The Florida Bar

Florida Bar Journal

Limited the Use of “Me Too” Evidence in Employment Discrimination Case

T he American workforce enjoyed remarkable prosperity during the last several years. The national rate of unemployment plummeted from a high of 7.8 percent in June 1992 to a low of 3.9 percent in October 2000.1 T he decline in Florida’s unemployment rate was even more dramatic. In Florida, unemployment fell from a high of 8.8 percent in February 1992 to a low of 3.6 percent in December 2000.2 M eanwhile, the average hourly wage of an American worker rose and is now 41 percent higher than in 1990, while inflationary pressures were kept in check.3

Despite the rosy economic picture of low unemployment, plentiful opportunities for career advancement, and higher wages, the number of employment discrimination cases and EEOC charges of discrimination filed rose annually during the past decade. From 1990 to 1998, the number of employment discrimination cases filed each year in federal courts tripled.4 D uring the same period, annual filings of EEOC charges of discrimination that alleged unlawful harassment or retaliation in the workplace nearly doubled.5

Recent economic indicators suggest that, in contrast with the prosperity of the last decade, the economy may now be faltering. Spurred by massive layoffs in the telecommunications industry and manufacturing firms such as DaimlerChrysler, the national unemployment rate has risen during recent months.6 I n addition, the gross domestic product fell precipitously during the third and fourth quarters of last year.7 M eanwhile, the Federal Reserve has made a series of downward adjustments in the prime rate in response to growing concerns about sluggishness on Wall Street.

As the economy weakens, the number of formal complaints of employment discrimination filed annually, both as lawsuits and EEOC charges of discrimination, is likely to soar. As the unemployment rate rises, workers are likely to become frustrated as they compete for fewer job opportunities. Desperate, unemployed workers will likely blame employers as the source of their problems. When that happens, employers will become convenient targets of employment discrimination complaints.

The Problem
As more employees become vocal about perceived discrimination in the workplace and the number of formal complaints of employment discrimination rise, plaintiffs in disparate treatment employment discrimination cases are more likely than ever to discover coworkers who have made similar complaints of discrimination. The issue then becomes whether or to what extent a plaintiff may introduce evidence concerning a coworker’s complaints of discrimination as proof of an employer’s discriminatory motives and intent. The admissibility of this anecdotal evidence, often referred to as “me too” evidence, often is a source of contention between attorneys who represent plaintiffs and those who represent management in employment cases. It has also been the subject of debate among courts and scholars.8

The potential impact of “me too” evidence on a jury cannot be overestimated. Plaintiffs in employment discrimination cases ultimately bear the burden of persuading the trier of fact that an employer intentionally discriminated against them.9 However, plaintiffs rarely have direct evidence of an employer’s discriminatory intent.10 Instead, typically they are forced to rely on circumstantial evidence to establish an employer’s discriminatory motives and intent.

In the absence of direct evidence of an employer’s discriminatory animus, “me too” evidence can be particularly powerful in a disparate treatment employment discrimination case. Indeed, the Sixth Circuit characterized “me too” evidence as “‘smoking gun’ type evidence” in the absence of direct evidence of discriminatory intent.11 It invites jurors to conclude that “where there’s smoke, there’s fire.”12 For that reason, attorneys who represent management in employment discrimination cases should make every effort to exclude or at least limit the introduction of “me too” evidence at trial.

The Rules of Evidence
As a general rule, all relevant evidence is admissible.13 The rules of evidence broadly define relevant evidence as that which has any tendency to make a material fact more or less probable.14 However, there are limitations on the admissibility of otherwise relevant evidence. Relevant evidence is inadmissible when it is unfairly prejudicial, leads to confusion of the issues, or misleads the jury.15

Similar fact evidence of other wrongs or acts presents a unique problem. Evidence of other wrongs or acts may be admissible as proof of motive or intent.16 On the other hand, it is inadmissible to demonstrate propensity, i.e., that a person acted in conformity with his or her prior actions on a particular occasion.17 Thus, when assessing the admissibility of such evidence, courts must carefully weigh the danger that jurors will consider the evidence for the improper purpose of establishing a person’s propensity to act in a particular manner. In addition, courts should consider whether the evidence will lead to confusion by creating a trial within a trial.

