Amicus Curiae Brief — Sprint/United Management Co. v. Mendelsohn

[FILED

{

4

(o) AUG 20 2007

| QEFICE OF THE CLERK

No. 06-1221) SUP i= COURT.US._!

—

Jn the Supreme Court of the Gnited States

SPRINT/UNITED MANAGEMENT Co..,

Petitioner,

Vv.

ELLEN MENDELSOHN,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

- 2

ROBIN S. CONRAD EVAN M. TAGER

SHANE BRENNAN Counsel of Record

National Chamber ARCHIS A. PARASHARAMI

Litigation Center, Inc. Mayer, Brown, Rowe &

1615 H Street, N.W. Maw LLP

Washington, DC 20062 1909 K Street, NW

(202) 463-5537 Washington, DC 20006

(202) 263-3000

Counsel for Amicus Curiae

Chamber of Commerce of the United States of America

WiLSON-EPES PRINTING CO.. INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

ee Fe I wettinciscniccassencisatscesonsevecieneccintneetas il

INTEREST OF THE AMICUS CURIAE ...........cc0ccccsssscesseseees l

INTRODUCTION AND SUMMARY OF

TITTEN: sicscicncsiniinnstliadniasitiebidaidipeienattionmionsitdnainaiieibentanmunlints 2

I a a anneal 4

I. Testimony By Non-Party Employees Who Allege

That They Were Discriminated Against Is

Inadmissible In [Individual Disparate-Treatment

III: sinsmainsboihesinisastitipaimicbindaphtindpecliiadéniesiiinableniaameninscepeas 4

A. “Me, Too” Evidence Is Irrelevant In The

Context Of Individual Employment Claims............... 4

B. Even If "Me, Too” Evidence Has Marginal

Relevance. Federal Rule Of Evidence 403

Generally Requires Exclusion Of Such

Evidence In Individual Disparate- Treatment

Rae iscniniindidndcisdhaiebbclitianlupeabinneanninuiiniapleadiehisnesieienminnerctnctenden Y

I]. Allowing Non-Parties To Testify About Alleged

Discrimination Raises Concerns About

Fundamental Fairness Because Such Testimony

Invites Juries To Base Liability On Perceived

Harms To Persons Other Than The Plaintf?,.................. 14

Hl. Allowing The Use of "Me. Too” Evidence Will

Force Companies To Adopt Less Efficient

IIT III oinsticaiciiscnsedsieonsnrtaitublinsiienunsiieeiiiavnabnas 15

DIRS Rs Slee os ra nee ATE ROA ETO 18

TABLE OF AUTHORITIES

Page(s)

CASES

BCI! Coca-Cola Bottling Co. of Los Angeles

v. EEOC, cert. granted, 127 S. Ct. 852,

cert. dismissed, 127 S. Ct. 1931 (2007) oo... eee l

Braswell v. United States. 487 U.S. 99 (1988)... cece 5

Broussard v. Meineke Discount Muffler Shops, Inc.,

a ee I SPIE cas cstcccesieniniccenindicimaninsiplinnbeectian 10

Burlington Indus., Inc. v. Ellerth,

SINS IIT ic cee ciesiihcetenicineieaaeiiantalait 5

Burlington Northern & Santa Fe Railway v. White,

an aI tI TI cited belied ecivininiitasilesbiabsdeiineiabiiienie l

CFTC v. Weintrauh, 471 U.S. 343 (1985)...............0ceccccseesees 5

Christiansburg Garment Co. v. EEOC,

ee NT ip iniccsscariesintiosailesisarhciinhctciepsinlasiniptaieisesiiinl 13

Cooper v. Fed. Reserve Bank of Richmond.

Se eG NE UT iss pictisticnicsnessatsensenseeonisionniitenleinnatseieaitiohia 8.9

Domino's Pizza, Inc. vy. McDonald.

es IT visi cnstainddiniiaesnsecestadianenestasneseanenmmnsianniiliie l

Federal Express Corp. v. Holowecki,

cert. granted, 127 S. Ct. 2914 (2007)...........cccccceccssesesseees ]

Haskell v. Kaman Corp., 743 F.2d 113

SESE: SHUT uisesstsiesniensacedadibeinlelutsinanttaintineiviintacsteerinninieenicannintitin 6

Hazen Paper Co. v. Bigeins, 507 U.S. 604 (1993)... 4

Ledbetter v. Goodyear Tire & Rubber Co.,

Be As SID sntncncsntstonedadapensndiciinesscieeniadubiiaiepiiin l

McDonnell Douglas Corp. v. Green,

ee IN IPT cotinscicicersenssentticsinndscisccncndeclenascaeeonsimninnipadail 8

Monroe v. Children’s Home Ass'n of lil.

eee Ie CIE, BF a eiececctcncansosisticeviacncinsercivicsennsies 13

TABLE OF AUTHORITIES—continued

Page(s)

