Supreme Court decision on "me too" evidence

Today (Feb. 26), the Supreme Court quickly issued an unanimous decision in the Sprint v. Mendelsohn case, on appeal from the Tenth Circuit, addressing the use of "me too" evidence, i.e., other witnesses testifying that other supervisors in the same workplace also discriminated / harassed or retaliated against them.

The Supreme Court, however, did not decide the ultimate issue, i.e., admissibility of such evidence, but instead punted back to the district court to explain its reasoning. The decision may be useful in upholding challenges to evidentiary rulings on appeal, i.e., the appellate courts should not be second-guessing evidentiary decisions under Rule 403, Fed. R. Evid., where those decisions are fact-intensive. Further, at the district court level, there is no per se rule as to the admissibility or exclusion of evidence under Rules 401 and 403, since those determinations turn on the specific factual circumstances of each case.

Some excerpts follow:

JUSTICE THOMAS delivered the opinion of the Court.

In this age discrimination case, the District Court excluded testimony by nonparties alleging discrimination at the hands of supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff. The Court of Appeals, having concluded that the District Court improperly applied a per se rule excluding the evidence, engaged in its own analysis of the relevant factors under Federal Rules of Evidence 401 and 403, and remanded with instructions to admit the challenged testimony. We granted certiorari on the question whether the Federal Rules of Evidence required admission of the testimony. We conclude that such evidence is neither per se admissible nor per se inadmissible. Because it is not entirely clear whether the District Court applied a per se rule, we vacate the judgment of the Court of Appeals and remand for the District Court to conduct the relevant inquiry under the appropriate standard.

. . . In a minute order, the District Court granted the motion, excluding, in relevant part, evidence of "discrimination against employees not similarly situated to plaintiff." App. to Pet. for Cert. 24a. In clarifying that Mendelsohn could only "offer evidence of discrimination against Sprint employees who are similarly situated to her," the court defined " ' [s]imilarly situated employees,' for the purpose of this ruling, [as] requir[ing] proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity." Ibid. Beyond that, the District Court provided no explanation of the basis for its ruling. As the trial proceeded, the judge orally clarified that the minute order was meant to exclude only testimony "that Sprint treated other people unfairly on the basis of age," and would not bar testimony going to the "totally different" question "whether the [reduction in force], which is [Sprint's] stated nondiscriminatory reason, is a pretext for age discrimination." App. 295a-296a.

The Court of Appeals for the Tenth Circuit treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case. . . . The Court of Appeals then determined that the evidence was relevant and not unduly prejudicial, and reversed and remanded for a new trial. We granted certiorari, 551 U. S. ___ (2007), to determine whether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.

. . . The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA 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. Applying Rule 403 to determine if evidence is prejudicial also requires a fact intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court of Appeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules.

[Alan Kabat / Bernabei & Wachtel, PLLC]