Mendelsohn v. Sprint/United Management Co.

TYMKOVICH, Circuit Judges. BALDOCK, Judge. Circuit Plaintiff Ellen Mendelsohn sued her for- employer mer Sprint/United Defendant Management Company (Sprint), alleging Sprint unlawfully against discriminated her on the basis of violation of the Age Discrimination in Employment Act (ADEA), §§ 29 U.S.C. 621-634. Mendel- sohn alleged she was selected for termi- nation on account of age during her (RIF). reduction in force merits, After a trial on the returned Sprint. a verdict for At issue in ap- peal is whether the district court erred excluding testimonial evidence from for- Sprint employees mer who similar during the same RIF. We Cir.1997), argued any reference to § 1291. jurisdiction under 28 U.S.C. deprived evidentiary exclusion by any supervisor Because the alleged discrimination opportunity pres- full of a Reddick, than Paul Mendelsohn’s su- jury, conclude the ent her case in this pervisor, was irrelevant to the issue in ex- its discretion court abused district age moti- case—i.e. whether Mendelsohn’s and re- We reverse cluding the evidence. Apparently her. Sprint vated to terminate trial. mand for a new argument, the dis- persuaded by Sprint’s part motion in granted trict court the I. and limited explanation, without much Sprint for Mendelsohn worked employ- to “Sprint Mendelsohn’s evidence 2002, Sprint when 1989 until November similarly situated to her.”1 ees who are ongoing of an com- part her as terminated “similarly prove employees To the were time, the Mendelsohn RIF. At pany-wide situated,” required Men- the district man- old and the oldest fifty-one years was supervised to show Reddick the delsohn brought her in unit. ager her Mendelsohn them in employees Sprint and terminated alleging Sprint se- the ADEA claim under temporal proximity to Mendelsohn’s close age. RIF on her her for the based lected termination. Because Reddick did su- alleged discrimina- Sprint’s As evidence of any employees of the other Men- pervise Men- tory employees, animus toward older stand, sought place evidence that on the the sought to introduce delsohn delsohn employees terminated five Sprint testimony at district court excluded their forty part as of the same age over the of Following the court’s in limine rul- trial. apparently believed RIF. These writing in ing, Mendelsohn submitted age of discrimina- they too were victims proof. proper offer testimony their as well Through tion. trial, jury eight-day an the Following own, sought to introduce Mendelsohn her finding Sprint a verdict for returned atmosphere a pervasive evidence of against Men- Sprint did not discriminate Sprint. at Mendelsohn age. on the basis of delsohn trial, in filed a motion Sprint Prior to trial renew- a motion for a new then filed exclude, among other seeking to limine court’s objections her to the district ing any things, 50(b). ruling. limine See Fed.R.Civ.P. employ- of other discriminatory treatment motion, the court denied The district v. exclusively on Aramburu Relying ees. Co., timely appealed. 112 1404 Mendelsohn Boeing F.3d court, lacking. approach As we We believe this the benefit of a district without 1. The previously explained, district courts by hearing, the motion proffer or a decided rulings sufficiently detailed in their must be entry entry the docket sheet. The minute on understanding provide with an so as to us reads: deci- process used to reach its the the court Paragraph as to evidence 1 is SUSTAINED Otherwise, reviewing difficulty we have sion. practice, pattern cul- that has decision, particular when the trial court's history age discrimination.... ture or discretion. See is for an abuse of our review may evidence of discrimina- Plaintiff offer Roberts, 882 United States are simi- against Sprint court, who tion (10th Cir.1996) ("As we appellate "Similarly larly situated situated to her. pos- speculate about the position to are in no ruling, purposes re- employees,” might for of this have in- which sible considerations (1) was quires proof judgment. [sic] Ruddick In- Paul district court’s formed the stead, by any employ- decision require adverse an on the record the decision-maker in detail.”). action; reasoning (2) proximity. explaining its temporal the court ment