Moorhouse v. Boeing Co.,

501 F. Supp. 390 (E.D. Pa.), aff'd,

639 F.2d 774 (3d Cir. 1980) (table)... ee eeeceeeeees 10

Palsgraf v. Long Island R.R.,

es eT as: III tiiceniceindineicinintucnpninnninnasiinnemiiniamiieiite 7

Philip Morris USA v. Williams,

eg Te 3, 14,15

Price Waterhouse v. Hopkins,

Ee 4.5

Reeves v. Sanderson Plumbing Prods., Inc.,

Se SE sanhitntnicntiunicsnnneaniatiliainoninneties 4.6

Robinson v. Sheriff of Cook County,

Be ee ee Ce Be i icctrsctscicisnsenvvsscsenecsnnensesonse 10

State Farm Mut. Auto. Ins. Co. v. Campbell,

Se I i sisinsintnscusicispesinicnndtaneeimeenitaviiicieiiiiinne 15

Teamsters v. United States, 431 U.S. 324 (1977) «0.0.0.0... 8.9

Turlington v. Atlanta Gas Light Co.,

135 F.3d 1428 (11th Cir.),

cert. denied. 525 U.S. 962 (1998) ...........cccccecssssceserrereees 13

STATUTES, RULES AND REGULATIONS

a ee ae PTE scsessctsccvnncinnsinnsniadsabessinemneniciens 13

Se hy tile I eniianccinsicisinntasiisinsnscniepsenntciendioniatiiindaametunseininciiitinii |

SD TTD AIT esc cvneipechenscanpenenetinenieenestinidiiaeminnnmndoomsnaniidedl 5.6.8

Ny IIE TIE is irceicsciesitnserceeninentndeedetininscneteaeiapiediiesibiesiaiaddiliniiasind is

EF

MISCELLANEOUS

BARBARA LINDEMANN & PAUL GROSSMAN, EMPLOYMENT

DISCRIMINATION LAW (3d ed. 1996)...........00 cee eee eee 8

iV

TABLE OF AUTHORITIES—continued

Page(s)

JACK B. WEINSTEIN & MARGARET A. BERGER,

WEINSTEIN’S FEDERAL EVIDENCE (2d ed. 2007).............. 5

2006 JUDICIAL BUSINESS OF THE UNITED STATES

anita ach Aantal ital sina htneiallial 2

Kenneth J. Arrow, Control in Large Organizations,

fe Re! | 17

Charles C. Warner, Motions in Limine in

Employment Discrimination Litigation,

en es Bs Ss Re CP ctecccencticnctssensictnesccsoncnies 12

Hanna, Brophy, MacLean, McAleer, & Jensen, LLP, U.S.

Supreme Court will be final arbiter of “me-too”™

evidence in discrimination trials, at

http://www.hannabrophy.com/index.cfm?fuseaction=

content.contentDetail&ID=8630&tID=297

RS a Ore 1]

Michael Orey, Fear of Firing: How the threat of litigation

is making companies skittish about axing

problem workers, BUS. WEEK (Apr. 23, 2007)......... 16, 17

POLLOCK, THE LAW oF Torts (11th ed. 1920)... 7

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The Chamber of Commerce of the United States of

America (the “Chamber”) is the world’s largest business fed-

cration, representing an underlying membership of more than

3 million businesses and organizations of all sizes.' Chamber

members operate in every sector of the economy and transact

business throughout the United States, as well as in a large

number of countries around the world. A central function of

the Chamber is to represent the interests of its members in

important matters before the courts, Congress, and the Ex-

ecutive Branch. To that end, the Chamber has filed amicus

briefs in numerous cases that have raised issues of vital con-

cern to the Nation’s business community.

The Chamber has regularly participated as amicus curiae

in cases before this Court addressing employment law issues.

including, most recently, Federal Express Corp. v.

Holowecki, cert. granted, 127 S. Ct. 2914 (2007); Ledbetter

v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007): BC]

Coca-Cola Bottling Co. of Los Angeles v. EEOC, cert.

granted, 127 S. Ct. 852. cert. dismissed. 127 S. Ct. 1931

(2007); Burlington Northern & Santa Fe Railway v. White,

126 S. Ct. 2405 (2006): and Domino's Pizza, Inc. v. McDon-

ald, 546 U.S. 470 (2006).

The Chamber's members have a substantial interest in

this case, which will affect the course of the thousands of

employment discrimination lawsuits filed in the federal

' Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other than

amicus, its members, and its counsel made a monetary contribution

to its preparation or submission. The parties have lodged letters

with the Clerk expressing their blanket consent to the filing of

amicus briefs.

te

courts each year. See, e.g., 2006 JUDICIAL BUSINESS OF THE

UNITED STATES CouRTS 166 (14,353 employment cases

commenced between Sept. 30, 2005 and Sept. 30, 2006). The

issue presented here—whcether a district court may admit the

testimony of employees who allege that they were discrimi-

nated against, but who are neither parties to the lawsuit nor

were similarly situated to the plaintifi—is of great impor-

tance.

