Mendelsohn v. Sprint/United Management Co.
U n i t e d States Court of Appeals T e n t h Circuit U N I T E D STATES COURT OF APPEALS
T E N T H CIRCUIT
N o v e m b e r 12, 2010
E l i s a b e t h A. Shumaker C l e r k of Court
ELLEN J. MENDELSOHN, Plaintiff-Appellant, v. S P R I N T / U N I T E D MANAGEMENT COMPANY, Defendant-Appellee. N o . 08-3334 (D.C. No. 2:03-CV-02429-KHV) ( D . Kan.)
ORDER AND JUDGMENT * B e f o r e LUCERO, MURPHY, and HOLMES, Circuit Judges. Plaintiff-Appellant Ellen J. Mendelsohn brought a disparate-treatment age d i s c r i mi n a t i o n claim against her former employer, Defendant-Appellee S p r i n t / U n i t e d Management Company ("Sprint"), under the Age Discrimination in E mp l o y me n t Act ("ADEA"), 29 U.S.C. §§ 621634, arising out of her termination d u r i n g a company-wide reduction in force ("RIF"). On appeal, Ms. Mendelsohn c h a l l e n g e s the district court's exclusion of the testimony of five other former S p r i n t employees who claimed that their supervisors had discriminated against T h i s order and judgment is not binding precedent, except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Federal Rule of Appellate P r o c e d u r e 32.1 and Tenth Circuit Rule 32.1.
t h e m because of their age. Exercising jurisdiction under 28 U.S.C. § 1291, we h o l d that the district court did not abuse its discretion in excluding this evidence, a n d therefore we AFFIRM. I . BACKGROUND T h e factual and procedural history of this case is set forth in detail in the d e c i s i o n s of the Supreme Court in Sprint/United Mgmt. Co. v. Mendelsohn, 552 U . S . 379 (2008), and the United States District Court for the District of Kansas in M e n d e l s o h n v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201 (D. Kan. 2008). M s . Mendelsohn was a manager in Mobile Financial Services ("MFS") in t h e Business Development group in the Business Development and Strategy o r g a n i z a t i o n ("BDS") in Sprint's PCS wireless division. The supervisors in Ms. M e n d e l s o h n ' s chain of command included her direct supervisor, MFS Director J a me s Fee, who reported to BDS Vice President Paul Reddick, who in turn r e p o r t e d to BDS Senior Vice President Bill Blessing. I n 2002, Sprint terminated Ms. Mendelsohn's employment as part of a c o mp a n y - w i d e RIF. BDS Senior Vice President Blessing had BDS Vice President R e d d i c k oversee the RIF for the BDS Business Development group. BDS Vice P r e s i d e n t Reddick decided which positions to eliminate and which employees to t e r mi n a t e in the RIF, including Ms. Mendelsohn. M s . Mendelsohn sued Sprint under the ADEA, alleging disparate treatment b a s e d on her age. In support of her claim, Ms. Mendelsohn sought to introduce 2
t h e testimony of five other former Sprint employees who claimed that their s u p e r v i s o r s had discriminated against them because of their age: Bonnie Hoopes, Y v o n n e Wood, Sharon Miller, John Borel, and John Hoopes. Three of these w i t n e s s e s , Ms. Hoopes, Ms. Wood, and Ms. Miller, also alleged hearing Sprint ma n a g e r s make ageist remarks. P r i o r to trial, Sprint moved in limine to exclude this "other-employee" t e s t i mo n y . In a minute order, the district court granted Sprint's motion and e x c l u d e d this testimony under Federal Rule of Evidence 401 as irrelevant, and u n d e r Federal Rule of Evidence 403 because its probative value was outweighed b y the risk of unfair prejudice. The district court's order permitted Ms. M e n d e l s o h n to introduce evidence of discrimination against only those Sprint e mp l o y e e s who were "similarly situated to her," defined to "require proof that ( 1 ) Paul R[e]ddick was the decision-maker in any adverse employment action; and ( 2 ) temporal proximity." Aplt. App. at 138 (Dist. Ct. Order, dated Jan. 3, 2005). At trial, the jury returned a defense verdict. O n appeal, a panel of this court reversed and held that the district court a b u s e d its discretion in excluding the other-employee testimony. Mendelsohn v. S p r i n t / U n i t e d Mgmt. Co., 466 F.3d 1223, 1225 (10th Cir. 2006). We reasoned t h a t "the evidence [that Ms. Mendelsohn] sought to introduce is relevant to S p r i n t ' s discriminatory animus toward older workers, and the exclusion of such e v i d e n c e unfairly inhibited Mendelsohn from presenting her case to the jury." Id. 3
a t 1226. Accordingly, we remanded for a new trial. 1 Id. at 1231. T h e Supreme Court vacated this court's judgment, holding that we "erred in c o n c l u d i n g that the District Court applied a per se rule" excluding the othere mp l o y e e testimony as irrelevant. Mendelsohn, 552 U.S. at 383. The Court held t h a t this court erred in determining relevance and prejudice under Federal Rules o f Evidence 401 and 403 in the first instance. Id. at 38687. The Court r e ma n d e d this case "to have the District Court clarify the basis for its evidentiary r u l i n g under the applicable Rules." Id. at 388. O n remand, the district court held that the other-employee testimony was p r o p e r l y excluded pursuant to Federal Rules of Evidence 401 and 403. The d i s t r i c t court further held that, to the extent its exclusion of this evidence was in e r r o r , such error was harmless. Mendelsohn, 587 F. Supp. 2d at 121820. Accordingly, the district court denied Ms. Mendelsohn's motion seeking a pret r i a l evidentiary hearing, a new trial, and the enforcement of the parties' c o n d i t i o n a l settlement agreement. Id. at 1217 & n.22. Ms. Mendelsohn's instant a p p e a l followed.
J u d g e Tymkovich dissented. Judge Tymkovich believed that the d i s t r i c t court did not abuse its discretion in excluding the other-employee t e s t i mo n y and that the majority erred "in holding that testimony from other e mp l o y e e s not similarly situated is admissible even where the plaintiff has made n o independent showing of a company-wide policy of discrimination." Id. at 1 2 3 1 (Tymkovich, J., dissenting). 4
I I . DISCUSSION A . Standard of Review W e review a district court's decision to admit or exclude evidence under an a b u s e of discretion standard. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 9 6 5 , 968 (10th Cir. 2001). "Our deferential review applies both to a trial court's t h r e s h o l d determination of relevance under Rule 401 and to its conclusion under R u l e 403 that relevant evidence should nonetheless be excluded due to its t e n d e n c y to cause jury confusion or unfair prejudice." Tanberg v. Sholtis, 401 F . 3 d 1151, 1162 (10th Cir. 2005). A district court abuses its discretion "when it renders an arbitrary, c a p r i c i o u s , whimsical, or manifestly unreasonable judgment." Ralston, 275 F.3d a t 968 (quoting Copier v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir. 1 9 9 8 ) ) (internal quotation marks omitted). We will not disturb the district court's j u d g me n t unless we have "a definite and firm conviction that the [district] court h a s made a clear error of judgment or exceeded the bounds of permissible choice i n the circumstances." Id. at 96869 (quoting Beaird v. Seagate Tech., Inc., 145 F . 3 d 1159, 1164 (10th Cir. 1998)) (internal quotation marks omitted). B . Relevant Evidence and the ADEA R e l e v a n t evidence is admissible, while irrelevant evidence is inadmissible. Fed. R. Evid. 402. Relevant evidence is "evidence having any tendency to make t h e existence of any fact that is of consequence to the determination of the action 5
mo r e probable or less probable than it would be without the evidence." Fed. R. E v i d . 401. "The fact to be proved may be ultimate, intermediate, or evidentiary; i t matters not, so long as it is of consequence in the determination of the action." Fed. R. Evid. 401 advisory committee's note; accord United States v. Curtin, 489 F . 3 d 935, 943 (9th Cir. 2007) (en banc). Relevance is "determined in the context o f the facts and arguments in a particular case, and thus [is] generally not a me n a b l e to broad per se rules." Mendelsohn, 552 U.S. at 387. T h e ADEA makes it unlawful for an employer "to fail or refuse to hire or to d i s c h a r g e any individual or otherwise discriminate against any individual with r e s p e c t to his compensation, terms, conditions, or privileges of employment, b e c a u s e of such individual's age." 29 U.S.C. § 623(a)(1); accord, e.g., Gross v. F B L Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009). To succeed on an ADEA d i s p a r a t e - t r e a t me n t claim, a plaintiff must prove by a preponderance of the e v i d e n c e that age was the "but-for" cause of the challenged adverse employment a c t i o n . Gross, 129 S. Ct. at 235052. " T h e ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of i n t e n t i o n a l discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 1 3 3 , 153 (2000). Proof that a defendant's proffered legitimate, nondiscriminatory r e a s o n for an adverse employment action "is unworthy of credence is simply one f o r m of circumstantial evidence that is probative of intentional discrimination, 6
a n d it may be quite persuasive." Id. at 147. Put another way, "[p]roving the e mp l o y e r ' s reason false becomes part of (and often considerably assists) the g r e a t e r enterprise of proving that the real reason was intentional discrimination." Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993)) (internal q u o t a t i o n marks omitted). Thus, evidence that makes a defendant's proffered j u s t i f i c a t i o n more or less likely to be pretextual is relevant evidence. See Fed. R. E v i d . 401. " [ W ]h e t h e r evidence of discrimination by other supervisors is relevant in a n individual ADEA case is fact based and depends on many factors, including h o w closely related the evidence is to the plaintiff's circumstances and theory of t h e case." Mendelsohn, 552 U.S. at 388. For such evidence to be relevant, a p l a i n t i f f must establish a nexus between the other-employee testimony and the a d v e r s e employment action taken against her: she must show that the othere mp l o y e e testimony "can logically or reasonably be tied to the adverse e mp l o y me n t action" that she suffered. Minshall v. McGraw Hill Broad. Co., 323 F . 