By Richard Haygood

On December 3, the Supreme Court heard oral arguments in Sprint v. Mendelsohn, 466 F.3d 1223 (10^th Cir. 2006), cert. granted, 127 S.Ct. 2937 (2007). The case has received national media attention for raising the question of whether so-called “me too” evidence (testimony from other employees claiming they were also subjected to discrimination) is admissible to support a plaintiff’s claim of individual employment discrimination. The trial court had applied the rule announced in Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10^th Cir. 1997), and held that only evidence from employees who had the same supervisor as the plaintiff would be admissible to support plaintiff’s claim that her termination was based on her age. In reversing this ruling, the Tenth Circuit relied on the fact that Mendelsohn claimed “to be a victim of a company-wide discriminatory RIF.” Mendelsohn, 466 F.3d at 1228 (emphasis in original).

The Tenth Circuit distinguished Aramburu as being a discriminatory discipline case. Among the methods of proof available to a plaintiff in such a case is the introduction of evidence that the employer treated similarly situated employees not in the protected class more favorably than the plaintiff. In Aramburu, the Tenth Circuit held that plaintiffs seeking to introduce such evidence must show that they “shared the same supervisor as the proffered witness.” The Tenth Circuit explained this rationale as follows:

If X fires A, an Hispanic, for particular misconduct, but gives only a warning to B, a non-Hispanic, for identical misconduct, one might infer that something beyond the misconduct (such as a bias by X against Hispanics) motivated the disciplinary action. But if it was Y, not X, who decided not to impose a harsher sanction against B, one cannot infer that X's decision to fire A must have been motivated by something other than A's misconduct. X may simply have a less tolerant view toward misconduct than Y does. Cf. Kendrick, 220 F.3d at 1233 (“Different supervisors will inevitably react differently to employee insubordination.”).

Mendelsohn , 466 F.3d at 1227 (citing Rivera v. City and County of Denver, 365 F.3d 912, 922 (10th Cir.2004)). Other circuits have similarly restricted plaintiffs to introducing evidence of other employees alleging discrimination only where they shared a common supervisor. See, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6^th Cir. 1992) (holding that “ to be deemed ‘similarly-situated,’” the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish his/her conduct or the employer's treatment of him/her for it”); Flateau v. South Carolina Commission for the Blind, 50 Fed. Appx. 653, 2002 WL 31553805 (4^th Cir. 2002) (affirming summary judgment where plaintiff failed to show the decisionmaker in her case was involved in decisions affecting comparators)(citing Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7^th Cir. 2000)(holding that plaintiff must demonstrate that the same supervisor was involved in comparable situations to establish disparate treatment of similarly situated employees)); Stanback v. Best Diversified Products, Inc., 180 F.3d 903, 910 (8^th Cir. 1999)(same)).

Distinguishing the reduction in force situation from discriminatory discipline cases, the Tenth Circuit effectively adopted a rule that “me too” evidence is “per se admissible” in company-wide RIFs. In so doing, the court likened a RIF to a case involving a company-wide policy that is alleged to be discriminatory. The Tenth Circuit had previously held that “evidence regarding the discriminatory application of an enterprise-wide policy by other supervisors was admissible when the plaintiff has ‘other evidence of that policy.’” Mendelsohn, 466 F.3d at 1228 (citing Gossett v. Oklahoma ex rel. Bd. of Regents for Langston University, 245 F.3d 1172 (10^th Cir. 2001)). However, in Mendelsohn, the court found that Plaintiff’s “me too” evidence was itself sufficient “other evidence” to permit an inference of the discriminatory application of the company-wide RIF.

Judge Tymkovich, writing in dissent, criticized the Tenth Circuit’s circular reasoning, noting “the lack of any statistical or other direct evidence that supports an inference of enterprise-wide discrimination.” Mendelsohn, 466 F.3d at 1232. Judge Tymkovich wrote that “[w]hile Sprint may well have had policies designed to discriminate against older employees, without more, the excluded testimony does nothing to establish that fact, nor does it directly support an inference that Mendelsohn’s termination was wrongfully motivated.” Mendelsohn, 466 F.3d at 1233 (citation omitted). During oral argument, Justice Roberts also noted this issue, stating:

I assume there’s no dispute over any direct evidence you have that the supervisor was being guided by a company policy or statement or the RIF program that was discriminatory. The issue here is whether or not you can bring in testimony that – which has no demonstrated connection to the supervisor.

Mendelsohn Transcript at 39.

The Tenth Circuit’s holding fails to recognize the practical reality that individual managers are more often than not making individualized selection decisions even when in the context of a company-wide RIF. As Judge Tymkovich noted, even if Mendelsohn’s “me too” evidence demonstrated that managers other than her supervisor were motivated by discriminatory animus, “this does not in and of itself support the conclusion that [Mendelsohn’s supervisor] was so motivated.” Mendelsohn, 466 F.3d at 1233. Thus, the mere fact that two or more managers have acted with discriminatory animus does not suggest that they are acting based on some larger corporate directive to discriminate.

That said, most companies do not orchestrate an enterprise-wide reduction in force without providing some guidance to managers on how selection decisions are to be made. The Mendelsohn case reminds us that proper documentation of such guidance is critical to minimizing potential liability in discrimination claims. At a minimum, this documentation should include the business rationale for the reduction in force, instructions on what job-related criteria are to be considered by decisionmakers, and how selection decisions are to be made and carried out. In so doing, a company is creating affirmative evidence of the lack of any company-wide discriminatory animus. This evidence will prove valuable regardless of the Supreme Court’s decision in the Mendelsohn case.