In the Tenth Circuit's view, such evidence is always ad-

missible. If allowed to stand, the Tenth Circuit's decision

will have serious adverse consequences for the Chamber's

members, and all employers, because that rule dramatically

expands both the scope of liability and the costs and potential

unfairness of employment discrimination litigation.

INTRODUCTION AND SUMMARY OF ARGUMENT

1. At its core, this case is about whether, in an individ-

ual disparate-treatment lawsuit. a company’s liability may

turn on allegations of discrimination made by non-parties.

Unless such non-parties are similarly situated to the plaintiff

(for example, if they share the same supervisor), the testi-

mony of these other employees can never be relevant, for

there is no logical connection between the employment deci-

sion the plaintiff is challenging and the decisions affecting

the non-party witnesses. Because of this lack of connection,

such evidence has no probative value. If non-party testimony

is nonetheless admitted into evidence. there is a very real risk

that employers will be held liable not only (or, indeed, not at

all) for their conduct with respect to the plaintiff, but rather

for alleged discrimination towards persons not before the

court. As a result, such a rule would in effect alter the scope

of liability under the federal anti-discrimination laws.

2. Even if this Court determines that non-party testimony

has some marginal relevance, such evidence will almost al-

ways be inadmissible under Rule 403 of the Federal Rules of

Evidence. “Me, too” evidence raises red flags as to nearly

every relevant consideration in the Rule 403 analysis. It is

unfairly prejudicial because it tars defendants with alleged

discrimination towards persons other than the one who

brought the lawsuit. It confuses the issues in the case by dis-

tracting juries from the core question of whether the plaintiff

was subjected to a discriminatory decision and instead focus-

ing attention on other actors. And it makes employment dis-

crimination cases more time consuming and more costly.

Trials will grow in size and complexity as employers will be

forced not only to defend the claim being litigated, but also to

refute the allegations of all of the non-party employees who

have been called to recite their own allegations of discrimina-

tion—and they will have to do so in case after case in which

this traveling show of witnesses is called upon to perform.

3. Moreover, to admit such “me, too” evidence would

encourage juries to punish employers for conduct directed at

non-parties. The prejudice and harm that results from allow-

ing juries to consider conduct that bears no relevance to the

plaintiffs own claims implicates due process concerns of the

type most recently recognized by this Court in Philip Morris

USA v. Williams, 127 8. Ct. 1057 (2007). As in the punitive

damages context. fundamental fairness requires that employ-

ers not he subjected to an unreasonable risk of being held li-

able or punished because of conduct directed at non-parties.

4. If embraced by this Court, the Tenth Circuit's rule

also would force companies to adopt inefficient, centralized

management practices. Any employee's allegation of dis-

crimination whether true or simply perceived—could make

its way into lawsuits filed by other employees. regardless of

whether the alleged events are connected. In response, com-

panies can be expected to centralize employment-related de-

cisions rather than to delegate authority to those managers

who are best situated to make the decisions. so that they can

avoid the risk of a rogue supervisor's misconduct having a

domino effect on lawsuits involving completely different su-

pervisors. The Tenth Circuit's overbroad rule creates a justi-

4

fiable fear of liability that will encourage the adoption of bu-

reaucratic and inefficient management practices.

ARGUMENT

I. Testimony By Non-Party Employees Who Allege

That They Were Discriminated Against Is Inadmissi-

ble In Individual Disparate-Treatment Lawsuits.

In employment discrimination lawsuits, it is routine for

individual plaintiffs to try to buttress their cases by proffering

the testimony of other employees who allege that they, too,

were the victims of discrimination. In rare cases such testi-

mony may be appropriate, such as when the plaintiff and a

non-party employee were terminated by the same decision-

maker. But much more commonly—as here—the plaintiff

and the other employee are not similarly situated. Rather, the

other employee works in a different department, does differ-

ent work, and reports to a different supervisor. See, e.g., Pet.

Br. 4-5 (noting that none of the five proffered witnesses

worked in the same group or within the same supervisory

chain as Mendelsohn). Under such circumstances, the non-

party's testimony should be excluded.

A. “Me, Too” Evidence Is Irrelevant In The Context

Of Individual Employment Claims.

1. This Court has repeatedly explained that, in employ-

ment discrimination lawsuits, the question is whether the

employer has made an adverse employment decision because

of discriminatory animus towards the plaintiff. Hence, under

the ADEA, when “a plaintiff alleges disparate treatment”—as

here—liability depends on whether the protected trait * * *

actually motivated the employer's decision. * * * That is,

the plaintiff's age must have ‘actually played a role in [the

employer's decisionmaking] process and had a determinative

influence on the outcome.” Reeves v. Sanderson Plumbing

Prods.. Inc., 530 U.S. 133, 141 (2000) (brackets in original)

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610

(1993)): accord, e.g. Price Waterhouse v. Hopkins, 490 U.S.

