprint/United Management Company v. Mendelsohn.
Bottom Line
This case highlights how easily an isolated issue involving one employee can grow into a much larger problem. You must stay connected with your workforce to address employees' concerns before they have time to fester. Unhappy employees often will talk and figure out a way to "connect the dots." In addition, you must scrutinize RIFs and other companywide practices from both a micro and a macro perspective because employees may challenge individual decisions as well as the practice as a whole from a broader perspective.
This article is posted with permission from Tennessee Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.
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