The U.S. Supreme Court has been asked in reviewing the case to determine if employees trying to prove discrimination in the workplace have to limit themselves to co-workers with the same supervisor when presenting witnesses in court (See Supreme Court to Hear Sprint ADEA Case ).
The decision may apply equally to the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964; race discrimination claims under 42 U.S.C. 1981; and certain parts of the Family and Medical Leave Act (FMLA), employment law scholar Paul Secunda of the University of Mississippi School of Law told the Legal Times.
Sprint, supported by a host of businesses and business organizations such as the U.S. Chamber of Commerce, argues that the high court should articulate a “simple and categorical” rule that this so-called “me, too” evidence is always inadmissible absent a demonstrated link between it and the specific decision challenged by the plaintiff, the Legal Times reports.
Sprint’s counsel Paul Cane, who will argue the case, said the presumption is that “other-supervisor evidence” will be inadmissible because it usually will not shed light on the decisionmaker’s intent. “If some other person harbors bias, that is regrettable but not probative of a plaintiff unaffected by it,” he said in the news report.
The Bush administration also argues for reversal, but the U.S. solicitor general says in an amicus brief that “other-supervisor” evidence is sometimes, but not always admissible, according to the news report. The government says evidence is relevant if it has “any tendency to make more probable” that age motivated the decision by the plaintiff’s supervisor.
“Even a single act of discrimination by another supervisor can satisfy that standard, such as where the evidence concretely suggests that a companywide campaign is afoot,” the government argues, according to the Legal Times. However, the government contends that the 10th Circuit erred in ordering the district court to admit Mendelsohn’s evidence and instead should have remanded the case to the district court for application of the proper legal standard.
The suit, Sprint/United Management Co. v. Ellen Mendelsohn (06-1221), was originally brought by Ellen Mendelsohn, the oldest manager in her unit, who asserted that the company’s November 2002 reduction-in-force (RIF) was unfairly targeted against older workers and violated the ADEA.
Mendelsohn tried to introduce testimony from five other employees who were terminated during the RIF and who also thought they had been discriminated against, but a trial judge blocked that testimony under the same-supervisor rule, which limits evidence to comparison of a supervisor’s disciplinary action with other actions of the same supervisor against other employees.
On appeal, the 10th Circuit held that the lower court had wrongly excluded the testimony and found that the evidence was appropriate (See Sprint Employee Prevails in Appellate Court ADEA Ruling ).
The district court's blanket, pretrial exclusionary order prohibited four broad categories of evidence: a pattern and/or practice of age discrimination; a culture or history of discrimination; age-biased remarks by any Sprint official except the particular supervisor who assertedly selected Mendelsohn for layoff; and any other evidence of other-supervisor discrimination that might support Mendelsohn's age claim, said Mendelsohn's counsel, Dennis E. Egan.
In appropriate circumstances, each of these types of other-supervisor evidence can easily satisfy the relevance standard in Federal Rule of Evidence 401, according to Egan, who is supported by the AARP and the Lawyers' Committee for Civil Rights Under Law.
Management attorney Frank Morris noted that if this evidence is admissible at trial because it is relevant, that could mean it must also be considered on summary judgment as to whether a plaintiff can create a substantial issue of material fact as to discrimination or pretext for discrimination. "Not an enormous number of cases go to trial, but a huge number of cases have summary judgment motions," said Morris, in the news report. "If this evidence can be successfully used to keep a summary judgment motion from being granted, its impact [on defendant employers] would be enormous."
"If 'me, too' evidence is a proper element, every plaintiff will try to introduce it," Morris continued. "It will force an employer to defend not only the real case but any number of other phantom cases." But attorney Paul Mollica disagreed, saying "It's very important to introduce evidence of other discrimination."
Besides the Sprint suit, a case argued in the Supreme Court on November 6, Federal Express v. Holowecki, No. 06-1322, also could resound beyond the ADEA. In that case, the justices will decide what constitutes a "charge" of discrimination that a worker must file with the Equal Employment Opportunity Commission (EEOC) before bringing a lawsuit under the ADEA.
Two remaining ADEA cases on the high court's docket are ADEA-specific. One asks whether the statute's federal-sector provision permits retaliation claims against federal employers (Gomez-Perez v. Potter, No. 06-1321), and the other asks whether a benefit plan providing lower disability benefits, or denying disability benefits, to workers who are old enough to qualify for ordinary retirement benefits violates the ADEA (Kentucky Retirement Systems v. EEOC, No. 06-1037).
In September, a U.S. District judge approved a $57 million settlement resolving claims that Sprint Nextel Corp. targeted older workers during companywide layoffs (See Sprint Settles Age Discrimination Suits for $57M ). The Associated Press reported the lawsuit, filed in 2003, alleges then-Sprint Corp. illegally moved employees who were 40 years or older to positions that were then eliminated as part of the company's efforts to scale back. The company denied the allegation, but said it decided on a settlement to save on legal expenses.