Federal Evidence Review

In February 2008, the Supreme Court issued a decision in Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008), an employment law case that defined the central role of the trial court judge in evidentiary determinations under the FRE; the Court cautioned that appeals courts "rather than" make relevance determinations under FRE 401 and FRE 403, should "allow[ ] the District Court to make these determinations in the first instance"; on remand to the district court and appeal back to the Tenth Circuit, the circuit "hold[s] that the district court did not abuse its discretion" in excluding “me too” age discrimination evidence in the plaintiff's employment discrimination case, affirming the jury verdict for the defendant employer, in Mendelsohn v. Sprint/United Management Co., No. 08-3334, 2010 WL 4540310 at 3-4 (10th Cir. Nov. 12, 2010) (Not Published)

As a follow-up to prior blog posts, such as, Supreme Court Watch: Trial Court's Essential Role In FRE 401/403 Relevance Determinations and Fifth Circuit Explains Application Of Sprint/United Management Co. v. Mendelsohn on the the decision in Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008), the Federal Evidence Blog can report on the final disposition of the underlying case after its remand.

Background To The Supreme Court Opinion

In Sprint/United Management Co. v. Mendelsohn,, plaintiff Mendelsohn claimed that her firing during a company-wide reduction in force, was caused by illegal age discrimination. The case raised the issue of the admissibility of so-called “me too” discrimination evidence. This is evidence purporting to show that the alleged discrimination suffered by the plaintiff was also suffered by other employees who were not a party to the suit.

In Mendelsohn, the defendant employer moved prior to trial to exclude the testimony of five employees who also claimed age discrimination on the part of the employer, but did not work in the same group as the plaintiff and did not work under the supervisors that the plaintiff reported to. None of these witnesses could claim to have heard any remarks by the plaintiff's supervisors which constituted the proof of the alleged illegal age discrimination.

The trial court struck the "me too" evidence as irrelevant under FRE 401. In addition, the trial judge concluded that even if relevant, the evidence was unfairly prejudicial under FRE 403. The minute order issued by the judge regarding the proffered "me too" evidence, the court excluded evidence of “discrimination against employees not similarly situated to plaintiff.” In the jury trial that followed, the verdict was for the defense and the plaintiff appealed.

The Tenth Circuit reversed and remanded for a new trial. The circuit construed the trial court’s minute order as based upon a per se rule “that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case.” The circuit then proceeded to consider the admissibility of the excluded evidence and determined that the proffered testimony was relevant and not unfairly prejudicial.

In taking up its review of the case, the Supreme Court explored the role of trial courts in applying the FRE 401 relevance and the FRE 403 balance of probative value and undue prejudice. Even though its unanimous opinion, written by Justice Thomas, found no per se rule excluded or admitted the "me too" evidence, the Court also explored the relation of the appellate courts and the trial courts in making evidence decisions. The Supreme Court concluded that the Tenth Circuit erred in conducting its own analysis of the evidentiary issue without obtaining further information on the trial court's rationale. The Supreme Court emphasized that an abuse of discretion standard applied to trial court evidentiary determinations, and the trial court should not be reversed absent a finding that it had abused its discretion.

Justice Thomas noted that the federal trial courts had a superior position for addressing and resolving relevance and unfair prejudice issues. Indeed, "questions of relevance and prejudice are for the District Court to determine in the first instance," wrote Justice Thomas. "Rather than assess the relevance of the evidence itself and conduct its own balancing of its probative value and potential prejudicial effect, the Court of Appeals should have allowed the District Court to make these determinations in the first instance, explicitly and on the record. With respect to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it." Mendelsohn, 552 U.S. at 387 (emphasis added; citations and footnote omitted).

After noting that neither FRE 401 relevance or FRE 403 undue prejudice could be resolved by use of "broad per se rules," the Court directed that an

"appellate court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential…. When a district court’s language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion. A remand directing the district court to clarify its order is generally permissible and would have been the better approach in this case.”

Mendelsohn, 552 U.S. at 386 (emphasis added; citations and footnote omitted).

The Case On Remand
Since the Supreme Court's action in the case:

"On remand, the district court held that the other-employee testimony was properly excluded pursuant to Federal Rules of Evidence 401 and 403. The district court further held that, to the extent its exclusion of this evidence was in error, such error was harmless. Accordingly, the district court denied Ms. Mendelsohn's motion seeking a pretrial evidentiary hearing, a new trial, and the enforcement of the parties' conditional settlement agreement. Ms. Mendelsohn's instant appeal followed."

Mendelsohn,No. 08-3334, (10th Cir. Nov. 12, 2010).

The Tenth Circuit affirmed the trial court's disposition. The circuit in assessing the trial judge's relevance decision noted that relevance in the case was guided by assessing whether the proffered evidence "makes a defendant's proffered justification more or less likely to be pretextual." This would advance “[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment ... whether the plaintiff was the victim of intentional discrimination." Mendelsohn, , No. 08-3334, (10th Cir. Nov. 12, 2010). As noted by the Circuit:

[W]hether 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.” For such evidence to be relevant, a plaintiff must establish a nexus between the other-employee testimony and the adverse employment action taken against her: she must show that the other-employee testimony “can logically or reasonably be tied to the adverse employment action” that she suffered.... "[A]necdotal evidence of discrimination should only be admitted if "the prior incidences of alleged discrimination can somehow be tied to the employment actions disputed in the case at hand." by a finding that the proffered evidence (here, the "me too" evidence of discrimination allegedly suffered by other employees) "makes a defendant's proffered justification more or less likely to be pretextual."

Mendelsohn, , No. 08-3334, citing Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000) (quoting Simms v. Oklahoma, 165 F.3d 1321, 1330 (10th Cir. 1999) (other citations omitted)).

Having clarified the standard, the circuit concluded that the trial judge did not abuse his discretion in deciding that the "me too" evidence was not relevant. The trial judge's conclusion might not be the conclusion that the appellate court would have entered had it tried the case, but this was not the standard. Rather,

"On remand, the district court explained that its previous minute order “was not applying a per se rule that evidence from employees of other supervisors is irrelevant in age discrimination cases.” The district court analyzed the facts and the relationship between the evidence and Ms. Mendelsohn's circumstances and theory of the case. The district court considered the 'huge' size of the RIF, 'the fact that plaintiff had never characterized the RIF as anything but a legitimate cost-cutting measure,' and Ms. Mendelsohn's failure to 'establish[ ] a sufficient nexus between the decisions of other managers and the decision-makers in her case.' The district court noted that 'none of plaintiff's five witnesses worked in BDS or reported to Blessing, Reddick or Fee.' Similarly, the district court observed that the ageist remarks allegedly heard by Ms. Hoopes, Ms. Wood, and Ms. Miller were made by managers at Sprint who 'were not in the same chain of command as plaintiff and did not participate in the decision to terminate plaintiff's employment.' "

Mendelsohn, , No. 08-3334 (citing Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201, 1207-10, 1218 (D. Kan. 2008)).

Conclusion

In an earlier blog essay, the Federal Evidence Blog suggested "two primary lessons" to draw from the Supreme Court case. As disposed of by the Tenth Circuit this month, the lessons are still appropriate:

First, as always, parties should be vigilant in creating a good record on relevancy, unfair evidence and other evidence issues before the trial court. Second, where the record is uncertain concerning the basis for the trial court’s rules (as with the minute order in Sprint/United Management), the circuit should not decide these issues but should remand the case to the trial court to determine in the first instance.

Supreme Court Watch: Trial Court's Essential Role In FRE 401/403 Relevance Determinations