In the context of employment discrimination cases, similar fact evidence of other wrongs or acts usually takes the form of “me too” evidence. Plaintiffs may offer evidence concerning an employer’s treatment of other employees as proof of the employer’s discriminatory motives and intent. Attorneys who represent management, however, will typically counter by arguing that the “me too” evidence is unfairly prejudicial for one reason or another.

Courts disagree over the extent to which “me too” evidence is admissible in employment discrimination cases. Some courts have taken a liberal view of such evidence. For example, the Eighth Circuit generally admits “me too” evidence on the basis that it serves as “background evidence” that is “critical for the jury’s assessment of whether a given employer was more likely than not to have acted from an unlawful motive.”18 However, the Eighth Circuit has also affirmed a trial court’s exclusion of “me too” testimony that did not contain specific factual allegations, but instead “consisted largely of generalized, subjective assertions of a perceived bias in operations.”19

Other courts have taken a more conservative approach to “me too” evidence. One court excluded testimony of other employees whom the plaintiff intended to call to testify about their own discrimination complaints on the basis that the testimony “would be in a large measure legally irrelevant because [it] would not serve to support [the plaintiff’s] own individual claims.”20 In another case, the court excluded “me too” evidence and provided the classic explanation that “[i]n the court’s view, even the strongest jury instructions could not have dulled the impact of a parade of witnesses, each recounting his contention that defendant had laid him off because of his age.”21

The 11th Circuit, in McWhorter v. City of Birmingham, 906 F.2d 674 (11th Cir. 1990), appears to have adopted the conservative approach to “me too” evidence. McWhorter, a former police officer, sued the City of Birmingham and its police chief under 42 U.S.C. §1983 and claimed that he had been fired in retaliation for exercising his First Amendment rights. In particular, he alleged that he was discharged for statements that he made to the press concerning the police chief’s physical abuse of a prisoner. At trial, McWhorter proffered testimony from other police officers who were allegedly harassed and intimidated by the police chief, both in connection with the prisoner abuse incident and in other unrelated incidents. The district court excluded the testimony and, on appeal, the 11th Circuit affirmed the ruling. The 11th Circuit explained that “[t]he admission of testimony relating to other police officers’ grievances against [the police chief] could have resulted in a series of mini-trials centering on the employment history of each officer.”22

Although courts disagree over the extent to which “me too” evidence is admissible, several common analytical factors run through the cases. Careful consideration of each of those factors, both separately and in conjunction, may serve to eliminate or at least limit the use of “me too” evidence at trial. The following is a discussion of each factor.

Analytical Factors
• Recent vs. Remote Events

The first factor to consider is whether the “me too” events are too remote in time from the events that gave rise to the plaintiff’s claims of discrimination. Corporate leadership, attitudes, and atmospheres change with the passage of time, and personnel practices constantly evolve to keep pace with new and developing areas of employment law. For those reasons, the way in which an employer previously treated employees within a protected class may not reflect its current attitudes toward and treatment of members of that same class.

The time factor may be significant when the “me too” events and the events that gave rise to the plaintiff’s claims are separated by fundamental changes within the employer’s leadership or organizational structure. The recent marriage between Daimler-Benz and Chrysler is a reminder that, in today’s world of corporate mergers and reorganizations, a company’s management may change virtually overnight. Likewise, when the employer is a state or local governmental entity, new elections may produce wholesale changes within the organization. In those instances, remote “me too” events that took place under the old regime may not be probative of the new leadership’s motives and intent.

The passage of time may also be critical when the “me too” events and the events giving rise to the plaintiff’s claims are separated by substantial changes in the employer’s personnel practices. Employment practices may change dramatically in the aftermath of new regulations or court opinions. This is particularly true with respect to personnel practices that relate to areas of employment law that are relatively new or rapidly developing. Thus, remote “me too” events may not be admissible as proof of an employer’s discriminatory animus, when those events are followed by modifications in the employer’s personnel practices or policies.

