Is ‘Me, Too' Evidence Admissible in Age Discrimination Cases? Supreme Court Holds, ‘It Depends.'

Case Background

Ellen Mendelsohn was employed in the Business Development Strategy Group of Sprint/ United Management Company (Sprint) from 1989 to 2002, when her employment was terminated as part of an ongoing company-wide reduction in force (RIF). Mendelsohn brought a claim against Sprint under the ADEA alleging she was included in the RIF because of her age. Mendelsohn was 51 years old at the time she was laid off. At trial, Mendelsohn sought to introduce the testimony of five other former Sprint employees who claimed that their supervisors had discriminated against them because of their age. None of these employees had the same supervisor as Mendelsohn. Nor were any of these employees' supervisors involved in the decision to include Mendelsohn in the RIF. Moreover, the witnesses did not report hearing discriminatory remarks by Mendelsohn's supervisors.

Sprint Moves to Exclude "Me, Too" Evidence

Sprint brought a motion in limine to exclude the testimony of these former employees as irrelevant because the employees were not "similarly situated" to Mendelsohn in that they did not have the same supervisor. In the alternative, Sprint argued that the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay. In a brief minute order, the U.S. District Court for the District of Kansas granted Sprint's motion to exclude the evidence. The order explained that Mendelsohn could offer evidence of discrimination against employees similarly situated to her. The term "similarly situated employees" was defined for the purposes of this ruling as those employees sharing the same supervisor as Mendelsohn.

Tenth Circuit Reverses District Court's Order to Exclude Evidence

Mendelson appealed the District Court's exclusion of the testimony to the Tenth Circuit. The Tenth Circuit reversed the District Court and held that the lower court had abused its discretion by applying a per se rule that evidence from employees of other supervisors is irrelevant in age discrimination cases. The Tenth Circuit presumed from the District Court's minute order that it had inappropriately adopted the "same supervisor" rule set forth in Aramburu v. Boeing Co., another Tenth Circuit case, holding that for the purpose of showing disparate treatment in employee discipline cases, similarly situated employees are those employees with the same supervisor. The Tenth Circuit distinguished Aramburu because it dealt with discriminatory discipline, not a company-wide policy of discrimination. The Court of Appeals then assessed the relevance of the evidence itself, determined that the evidence was both relevant and not unduly prejudicial, and reversed and remanded for a new trial.

Supreme Court Reverses and Remands Emphasizing Importance of District Court Discretion

The Supreme Court unanimously held that the Tenth Circuit had inappropriately applied the abuse of discretion standard of review by failing to give the District Court the proper deference and erred in concluding that the District Court applied a per se rule of admissibility under Aramburu. The Supreme Court stressed the broad discretion that district courts enjoy in determining the admissibility of evidence. The District Court's minute order was ambiguous, but the Tenth Circuit should not have presumed that the lower court had made an incorrect legal conclusion and then proceeded to make its own determination of admissibility. Rather, the case should have been remanded to the lower court for further clarification.

The Supreme Court then found that the question of whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is neither per se admissible nor per se inadmissible. It is a "fact-intensive, context-specific inquiry" that district courts should make due to their familiarity with case details and experience in evidentiary matters. However, if the District Court had applied a per se standard, then the Court of Appeals would have been correct to conclude that the lower court had abused its discretion.

Practical Considerations for Employers

The Supreme Court's decision that the admissibility of "me, too" evidence is neither per se admissible nor per se inadmissible can be viewed as either a victory or as a defeat from the point of view of employers. "Me, too" evidence may not always be inadmissible, but at least it is not always admissible. The employee will bear the burden of showing the relevance of such evidence.

The decision provides guidance as to the importance of a fact-intensive inquiry that must be made on a case-by-case basis at the district court level. Employers therefore need to continue to be diligent in their arguments against the admissibility of "me, too" evidence. Employers should be able to articulate specific facts unique to the case as to why employees are not "similarly situated" in order to convince the district court that "me, too" evidence should not be admitted.