Sprint/United Management v. Mendelsohn

Workers who believe they lost a job or a workplace opportunity because of their age must offer proof that their age was the motivating factor for what happened to them. Since there is seldom direct evidence of the employer’s mindset, lawyers for workers in such cases try to prove a general propensity in the management of the company to favor younger workers. On Monday, the Supreme Court said it will consider, at its next Term, whether a worker claiming discrimination under the Age Discrimination in Employment Act can bring other workers into the case to testify that they, too, were victims of age bias on the job — so-called “me, too” evidence. The other workers would not have been in the case as actual parties, but were available to tell their stories to help prove the claim. (The new case does not involve a claim of a pattern or practice of discrimination based on age, but only a single worker’s claim.)

The case involves Ellen Mendelson, who worked for a company in Kansas City, Mo., named Sprint/United Management Co. (a subsidiary of Sprint Nextel Corp.) She was on the payroll there from 1989 to November 2002, working in business development activities.

In the fall of 2002, the Sprint unit, hit by the recession that generally spread through the telecom industry, decided to downsize its payroll. Other Sprint units elsewhere were also involved in the cutback, with the release of some 15,000 workers.

Mendelson, at the time, was 51 years old. She was laid off — one of 18 persons in her group who lost their jobs in the downsizing. Sprint later claimed that her performance had been weak, and that is why she was included in the group that got laid off. She claimed age bias was the controlling factor, charging company-wide discrimination against older workers. The Equal Employment Opportunity Commission rejected her challenge, finding no evidence of an ADEA violation. She thus was free to sue, and did so.

She asserted in her lawsuit that the bias against her was typical for the Sprint unit. Her lawyers then began assembling proof for the trial.

Mendelson’s counsel sought to call five other ex-employees of Sprint, all within the 40-and-over age range — the range protected by ADEA from discrimination. They, too, were ready to testify that they also were victims of discrimination, as was Mendelson. Sprint lawyers objected, arguing that they were not in the same situation as Mendelson, because none of them had worked for the supervisor who made the decision to lay off Mendelson. The District Court ruled that only workers laid off by the same supervisor could be called to testify on Mendelson’s claim, so it barred the prospective witnesses on her side. The case went to a jury, and it ruled in favor of Sprint, finding no discrimination against Mendelson.

The case then moved to the Tenth Circuit, which ruled in a 2-1 decision last Nov. 1 that a District Court trying an ADEA case must admit any testimony of other workers who claimed to suffer the same sort of bias against them — even if they had worked for a different supervisor, or in a different work unit for the same employer. While the Circuit Court said that, in the past, it had limited testimony in a job bias case to that of other workers who had the same supervisor, it stressed that the prior case involved only a claim of discriminatory disciplinary actions, and it had never applied that restriction in any other workplace context.

If “me, too” evidence were excluded when different supervisors were involved, the Circuit Court said, that would make it significantly more difficult in many circumstances to prove discrimination based on circumstantial evidence. Conceivably, an individual worker might be the only employee chosen for a reduction in force by a particular supervisor, but scores of other workers within the 40 and older group might have been treated the same way by other supervisors.

Sprint/United’s petition for review raises this question: “whether a district court must admit ‘me, too’ evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.” It contends that the Tenth Circuit ruling conflicts with decisions in other circuits — four holding that such evidence is wholly irrelevant, and five excluding it under the Federal Rules of Evidence. The issue, the appeal said, is a recurring question of proof in workplace discrimination cases.

The appeal is supported by he Equal Employment Advisory Council and the Society for Human Resource Management. They contended that admission of “me, too” evidence will prolong litigation in workplace cases, and will unfairly prejudice management as it seeks to defend itself, since management would be forced to justify every other employment decision it had made against any worker who is allowed to come in and testify.

The case will be briefed over the summer, and will be heard sometime in the fall or early winter.

[edit] Argument Preview

[edit] Background

Ellen Mendelsohn sued her employer under the Age Discrimination in Employment Act (ADEA), alleging she was terminated by her employer, Sprint, on the basis of age during a reduction in force (RIF). Individual supervisors made the termination decisions. In support of her claim of intentional age discrimination, Mendelsohn proposed to present five witnesses to testified that they also were subjected to age discrimination by the employer during the RIF. The witnesses worked at the same location, and were terminated during the same RIF, but they were terminated by different supervisors. The district court held that the testimony of the five witnesses was inadmissible. The jury eventually returned a verdict for Sprint and Mendelsohn appealed.