II. A. prevail To on a discriminatory argues the district court ADEA, discharge claim under plain committed reversible error requiring tiff proving age bears the burden of other employees her to show she and the motivating factor for the employer’s a supervisor precondition shared as a decision to terminate her. See Reeves v. admissibility testimony. of their Accord- Prod., Inc., Plumbing Sanderson 530 U.S. Mendelsohn, of other 133, 143, S.Ct. L.Ed.2d 105 protected age group who (2000). part proof, As of her subject similar substantially were persuade employ must terminations was relevant and admissible proffered er’s reason for its conduct is reflecting Sprint’s on in- discriminatory unworthy of belief. Pippin See v. Bur selecting tent in Mendelsohn to the RIF. Co., lington Resources Oil And Gas 440 Sprint, hand, any on the other maintains (10th Cir.2006). 1186, F.3d 1193 Because evidence of its treatment toward other em- testimony employer’s direct as to the men ployees is not relevant to the determina- exits, processes Reeves, tal seldom see 530 tion of this action because the evidence 141, 2097, U.S. at 120 S.Ct. evidence of the likely does not make it more that Sprint employer’s general discriminatory propen against discriminated Mendelsohn. may sities be relevant and admissible to prove discrimination. See McDonnell We review the district court’s Green, Douglas Corp. 792, v. 411 U.S. 804- ruling to exclude evidence for an abuse of 805, 1817, (1973) 93 S.Ct. 36 L.Ed.2d 668 discretion. See Whittington v. Nordam (“Other may evidence that be relevant to Inc., (10th 986, Group 429 F.3d 1000 Cir. any showing pretext of ... includes [the 2005). standard, Applying this we will employer’s] general policy and practice only reverse the district court if it “made a respect with minority employment.”); clear error of judgment or exceeded the see also United States Postal Serv. Bd. of permissible bounds of choice the circum Aikens, 711, Governors v. 460 U.S. 713-14 Bryant stances.” v. Farmers Ins. Ex 2, 1478, (1983). n. 103 S.Ct. 75 L.Ed.2d 403 (10th 1114, 1122 Cir.2005) change, 432 F.3d (citation omitted). An may not “[e]rror be We have previously recognized the tes- predicated upon a ruling which admits timony employees, or of other than plain- tiff, excludes evidence unless a substantial concerning employer how the treated ” right of party is affected.... Fed. them as relevant employer’s dis- 103(a). R.Evid. Applying standards, criminatory these intent. Spulak See v. K Mart agree we with (10th Mendelsohn that Corp., 1150, Cir.1990). the evi 894 F.2d 1156 sought dence she to introduce is relevant For example, Stores, v. Safeway Greene Inc., discriminatory (10th animus toward Cir.1996), 98 F.3d 554 workers, older and the exclusion of Bingman such Company, Natkin & 937 F.2d unfairly (10th Cir.1991), inhibited Mendelsohn 553 recognized we evi- from presenting See, jury. her case to the dence employer had terminated other e.g., Tech., Inc., Seagate Beaird v. 145 employees F.3d older was relevant as evidence (10th Cir.1998) 1159, 1168 (identifying as a a pattern of of age. dismissal based on theory pretext of in RIF Similarly, cases evidence of in Coletti v. Cudd Pressure employer’s Control, general policy (10th of using Cir.1999), 776 RIF to terminate older favor we found of other younger of employees). regarding how defendant treated them

1227 (“Different supervisors inevitably will discriminatory to the defendant’s relevant pat- differently employee insubordi “testimony establishes react where intent nation.”). or tends to retaliatory behavior tern of legit- assertion employer’s discredit Denver, County 365 City Rivera v.