228, 241-242 (1989) (plurality opinion) (“Congress meant to

obligate [a plaintiff] to prove that the employer relied upon

sex-based considerations in coming to its [employment] deci-

sion”).

This Court has further recognized that employers make

these decisions indirectly; that is, they act through their

agents—and more specifically, through supervisors charged

with making such decisions. See, e.g., Burlington Indus., Inc.

v. Ellerth, 524 U.S. 742, 762 (1998) (“The supervisor has

been empowered by the company as a distinct class of agent

to make economic decisions affecting other employees under

his or her control.”).”

Thus, in an individual disparate-treatment case, the fun-

damental questions are (1) who made the decision and (2)

whether that decisionmaker was motivated by discriminatory

intent. See generally Pet. Br. 11—19 (discussing cases).

2. As to these questions, claims of discrimination by em-

ployees other than the plaintiff are irrelevant. Under Rule

401 of the Federal Rules of Evidence, evidence is relevant if

it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more

probable or \ess probable than it would be without the evi

dence.” Fed. R. Evid. 401 (emphasis added). “Whether or not

a fact is of consequence is determined not only by the rules

of evidence but by substantive law as well. * * * If the evi-

dence is offered to prove a fact mot in issue under substan-

tive law then * * * it is * * * not relevant under Rule 401.” 2

JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S

FEDERAL EVIDENCE § 401.04(3)(b) (2d ed. 2007) (emphasis

added).

See also Braswell v. United States, 487 U.S. 99, 110 (1988)

(“Artificial entities such as corporations may act only through their

agents”): CFTC v. Weintrauh, 471 U.S. 343, 348 (1985) ("As an

inanimate entity, a corporation must act through agents.”).

’

6

Here—as “in every employment discrimination case in-

volving a claim of disparate treatment”—‘[t]he ultimate

question * * * is whether the plaintiff was the victim of in-

tentional discrimination.” Reeves, 530 U.S. at 153 (emphasis

added). Therefore, for evidence to be relevant in such cases,

it must bear on whether the supervisor who made the em-

ployment decision affecting the plaintiff did so because of

discriminatory intent.

The non-party testimony that Mendelsohn sought to in-

troduce does not come close to meeting that test. To be sure,

the testimony of each of the other Sprint workers relates to

whether the festifying worker was adversely affected for dis-

criminatory reasons. But even assuming that some or all of

these employees were actually the victims of discrimination,

such facts are not “of consequence to the determination of

|Mendelsohn’s] action” (Fed. R. Evid. 401) because they

have no logical connection to whether Mendelsohn’s super-

visor terminated her because of her age. Cf, e.g., Haskell v.

Kaman Corp., 743 F.2d 113, 122 (2d Cir. 1984) (“Since the

testimony of the six former Company officers as to the cir-

cumstances of their terminations and those of other Company

officers was insufficient to show a pattern and practice of dis-

crimination, it was not relevant to the question of whether

[plaintiff] Haskell was terminated for age-related reasons.)

(emphasis added).

3. In nevertheless holding that the district court was re-

quired to admit the testimony of the five former Sprint em-

ployees, the court of appeals relied on faulty reasoning. In the

court's view,

the other employees’ testimony is logically tied to

Sprint’s alleged motive in selecting Mendelsohn to

the RIF. Although Mendelsohn and the other em-

ployees worked under different supervisors, Sprint

terminated all of them within a year as part of an

ongoing company-wide RIF. All the employees

were in the protected age group, and their selection

to the RIF was based on similar criteria. Accord-

ingly, testimony concerning the other employees’

circumstances was relevant to Sprint’s discrimina-

tory intent.

Pet. App. 9a—10a (emphasis added).

But this analysis is mistaken: It rests on the deeply

flawed premise that the (allegedly) discriminatory intent of

one supervisor is logically connected to the state of mind of

other supervisors—and in particular, the supervisor who

made the decision at issue in an individual lawsuit. That only

makes sense if—contrary to all reason and experience—a

corporation possesses a “collective intent” that can be di-

vined by aggregating the states of mind of multiple uncon-

nected supervisory employees. It is precisely that misconcep-

tion that is at the core of the Tenth Circuit’s ruling, which

speaks of:

e “Sprint’s discriminatory animus toward older

workers”;

e “the employer's general discriminatory propensi-

ties”; and

© an “atmosphere of age discrimination.”

Pet. App. 5a, 14a (emphases added).