On appeal, a divided Tenth Circuit panel held that the exclusion of the witness testimony was an abuse of discretion. The majority rejected Sprint’s contention that the witness’s testimony was irrelevant as a matter of law because the witnesses were not terminated by the same supervisor as Mendelsohn. While the plaintiff had not brought a “pattern and practice” claim, the court concluded that Mendelsohn was still entitled to show that there was an unwritten “company-wide policy” of age discrimination, in which Mendelsohn’s and the others’ supervisors were participating. It was, therefore, sufficient that all of the witnesses were terminated during the same RIF and were all over 40. The majority rejected the dissent’s assertion that reliance on a claim of a company “policy” was permissible only if there was evidence, other than the testimony of the plaintiff and her proposed witnesses, substantiating the existence of such a policy.

Having rejected Sprint’s proposed “same supervisor” rule, the court concluded that the proffered testimony was relevant to Mendelsohn’s discrimination claim. The court noted that evidence of prior discriminatory conduct had long been considered relevant to prove discriminatory motive and concluded that a jury could reasonably find the alleged discrimination was made more likely by proof of “an atmosphere of age discrimination” and “Sprint’s selection of other older employees to the RIF.”

Finally, the Court rejected Sprint’s claim that the district court’s decision could be sustained under Federal Rule of Evidence 403, which allows exclusion of evidence when the risk of unfair prejudice, confusion or waste of time substantially outweighs the probative value of the evidence. The court acknowledged that rebutting the witness testimony could require Sprint to, in effect, defend against multiple claims of discrimination in the context of this individual suit. However, the court concluded that this burden “is not in itself enough to outweigh the probative value of Mendelsohn’s proffered evidence.” Nor, the court held, was the evidence unduly prejudicial.

Judge Tymkovich dissented. Given the size of Spring and the RIF, he concluded, the fact that Mendelsohn could find five witnesses to testify that they were also subject to discrimination by their supervisors said nothing about whether there was a company-wide policy or discrimination or whether Mendelsohn’s specific supervisor acted on the basis of age. Absent independent evidence of a company policy of discrimination, Judge Tymkovich would have required that any witness complaining of discrimination have been terminated by the same supervisor as the plaintiff.

[edit] Petition for Certiorari

Sprint petitioned for certiorari, asserting that the Tenth Circuit had established a per se rule requiring the admission of what Sprint called “me, too” evidence, in conflict with the decisions of the Supreme Court and several other courts of appeals. The petition alleged that four circuits – the Second, Third, Fifth, and Sixth – have adopted per se rules holding that evidence that another employee has been subject to discrimination must be excluded as irrelevant unless the witness and the plaintiff were subject to adverse employment actions at the direction of the same supervisor. Sprint further argued that at least five other circuits have held that even if such testimony might be relevant, it is inadmissible under Rule 403, because (a) considerations of undue waste and time – arising from the need to conduct a mini-trial on each witness’s allegation of discrimination – substantially outweigh the evidence’s probative value; (b) the evidence risk confusing the issues or misleading the jury; or (c) the probative value of the witness testimony is substantially outweighed by the risk of undue prejudice.

Mendelsohn’s brief in opposition argued that Sprint has misconstrued the Tenth Circuit’s opinion and mischaracterized the decisions of other circuits. She argued that the Tenth Circuit did not create an per se rule requiring the admission of the so-called “me, too” evidence in even instance. Instead, in her view, the Tenth Circuit simply held that the district court had abused its discretion in light of all the circumstances of this case (including, for example, the fact that Sprint’s own witnesses opened the door to such testimony after asserting that there was no evidence that other older workers had been treated unfairly). The decisions of other courts cited in the petition, Mendelsohn argued, likewise applied a context- and case-specific approach. Accordingly, she asserted, the case presented no issue of general legal significance, but rather a fact-bound dispute over the application of settled law. Finally, the brief in opposition argued that the Rule 403 question was not properly presented by this case because the district court excluded the evidence based solely on its conclusion that the evidence was irrelevant.

