Supreme Court Hears Argument in Similar Treatment Case

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. 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."

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.

The transcript of the oral argument shows a Court predictably split, with Scalia, Thomas, Alito and Roberts appearing to support a more restrictive view of evidence regarding similar treatment against proffered by other employees and Breyer, Ginsburg, Souter and Stevens arguing that such evidence is relevant and should be admissible. Justice Souter put it this way:

"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?"

So the case really appears to come down to a question of what Justice Kennedy thinks. And, if his questions during oral argument are any indication, he is inclined to hold that such evidence is inadmissible unless a nexus foundation is shown to exist between the decision at issue in the case at bar and that at issue by the other employee that would testify to similar treatment.

Frankly, after reading the transcript I'm left wondering whether this was a good case for the Court to take to address this issue. It remains unclear whether the trial court analyzed this evidentiary under Rule 401 or 403. This is an important question given the differing thresholds between the two. Justice Scalia spends a considerable amount of time on this issue in his questioning. Also of note is the fact that this case was not tried or argued on appeal as a "pattern and practice" case in which the conduct of the company as to other employees is clearly relevant.

Prediction: Close call but the company is likely to win this case. Because of the issues noted above, however, I have difficulty seeing in creating much of a change in existing law.

Related Links:

- Transcript of the Oral Argument

- American Constitution Society Guest Analysis of Case

Source for procedural history: Paul Secunda of the University of Mississippi School of Law and Workplace Prof Blog