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October Term, 2006--No. 12

June 11, 2007

The Supreme Court granted certiorari today in one case of interest to the business community:

Employment Discrimination--Evidence--Nonparty Testimony of Discrimination.

In actions under the federal employment discrimination laws, plaintiffs often seek to introduce testimony of other employees who allege that they have been discriminated against by the same company. The Supreme Court granted certiorari in Sprint/United Management Co. v. Mendelsohn, No. 06-1221, to determine whether such testimony of nonparties alleging discrimination by the same employer must be admitted into evidence.

In this case, plaintiff Ellen Mendelsohn alleged disparate treatment in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-634, based on her termination as part of a reduction in force (RIF). Mendelsohn sought to introduce testimony of five other employees over the age of forty who had been terminated as part of the same RIF but who had not been supervised by the supervisor allegedly responsible for her termination. The district court granted Sprint's motion in limine to exclude that evidence, holding that only "similarly situated" employees--i.e., employees who were supervised by the same supervisor and had been terminated in close temporal proximity to Mendelsohn--could testify. The Tenth Circuit reversed, holding that "[t]he testimony of the other employees concerning Sprint's alleged discriminatory treatment and similar RIF terminations is 'logically or reasonably' tied to the decision to terminate Mendelsohn" and that it was error to exclude it. 466 F.3d 1223, 1228 (2006). Although Mendelsohn did not allege a "pattern and practice" of discrimination, the Tenth Circuit held that the testimony of other employees nevertheless must be allowed "as circumstantial evidence of a defendant's discriminatory animus." Id. at 1227 n.2. The court further concluded that the prejudicial value of such testimony did not substantially outweigh its probative value. Id. at 1230-31. In dissent, Judge Tymkovich criticized the majority for "creat[ing] a rule that suggests [that] even the most tangentially relevant and prejudicial testimony by former employees is per se admissible." Id. at 1234 (Tymkovich, J., dissenting).

The Tenth Circuit's holding conflicts with the positions of at least five other circuits--the Second, Third, Fourth, Fifth, Sixth, and Seventh--and is reconcilable with decisions of only two other circuits--the First and the Eighth. Most of the circuits in the former group have found evidence similar to that at issue in this case inadmissible, reversing the decisions of district courts that had allowed introduction of such evidence.

This case is of great importance to all employers--and in particular large employers that have undertaken a RIF--because it addresses whether a company's liability in an individual disparate treatment action can turn on allegations of discrimination made by nonparties. By appearing to put forth a per se rule that plaintiffs must be allowed to introduce testimony by nonparty employees alleging discrimination, even when that alleged discrimination is at the hands of a different decisionmaker than the one allegedly responsible for the adverse employment action against the plaintiff, the Tenth Circuit's opinion raises the specter of employers effectively being forced to litigate repeatedly against discrimination claims other than the one before the court.

Mayer Brown filed an amicus brief supporting the petitioner at the certiorari stage on behalf of AT&T Mobility LLC, Honeywell International Inc., and Lockheed Martin Corporation. Absent an extension, which is likely, amicus briefs in support of the petitioner on the merits will be due on July 26, 2007; amicus briefs in support of the respondent will be due 35 days after petitioner's brief is filed. Any questions about this case should be directed to Archis Parasharami (202-263-3328) in our Washington, DC office.

Today the Supreme Court also invited the Solicitor General to file a brief expressing the views of the United States in the following case of interest to the business community:

Sprint Nextel Corp. v. National Ass'n of State Utility Consumer Advocates, No. 06-1184. The question presented is whether the Federal Communications Act, 47 U.S.C.  332(c)(3)(A), preempts state laws that regulate whether certain items can be separately itemized in cell phone bills.

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed.

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