Most courts that have considered this issue agree in principle that evidence regarding an employer’s treatment of other employees is not admissible as proof of the employer’s discriminatory motive toward a particular plaintiff, when those events are too remote in time.23 As the solitary exception, the First Circuit may not share in that opinion. It appears to have discounted the time factor and has instead taken the position that “[e]vidence of a corporate state-of-mind or a discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular. . . time frame involved in the specific events that generated a claim of discriminatory treatment.”24

Although remote “me too” incidents may not be admissible as evidence of an employer’s discriminatory motives and intent, courts have not formulated a bright line rule or test to determine when such incidents become too remote. One court excluded evidence of a “me too” event, when it was separated from the events that gave rise to the plaintiffs’ claims of discrimination by one year.25 Another court excluded evidence of a “me too” event that was separated from the events involving the plaintiff by four years.26 On the other hand, other courts have admitted evidence of “me too” events, even though they were separated by 15 months27 and 22 months28 from the events that gave rise to the plaintiff’s claims.
• Same vs. Different Actors

The second factor to consider is whether the decisionmaker who was involved in the “me too” events is different from the one who was involved in the events that gave rise to the plaintiff’s claims of discrimination. Discriminatory animus that is secretly harbored within the mind of one decisionmaker may not be shared by other decisionmakers within the employer’s organization. As a corollary, employment decisions that are made by one manager or supervisor should not be relied upon to explain the subjective intent and motives underlying employment decisions made by another decisionmaker. Therefore, “me too” events that involve different decisionmakers may not be admissible.

This factor is particularly important in situations when the “me too” events and those that pertain to the plaintiff’s claims involve employment decisions that are made by different low ranking managers or supervisors. Low level supervisors usually have very limited authority, so they are unlikely to influence employment decisions that are made by other supervisory or managerial personnel. Moreover, supervisors follow rather than formulate company policies, so their personal biases are unlikely to affect an employer’s overall personnel practices and procedures. For those reasons, courts have generally excluded “me too” testimony that concerns employment decisions or other actions taken by low level supervisors who were not involved in the plaintiff’s claims.29

On the other hand, such may not be the case when the person who was involved in the “me too” events is an executive. Executives, unlike supervisors, create corporate policy and wield considerable influence on decisions made by others within the organization. As one court recently noted:

When a major company executive speaks, “everybody listens” in the corporate hierarchy, and when an executive’s comments prove to be disadvantageous to a company’s subsequent litigation posture, it cannot compartmentalize this executive as if he had nothing more to do with company policy than the janitor or watchman.30

Thus, evidence of an executive’s personal biases may be probative of the employer’s overall motives and intent and may be admissible even though the executive was not involved in the events that surround the plaintiff’s claims.

Courts have generally admitted “me too” testimony regarding an executive. Because an executive speaks for the corporation, such “me too” evidence often involves comments made by the executive that reflect possible bias against employees who fall within a protected class.31 Comments of that nature, as well as other actions taken by an executive, may be relevant because they “tend to highlight the atmosphere and institutional state-of-mind present. . . during the plaintiff’s period of employment.”32 In a similar vein, “me too” testimony concerning comments or actions by a middle or upper level manager may be admissible under certain circumstances, even though the manager was not involved in the events that concern the plaintiff. Middle or upper level managers may exert considerable influence over employment decisions that are made by supervisors who fall within their chain of command. Thus, “me too” evidence concerning middle or upper level managers may be admissible to prove discriminatory intent when their subordinates were involved in the events of which the plaintiff complains.
• Similar vs. Dissimilar Events

A third factor to consider is the similarity between the “me too” events and those that involve the plaintiff. As one court noted, “[t]he testimony of employees regarding their treatment by an employer under similar circumstances and close in time to the circumstances of a plaintiff are relevant to the question of an employer’s discriminatory intent towards a plaintiff.”33 Conversely, “[i]ncidents that are. . . too dissimilar from a plaintiff’s situation are not relevant.”34 The few courts that have considered this issue agree that “me too” incidents which are too dissimilar from a plaintiff’s situation are not relevant.35

This factor may be particularly useful in cases in which the plaintiff’s claim involves a discrete employment decision or act, such as a hiring or promotion claim, but the “me too” testimony relates to ongoing activity such as allegations of a hostile work environment. For example, one court suggested that testimony from coworkers concerning a racially hostile work environment may not be relevant to support a plaintiff’s claim that she is being paid less because of her race.36 According to that court:

