The federal courts have struggled with the issue of whether an employee can present as evidence of employment discrimination, testimony by other employees who suffered from the same ultimate adverse employment action as the plaintiff employee, but who are not parties to the litigation and who did not have the same supervisor. Such evidence is informally referred to as "me too" evidence.  A divided Tenth Circuit had held that such evidence is allowed, and therefore a district court abused its discretion when it excluded the plaintiff's testimonial evidence, given by five former employees over the age of 40 who were discharged in the same reduction in force (RIF) as the plaintiff, even though they did not have the same supervisor.

In Sprint/United Management v. Mendelsohn, 128 S. Ct. 1140 (2008) the Supreme Court held that the so-called "me too" evidence was neither per se admissible nor per se inadmissible.  The Tenth Circuit had improperly concluded that the district court applied a per se rule excluding the evidence and, therefore, it had wrongly engaged in its own analysis of the relevant factors under the Federal Rules of Evidence.  The case was remanded to the district court to clarify the basis for its evidentiary ruling under the applicable rules of evidence.  

The case arose from the employer's discharge of the plaintiff – the oldest manager in her unit – as part of an ongoing company-wide RIF.  The plaintiff filed suit under the ADEA, alleging that she had been selected for the RIF based on her age.  As proof of the employer's discriminatory animus, she sought to introduce testimony from five other employees who had been discharged as part of the same RIF and also believed they were victims of age bias.  Prior to trial, the employer filed a motion in limine seeking to exclude any evidence of its alleged discriminatory treatment of other employees.  The district court granted the motion in part, limiting the plaintiff's evidence to employees who were similarly situated to her.

In granting certiorari, the Supreme Court agreed to address the issue "whether a district court must admit 'me, too' evidence testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff."

As noted above, the Court held that the Tenth Circuit had erred in its assessment that the district court applied a per se rule excluding the evidence.  The Court explained that district courts have greater experience in evidentiary matters and should be accorded deference in such matters.  Absent indications to the contrary, it should be assumed that a district court has applied the proper legal standard.  The Tenth Circuit, however, did not accord the district court such deference.  If the district court had applied a per se rule excluding the evidence, the Tenth Circuit would have been correct in concluding that it had abused its discretion, but that did not occur.

To aid the lower courts in making the determination of admissibility in the future, the Court offered the following guidance: "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Applying Rule [of Evidence] 403 to determine if evidence is prejudicial also requires a fact intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the district court in the first instance, we vacate the judgment of the [Tenth Circuit] and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules."