Age bias case returned for more review

The Supreme Court has left the door open for workers in age discrimination cases to present supporting evidence from other employees at a company.

In a unanimous decision Tuesday, the justices ruled that federal courts cannot categorically block so-called "me too" evidence of age discrimination or, by contrast, allow it to be used.

Instead, steering a middle ground, the court said such evidence may sometimes be used, but trial judges must weigh the facts and give a more complete explanation of their rulings than the one a judge gave in the case of former Sprint employee Ellen Mendelsohn.

"The question whether evidence of discrimination by other supervisors is relevant ... is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances," Justice Clarence Thomas said for the court.

Mendelsohn was a 51-year-old midlevel manager who sued after she was discharged from Sprint headquarters in Overland Park, Kan.

A federal jury in Kansas City, Kan., ruled against Mendelsohn after a judge excluded the testimony of five ex-employees from other departments at Sprint headquarters who claimed they had been released because of their age. Lawyers refer to such testimony as "me too" evidence.

The 10th U.S. Circuit Court of Appeals in Denver sent the case back for a new trial, saying the testimony of the five ex-employees supported an alleged companywide age discriminatory scheme.

The Supreme Court threw out the appeals court ruling Tuesday, but said it could not determine whether the trial judge's decision was correct.

"They almost split the baby there," said Karen Harned, executive director of the National Federation of Independent Business Legal Foundation. "At least it gives the discretion back to the district court."

Daniel Kohrman, a lawyer with the AARP Foundation, said employees who believe they are victims of age bias also could find good news in the decision. "It gives us a fair shot of making the argument that in this case the evidence you are advancing helps to show you were discriminated against," Kohrman said.

Sprint let Mendelsohn go in 2002 amid companywide layoffs that eventually numbered more than 14,000. She was part of the company's business development strategy group, which was scaled back from 75 employees to 57.

The supervisor who laid off Mendelsohn said she was the weakest performer in his unit.

Sprint's lawyers argued that if a different supervisor at a company harbors bias, that's unfortunate, but it is not relevant to the claim by the person who filed the lawsuit. Sprint contended that such information unfairly prejudices a jury against a company.

The Bush administration took a middle ground between Sprint and Mendelsohn, saying evidence of age bias is sometimes admissible when it is committed by other supervisors at the same company. It cited as an example another supervisor dismissing an employee, saying the company is on a youth campaign.

In Mendelsohn's case, none of the five employees who would have testified on her behalf was laid off by Mendelsohn's supervisor and none worked in her business development group. The five were laid off as many as nine months before Mendelsohn and as many as three months after.

The case is Sprint/United Management Co. v. Mendelsohn, 06-1221.

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