ADEA-RIF: Testimony of Non-Similarly Situated Employees Excluded, But No Per Se Rule

Sprint/United Management Co. v. Mendelsohn, 128 S.Ct. 1140, No. 06-1221, 2008 U.S. LEXIS 2195, 2008 WL 495370 (Feb. 28, 2008)

Monday, May 12, 2008
Contributed by: Kelly Utsinger

Ms. Mendelsohn (Plaintiff) sued Sprint/United Management Co. (Sprint) for age discrimination when she was fired in a reduction in force. Sprint moved to exclude the testimony of five non-party employees who contended, inter alia, they had also heard age-related discriminatory remarks from the lips of other Sprint managers, had seen a spreadsheet showing age was a factor in determining layoffs, or had been "banned" from employment due to age. None of these alleged acts of discrimination was ascribed to the manager who terminated Plaintiff, so Sprint argued that the non-parties' testimony was inadmissible because they were not "similarly situated" as to the firing decision maker. Sprint also asserted that the prejudicial impact outweighed the probative value of the evidence under Federal Rule of Evidence 403. The trial court excluded the evidence of "discrimination against employees not similarly situated to plaintiff," defining "similarly situated" as having the same decision-maker responsible for the alleged adverse action, and "temporal proximity."

Believing trial court had erroneously applied a per se rule of inadmissibility to testimony concerning age-related discriminatory acts observed or suffered by non-party employees, the 10th Circuit Court of Appeals reversed the District Court, finding the evidence to be relevant and admissible.

The U.S. Supreme Court was not so quick to second guess the District Court on matters of admissibility. It vacated the appellate reversal and remanded the case to the District Court for clarification of the basis for excluding the evidence. The Supreme Court was unconvinced that the District Court had applied a per se rule, but cautioned: "had the District Court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion." It went on to announce, "[R]ules 401 and 403 do not make such evidence per se admissible or per se inadmissible."

The admissibility of alleged discriminatory acts of other supervisors turns on the trial court's application of the rules of relevance and unfair prejudice. Adopting a per se rule of admissibility or inadmissibility of such acts would be an abuse of discretion, but it appears that alleged discriminatory acts outside a claimant's chain of command may be of questionable admissibility because the non-party employees may not be similarly situated.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.