Supreme Court Sends ‘Me-Too’ Discrimination Case Back

By Staff Report

Sep. 16, 2011

A unanimous Supreme Court has sent an age discrimination case back to a trial court without ruling on whether testimony by colleagues of the plaintiff can be used to prove that she was unfairly dismissed.

The co-workers that Ellen Mendelsohn, 51, wanted to bring into her case against Sprint did not work for her supervisor, but she thought they could illustrate a general age bias at the company. Their input, which is called “me-too evidence,” was not allowed by the trial court judge. The jury ruled in favor of Sprint.

The 10th Circuit Court of Appeals in Denver overturned the judgment, saying the trial judge erroneously excluded Mendelsohn’s colleagues. Sprint appealed the case to the Supreme Court, which overruled the appeals court on Tuesday, February 26.

The Supreme Court sent the case back to the district court, instructing it to provide a better explanation of its decision. The high court did not offer an opinion regarding whether me-too evidence is automatically admissible or inadmissible.

“The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA [Age Discrimination in Employment Act] case is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” wrote Justice Clarence Thomas in the 11-page opinion.

The court ruled that deference should be given to the trial court in determining whether the value of me-too testimony outweighs any prejudice it may create against the defendant.

“When a district court’s language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion,” Thomas wrote.

Although the decision is good for Sprint, it doesn’t resolve disagreement among U.S. courts about me-too evidence.

Businesses oppose such testimony, arguing that it is irrelevant because the plaintiff and the other witnesses have different supervisors. It also can create trials within trials about the veracity of each discrimination claim. Supporters of me-too evidence say that it can substantiate bias that transcends one supervisor and is part of a company’s culture.

“The decision has left open this issue as to whether me-too evidence is permissible in discrimination suits with respect to a reduction-in-force scenario,” said Sara Begley, a partner at Reed Smith in Philadelphia.

Connie Bertram, a partner at Winston & Strawn in Washington, characterized the Supreme Court decision as “neutral” for employers. She said that companies have a large body of cases to cite in arguing that only the attitude and intent of the plaintiff’s supervisor is relevant.

The Supreme Court decision focused more on procedure than substance, Bertram said.

“It empowers the district courts, but lets them know they should explain the basis for rulings in this area,” she said. “I see it as an evidentiary standards case. I don’t see it as an employment case any longer.”

Begley said the high court is emphasizing that decisions on evidence should be made at a lower level. 

“This what a trial court does every day,” Begley said. “This is their job. This is an issue regarding evidence and not the Supreme Court making a statement about how discrimination suits should be handled.”

—Mark Schoeff Jr.


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