The probative value of other discriminatory acts depends not only on their relevance to the acts of which the plaintiff complains but also on the nature of the discrimination charged. If [the plaintiff] were complaining that he had been paid less than white workers for the same work, evidence of the discriminatory behavior of his coworkers toward another black worker might have little or no relevance.. . .37

Likewise, another court excluded “me too” testimony from other female employees concerning sexual harassment they had experienced at work, when the plaintiff’s claims were for wrongful discharge based on gender.38

This factor may also be helpful in cases that arise under the ADA. As with other types of discrimination, “me too” evidence in an ADA case may not be relevant to demonstrate an employer’s motives and intent toward the plaintiff when the evidence pertains to events that are dissimilar to those that involve the plaintiff. To illustrate, “me too” testimony concerning an employer’s failure to promote a disabled job applicant may not be relevant when the plaintiff alleges that the employer failed to provide reasonable accommodations for his or her disability.
• Same vs. Different Protected Classes

The final factor to consider is whether the plaintiff and the “me too” witnesses fall within the same protected class. For instance, a supervisor who holds racial biases may not be biased against female or disabled employees. That being the case, the supervisor’s treatment of an African-American employee will not necessarily be indicative of the supervisor’s motives and intent toward a female or disabled worker. Thus, “me too” testimony may not be relevant when it concerns persons who are outside of the plaintiff’s protected class.

Courts have generally excluded “me too” testimony regarding an employer’s treatment of employees who are not members of the plaintiff’s protected class. For example, one court excluded testimony that the employer engaged in racial discrimination against its employees and customers, when the plaintiff’s claim was for wrongful discharge based on gender.39 The court reasoned that:
There is little reason in common experience to infer that an employer who discriminates against blacks in his employment decisions is also likely to discriminate against women. To be sure, such a correlation does exist in some situations—as plaintiff points out, some employers discriminate against everyone who is not a white male—but this is not the normal experience. Discrimination against blacks has an entirely different history in this country in general and in geographical sections and particular industries than has discrimination against women.40

In another case that involved claims of disability discrimination, the court excluded testimony about a manager’s derogatory remarks toward other employees about their race, sex, and national origin.41 The court concluded that there is only a “tenuous relationship” between discrimination based on gender, race, or national origin, and discrimination based on disabilities.42

This factor may be significant in ADA cases, even when both the “me too” witness and the plaintiff contend that the employer discriminated against them on the basis of disability. In those cases, attorneys who represent management should carefully examine whether the “me too” witness in fact has a condition that constitutes a disability under the ADA, i.e., whether the witness is actually a member of the plaintiff’s protected class. If the “me too” witness has a condition that does not rise to the level of a disability within the meaning of the ADA, then the witness would not be a member of the plaintiff’s protected class, and testimony concerning the employer’s treatment of that witness might not be admissible.43 This final factor could also come into play in ADA cases when the “me too” witness and the plaintiff are both disabled, but the disabilities are very different. For example, argument could be made that there is no correlation between bias against those who have emotional or psychiatric disorders and those who have physical disorders. Thus, an employer’s refusal to hire a schizophrenic job applicant may not be probative in a case involving claims that the employer refused to provide reasonable accommodations to an employee with chronic low back pain.

Conclusion
Although courts have disagreed over the extent to which “me too” evidence is admissible at trial, several analytical factors have emerged that may limit a plaintiff’s use of such evidence. Evidence of “me too” events may be inadmissible when those events are too remote in time or too dissimilar from the events that gave rise to the plaintiff’s claims of discrimination. In addition, “me too” events that involve different decisionmakers may not be probative of an employer’s discriminatory intent toward the plaintiff, particularly when the decisionmakers who were involved in those events are low ranking managers or supervisors. Finally, testimony concerning an employer’s treatment of “me too” witnesses who are not within the plaintiff’s protected class may not be admissible.

