The Supreme Court of the United States ruled in an age discrimination case that testimony by nonparties alleging discrimination at the hands of supervisors who played no role in the discriminatory acts challenged in the lawsuit was neither per se admissible nor per se inadmissible. Instead, the Supreme Court held that admissibility must be determined on a case-by-case basis and is within the discretion of the District Court. Sprint/United Management Co. v. Mendelsohn, No. 06-1221, February 26, 2008.
Ellen Mendelsohn sued Sprint under the Age Discrimination and Employment Act of 1967 (ADEA). In support of her claim, she sought to introduce testimony by five former Sprint employees who also claimed age discrimination even though none worked in Mendelsohn’s group or under the supervisors in her chain of command. Moreover, none of those witnesses heard any discriminatory remarks from Mendelsohn’s supervisors. Before the trial, Sprint moved to exclude the testimony, arguing that it was irrelevant to the central issues in the case because the employees were not similarly situated to Mendelsohn and the testimony would cause unfair prejudice. The District Court excluded the evidence and ruled that Mendelsohn could offer only evidence of discrimination against employees who were similarly situated to her, meaning that those employees had the same decision maker/supervisor and that there was temporal proximity.
The Court of Appeals for the Tenth Circuit treated the District Court’s ruling as the application of a per se rule that evidence from employees with different supervisors is irrelevant to proving discrimination in an ADEA case. In so doing, the Tenth Circuit attributed the District Court’s perceived abuse of discretion to reliance on Aramburu v. Boeing Co., 112 F.3d 1398 (CA10 1997), notwithstanding the fact that the District Court did not reference that case in its decision. Ignoring this fact, the Court of Appeals found that Aramburu was distinguishable because it addressed discriminatory discipline not a company-wide policy of discrimination. The Court of Appeals therefore determined that the evidence Mendelsohn sought to introduce was relevant and not unduly prejudicial and reversed and remanded the case for trial.
The Supreme Court of the United States agreed to hear the case 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 Court held that the Tenth Circuit should have applied an abuse of discretion standard to the District Court’s evidentiary ruling and should not have ruled that the Aramburu case controlled the evidence. Significantly, the Court noted that the District Court’s discussion did not cite Aramburu and gave no indication that its decision relied on that case. Moreover, nothing in the District Court’s decision suggested that it applied a per se rule of exclusion. Thus, the Supreme Court held that the Tenth Circuit should not have presumed that the District Court intended an incorrect legal result when the order was equally susceptible to a legally correct reading, particularly under the deferential abuse of discretion standard. Holding that questions of relevance and prejudice are for the District Court to decide, the Supreme Court directed the Tenth Circuit to remand the case to the District Court for clarification. In so doing, the Court stated: “The question of 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 . . . . [[T]he Rules of Evidence] do not make such evidence per se admissible or per se inadmissible . . . .”
Employment discrimination plaintiffs frequently attempt to introduce the testimony of other employees to bolster their claims of widespread discriminatory animus. In light of the Supreme Court’s ruling in Mendelsohn, employers will have the best chance of keeping such testimony from juries by showing that the other employees worked in circumstances very different from the circumstances under which the plaintiff worked. Factors such as different supervisors, different facilities, different jobs, and different policies can be key to drawing this critical distinction.