Yet allegations of discrimination in the air—like

“Ipjroof of negligence in the air’”-——will not do”

(Palsgraf v. Long Island R.R., 162 N.E. 99, 99 (N.Y. 1928)

(Cardozo, J.) (quoting POLLOCK, THE LAW oF Torts 455

(11th ed. 1920)). As Judge Tymkovich recognized in his dis-

sent. “|gjiven the size of Sprint, the fact that Mendelsohn

found five former employees who believed [that] they were

victims of age discrimination is not meaningful until a spe-

cific evidentiary foundation has been \aid”—i.e¢.. “independ-

ent evidence showing that Sprint had company-wide dis-

criminatory policies.” Pet. App. 20a (emphasis added). By

reaching a contrary conclusion and holding that the five em-

ployees’ distinct allegations of discrimination provide that

foundation, the cou.t of appeals made an unwarranted infer-

ential leap.’ Rule 401 requires more—specifically, a logically

supportable connection rather than generic speculation. Be-

cause the testimony of non-party witnesses who are not simi-

larly situated to an individual plaintiff lacks that connection,

it is irrelevant, and this Court should hold it inadmissible. See

Fed. R. Evid. 402 (“[e]vidence which is not relevant is not

admissible”).

* To support its conclusion that non-party testimony is admissible

to establish that an employer has “general discriminatory propensi-

ties” (Pet. App. 5a), the Tenth Circuit cited this Court’s statement

that an employer's “general policy and practice with respect to mi-

nority employment” “may be relevant to any showing of pretext.”

Pet. App. 6a (quoting McDonnell Douglas Corp. v. Green, 411

U.S. 792, 804-805 (1973)). But the next sentence in McDonnell

Douglas clarifies that “statistics as to petitioner's employment pol-

icy and practice may be helpful to a determination of whether peti-

tioner’s refusal to rehire respondent in this case conformed to a

general pattern of discrimination against blacks.” /d. at 805 (em-

phasis added). It is accordingly Judge Tymkovich’s dissent that

accords ith McDonnell Douglas. See Pet. App. 20a (noting the

“lack of any statistical or other direct evidence that supports an in-

ference of enterprise-wide discrimination”).

' Such a holding would not derail cases in which a plaintiff al-

leges a “pattern or practice” of discrimination—<ases that are most

commonly brought as class actions. See | BARBARA LINDEMANN

& PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 44

n.168 (3d ed. 1996) (“Pattern-or-practice suits, by their very na-

ture. involve claims of classwide discrimination’). As this Court

has observed:

The crucial difference between an individual's claim of

discrimination and a class action alleging a general pat-

tern or practice of discrimination is manifest. The inquiry

regarding an individual’s claim is the reason for a par-

ticular employment decision, while “at the liability stage

of a pattern-or-practice trial the focus often will not be

se)

B. Even If “Me, Too” Evidence Has Marginal Rele-

vance, Federal Rule Of Evidence 403 Generally

Requires Exclusion Of Such Evidence In Indi-

vidual Disparate-Treatment Cases.

As petitioner observes, Rule 403 provides an independ-

ent ground for holding that the testimony of non-parties al-

leging discrimination is inadmissible. See Pet. Br. 39-45.

Rule 403 provides that “evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of un-

fair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or need-

less presentation of cumulative evidence.” Fed. R. Evid. 403.

When the “me, too” witnesses are not similarly situated to

the plaintiff in an individual disparate-treatment case, the

balancing required by Rule 403 will virtually always require

exclusion of the “me, too” testimony.

1. It is predictable—indeed, highly likely—that the ad-

mission of “me, too” evidence will visit unfair prejudice on

defendants. In every employment discrimination lawsuit in

which such evidence is introduced, the company will be put

on trial not only for its actions towards the plaintiff herself,

but also for how it treated any other employee who testifies

that he or she was a victim of discrimination. No longer

would a plaintiff's claim stand or fall on its own merits.

Rather, the fates of the plaintiff's claim and the employer's

defense would each be inextricably linked to other employ-

ees’ separate claims.

Moreover, by force of numbers, the employer would be

placed at a distinct—and perhaps insuperable—disadvantage.

The plaintiffs own case, no matter how weak, will be

on individual hiring decisions, but on a pattern of dis-

criminatory decisionmaking.”

Cooper v. Fed Reserve Bank of Richmond, 467 US. 867, 876

(1984) (quoting Teamsters v. United States, 431 U.S. 324, 36€

n.46 (1977)).

10

strengthened significantly by the vivid, passionate allegations

of discrimination recited by other employees of the company.

That will be the case regardless of the merits of the non-

parties’ allegations. Despite the lack of connection to the

plaintiffs own claims, the steady drumbeat of allegations of

discrimination will have the foreseeable effect of reinforcing

the plaintiff's claim, thereby unduly prejudicing the em-

ployer. What jury could refrain from thinking that there must

be a fire. when so much smoke is thrown up? Thus, as one

district judge explained in a frequently cited opinion, even

the “strongest jury instructions could not have dulled the im-

pact of a parade of witnesses, each recounting his contention

that defendant had laid him off because of his age.” Moor-

house v. Boeing Co., 501 F. Supp. 390, 393 n.4 (E.D. Pa.),

aff'd, 639 F.2d 774 (3d Cir. 1980) (table).

