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Supreme Court Decision On “Me-Too” Evidence Leaves Questions Unanswered

Published by on February 26, 2008

The U.S. Supreme Court issued a decision today in Sprint/United Mgmt. Co. v. Mendelsohn, No. 06-1221 (a copy of the opinion is here:  Sprint/United v. Mendelsohn).  The opinion leaves many questions about the admissiblity of so-called “me-too” evidence unanswered. Mendelsohn’s employment had been terminated as part of a reduction in force.  She sought to introduce […]

The U.S. Supreme Court issued a decision today in Sprint/United Mgmt. Co. v. Mendelsohn, No. 06-1221 (a copy of the opinion is here:  Sprint/United v. Mendelsohn).  The opinion leaves many questions about the admissiblity of so-called “me-too” evidence unanswered.

Mendelsohn’s employment had been terminated as part of a reduction in force.  She sought to introduce the testimony of five former Sprint employees who claimed that their supervisors had discriminated against them because of their age.  None of the witnesses, however, worked for the individuals who conducted the reduction in force and none of the alleged discriminatory comments recounted by the witnesses related to the supervisors in Mendelsohn’s chain of command.  The district court excluded this testimony at trial on the ground that it was not relevant under Rule 401 of the Federal Rules of Evidence.

On appeal to the Supreme Court, the parties argued over whether the evidence in question was relevant under Rule 401 of the Federal Rules of Evidence and also not unduly prejudicial under Rule 403.  In a twist, however, the Court decided that the Court of Appeals had erred in conducting the relevance and prejudice inquiries on its own.  Rather, the Court of Appeals should have remanded the matter to the district court for further clarification on the basis for its decision on each separate ground. 

The Supreme Court concluded generally that “me too” evidence is neither per se admissible nor per se inadmissible.  This conclusion means that the admissibility of “me too” evidence will be determined on a case-by-case basis without any bright line rule to guide trial court judges.  The only guidance in the opinion on this issue appears to be a statement in the conclusion of the opinion:  “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.”

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