Mendelsohn v. Sprint: Cautionary Tale for Employment Law Practitioners?

Employment discrimination lawsuits are tales about the human experience.  Couched in terms of "retaliation" and "harassment," these cases require that lawyers explain the complex phenomena of human motivation. 

Proof in employment cases comes in many forms, but frequently there is evidence about how others were treated.  Colloquially referred to as "me too" evidence, this proof typically consists of testimony from co-workers who claim that they, too, were the target of the wrongdoing allegedly suffered by the plaintiff.  This evidence is often offered to show that an employer's stated reasons for the challenged employment action are pretextual  - a critical inquiry for summary judgment.

A recent United States Supreme Court decision speaks to the admissibility of "me too" evidence and has significant implications for employment cases, particularly with respect to discovery, summary judgment and trial.  See Mendelsohn v. Sprint/United Management Co., No. 06-1221.  In Sprint, a unanimous court held that testimony by non-parties alleging discrimination by supervisors who played no role in the challenged  employment decision is neither per se admissible nor per se inadmissible.  Rather, admissibility of such evidence "requires a fact-intensive, context-specific inquiry" of relevance and prejudice.

Sprint entailed a claim under the Age Discrimination in Employment Act, 29 U.S.C.S. § 621 et seq. ("ADEA").  Mendelsohn, the plaintiff, who was 51 years old and the oldest manager in her business unit, claimed that Sprint used a nationwide reduction in force as a pretext to jettison her and other older employees from its workforce.

At trial, Sprint filed a motion in limine to exclude the testimony of five former co-workers who claimed that other supervisors discriminated against them because of their age.  The trial court granted Sprint's motion, ruling that Ms. Mendelsohn could only offer evidence of discrimination against other Sprint employees who were similarly situated -- meaning only those employees who suffered adverse employment actions by Ms. Mendelsohn's supervisor during a similar time frame.  After the jury returned a verdict for Sprint, Ms. Mendelsohn appealed the district court's in limine ruling.

The Tenth Circuit reversed, reasoning that the district court erred by applying a per se rule of inadmissibility:  "Although Mendelsohn and the other employees worked under different supervisors, Sprint terminated all of them within a year as part of an ongoing company-wide 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 Sprint's discriminatory intent."  

Writing for a unanimous court, Justice Thomas found that the Tenth Circuit erred because it did not have enough information to conclude that the District Court actually applied a per se rule of inadmissibility.  Rather, the District Court's determination might have been based on the record before it.  Because determinations of relevance and prejudice are particularly within the province of the District Courts in the first instance, the Tenth Circuit should have remanded for clarification instead of conducting its own analysis.

The Court, however, agreed with the Tenth Circuit in holding that a per se rule of inadmissibility would have been in error.  Rather, the Court reasoned, the issue is always one of a fact-specific relevance and undue prejudice analysis under Rules of Evidence 401, 402 and 403:  "The 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 plaintiff's circumstances and theory of the case ...Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry."

A series of post-Sprint decisions provide some guidance regarding the appropriate scope of discovery into "me too" evidence and its impact on summary judgment and trial.

For instance, in Wagoner v. Pfizer, Inc., 2008 U.S. Dist. LEXIS 24262, three sales representatives from different states sued Pfizer for age discrimination and sought to "prove their claims ...by showing a common plan or scheme to eliminate older employees."  Citing Sprint for the proposition that plaintiffs could bolster their claims by showing discriminatory treatment of other employees, the court ordered Pfizer to produce information about sales representatives terminated in those three states since January 1, 2004, as well as age discrimination charges and lawsuits nationwide since January 1, 2002 that involved the same persons that terminated the plaintiffs. 

In so doing, the court noted that it was irrelevant that plaintiffs were not pursuing a "pattern and practice" theory.  The Court denied the plaintiffs' request for information regarding Pfizer's hiring practices, noting that it was overly broad and that "simply alleging that plaintiffs seek evidence of corporate animosity is not sufficient."

