prove pretext. “Proof of discriminatory intent is critical in disparate treatment cases. Proffered evidence of past acts of racial discrimination may be relevant to prove the defendant’s intent or motive in his actions towards the plaintiff.”(See, e.g., Hogan v. American Telephone & Telegraph Co. (8th Cir.1987) 812 F.2d 409, 410-411; Estes v. Dick Smith Ford, Inc. (8th Cir.1988) 856 F.2d 1097, 1104; Aman v. Cort Furniture Rental Corp. (3rd Cir.1996) 85 F.3d 1074, 1086, and Lindsey v. Prive Corp. (5th Cir.1993) 987 F.2d 324.) Indeed, the Ninth Circuit characterizes the admissibility of tes- timony from other employees subjected to similar discrimination as “commonplace.” (Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 698.)
Despite the widespread acceptance of
“other victims” evidence by federal appel- late courts, trial courts continued to strug- gle with the question of exactly how simi- lar to the plaintiff’s experience the situa- tions of other victims must be before their testimony should be admitted. Some courts required that other victims have worked under the same supervisor and in the same location as the plaintiff. (See, e.g., Aramburu v. The Boeing Co. (10th Cir. 1997) 112 F.3d 1398, 1404.) Other courts did not. (See, e.g., Spulak v. K Mart Corp., supra, 894 F.2d 1150 (affirming admissibil- ity of testimony of employee who held the same position as plaintiff in another store).
This particular debate was settled
when the United States Supreme Court decided Sprint/United Management Co. v. Mendelsohn [“Mendelsohn”] (2008) 552 U.S. 379 [128 S. Ct. 1140]. In Mendelson, the 10th Circuit had ruled that the district court erred in holding that testimony of other employees about similar acts of dis- crimination perpetrated against them was per se inadmissible if the other employees worked under different supervisors and were therefore not “similarly situated.” The Supreme Court reversed the circuit court’s decision, holding that the circuit court “should not [have] assume[d] the district court adopted that ‘similarly situ- ated’ analysis when it addressed a very dif- ferent kind of evidence.” (Id. at 1146.) In
APRIL 2011 The Advocate Magazine — 79
other words, the Supreme Court found that the 10th Circuit erred in presuming that the trial court had adopted such a rule of per se inadmissibility. However, the Supreme Court went
on to explain that if the district court had ruled that testimony from other victims who worked under different supervisors was per se inadmissible, such a ruling would constitute an abuse of discretion: “We note that, had the district court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discre- tion. Relevance 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. …” (Id. at
1147.) The Court then explained that, [t]he question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many fac- tors, including how closely related the evidence is to the plaintiff’s circum- stances and theory of the case. Applying Rule 403 to determine if evi- dence is prejudicial also requires a fact- intensive, context-specific inquiry.
(Ibid.)
• The expansion of “me too” evidence in Johnson
While Mendelsohn unequivocally held
that “other victims” evidence is not per se inadmissible where the other victims worked under different supervisors, the California Court of Appeals went a step
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