When Ellen Mendelsohn decided to file an age discrimination lawsuit in 2002 against her
former employer, Sprint/United Management Co., she quickly learned that she wasn't the only employee who had a beef with the company. In support of her lawsuit, five other employees came forward with testimony that they too had been subject to age discrimination or that they had heard Sprint managers make disparaging remarks about older workers.
There was one major hole in Mendelsohn's alleged evidence of discrimination--none of those
employees worked for the same managers who were involved in the decision to terminate Mendelsohn during a downsizing. On Sprint's motion, the trial judge excluded this testimony as irrelevant and unfairly prejudicial to Sprint.
Finally, it's essential to note the decision does not eviscerate the arguments defendants have traditionally used to keep out "me too" testimony.
"Defendants will continue to hit hard the argument under FRE 403 that this testimony is more prejudicial than probative and confuses the question of whether this plaintiff suffered discrimination with the question of whether this defendant is a 'bad company,'" Cane says. "It's the same issue we've been arguing about for decades."