Hunton Employment & Labor Perspectives

It is not uncommon in discrimination and harassment suits for employers to battle against the admission of so called “me too” evidence.  Plaintiffs often employ the tactic of parading up other employees who claim they were discriminated against and/or harassed in the same manner as the plaintiff.  The results vary based on jurisdiction and fact pattern, and the standards can differ by jurisdiction and court.  The United States Supreme Court may soon add some clarity to this area.  The Court is considering whether to review a case involving the appeal of Billy Ray Tratree, an African-American employee who was discharged three months before he turned age 50 and was to become eligible for retirement benefits.  Tratree alleges that his employer discharged him on the basis of his race and age.  The Supreme Court soon will decide whether to review the Fifth Circuit’s opinion upholding the district court’s decision to exclude some of Tratree’s “me too” evidence.

In 2008, Tratree was discharged because, he was told, his position monitoring oil flow on a section of a  pipeline was being eliminated, as his employer planned to decommission the section of pipeline on which Tratree worked.  The company ultimately did not decommission the section and replaced Tratree with a younger, white employee.  Tratree filed suit.

At a jury trial, a Texas district court excluded evidence that the decision maker who decided to “eliminate” Tratree’s position had a pattern of discriminating against African-American employees (e.g., every employee but one terminated by the decision maker was African-American, the decision maker never hired an African-American, and the decision maker allowed a culture of discrimination against African-Americans to persist).  The district court also excluded internal company  documents that, according to Tratree, showed its plan to target retirement-eligible workers for discharge.  After the jury rendered a verdict in the company’s  favor, the Fifth Circuit affirmed the district court’s evidentiary exclusions.

The Court last visited the “me too” evidence question in 2008 in Sprint / United Management Co. v.  Mendelsohn, 128 S.Ct. 1140 (2008).  In Mendlesohn, the “me too” evidence at issue was testimony by non-parties alleging discrimination at the hands of persons who did not play a role in the adverse employment action alleged by the plaintiff.  The Court held that it was for the trial court to decide whether to admit “me too” evidence, subject to abuse-of-discretion review.  Id. at 1145-1146.  The Court also said that the type of “me too” evidence at issue was neither per se admissible nor per se inadmissible, id. at 1143, and must be viewed in the context of the facts, id. at 1147.

In asking the Court to hear his appeal, Tratree argues that his case is distinguishable from Mendlesohn because his “me too” evidence pertains to the practices of the decision maker at issue.  Tratree further argues that, since Mendlesohn, “lower courts remain confused about the standards for admission of ‘me too’ evidence.”

Should the Court accept Tratree’s case, it likely will clarify the standards of admissibility regarding “me too” evidence.  If the Court rules in favor of Tratree, employers may face tougher battles defending individual discrimination claims in some courts.  Such a ruling would certainly result in more “me too” evidence being used and admitted in certain cases.