Outten & Golden: Empowering Employees in the Workplace

Workers Win One Here and There

March 1st, 2008 | Paula Brantner

As we’ve mentioned more than once around here, the Roberts Supreme Court isn’t the most friendly to workers, and might even be less friendly than the Rehnquist Court. But every once in a while, the little guy gets some bones tossed his way. (Sorry to mix metaphors and not use gender neutral language in the same sentence.) That’s what happened recently in a couple of recent cases, where workers staved off the worst that could have happened from the court.

In the first decision to be issued, Sprint/United Management v. Mendelsohn (capably represented on the plaintiff’s side by Dennis Egan, Workplace Fairness board member), both sides could actually declare victory, since the case was sent back to the trial court for resolution.

Ellen Mendelsohn had worked for a Sprint subsidiary from 1989 until November 2002, when she was laid off from in a reduction in force, affecting some 15,000 employees. Mendelson was 51 years old at the time of the layoff, and brought a lawsuit under the Age Discrimination in Employment Act. Sprint responded by claiming Ms. Mendelsohn’s weak performance was responsible. When assembling evidence against Sprint, Mr. Egan sought to call five other former employees as witnesses, all of whom were over 40 and were ready to testify that they, too, had been subjected to discrimination, in an attempt to prove that there was a biased culture against older workers at Sprint. Sprint attorneys objected, saying that the other workers worked for different supervisors, and accordingly were not in the same boat as Mendelsohn.

The District Court (the first, trial-level court) ruled in favor of Sprint, determining that only workers who worked for the same supervisor as Mendelsohn would be allowed to testify, which barred Mendelsohn’s proposed witnesses. At trial, without hearing from Mendelsohn’s witneses, the jury voted in Sprint’s favor, finding that Mendelsohn had not been discriminated against.

The 10th Circuit Court of Appeals reversed the initial ruling in a 2-1 decision that compelled district courts to admit the testimony of other workers who claimed to be the victims of the same type of bias, even if they worked for a different employer or work unit. The court reasoned that excluding this evidence would make it much more difficult to prove discrimination using circumstantial evidence. If an employee was the only victim of a layoff under an individual supervisor, he or she would be out of luck, even if the highest echelons demanded the layoffs of all older workers.

Sprint was unhappy with the decision requiring that the evidence be admitted, and appealed the 10th Circuit ruling to the Supreme Court. At the oral argument (which I had the privilege of attending), things did not look good for Ms. Mendelsohn and Mr. Egan. As one analysis of the oral argument pointed out, “Mendlesohn’s counsel [had his work] cut out for him given the way the argument seems to be proceeding,” and went on to predict a 5-4 decision in Sprint’s favor. Mr. Egan was aggressively questioned as to whether admitting this evidence would lead to “mini-trials” over whether the evidence offered about other employees was true, which could, in Justice Breyer’s words, “muck up quite a lot of trials.” (See Oral Argument Transcript at page 46.)

When the decision was issued on February 27, it was a 9-0 decision in favor of Sprint. How then, you ask, can this be a decision in favor of workers? Bear with me. Remember, the trial court said the evidence from the other workers couldn’t be admitted, and the appellate court said it must be admitted? The Supreme Court unanimously said, in an opinion written by Justice Thomas, that both lower courts were wrong — that the evidence didn’t have to be admitted, and didn’t have to be excluded, but that it should be determined on a case-by-case basis.

As the analysis cited above said, “plaintiff attorneys may be happy if the case just establishes that there isn’t an absolute bar to this type of evidence…” And that’s what happened. As pointed out by plaintiff’s counsel Egan, “Sprint and the business community had urged the court to say this evidence is never admissible, and the court said no to that.” (See Los Angeles Times article.)

The Court said whether the evidence should be admitted “depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Since the District Court judge hadn’t explained her ruling in the two-sentence order she issued rejecting the evidence, the case was sent back to her for a more substantive ruling. While it isn’t clear whether Ms. Mendelsohn will ultimately prevail, at least now there’s a chance for her to demonstrate a connection between the “me too” evidence and her own case. As the New York Times remarked, “Now it is up to the district court to better explain why it ruled as it did originally on the admissibility or non-admissibility of the other workers’ testimony in Ms. Mendelsohn’s case.” (See New York Times article.)

Given that at least two of the witnesses had known Ms. Mendelsohn for years (see Kansas City Star article) and the District Court may be very cautious after being overruled by the U.S. Supreme Court, there’s hope for Ms. Mendelsohn, and for other plaintiffs who want to introduce similar “me too” evidence of a discriminatory culture. There are just some days when just getting a shot at proving your case and not getting thrown out of court is a victory, and this is one of them.

In my next blog post, I’ll talk about another worker victory.

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