In the absence of direct evidence of an employer’s discriminatory intent, “me too” testimony can be particularly powerful in disparate treatment employment discrimination cases because it invites jurors to conclude that “where there’s smoke, there’s fire.” For that reason, attorneys who represent management should attempt to exclude or at least limit a plaintiff’s use of such evidence at trial. Careful consideration of the foregoing analytical factors may serve that purpose. q

1 Bureau of Labor Statistics, U.S. Dep’t of Labor, at www.bls.gov/eag/eag.us.htm.
2 Id., at www.bls.gov/eag/eag.fl.htm.
3 Id., at www.bls.gov/eag/eag.us.htm.
4 Bureau of Justice Statistics, Office of Justice Programs, U.S. Dep’t of Justice, Civil Rights Complaints in U.S. District Courts, 1990-1998 (2000), at www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pdf.
5 Id.
6 Bureau of Labor Statistics, U.S. Dep’t of Labor, at www.bls.gov/eag/eag.us.htm.
7 Bureau of Economic Analysis, U.S. Dep’t of Commerce, at www.bea.doc.gov/bea/glance.htm.
8 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 30 (3d ed. 1996).
9 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (quoting Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248 (1981)).
10 Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987); Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987).
11 Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988).
12 Kunzman v. Enron Corp., 941 F. Supp. 853, 863 (N.D. Iowa 1996).
13 Fed. R. Evid. 402; Fla. R. Evid. 90.402.
14 Fed. R. Evid. 401; Fla. R. Evid. 90.401.
15 Fed. R. Evid. 403; Fla. R. Evid. 90.403.
16 Fed. R. Evid. 404(b); Fla. R. Evid. 90.404(2)(a).
17 Id.
18 Phillip v. ANR Freight Sys., Inc., 945 F.2d 1054, 1056 (8th Cir. 1991).
19 Callanan v. Runyun, 75 F.3d 1293, 1298 (8th Cir. 1996).
20 Franco-Rivera v. Chairman of Bd. of Directors of Fed. Deposit Ins. Corp., 751 F. Supp. 13, 16 n.1 (D. Puerto Rico 1990).
21 Moorhouse v.Boeing Co., 501 F. Supp. 390, 397 n.4 (E.D. Pa. 1980), aff’d, 639 F.2d 774 (1980).
22 McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).
23 See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1423 (7th Cir. 1986); Brillhart v. Philips Elec. N. Am. Corp., 938 F. Supp. 742, 747 (D.N.M. 1996), rev’d on other grounds, 179 F.3d 1271 (10th Cir. 1999); Stair v. Lehigh Valley Carpenters Local 600, 813 F. Supp. 1116, 1119–20 (E.D. Pa. 1993); Garvey v. Dickinson Coll., 763 F. Supp. 799, 801–02 (M.D. Pa. 1991) Rauh v. Coyne, 744 F. Supp. 1181, 1183 (D.D.C. 1990).
24 Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987).
25 Brillhart v. Philips Elec. N. Am. Corp., 938 F. Supp. at 747.
26 Stair v. Lehigh Valley Carpenters Local 600, 813 F. Supp. at 1119–20.
27 Rauh v. Coyne, 744 F. Supp. at 1183.
28 Conway v. Electro Switch Corp., 825 F.2d at 597.
29 See, e.g., Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 358 (5th Cir. 1995); Goff v. Continental Oil Co., Inc., 678 F.2d 593, 596–97 (5th Cir. 1982), overruled on other grounds, Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir. 1990); Schrand, 851 F.2d at 156; Callanan, 75 F.3d at 1298.
30 Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989), overruled on other grounds, Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3d Cir. 1995).
31 See, e.g., Lockhart, 879 F.2d at 54; Conway, 825 F.2d at 597; Morse v. Southern Union Co., 174 F.3d 917, 922 (8th Cir. 1999); Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996).
32 Conway, 825 F.2d at 597.
33 Brillhart, 938 F. Supp. at 747.
34 Stair, 813 F. Supp. at 1119.
35 See Hunter, 797 F.2d at 1424; Brillhart v. Philips Elec. N. Am. Corp., 938 F. Supp. at 747-48; Stair, 813 F. Supp. at 1119.
36 See Hunter, 797 F.2d at 1424.
37 Id.
38 See Brillhart, 938 F. Supp. at 747–48.
39 Rauh, 744 F. Supp. at 1183.
40 Id.
41 Kelly, 61 F.3d at 358.
42 Id.
43 See generally Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1013–14 (9th Cir. 1999).

J. Ray Poole works in the Employment Litigation Section of the Office of the Attorney General, Tallahassee. His practice focuses on representing management in employment matters.

This column is submitted on behalf of the Labor and Employment Law Section, Richard C. McCrea, Jr., chair, and F. Damon Kitchen, editor.