In an oral argument on Monday, December 3, justices wrestled with questions about the relevance of testimony in discrimination suits from employees whose supervisor is not the same as the plaintiff’s.

The case involves Ellen Mendelsohn, 51, a Sprint manager who was laid off in November 2002 after 16 years with the company. Employed at the firm’s headquarters in suburban Kansas City, Mendelsohn was part of a downsizing that reduced Sprint’s payroll by about 15,000 from October 2001 through March 2003.

In 2003, Mendelsohn sued Sprint, alleging that she was fired because of her age. To support her claim and illustrate a Sprint policy of targeting older workers, she intended to have five colleagues testify who also alleged age discrimination.

But the trial court judge did not allow Mendelsohn’s co-workers to appear because they did not have the same supervisor as Mendelsohn. The jury ruled in favor of Sprint.

The 10th Circuit Court of Appeals, however, overturned the verdict, saying that the trial judge made a mistake in excluding the Mendelsohn’s colleagues. Sprint appealed the case to the Supreme Court.

The so-called “me too” evidence can be evaluated through two different federal rules. One rule, known as 401, allows its use if it helps illuminate a discriminatory motive. Another rule, known as 403, permits a judge to exclude the evidence if its value is “substantially outweighed by the danger of unfair prejudice … misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.”

In the oral argument, the justices parsed both of the rules.

“They signaled that they want to adopt a clear, defined standard that will guide district courts in undertaking their Rule 401 analysis,” says Connie Bertram, a partner at Winston & Strawn in Washington.

Justice David Souter asserted during the one-hour argument that the best outcome would be for the Supreme Court to send the case back to the trial judge with an instruction to balance both of the rules.

“If I were Sprint, I would think that is a victory,” says Sarah Kelly, an attorney at Cozen O’Connor in Philadelphia. The trial court already barred the evidence and is likely to do so again.

“A balance test is appropriate,” Kelly says. “It would be very helpful if the Supreme Court offered some guidance on what factors to consider when deciding whether to admit the testimony of me-too witnesses.”

The justices pressed both sides on how many supervisors committing acts of bias would be required to establish that a company discriminates.

Souter gave an example of two discriminatory supervisors out of three. “Doesn’t it have the frequency that amounts to relevance?” he asked Paul Cane Jr., who was representing Sprint.

Cane responded that there has to be a link between the other supervisors and the one who made the decision to fire the plaintiff. That connection has to involve consultations or directives.

In the Sprint case, Cane argued, Mendelsohn brought in people from “other far-flung parts of the company.”

He asserted that their testimony would be prejudicial.

“What we have here is an assault on the corporate character of the company,” he said.

Deputy Solicitor General Gregory Garre, however, supported using the testimony of Mendelsohn’s colleagues because they met criteria such as suffering the same kind of discrimination at the same time in the same vicinity.

Mendelsohn’s lawyer, Dennis Egan, said that the Sprint layoffs illustrated a pervasive and open company culture of removing older workers and replacing them with younger ones.

But some justices expressed concern that allowing me-too testimony would create trials within trials in which the claim of each person testifying would have to be weighed.

“If you read [the evidence rules] literally, we’ll have trials that last a thousand years,” Justice Stephen Breyer said. Eagan responded that pretrial agreements could ensure that such proceedings are efficient.

Once me-too evidence comes into play, it might also be introduced by defendants, potentially adding more length to a trial.

“What is the culture of a company if 995 supervisors don’t discriminate in their decisions and five do?” Chief Justice John Roberts asked Eagan.

Souter noted that testimony from six employees is “not going to be anywhere close to overwhelming” proof of discrimination at a company as big as Sprint.

Eagan responded, “The answer isn’t to keep out possible probative evidence.”

—Mark Schoeff Jr.