Sprint’s petition was supported by amicus briefs from the Equal Employment Council and Society for Human Resource Management, as well as a brief from AT&T Mobility LLC et al.

[edit] Merits Briefs

In its brief on the merits, Sprint emphasized that under Title VII, liability can only be shown by demonstrating discriminatory intent on the part of the person who made the relevant employment decision (here, the decision to lay Mendelsohn off during the reduction in force. Accordingly, Sprint asserted, evidence of discrimination against workers other than the plaintiff in a Title VII suit should be admitted only when it sheds light on the motivation of the particular decisonmaker responsible for the employment action challenged by the plaintiff. In this case, Sprint argued, the five witnesses Mendelsohn attempted to question had no information showing that Mendelsohn’s supervisor acted with discriminatory intent. Moreover, there was no proof that the various supervisors responsible for the alleged discrimination against the various witnesses were operating pursuant to some common scheme or plan along with Mendelsohn’s supervisor. At the very least, Sprint asserted, the district court had discretion to conclude that the evidence should be excluded, given the broad authority enjoyed by trial courts in making evidentiary rulings.

The Solicitor General filed an amicus brief on behalf of the United States (with the general counsel of the EEOC signing on to the brief as well), urging reversal. The Government argued that “other-supervisor evidence” is “sometimes, but not always, admissible” and that the court of appeals erred in directing the district court to admit the particular evidence in this case. Such evidence is relevant, the SG argued, if it “concretely suggests that a company-wide campaign is afoot” or shows a “pattern or practice” by the company as a whole. But there must be some connection between the acts of other supervisors and the alleged discrimination by the plaintiff’s supervisor. But, the Government continued, even relevant evidence may be excluded if it is unduly prejudicial, distracting or time consuming. In this case, the SG argued, the district court erred in concluding that there was a per se prohibition against other-supervisor evidence, but the court of appeals also erred in ordering the district court to admit the evidence, rather than remanding to allow the district court to decide whether, under the proper legal standard and on the facts of this case, the evidence should be admitted.

Respondent responds by arguing that, as an initial matter, the threshold for “relevance” under Rule 401 of the Federal Rules of Evidence is very low. The district court had, however, precluded the plaintiffs from presenting evidence regarding discrimination by other supervisors across the board. That blanket ruling, the plaintiffs argue, prohibited them from using other supervisor evidence in ways that have been commonly accepted by the courts, including the Supreme Court. First, the evidence could be used to establish a “pattern or practice,” which the Court has previously held is a viable method of proving that a particular worker has been subject to discrimination. Second, such evidence can show a “culture of discrimination” that is relevant to explaining the actions of any particular supervisor. Third, plaintiffs argue, a reasonable jury could conclude that evidence that other supervisors openly make discriminatory remarks reflects their belief that such attitudes are tolerated within the company, which in turn tends to support the view that a supervisor’s action in a particular case is in keeping with the company’s culture of discrimination. Fourth, other supervisor evidence can, respondents argue, show that the proffered reason for a plaintiff’s treatment is pretextual. For example, respondents’ argue, the excuse that an older worker was laid off because of her performance becomes less plausible when the jury is shown that many older workers were laid off and all were given the same excuse. Nor does Rule 403 permit the exclusion of other supervisor evidence in all cases, respondents assert. While Rule 403 may justify exclusion in some cases, respondents acknowledge, the district court erred in holding that it precludes other supervisor evidence across-the-board in all circumstances. Finally, respondents argue that because the Tenth Circuit was faced only with the district court’s per se rule, it did not error in failing to determine whether the specific evidence proffered here should have been excluded. Instead, the court properly left it open to the district court to decide that question during the retrial on remand.

In its reply brief, petition takes issue with the assertion that the district court based its decision on a per-se rule, as opposed to simply finding that respondents had failed to sustain their burden of establishing the admissibility of the particular other supervisor evidence they wanted admitted. For example, respondent argues that petition failed to make any showing that would justify admission of the evidence on the theory that it would show a “pattern or practice” because it was unaccompanied by any statistical evidence. Nor did the proffered instances of discrimination or discriminatory statements add up to a “culture of discrimination,” petition asserts. And even if a foundation were laid, the inevitable “mini-trials” on each alleged instance of other supervisor discrimination would have unduly delayed the completion of the trial and prejudiced the jury. Finally, Sprint disagrees with the Solicitor General that the case should be remanded for the district court to make a more particularized review of the proffered evidence because the proffer is manifestly inadequate to meet the standard of admissibility advanced by the Government.

