U.S. SUPREME COURT HOLDS "ME TOO"
EVIDENCE MAY OR MAY NOT BE ADMISSIBLE IN A GIVEN CASE
On February 26, 2008, the U.S. Supreme Court ruled in Sprint
v. Mendelsohn that, in the trial of an employment
discrimination claim, the testimony of other employees who
claim to have been subject to discrimination (so-called
“me too” evidence) may or may not be admissible,
depending on the facts of the case. Thus, the Court did
not provide a definitive test to resolve the issue.
Facts of the Case:
The plaintiff lost her job in a reduction in force and sued
the company for age discrimination. At trial, she sought
to introduce the testimony of five other former employees
who claimed that they, too, were subject to discrimination
by their supervisors because of age. Some also would have
testified about allegedly age-biased statements, practices
or conduct that they had heard, seen or experienced. None
of them worked in the same division as the plaintiff or
under the same chain of command. The judge refused to permit
the testimony of witnesses “not similarly situated
to plaintiff” (which he defined as employees not working
for the same decision-making supervisor and not testifying
to acts close in time to plaintiff’s discharge). On
appeal, the Court of Appeals ruled that the judge improperly
applied a per se rule against permitting testimony by nonparties
alleging discrimination by supervisors having no role in
the decision challenged by the Plaintiff.
The Court’s Ruling:
The Supreme Court reversed the Court of Appeals, holding
that trial courts have the discretion to review the facts
to determine whether testimony is admissible in a given
case. “The question whether evidence of discrimination
by other supervisors is relevant in an individual ADEA case
is based and depends on many factors, including how closely
related the evidence is to the plaintiff’s circumstances
and theory of the case.”
Lessons Learned:
The case did not deliver a hoped-for per se rule that “me
too” evidence is never admissible unless it concerns
the same decision-maker. Instead, it relies on the general
rule that questions about admissibility of evidence should
be left to trial judges to decide in the first instance,
based on the facts and circumstance of a given case. The
most immediate impact of the decision may be in discovery,
where the decision could be used by plaintiffs to counter
an employer’s effort to limit the scope of discovery
to decisions by the same decision-maker.
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
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