Client Bulletin #383


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The U.S. Supreme Court had the opportunity to issue a ruling that “me-too” evidence in a discrimination case was either admissible or inadmissible per se. However, it has decided to do neither. Instead, evidence of other employees who allegedly suffered discrimination will be admitted or excluded based on the facts and circumstances of the case and in the discretion of the trial judge.

In Sprint/United Mgmt. Co. v. Mendelsohn, the plaintiff filed suit in the United States District Court of Kansas, alleging that she had been selected for a reduction in force because of her age. She sought to present testimony from five other employees, reporting to different supervisors, who were discharged during the same RIF and around the same time.

Sprint filed a motion to block the other employees’ testimony, contending that the five employees were not similarly situated to the plaintiff because they reported to different supervisors. The district court agreed, and Sprint went on to win at trial. The plaintiff moved for a new trial, and when her motion was denied, appealed to the U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming).

The Tenth Circuit reversed, finding that evidence of alleged discrimination against other employees was not always inadmissible. Although generally employees reporting to different supervisors may not be “similarly situated” because of the supervisors’ idiosyncratic standards, the court said, that is not the case with a company-wide RIF. In this case, the court said, because the plaintiff and the other employees were all terminated within a year as part of an on-going RIF and because their selections were based on similar criteria, testimony concerning the other employees’ circumstances was relevant to whether Sprint had a discriminatory intent.

Sprint petitioned for review by the Supreme Court, and in a decision that is sure to please no one, the Court unanimously refused to adopt a per se rule in either direction. Writing for the Court, Justice Thomas said that the district court, not the court of appeals, should normally determine whether “me-too” evidence is admissible in a particular case. “With respect to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it.”

Rule 403 of the Federal Rules of Evidence allows a judge to exclude even relevant evidence if the risk of unfair prejudice outweighs the probative value of the evidence.

Then Justice Thomas said that the relevance of the evidence would depend on a number of factors, including “how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Because it was not clear whether the district court had applied a per se rule, the Supreme Court remanded the case to allow the district court to make findings consistent with its decision. Whether Sprint has really won its case remains to be seen.

All in all, the Supreme Court’s decision was disappointing but probably the fair result. In many cases (dare we say the majority?), evidence of other employees will not be relevant and could be unfairly prejudicial to the employer. Presumably, “me-too” evidence in this type of case will continue to be excluded. However, there are cases in which treatment of other employees could help to prove whether an employer discriminated against a given employee. In some cases, evidence of other employees’ treatment may actually help the employer. As disappointing as it was not to get a “bright-line” rule, the Supreme Court’s ruling will probably not represent much of a change to the way things are already being done in the courts.

If you need assistance with labor and employment legal issues, please contact any member of Constangy’s Litigation Practice Group or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit, or call toll free at 866-843-9555.

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