Admission of Evidence of Alleged Discrimination by Other Supervisors Must be Decided on Case by Case Basis Using the Rules of Evidence.

In many opinions over the past several years the U.S. Supreme Court has resolved contentious employment discrimination cases by issuing brief?9-0 opinions that answer fewer questions than they leave open. ?Justice Thomas did it again in?this case arising under the ADEA.?? The plaintiff lost her job in a company-wide reduction in force. To prove her case of age discrimination she sought to introduce evidence that other supervisors had made? statements? suggesting? the? company? was using the RIF to get rid of its older workers. ?The district?? court?? ruled?? that?? none?? of?? the?? other employees were similarly situated and excluded all of this evidence.? ?The plaintiff went to trial and lost.?? On appeal the Tenth Circuit held that the district court had abused its discretion by ruling as a matter of law that co-worker evidence regarding the? actions? of? other? supervisors? was? irrelevant. The Tenth Circuit also ruled that the plaintiff?s evidence was admissible as a matter of law. ?The Supreme Court reversed.?? Deciding the case on a ground? that? none? of? the parties? had? argued,? the Court held that the Tenth Circuit was wrong when it concluded that the district court had made its ruling in this case on the basis that other supervisor evidence (dismissively called ?me too evidence? in some quarters) was per se inadmissible. ?The Court agreed with the Tenth Circuit that such a decision would have been contrary to law had it been the basis for the district court?s decision.?? The Court ruled that a district court should admit other supervisor evidence under normal evidentiary standards of Rules 401-403.?? Such a decision is ?fact?? based?? and?? depends?? on?? many?? factors, including how closely related the cases is the plaintiff?s circumstances and theory of the case.? The Court remanded the case to the district court to clarify the basis for its decision to exclude the evidence in this case. ?Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140 (2008).