3 d 1273, 1285 (10th Cir. 2003); accord Curtis v. Okla. City Pub. Schools Bd. of E d u c . , 147 F.3d 1200, 1217 (10th Cir. 1998); see Rea v. Martin Marietta Corp., 2 9 F.3d 1450, 1457 (10th Cir. 1994) ("[T]he plaintiff must demonstrate a nexus b e t w e e n the allegedly discriminatory statements and the defendant's decision to t e r mi n a t e her."). "[A]necdotal evidence of discrimination should only be a d mi t t e d if `the prior incidences of alleged discrimination can somehow be tied to 7
t h e employment actions disputed in the case at hand.'" Heno v. Sprint/United M g m t . Co., 208 F.3d 847, 856 (10th Cir. 2000) (quoting Simms v. Oklahoma, 165 F . 3 d 1321, 1330 (10th Cir. 1999)). C . The District Court Did Not Abuse Its Discretion M s . Mendelsohn's theory of the case is that "her termination was i n c o n s i s t e n t with Sprint's reduction in force criteria, and that Sprint misused the p e r f o r ma n c e evaluations on which it relied in making the reduction in force d e c i s i o n s . " Aplt. Opening Br. at 40 (quoting Aplt. Supp. App. at 1161 (Jury I n s t r u c t i o n No. 10, filed Jan. 13, 2005)) (internal quotation marks omitted); Aplt. R e p l y Br. at 17 (same) (internal quotation marks omitted). She does not c h a l l e n g e the RIF itself as inherently discriminatory. See Mendelsohn, 587 F. S u p p . 2d at 1205; Aplt. Reply Br. at 7. "While the RIF was company-wide, . . . d e c i s i o n s about which employees would be terminated to implement the RIF were ma d e on a departmental level"; thus, Ms. Mendelsohn needed to show that her s u p e r v i s o r s intentionally discriminated against her to prevail on her ADEA claim. Mendelsohn, 587 F. Supp. 2d at 1205 n.4. To be relevant, therefore, evidence mu s t make it more or less probable that Ms. Mendelsohn's supervisors terminated h e r employment because of her age. O n remand, the district court explained that its previous minute order "was n o t applying a per se rule that evidence from employees of other supervisors is i r r e l e v a n t in age discrimination cases." Mendelsohn, 587 F. Supp. 2d at 1207. 8
T h e district court analyzed the facts and the relationship between the evidence a n d Ms. Mendelsohn's circumstances and theory of the case. The district court c o n s i d e r e d the "huge" size of the RIF, "the fact that plaintiff had never c h a r a c t e r i z e d the RIF as anything but a legitimate cost-cutting measure," and Ms. M e n d e l s o h n ' s failure to "establish a sufficient nexus between the decisions of o t h e r managers and the decision-makers in her case." Id. at 120910. The d i s t r i c t court noted that "none of plaintiff's five witnesses worked in BDS or r e p o r t e d to Blessing, Reddick or Fee." Id. at 1215; see id. at 1218. Similarly, the d i s t r i c t court observed that the ageist remarks allegedly heard by Ms. Hoopes, M s . Wood, and Ms. Miller were made by managers at Sprint who "were not in the s a me chain of command as plaintiff and did not participate in the decision to t e r mi n a t e plaintiff's employment." Id. at 1219. Ms. Mendelsohn argues that the testimony of the five other former Sprint e mp l o y e e s is relevant because "it directly impeaches defendant" and because it " h a s a `tendency' to prove pretext, that undermines Sprint's non-discriminatory e x p l a n a t i o n s for choosing Mendelsohn for RIF." Aplt. Opening Br. at 39. We a g r e e with Ms. Mendelsohn that evidence that makes pretext more or less likely is r e l e v a n t . However, the district court did not abuse its discretion in determining t h a t her proffered other-employee testimony is not such evidence. T h e district court concluded that Ms. Mendelsohn "did not show a nexus b e t w e e n the allegedly discriminatory acts and the decision to terminate her 9