Oral argument is scheduled for December 3. Petitioner will be represented by Paul W. Cane, Jr., of Paul Hastings in San Francisco. Respondent will be represented by Dennis E. Egan of the Popham Law Firm of Kansas City. Deputy Solicitor General Greg Garre will argue on behalf of the United States as amicus curaie.

[edit] Oral Argument Recap

Note: The following argument recap is by Paul Secunda of the University of Mississippi School of Law and Workplace Prof Blog, where this entry is cross-posted.

I have just had the chance to review the oral argument transcript in the important employment discrimination evidence case of Sprint/United Management Co. v. Mendelsohn. As this guest post points out over at the ACS Blog, a lot is at stake in this ADEA case, including whether certain circumstantial evidence is admissible in a pattern and practice case.

To the transcript to read the tea leaves:

Sprint’s attorney relies on the concept of foundation to explain why “other supervisor” and “cultural/atmosphere” evidence should not be admitted into evidence. To the point, only decisionmaker bias is relevant and therefore, evidence of bias by others in the organization is not probative of the legal issue at stake. Indeed, it should be presumptively irrelevant, although not completely barred. Justice Breyer points out, however, that the way the case was specifically handled here, there appears to be an absolute bar for these types of evidence.
Justice Scalia makes a good point that the district court’s granting of the motion in limine did not mention whether it relied upon Federal Rule of Evidence 401 (relevancy) or 403 (balancing probative value vs. prejudicial effect), but Sprint’s lawyer believes the judge relied on both in keeping the evidence out. There seems to be a lot of confusion among many of the Justices exactly what the district court held. The district court’s order is somewhat cryptic on why the evidence was excluded. Justice Scalia does not think this is crucial either because this type of evidence should be absolutely banned under 401, or the Court should rule that it would have been an abuse of discretion for the trial court to have allowed this type of evidence in under 403. Justice Alito appears to concur in this point.
From the start, Justice Souter’s questioning suggests that he thinks “other supervisor” evidence is highly probative of a pattern and practice of discrimination: “Well, if you have three supervisors, and one is discriminating and another is discriminating, isn’t that some evidence that you’re in an industrial situation in which discrimination goes on, and therefore doesn’t it have the tendency that amounts to relevance under 401?” Justice Souter seems put off by Sprint’s counsel’s non-responsiveness to his questions.
No surprise here given Justice Ginsburg’s background in employment discrimination law, but she is not buying the petitioner’s “foundation” or “nexus” theory, that there has to be a connection between the decisionmaker and another biased official in the sense that they conferred or directions were given. Thus: “more importantly, the other supervisors were persons that were not shown to have any connection with the decisionmaker with respect to this plaintiff.”
Justice Scalia seems to suggest that this case should be about the appropriate standard of review for the appellate court: “If there’s any basis on which the district court’s decision would have been correct, the district court’s decision is upheld.” Justice Alito follows this line later: “[If comes down to 403 question and] find that it would not have been abuse of discretion, then how could we affirm the Tenth Circuit [and find this evidence admissible]?”
Scalia also seems unhappy with petitioner’s argument and lends him a hand: “I don’t see that one can tell from the district court’s order whether the district court was relying on 401 or 403. And certainly, you just don’t want to defend 403. I think you’re digging a hole for yourself.”
Aligning himself with his normal allies on the court, Stevens seems to be on the side of respondent: “I am somewhat puzzled. How many bad actors does there have to be before you can draw an inference that someone superior to the bad actors had a motivating part in the whole situation?” I don’t think it is ever good for a Supreme Court oralist to hear from Justice Stevens that he is puzzled.
But importantly, and perhaps decisively, Justice Kennedy seems to believe in the nexus or foundation theory: “The inference they are trying to prove is there was somebody upstairs that told everybody what to do.” With lack of that type of evidence, there should not be admission of other supervisor or culture evidence.
Rule 404 comes up and Justice Kennedy asks if this real evidence about the character of the corporation, but Justice Stevens points out that Rule 404 has never been applied to corporate character evidence before. Apparently, neither parties briefed the 404 character issue.
The United States, supporting Sprint, takes the position that although this evidence is not always non-admissible, it was properly not admitted in this case. Although marginally relevant under 401, the government attacks the case under 403. Justice Scalia clearly wants this to be an open and shut 401 case, not dependent on 403: “[Referring to the fact of this case]: It is hard to see what wouldn’t be marginally relevant if you think that’s marginally relevant.” Again, Justice Kennedy appears to agree with Justice Scalia here in his own questioning of the government.
Chief Justice Roberts keeps saying in his question that evidence is relevant only if it turns out to be true. I think the government quite right to correct him: “In the Furnco case, the Court said that — that the evidence doesn’t have to conclusively demonstrate the fact. It simply has to be relevant. We put relevant evidence before juries, we instruct them on the consideration of that evidence, permit the defendants to put that evidence into context, and then we ask juries to draw a conclusion.”
Mendlesohn’s counsel has his worked cut out for him given the way the argument seems to be proceeding - either to a defer to the district court standard or to limit probative evidence of other supervisors to instances where there is a nexus between the various supervisors. Nevertheless, he is game and he argues that the 10th Circuit below suggested that the district court applied an absolute ban on other supervisor evidence and that this is inconsistent with the relatively low threshold of Rule 401. He goes on to point out: “So it depends. In rule 401, there is no categorical bar. In Article IV, if there are areas where there are problems, we list them. 407, 411 — no mention of liability insurance. 410.”
Chief Justice Roberts does not apparently see this as a pattern and practice case with a common discriminatory environment: “Well, but doesn’t that beg the question? We don’t know. This isn’t a pattern and practice case. You don’t have evidence of a company-wide policy of discrimination.” Roberts also does not seem to buy Mendlesohn’s culture of discrimination argument.
Mendlesohn also believes that plaintiffs should be given leeway in these cases: “We have many intermediary facts to which the evidence relates. They are facts of consequence, and the evidence had a tendency to show these facts of consequence. Justice Souter encourages Respondent in this argument as much as Scalia encouraged the other side.
Both Justice Breyer and Souter are concerned that allowing “me too” evidence might lead to mini-trials on whether the other statements were actually said and this will lead to confusion of the issue, such that the evidence will be inadmissible anyway under Rule 403. Roberts seems to agree. The otherwise Mendlesohn-supportive justices appear to believe that Scalia’s best point is that we should defer to the trial court absent an abuse of discretion.
One more interesting point: the Court asks about whether there is evidence of statistics here and the answer seems to be that the only statistics concerns the other supervisor/culture evidence. I don’t know if the Court will address it, but it is an interesting question of whether there can be a pattern and practice case without statistics and merely supported by anecdotal evidence.

