Employment discrimination claims often hinge on the admissibility of evidence. A plaintiff bringing an employment discrimination claim may, for example, offer into evidence testimony from other employees who also believe they were victims of discrimination. Such evidence is referred to as “me too” or propensity evidence and has been a subject of debate among litigants. Be it discrimination based on age, gender, or another protected class, propensity evidence can be powerful if admissible.
As background, Federal Rule of Evidence 404(b)(2), which is virtually identical to the Massachusetts corollary, provides that evidence of a crime, wrong, or other act “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Because motive, intent, and state of mind are directly at issue in employment discrimination claims, “me too” or propensity evidence may be properly admitted under these rules under certain circumstances. Other relevant portions of the Rules of Evidence with respect to “me too” or propensity evidence include FRE 401 (Test for Relevant Evidence) and FRE 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).
- In Sprint/United Management v. Mendelsohn, the Supreme Court considered an age discrimination case under the ADEA and held that Rules 401 and 403 do not make “me too” evidence per se admissible or per se inadmissible. In doing so, the Court noted that “[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.” Notably, prior to Mendelsohn, each circuit court had considered whether “me too” evidence should be admissible in proving employment discrimination. Below is a sampling of decisions from each circuit:
- In Conway v. Electro Switch, the First Circuit in a case involving claims of sex and age discrimination held that “[e]vidence of institutional state-of-mind may be presented for the consideration of the trier-of-fact because an employer’s willingness to consider impermissible factors … might tend to support an inference that such impermissible considerations may have entered into another area of ostensibly neutral employment decisions ….” Similarly, in Brown v. Trustees of Boston University, the First Circuit in a sex discrimination case under Title VII cited FRE 404(b) and held that the admission of prior discriminatory conduct was not an abuse of the district court’s discretion.
- In Haskell v. Kaman Corporation, the Second Circuit in an age discrimination case under the ADEA held that the “district court erred in allowing six former Company officers to testify concerning the circumstances of their own terminations as well as the terminations of a few former Company officers over a period of 11 years.” In doing so, the Second Circuit labeled the sample size as “not statistically significant.” Notably, however, there was no discussion of FRE 404(b) and the record was unclear as to whether the plaintiff sought to introduce such evidence on this basis.
- In Glass v. Philadelphia Electric, the Third Circuit took a different approach and held that the district court abused its discretion in barring the plaintiff from introducing evidence about a racially hostile work environment for two main reasons: (1) defendants testified about the work environment and, as such, the plaintiff should have had the opportunity to cross-examine company witnesses on that very subject under FRE 611(b), and (2) barring such evidence deprived the employee of a “full hearing on the issue of pretext and was, therefore, not harmless error; rather, it is highly probable that the evidentiary rulings affected the outcome of the case.”
- In Buckley v. Mukasey, the Fourth Circuit in a retaliation case found abuse of discretion where a trial court refused to allow the plaintiff to introduce prior bad acts of other decision-makers under FRE 404(b). In finding abuse of discretion and ordering a new trial, the court noted a critical distinction in the context of plaintiff’s retaliation claim, stating that she did not “seek to use such evidence to establish either a general propensity to discriminate against African-American employees … or a more specific racially discriminatory animus on the part of the decisionmakers,” but instead “to demonstrate retaliatory animus, as she was required to do to prevail on her retaliation claims.”
- In Wyvill v. United Companies Life Insurance, the Fifth Circuit in an age discrimination under the ADEA found reversible error where the trial court admitted “me too” evidence. In doing so, the court ruled that the witnesses were not “similarly situated” since they had different supervisors than the plaintiff, worked in different parts of the company, and lacked sufficient temporal proximity to plaintiff’s termination. Notably, the Wyvill decision runs contrary to subsequent precedent in two main respects. First, in Mendelsohn the fact that none of the five witnesses offering “me too” testimony for the plaintiff “worked under the supervisors in her chain of command” was not dispositive as to admissibility. Rather, the Supreme Court held that 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.” Second, as the Supreme Court of Missouri held in Cox v. Kansas City Chiefs in a detailed opinion on this issue, “the admissibility of ‘me too’ evidence does not require that the nonparty employees be ‘similarly situated’ under the more stringent disparate treatment standard; rather, courts look to and weigh aspects of similarity as appropriate given the facts, context, and theory of the specific case at issue.”
- In Schrand v. Federal Pacific Electric, the Sixth Circuit in an age discrimination under the ADEA found the trial court abused its discretion in admitting “me too” evidence under FRE 403. In doing so, the court observed that the two witnesses in question worked in a different region far from the plaintiff’s work site and under different supervisors. Inexplicably, however, the Sixth Circuit also referenced the fact that both witnesses presented direct evidence of age discrimination, in contrast to the plaintiff’s case which focused on circumstantial evidence, as a factor weighing against admissibility.
- In Hasan v. Foley & Lardner, the Seventh Circuit in a race and religion discrimination case under Title VII reversed summary judgment and, citing earlier precedent, stated “behavior toward or comments directed at other employees in the protected group is one type of circumstantial evidence that can support an inference of discrimination.”
- In Estes v. Dick Smith Ford, the Eighth Circuit in a race discrimination claim under Title VII held that alleged discrimination against black customers should have been admitted into evidence, noting that the manager who displayed the preferential treatment with respect to customers also played a role in the decision to terminate the plaintiff. In doing so, the court reasoned: “It defies common sense to say … that evidence of an employer’s discriminatory treatment of black customers might not have some bearing on the question of the same employer’s motive in discharging a black employee.”