2. Relatedly. it is a veritable certainty that the introduc-

tion of testimony by non-party witnesses will confuse and

mislead juries. Employers will be forced to square off not

against the plaintiff herself, but rather against a “fictional

composite” plaintiff whose claims might be “much stronger

than any plaintiff's individual action would be.” Broussard v.

Meineke Disccount Muffler Shops, Inc. 155 F.3d 331, 345

(4th Cir. 1998) (Wilkinson, C.J.) (recognizing procedural un-

fairness of having to defend against a class action involving

“fictional composite” plaintiff).° These concerns are even

greater in the context of an individual lawsuit that—as

* Describing concerns similar to those expressed in Broussard.

Judge Posner has explained: “In effect the appeal asks us to graft

[one named plaintiff's] timely filing with the EEOC onto [another

named plaintiff's] untimely but not-yet-shown-to-be-unmeritorious

discrimination case to create a composite plaintiff to represent the

class of blacks denied employment by the defendant. We cannot

find any basis in law or good sense for such ghastly surgery. Net-

ther plaintiff is a suitable class representative, and zero plus Zero is

zero.” Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157

(7th Cir. 1999).

here—does not allege a “pattern and practice” of discrimina-

tion. See also note 3, supra. The decision below invites the

same type of logically unconnected comparisons, by allowing

an individual plaintiff to bolster her case with facts from

other incidents involving other decisionmakers.

3. Furthermore, admitting the testimony of non-party

employees will poorly serve judicial economy. The practical

consequence of the Tenth Circuit’s rule, which calls for the

routine introduction of such evidence, will be to make em-

ployment litigation more protracted and expensive.° A com-

pany will be forced to refute the allegations of every non-

party witness who claims to be the victim of discrimination.

Indeed. even a small contingent of former employees who

claim discrimination would take on outsized importance at

trial.’ To place these complaining witnesses in their proper

context vis-a-vis the entire workforce, an employer would

need to offer its own witnesses to testify about the decision-

making process for each and every “me, too” witness, as well

as for the many employees affected by the job action who

have not claimed to have been victimized by discrimination.

And it might also need to introduce evidence about the indi-

viduals within the protected class who were not affected by

the job action. Conceivably, a company could—and perhaps

In describing the potential impact of this case, one law firm that

specializes in employment defense noted: “The real issue — will we

have 10 day jury trials or 60°° Hanna, Brophy, MacLean.

McAleer, & Jensen, LLP, U.S. Supreme Court will be final arbiter

of “me-too” evidence in discrimination trials, at http://www.

hannabrophy .com/index.cfm?fuseaction=content.contentDetail&

ID=8630&tID=297 (last visited Aug. 17, 2007).

” The facts in this case are illustrative. The plaintiff hand-picked

five witnesses who were prepared to testify that they were dis-

criminated against by other dectsionmakers at Sprint. These indi-

viduals were needles in the haystack of approximately 15,000 em-

ployees who were released by Sprint as part of a series of reduc-

tions in force over an 18-month period. Pet. Br. 2.

6

12

should—offer such testimony from dozens of its current and

former employees. But even that might not suffice to counter

the indelible impression created by a handful of non-party

witnesses who accuse the company of discriminating against

them.

Of course, such proceedings would take a long time. Yet

most civil trials are conducted under strict time limitations,

and for good reason: most civil juries don’t have the time or

patience to sit through a trial of three months or longer. But

that is what would be required for a defendant to have a rea-

sonable chance of rebutting the array of inflammatory allega-

tions of discrimination that plaintiffs will seek to unleash via

non-party proxies.

Moreover, even if district courts could give defendants

the time they would need to respond to multiple charges of

discrimination—and it is hard to see where courts would find

the time—it would place defendants between a rock and a

hard place. It is common sense that, by responding to each

non-party’s allegations of discrimination, a defendant risks

dignifying them in the eyes of the jury. The choice a defen-

dant would face—between (1) defending against every accu-

sation thrown at it, which risks suggesting to the jury that the

defendant has something to be concerned about. and (2) mak-

ing what amounts to a general denial, which risks causing the

jury to conclude that the defendant has no good defense of its

practices—tilts the litigation playing field dramatically and

unjustifiably in favor of the plaintiff.

This imbalance will have another deleterious effect: Em-

ployers will be forced to settle even meritless lawsuits. As we

* As one practitioner has explained, “if such [“me, too”) testi-

mony is admitted, the defendant would have the Hobson's choice

of defending each situation or leaving the testimony unrebutted, ei-

ther of which is prejudicial.” Charles C. Warner, Motions in

Limine in Employment Discrimination Litigation, 29 U. MEM. L.

