“Me Too” Evidence, Quirky Question # 63

Quirky Question # 63:

We are defending against a claim of age discrimination.  The plaintiff has lined up a number of current and former employees, each of whom apparently intend to testify that during their employment, they also were (or are) victims of age discrimination.  Is this legit?  These other individuals never filed claims of age discrimination against us.

Dorsey’s Analysis:

Your question takes me on a trip down memory lane. More than 20 years ago, I tried my first case in federal court – an age discrimination case in which I represented the Goodyear Tire & Rubber Company. Due to difficult economic circumstances, Goodyear had been forced to reduce the number of wholesale tire salesmen in Minnesota. Although we won most of the cases emanating from this situation on summary judgment, one of these cases was tried to jury verdict.

During the trial, plaintiff’s counsel called a number of other witnesses, also former Goodyear employees in the protected age group, who wanted to testify about the end of their employment relationships with Goodyear under various circumstances. We sought to exclude this testimony, without success. We then sought to limit the testimony to issues pertinent to the case being tried. The judge who tried the case agreed that this limitation was reasonable and instructed the other former employees not to discuss the circumstances relating to their own separations from the Company. Witnesses, however, don’t always follow judges’ instructions, especially when they have something they want to say. One witness, therefore, began his response to an otherwise innocuous question, by stating, “When I was fired at age 57, blah, blah, blah.” We immediately objected, and the court instructed the jurors to ignore the witness’s comments.

Interestingly, however, the judge allowed the jurors to ask questions of the witnesses at the conclusion of the questioning by plaintiff’s and defendant’s counsel. As soon as my opponent and I had concluded our questioning of this particular witness, the judge invited the jurors to ask questions. Despite being instructed to disregard the witness’s testimony about his personal situation, the first question posed by a juror to him was, “Why were you fired at age 57?” Proof positive that you cannot un-ring the bell.

The jury came back with a plaintiff’s verdict, finding that the plaintiff had been fired in violation of the Age Discrimination in Employment Act. The extent to which the jurors were influenced by the testimony described above is difficult to ascertain. Happily, I’m pleased to report that the Eighth Circuit viewed the facts somewhat differently than the jury. The Eighth Circuit reversed, but rather than send the case back for retrial, the appellate court directed that judgment be entered for Goodyear. Case over, defense victory.

Some 20 years later, the issue of which other “Me-Too” witnesses can testify and what they can say, reached the U.S. Supreme Court. In the case of Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (Sup. Ct. February 26, 2008), the nation’s high court evaluated the same issue described in your question and that I confronted in the Goodyear case. Ellen Mendelsohn sued Sprint for age discrimination. At trial she sought to present evidence from five other former Sprint employees whom she claimed also had been discharged because of their age. Sprint moved to exclude this evidence, pointing out that none of the other employees worked in the same Department in which the plaintiff had worked and none were supervised by the same person who made the decision to terminate Mendelsohn. The District Court excluded the evidence and the issue was presented to the Tenth Circuit. The intermediate appellate court apparently concluded that the lower court had applied a “per se” rule, mandating that the evidence be excluded, and instead offered its own analysis of the Rules of Evidence 401 and 403 (relevancy and prejudice), and how they should be applied to this type of evidence. The Supreme Court accepted cert to resolve the seemingly conflicting circuit court opinions on this issue.

The Supreme Court decision can be summed up in two words – “it depends.” The high court found that there should not be either a per se rule excluding such “me too” evidence, or a per se rule including such evidence. As the Supreme Court concluded, “The question 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. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.”

Here are a few thoughts for you to consider when evaluating whether the evidence presented by these other individuals is likely to be admissible in your case:

• did the manager who decided to terminate the plaintiff also make adverse employment decisions with regard to the other potential witnesses;
• were the adverse employment decisions the same (i.e., discharge, discipline, other);
• did the manager make any ageist comments toward your plaintiff or the other potential witnesses, and if so, were the comments the same or similar;
• did the manager engage in any biased conduct toward your plaintiff or the other potential witnesses, and if so, was the conduct the same or similar;
• if the decision-makers were not the same, did the plaintiff and the other former employees work in the same department;
• if the decision-makers were not the same, did the managers for the plaintiff and the other employees report to the same individual;
• were there any general corporate directives that affected the decisions to terminate the plaintiff or the other employees;
• were the employees basically the same age;
• were the employees similarly situated in other respects (type of job, length of tenure, education level, experience level, etc.); and,
• what role did your Human Resources group play with respect to the various decisions.

The answers to these and other questions will guide the court in assessing whether the “me too” evidence presented by your other former employees will be admissible. As the Mendelsohn court pointed out, this determination is “fact based” and depends on “many factors.”