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Ruling May Aid Those Charging Age Bias

By Robert Barnes
Washington Post Staff Writer
Wednesday, February 27, 2008

The Supreme Court wrestled for more than two months with the question of whether a worker alleging age discrimination may present as evidence similar stories from co-workers. Its ruling yesterday was a unanimous maybe.

Such "me, too'' evidence is not automatically admissible or inadmissible, Justice Clarence Thomas wrote. In the case at hand, justices said they could not tell why the district judge had decided to exclude such testimony, and sent the matter back for more work.

The ruling brought an inconclusive ending to what was once thought to be one of the more important employment-law cases on the court's docket this term.

The case involved Ellen Mendelsohn, a 51-year-old middle manager with Sprint in Kansas. She was one of 14,000 employees laid off in a company downsizing. Mendelsohn said she was targeted because of her age, and wanted to call as witnesses on her behalf other fired workers who would have said the same about themselves.

But those workers were not fired by Mendelsohn's supervisor, nor did they work in her division. A district court judge excluded their testimony, and a jury ruled against Mendelsohn.

The U.S. Court of Appeals for the 10th Circuit said the judge had erred, because the testimony could have shown a company-wide movement to eliminate older workers.

But the Supreme Court said that because it was unclear what went into the judge's decision-making, it was not clear whether a mistake had been made. The appellate court should have sent the case back for clarification, the justices said, rather than rule in favor of Mendelsohn.

The Supreme Court ruling provided a ray of hope for Mendelsohn and other workers challenging their dismissals, because it maintains that "me, too'' evidence is at least sometimes admissible. Sprint and other business groups had urged the court to find otherwise.

"The question whether evidence of discrimination by other supervisors is relevant,'' Thomas wrote, "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.''

But the justices, who spent a lively hour Dec. 3 hearing arguments in the case, provided little guidance to lower courts on how to make such case-by-case decisions.

The case is Sprint/United Management Co. v. Mendelsohn.

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