REV. 823, 829 (1999).

13

have noted, if “me, too” witnesses are allowed to testify, tri-

als will become bloated and expensive affairs, and conse-

quently the cost to litigate a trial that goes on for weeks could

approach or exceed the damages that a plaintiff might re-

ceive. See, e.g., 42 U.S.C. § 198la(b)(3)(D) (limiting com-

pensatory damages that can be awarded under Title VII

against large employers to $300,000). In other words, even if

an employer prevails at trial, in a sense it still loses because

of the substantial expense necessary to defend itself. That is

especially so because prevailing defendants in employment

discrimination cases almost never recover attorneys’ fees.

For example, under Title VII, attorneys’ fees may not be

awarded to a prevailing defendant unless there is a “finding

that the plaintiffs action was frivolous. unreasonable, or

without foundation” or that the “plaintiff continued to litigate

after it clearly became so.” Christianshurg Garment Co. v.

EEOC, 434 U.S. 412, 421-422 (1978); see also Monroe v.

Children's Home Ass'n of Ill, 128 F.3d 591, 594 (7th Cir.

1997) (Easterbrook. J.) (“Fee-shifting provisions in the civil

rights laws are asymmetric. Prevailing plaintiffs recover their

fees routinely, while defendants recover only if the plaintiff's

claim is frivolous.”).” Hence. plaintiffs will have leverage to

demand —and ofien will receive—sizeable settlements in

even the weakest of cases. because the costs of litigating

against both a plaintiff and her “me, too” witnesses will sim-

ply be too high.

*_**# * *

As a Categorical matter, the costs from admitting non-

party testimony “substantially outweigh|]” the minimal—if

any—probative value from that evidence. If the Court does

* Cf Turlington v. Atlanta Gas Light Co. 135 F.3d 1428, 1437

(11th Cir.) (citing cases and holding that “a district court may

award attorneys’ fees to a prevailing ADEA defendant only upon a

finding that the plaintiff litigated in bad faith”), cert. denied, 525

U.S. 962 (1998).

14

not hold that such evidence is irrelevant (see Part I{A), su-

pra), it should hold that such evidence virtually always fails

Rule 403°s balancing test.

II. Allowing Non-Parties To Testify About Alleged Dis-

crimination Raises Concerns About Fundamental

Fairness Because Such Testimony Invites Juries To

Base Liability On Perceived Harms To Persons Other

Than The Plaintiff.

To allow the introduction of “me, too” evidence is trou-

blesome for the additional reason that it invites juries to im-

pose liability for alleged harms to parties not before the dis-

trict court—thereby threatening companies’ right to a fair

trial. Just last Term, this Court explained in a related context

that “fundamental due process concerns” are raised when a

jury “use[s] a punitive damages verdict to punish a defendant

directly on account of harms it is alleged to have visited on

nonparties.” Philip Morris USA v. Williams, 127 S. Ct. 1057,

1063, 1064 (2007). In particular, the Court noted three con-

cerns: the “risks of arbitrariness, uncertainty and lack of no-

tice.” /d. at 1063. Here, those concerns are, if anything,

heightened because the plaintiff seeks to prove her own cause

of action by reference to alleged acts directed at others. Peti-

tioner does not frame the issue in Due Process terms, and the

Court can resolve this case under the Federal Rules of Evi-

dence without resort to constitutional grounds. Nevertheless,

it remains “important for a court to provide assurance that the

jury will ask the right question, not the wrong one.” /d. at

1064. Yet the rule announced below—and for which Men-

delsohn presumably will advocate—-virtually ensures that ju-

ries will ask. and answer, the wrong question. Rather than fo-

cusing on the merits of the specific allegations of the plaintiff

at hand, juries are invited to base their finding of liability and

“punish [a defendant] for harm caused [to] strangers [to the

litigation].~ /d.

This Court did hold in Williams that, in the context of

assessing punitive damages. evidence of harm to others aris-

15

ing from the same conduct “can help to show that the con-

duct that harmed the plaintiff also posed a substantial risk of

harm to the general public, and so was particularly reprehen-

sible.” /d. But evidence of different conduct aimed at non-

parties has no role to play in setting punitive damages (see

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,

422-423 (2003)), much less in determining liability in indi-

vidual disparate-treatment cases. In such cases, the plaintiff

does not—and cannot—claim that the employer's decision

was part of a single course of conduct that “posed a substan-

tial risk of harm to the general public” (Williams, 127 S. Ct.

at 1064). Rather, the plaintiff's claim relates only to herself:

her purpose in offering evidence of distinct conduct directed

at others is to lighten the burden of persuading the jury that

there was discrimination against her. Therefore, any jury that

considered this evidence would be doing precisely what Wi/-

liams forbids: “punish|ing] a defendant directly on account of

harms it is alleged to have visited on nonparties.” /d.