e mp l o y me n t . " 587 F. Supp. 2d at 1218. "Plaintiff did not logically or reasonably t i e evidence of how Sprint treated any of the five witnesses to the decision to t e r mi n a t e her own employment." Id. at 1215. Nor did Ms. Mendelsohn " d e mo n s t r a t e [ ] [a] connection between any of the age-derogatory statements and t h e decision to terminate her employment." Id. at 1219; see id. at 1215. Because t h e district court required "evidence regarding other employees . . . to be within a r e l e v a n t time frame and be `logically or reasonably' tied to the adverse e mp l o y me n t action against plaintiff," id. at 1208, it excluded the other-employee t e s t i mo n y . We cannot find that this determination amounts to an abuse of the d i s t r i c t court's discretion. 2 D . Spulak v. K Mart Corp. Does Not Compel Reversal M s . Mendelsohn, relying on Spulak v. K Mart Corp., 894 F.2d 1150 (10th C i r . 1990), argues that other-employee testimony is relevant even where the other
W e pause briefly to note the relatively narrow scope of our holding. We conclude merely that the district court did not abuse its discretion in e x c l u d i n g the other-employee testimony. We are not asked whether we would h a v e reached the same conclusion in the first instance, and we express no opinion o n this subject. We also note that the district court itself characterized this case a s "present[ing] a close question under Rule 401." Mendelsohn, 587 F. Supp. 2d a t 1208 n.13. Moreover, we reiterate the limited scope of Ms. Mendelsohn's c l a i ms . Ms. Mendelsohn asserted only an individual disparate-treatment claim, a n d did not assert disparate-impact or pattern-or-practice claims. Further, Ms. M e n d e l s o h n challenged not Sprint's RIF itself, but merely the implementation and a p p l i c a t i o n of the RIF standards. We express no opinion as to the relevance of o t h e r - e mp l o y e e evidence under these other theories of liability that are not before us. 10
e mp l o y e e s do not work in plaintiff's department. See Aplt. Opening Br. at 8, 1 4 1 5 . Ms. Mendelsohn emphasizes that in Spulak, other employees who worked a t different stores and under different district managers were nevertheless p e r mi t t e d to testify. Id. S p u l a k does not compel reversal. The Spulak court distinguished between c a s e s in which the other employees' testimony could and could not "logically or r e a s o n a b l y be tied to" the adverse employment action. 894 F.2d at 1156 n.2 ( q u o t i n g Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988)). Spulak then emphasized the nexus between plaintiff and the other employees: they w o r k e d in the same state, left the company around the same time and under s i mi l a r circumstances, and the other-employees' manager referred to plaintiff's d e p a r t u r e from the company "when encouraging" one of the employees "to c o n s i d e r retiring." Id. C r i t i c a l l y , Spulak was decided under an abuse of discretion standard of r e v i e w . See id. at 1156. The fact that this court found no abuse of discretion in S p u l a k does not mean that a district court must always admit other-employee e v i d e n c e . Rather, our holding in Spulak merely reflected our determination that i n admitting this evidence, the district court had not "render[ed] an arbitrary, c a p r i c i o u s , whimsical, or manifestly unreasonable judgment." Ralston, 275 F.3d a t 968 (quoting Copier, 138 F.3d at 838) (internal quotation marks omitted). The r e l e v a n c e of evidence is fact-sensitive and must be "determined in the context of 11
t h e facts and arguments in a particular case." Mendelsohn, 552 U.S. at 387. Spulak did not compel the district court to admit the other-employee testimony h e r e , and the district court did not abuse its discretion in excluding this evidence. 3 I I I . CONCLUSION F o r the reasons set forth above, we conclude that the district court did not a b u s e its discretion in excluding the other-employee testimony. Accordingly, we A F F I R M the judgment of the district court.
E N T E R E D FOR THE COURT
J e r o me A. Holmes C i r c u i t Judge
B e c a u s e we hold that the district court did not abuse its discretion in e x c l u d i n g the other-employee testimony as irrelevant under Federal Rule of E v i d e n c e 401, we need not and do not address the district court's alternative h o l d i n g s that the probative value of this evidence was outweighed by the danger o f unfair prejudice under Rule 403, and that any error in excluding this evidence w a s harmless. 12
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