I see this case coming out 5-4 in favor of Sprint. A majority opinion by Justice Scalia (joined by Kennedy, Alito, Thomas, and Roberts) saying that the district court should be deferred to in admitting evidence absent an abuse of discretion. Look for the court to also point out that allowing this evidence in would lead to mini-trials on other supervisor statements and so in most cases, this evidence is appropriately excludable under Rule 403. Justice Scalia may also try to get in that he thinks this case rises and falls on Rule 401, but I don’t think he has a majority on that point.

Justices Souter might agree in dissent that the trial court must be deferred to, but that since the case was not clearly decide on 401 or 403 grounds, the case should be remanded for a balancing under 403. I think they might also stress that there is not an absolute ban on “me too” evidence under 401, instead a proper balancing must be done on a case-by-case under 403. Finally, Justice Ginsburg may file a separate dissent, joined by Justice Stevens, finding that the “other supervisor” evidence and “culture evidence” is probative on the ultimate issue of age discrimination without being substantially outweigh by prejudicial effect in most cases like this one.

In the end, however, I don’t think this case will really accomplish that much, though it will be haled an employer victory. Employment discrimination defendants will continue to file motions in limine to exclude other supervisor evidence and culture evidence, plaintiffs will make offers of proof on other supervisor and culture evidence, and the court will use the 403 balancing to determine admissibility. My sense is that most of these balancings are currently coming out in favor of employment discrimination defendants anyway.

To put a positive spin on this, plaintiff attorneys may be happy if the case just establishes that there isn’t an absolute bar to this type of evidence under 401.