By insisting that other employees allegations of dis-

crimination be placed front and center before juries—no mat-

ter how attenuated the link to the plaintiff—the Tenth Circuit

mandated a “procedure|] that create|s| an unreasonable and

unnecessary risk of [jury] confusion occurring.” /d. at 1065.

For the reasons we have explained, that risk is both very real

and wholly unnecessary.

Ill. Allowing The Use of “Me, Too” Evidence Will Force

Companies To Adopt Less Efficient Management

Practices.

If the rule announced by the court of appeals were

adopted, businesses would be required to react to the pros-

pect of increased liability that attends the widespread admis-

sibility of “me. too” evidence by adopting burdensome, less

effective management practices.

A. Although framed as an evidentiary holding. the

Tenth Circuit's rule effectively alters the substantive grounds

16

for liability under the employment discrimination laws. Un-

der that rule, the outcome of employment lawsuits no longer

turns on whether a decision concerning the plaintiff was

made for a discriminatory reason. Instead, a company must

assume that it will be held liable if a jury believes that any of

the proffered witnesses was subject to a discriminatory deci-

sion.

This pattern will repeat: Any former employee who be-

lieves that he was a victim of discrimination could testify not

only at his own trial but also in any other employment case

brought against his former employer. And, for the reasons we

have explained, a chorus of such allegations—whether or not

they are true—will create a substantial risk that the employer

will be held liable regardless of whether the plaintiff was her-

self subjected to a discriminatory decision. In other words,

juries may well mulct companies not because they have dis-

criminated against particular plaintiffs, but rather because

companies have failed to root out all (allegations of) dis-

crimination. And that being so, it is predictable that plaintiffs

and their counsel will file more—and less meritorious— law-

suits secure in the knowledge that they can bolster their cases

with the allegations of other employees.

B. If “me, too” evidence is admissible, then any em-

ployee’s allegations of discrimination will likely have ripple

effects in many other discrimination lawsuits.

Many companies will therefore consider themselves

compelled by the potential for expanded liability and litiga-

tion costs to engage in “defensive medicine” in an effort to

avoid any risk that any of its employees will later allege dis-

crimination.’ For example, it is predictable that some com-

Even without the added burden of “me, too” evidence being ad-

missible per se, as the Tenth Circuit's rule would require, compa-

nies already have trouble terminating problem employees. As one

recent article explained, “[m]Jany companics today are gripped by a

fear of firing. Terrified of lawsuits, they let unproductive employ-

17

panies will give up entirely on making performance-based

determinations and instead will embrace an economically in-

efficient “last hired/first fired” approach. Others may feel

compelled to centralize their employment decisions, remov-

ing authority and responsibility from on-the-ground manag-

ers, in the hope of ensuring that thousands of decisions arc

not tainted by the poor judgment of a single supervisor some-

where in the country or world.'!

That result runs counter to the long-recognized manage-

ment principle that decentralized decisionmaking is prefer-

able. It makes sense to vest authority in mid- and lower-level

managers who are most closely acquainted with the nature of

their work, the needs of their projects, and the skill sets of

their team members. As one Nobel Prize winning economist

observed over four decades ago, “individual managers will

inevitably know more about their own spheres of activity

than higher officials”; accordingly. “decentralization can im-

prove the allocation of responsibility” because a “subordinate

has greater possibilities of initiative” while “his successes

and failures can be more easily recognized by top manage-

ment.” Kenneth J. Arrow, Control in Large Organizations,

10 MGMT. Sci. 397. 400 (Apr. 1964). In short. decentralized

decisionmaking ts more nimble and hence more likely to pro-

duce better. more efficient outcomes. But the use of such

highly effective management practices will be threatened if

ees linger, lay off coveted workers while retaining less valuable

ones, and pay severance to screwups and even crooks in exchange

for promises that they won't sue.” Michael Orey, Fear of Firing:

How the threat of litigation is making companies skittish about ax-

ing problem workers, BUS. WEEK (Apr. 23, 2007), at 54.

'' A number of large companies may face significant difficulties in

making the transition to centralized personnel decisionmaking. In-

deed, it may be impossible for some large companies to do so be-

cause of the size of their operations, which are often nationwide, if

not transnational, in scope. These companies may have no choice

other than the “last hired/tirst fired” method.

this Court sustains the Tenth Circuit’s broad extension of

substantive liability under the discrimination laws.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

ROBIN S. CONRAD EVAN M. TAGER

SHANE BRENNAN Counsel of Record

National Chamber ARCHIS A. PARASHARAMI

Litigation Center. Inc. Mayer, Brown, Rowe &

1615 H Street, N_W. Maw LLP

Washington, DC 20062 1909 K Street, NW

(202) 463-5537 Washington, DC 20006

(202) 263-3000

Counsel for Amicus Curiae

Chamber of Commerce of the United States of America

AuGust 2007