On the other hand, a decision rendered just five days after Wagoner illustrates the trial court's inherent discretion to limit "me too" evidence.  Sgro v. Bloomberg L.P., 2008 U.S. Dist. LEXIS 27175.  In Sgro, three plaintiffs sued for age and disability discrimination, retaliation, and sexual harassment.  In opposing the defendant's motion for summary judgment, plaintiffs tried to establish pretext by introducing evidence that a manager made offensive, age-related statements.  The court acknowledged Sprint but nevertheless excluded this evidence because the manager was not involved in the employment decisions at issue and had no connection to the plaintiffs or their supervisors.  Based in part on the exclusion of this evidence, the court granted summary judgment.

The Ninth Circuit also joined the recent flurry of post-Sprint decisions by upholding the trial court's exclusion at trial of "me too" evidence in a gender discrimination, harassment, and retaliation case.  Reyna v. City of Portland, 2008 U.S. App. LEXIS 6720.  Underscoring that "the Supreme Court has directed that we afford broad discretion to a district court's evidentiary rulings," the court held that evidence of other purportedly discriminatory conduct in another department several years prior was properly excluded.  The Ninth Circuit's basis for affirming the district court's evidentiary ruling in Reyna mirrors those given by the district court in Sprint but rejected by the Tenth Circuit, i.e., that "me too" evidence lacked temporal proximity. 

In yet another recent case, the District of Kansas declined to rule on an in limine motion that sought to exclude "me too" evidence proffered by a former managerial employee of the defendant.  Jones v. UPS, Inc., 2008 U.S. Dist. LEXIS 24772.  In Jones, which entailed a claim for unlawful termination in retaliation for filing a workers' compensation claim, the court relied upon Sprint in concluding that, given its duty to undertake a fact-intensive, context-specific inquiry, it was more appropriate to rule on the employer's in limine motion "in [the] context of evidence presented at trial."  

These decisions suggest that the scope of permissible "me too" discovery will largely depend upon the extent to which claimants can establish a relationship between such evidence and the claims at issue.  To be sure, the scope of discovery is generally broad.  See, e.g., Fed. R. Civ. Proc. 26(b)(1) (information discoverable if "reasonably calculated to lead to the discovery of admissible evidence."); Hickman v. Taylor, 329 U.S. 495, 506 (1947) (information is "relevant to the subject matter" if it might reasonably assist a party in evaluating the case, preparing for trial or facilitating settlement).  Yet notwithstanding this generous standard, even the Wagoner court limited discovery only to evidence of claims asserted against the decision-makers involved in the plaintiffs' claims, imposed geographical limitations and altogether precluded discovery unrelated to termination.

Even where production of such "me too" evidence is compelled during discovery, introduction on summary judgment and at trial will require a stricter showing under Rules of Evidence 401-403.  In the absence of temporal proximity and/or a nexus between such evidence and the allegations and theory at issue, trial courts are more likely to conclude that the probative value of the evidence is substantially outweighed by the danger of undue prejudice, confusion of issues or waste of time.

For example, a showing that the same manager or supervisor was involved in other objectionable conduct or at least had some connection to the decision-makers at issue in the case might establish a sufficient showing for admissibility, particularly if coupled with evidence that the decisions were made pursuant to a uniform policy.  Moreover, such evidence is more likely to be admitted where the claimant alleges a company-wide policy of discrimination as in Sprint, or a "common plan or scheme" as in Wagoner.  Trial courts might also consider "me too" evidence of conduct by the same supervisor accused of creating a hostile work environment. King v. McMillan, 2008 U.S. Dist. LEXIS 28642.

Further, claimants may also be able to avoid pre-trial in limine rulings excluding "me too" evidence by arguing that a proper fact-intensive analysis under Sprint cannot be made until the evidence is fully developed at trial.  It behooves defendants to provide sufficient factual context in motions in limine to permit the trial court to conduct the required analysis before trial.

Ultimately, Sprint emphasizes that trial courts continue to enjoy wide discretion in making determinations regarding the discoverability and admissibility of "me too" evidence.  More often that not, the better prepared party is likely to prevail.

David Martinez practices complex litigation in the Los Angeles Office of Robins, Kaplan, Miller & Ciresi L.L.P.