- In Heyne v. Caruso, the Ninth Circuit in a sex discrimination case under Title VII ordered a new trial because the trial court excluded “me too” evidence. In particular, the court reasoned that the alleged sexual harassment of other employees was admissible to plaintiff’s wrongful termination claim based on gender because it was “relevant and probative of Caruso’s general attitude of disrespect toward his female employees, and his sexual objectification of them.”
- In Spulak v. K Mart, the Tenth Circuit in an age discrimination under the ADEA affirmed the jury verdict and upheld the trial court’s decision to admit the testimony of two co-workers fired under similar circumstances. In affirming, the court noted that, although the witnesses worked in a different facility under a different manager, they were fired within a short period of time after the plaintiff.
- In Goldsmith v. Bagby Elevator, the Eleventh Circuit in an race discrimination and retaliation case under Title VII upheld a jury verdict in the plaintiff’s favor where the lower court admitted “me too” evidence. There, the court drew a distinction between the admissibility of such character evidence under FRE 404(b)(2) from habit or routine practice evidence under FRE 406. There, the plaintiff presented evidence that four co-workers were terminated after making complaints of race discrimination. Although the Tenth Circuit held that “[f]our examples are not numerous enough to support an inference that Bagby Elevator systematically terminated any black employee who complained about discrimination,” it made clear such evidence was admissible under FRE 404(b) to prove the employer’s intent to discriminate and retaliate. Notably, numerous supervisors played a role in each of the four terminations with only one supervisor in common to all terminations.
- In Elion v. Jackson, the District Court for the District of Columbia admitted “me too” evidence for both the employer and employee, noting such evidence can be used to draw inferences both for and against discriminatory or retaliatory intent.
Likewise, Massachusetts courts and other legal authority have long recognized the relevancy and admissibility of propensity evidence in employment discrimination cases. In particular, Section 5.2.3 of the Massachusetts Superior Court Civil Practice Jury Instructions provides:
Circumstantial evidence may include evidence of a general atmosphere of discrimination at the place of employment. Likewise, evidence that an employer, acting through its officials and managers considered [membership within a protected class] in other employment matters can also support a conclusion that unlawful bias was a factor in this case.
Several cases by the Massachusetts Supreme Judicial Court have acknowledged the relevance of such evidence in employment discrimination cases, including:
- In Knight v. Avon Products, the SJC noted that, in proving a claim of age discrimination, an employee may offer evidence “that other employees of the plaintiff’s age were terminated at the same time.”
- In Abramian v. President & Fellows of Harvard College, the SJC held that the denigration of other employees because of their national origin indicated that the employer was “very likely biased against people of other nationalities, and that they carried out their responsibilities as supervisors by harassing such employees and tolerating an atmosphere of bigotry in the workplace.”
- In MacCormack v. Boston Edison, the SJC agreed with earlier rulings that “[i]In the absence of direct proof of retaliation, a plaintiff may introduce relevant evidence such as the demonstration of a general practice and policy of retaliation.”
- In Lewis v. Area II Homecare for Senior Citizens, implicitly referencing Massachusetts Rule of Evidence (MRE) 406(a), the SJC made clear that “evidence which may be relevant to the plaintiff’s showing of pretext may include … application of certain criterion to employees of different races [and] the employer’s general practice and policies concerning employment of racial minorities.”
- In Smith College v. MCAD, citing Supreme Court precedent in Teamsters v. United States, the SJC noted that “evidence of specific acts of discrimination may support an inference of discriminatory motive.” Like the federal rule, MRE 404(b) explicitly contemplates the admissibility of specific acts of discrimination.
- In McKenzie v. Brigham & Women’s Hospital, the SJC recognized that a showing of pretext for employment discrimination may include “the employer’s general practice and policies concerning employment of racial minorities ….”
- In Johansen v. NCR Comten, the Massachusetts Appeals Court observed that “most cases of unlawful discrimination would be stitched together from hiring and discharge patterns, other acts of discrimination, and the absence of plausible explanation for the employment decision.” In doing so, the court elaborated that “[p]assing over the job application of a member of the protected class is the sort of evidence that has given rise to an inference of unlawful discrimination.”
It is important to note that evidence of a discriminatory animus against a particular protected class can be used to show that an employer’s proffered non-discriminatory reason is a pretext against members of a different protected class. In Hicks v. Gates Rubber, for example, the Tenth Circuit held that “incidents of racial harassment which may, by themselves, be insufficient to support a racially hostile work environment claim can be combined with incidents of sexual harassment to prove a pervasive pattern of discriminatory harassment in violation of Title VII.” Likewise, in Fuentes v. Perskie, the Third Circuit specifically noted an employee may show discriminatory motive by putting forth evidence that the “employer has discriminated against other members of his protected class or other protected categories of persons.” The Third Circuit reiterated this position more recently in Grassmyer v. Shred-It USA. Also, in Carr v. Allison Gas Turbine Div. of GM, the Seventh Circuit acknowledged a number of racist remarks were properly admitted into evidence in a gender discrimination case and ultimately entered judgment in the employee’s favor.
Knowing and understanding the rules of evidence, and the various federal and Massachusetts decisions interpreting those rules in the context of employment discrimination claims, is critical to having such evidence properly admitted at trial. Overall, the admission of “me too” or propensity evidence at trial can significantly impact an employee’s likelihood on prevailing on an employment discrimination claim.
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