U.S. Top Court Declines To Offer Guidance in 'Me Too' Bias Ruling

The justices missed an opportunity to clarify a frequently contested issue.

By Andrew M. Moskowitz

In Sprint/United Management Co. v. Mendelsohn, the U.S. Supreme Court addressed whether a plaintiff in an age-discrimination case may offer evidence of discrimination by supervisors who played no role in the plaintiff's termination.

In delivering the Feb. 26 opinion of the unanimous Court, Justice Clarence Thomas declared that such "me too" evidence "is neither per se admissible nor per se inadmissible," He noted that a district court's application of a per se rule excluding such evidence would constitute an abuse of discretion. However, in offering only minimal guidance concerning what factors lower courts should consider in determining such evidence's admissibility, the Court missed an opportunity to clarify a frequently contested issue in employment-discrimination cases.

In Mendelsohn, the plaintiff had sought to offer the testimony of five former Sprint employees who claimed that their supervisors had discriminated against them due to their age. None of the witnesses had worked for the supervisors in the plaintiff's chain of command, nor could they offer evidence of discriminatory remarks by these supervisors.

In granting the defendant's motion in limine to exclude this testimony, the lower court held that the plaintiff could offer evidence of other discrimination only where the plaintiff's direct manager was the decision-maker in the adverse employment action, and there was "temporal proximity." The district court did not issue an opinion; its ruling was merely a text entry on its docket sheet.

In reversing, the Tenth U.S. Circuit Court of Appeals concluded that the district court had erroneously "applied a per se rule [of exclusion]," The appeals court adopted the opposite rule and held that "testimony of employees, other than the plaintiff, concerning how the employer treated them [was] relevant to the employer's discriminatory intent."

In so ruling, the court distinguished its holding in Aramburu v. The Boeing Co., 112 F.3d 1398 (10th Cir. 1997), in which it had precluded testimony of other employees "in the context of a discriminatory discipline action ... [unless] they shared the same supervisor [as plaintiff]." The Tenth Circuit declined to extend the Aramburu holding "beyond the context of disciplinary cases."

In reversing the appeals court, the Supreme Court held that it was unclear whether the district court had applied a per se rule of exclusion and, due to this ambiguity, "the Court of Appeals should have remanded the case to the District Court for clarification."

However, with regard to what factors lower courts should consider in determining whether evidence of discrimination by other supervisors is admissible, the Supreme Court provided few guideposts. It noted only that determining the relevance of such evidence was a "fact based" inquiry that "depend [ed] on many factors, including how closely related the evidence [wa]s to the plaintiff's circumstances and theory of the case."

Mendelsohn was a closely watched case. Numerous parties — including the solicitor general, the Chamber of Commerce and the AARP — filed ami-cus curiae briefs. Accordingly, courts will surely parse and scrutinize Justice Thomas' "fact based" inquiry standard. Practitioners will argue over whether other supervisors' actions are "closely related" to a particular plaintiff's "circumstances and theory of the case." Of course, allegations of discrimination will always share certain similarities. How "closely related" must they be? And what are the other, "many factors"? The Mendelsohn opinion left these questions unanswered.

Similarly, the Court failed to address when Rule 403 might preclude such evidence. Rather, the Court noted only that "determin[ing] if [such] evidence is prejudicial also requires a fact-intensive, context-specific inquiry." Yet all Rule 403 inquiries are fact-intensive. As to what the Court intended by "context-specific," this term appears to reinforce the Court's holding that a per se rule should not be applied in such circumstances.

However, Mendelsohn provides appellate and trial courts with no guidance as to how they should determine whether the probative value of "unrelated" allegations of discrimination is substantially outweighed by the danger of unfair prejudice.

In sum, the admissibility of "me, too" evidence remains an unsettled question.

Moskowitz, a partner with Deutsch Atkins in Hackensack, focuses primarily on employment and commercial litigation matters.