imate motive.”2 case, This F.3d hand, the “same have us extend is not about individual Sprint would on the other in Aramburu rule announced supervisor” policy a company-wide conduct but about Aramburu, held in the to this case. al- Sprint’s supervisors all were which discipline ac- discriminatory context Accordingly, we decline to legedly aware. testi- seeking present plaintiffs tion that beyond rule supervisor” extend the “same treated who were mony of other disciplinary context of cases. violating the same work favorably more Aramburu, only deciding we have Since (or comparable serious- another of rule supervisor” rule applied the “same intent, ness) discriminatory as evidence discriminatory context of disci- supervi- they shared the same must show See, e.g., City MacKenzie v. pline. witnesses. As we sor with the Denver, County of ‘same su- “The have observed elsewhere: Rivera, 922; Cir.2005); F.3d at rele- has found be pervisor’ test been Services, Transp. v. Penske Kendrick of dis- involving allegations vant in cases (10th Cir.2000). Inc., 1220, 1232 220 F.3d Equal criminatory disciplinary actions.” v. Oklahoma ex example, For Gossett v. Ho- Opportunity Comm’n Employment Langston Regents rel. Bd. Universi- for Healthcare, 220 F.3d rizon/CMS (10th Cir.2001), gender a ty, 245 F.3d 1172 (10th Cir.2000). discussing In n. 10 case, to extend we declined Aramburu, comparison of a explained we supervisor” application of the “same action with other supervisor’s disciplinary beyond original context. There we rule supervisor action of the same disciplinary allega- “in the context of noted that while supervi- to show the bias is relevant discriminatory discipline, this tions of example: sor. For plaintiff to whether the court has looked A, Hispanic, particular for If X fires compare whom he seeks to and others with misconduct, warning to gives only a but supervi- the same himself worked under miscon B, non-Hispanie, for identical a sor,” faculty-wide poli- a in the context of duct, something infer that might one and cy, plaintiff [the “the failure of the (such as a bias beyond the misconduct super- to share the same witnesses] other Hispanics) X motivated against the consideration preclude not visor does Y, not But if it was disciplinary action. ” 245 F.3d at 1177-78. of that evidence.... X, impose a harsher not to who decided Healthcare, a Similarly, in Horizon/CMS B, cannot infer that against one sanction case, we ex- pregnancy discrimination fire A must have been X’s decision to rule was not supervisor” the “same plained by something other than A’s motivated a of whether inquiry legally relevant a may simply X less misconduct. allegedly victim of an has been the plaintiff than Y toward misconduct tolerant view policy. 220 Kendrick, discriminatory company-wide at 1233 does. Cf. of a defendant's discrimina proffered Sprint points out Mendelsohn's stantial evidence 561; Greene, See, e.g., 98 F.3d at practice” tory “pattern animus. evidence resembles 556-57; see also Gos pattern Bingman, 937 F.2d at allege a a does not claim for but she Regents ex rel. Bd. Yet we have sett v. Oklahoma practice of discrimination. University, Langston 1177-78 pattern practice in a allowed evidence of as circum individual cases of discrimination Thus, F.3d at 1198 n. 10. the fact that supervisors, ees worked under different plaintiff and the affiants did not share the Sprint year terminated all of them within a in that supervisor pre- same case did not part ongoing company-wide as of an RIF. clude consideration affiants’ evidence. All were in the protected age group, and their selection to the RIF where, application Aramburu has no here, was based on similar criteria. plaintiff According- claims to be a victim of a company-wide discriminatory Apply- ly, testimony RIF. concerning the other employ- supervisor” Aramburu’s “same rule in ees’ circumstances was relevant to the context of an discriminatory discriminatory intent. would, many circum- dissent, According to the the evidence stances, difficult, significantly make it if need not be admit- impossible, plaintiff prove for a a ted because it is independent “devoid of case of discrimination based on circum- showing evidence had compa- Conceivably, plaintiff stantial evidence. a ny-wide discriminatory policies.” Dissent might only employee be the selected for a dissent, however, at 4. The does not ex- RIF supervised by particular supervisor. plain what independent Meanwhile, scores of other employees Gossett, might be. In we noted that evi- protected

within the group also selected dence regarding discriminatory appli- RIF might for the work for different su- cation of an enterprise-wide policy by oth- cases, pervisors. such the constraints supervisors er was admissible when the preclude Aramburu would plaintiff plaintiff has “other evidence of poli- introducing testimony from those ey[.]” Thus, 245 F.3d at 1177. required employees. Applying Aramburu to evidence, cases of to proffer discrimination based on an alleged other than company-wide discriminatory RIF would testimony, her oum concerning the create an disparity unwarranted between application Gossett, policy. of said In the plaintiff those cases where the is fortunate plaintiff satisfied requirement by this in- enough to have employees other RIF’d in troducing an affidavit from a former stu- protected the working class super- her dent professor concerning applica- the visor, and those cases where the is tion policy. of the Id. at 1179 n. 2. not so fortunate. We do not think such Similarly, Mendelsohn in prof- this case disparity should exist. independent fered evidence in the form of testimony from Sprint

B. similarly who were terminated during the testimony of employ the other RIF. The dissent mistakenly reads Gossett ees concerning Sprint’s alleged discrimina require independent to apart evidence tory treatment and similar RIF termi from that evidence which Mendelsohn has “logically nations is reasonably” or tied to proffered. Reading Gossett such a man- the decision to terminate Mendelsohn. may place ner an insurmountable eviden- Spulak, 894 F.2d at 2 (upholding 1156 n. tiary upon burden a claimant entitled to district court’s decision to allow former prove her case of age employees in protected the age group to circumstantial evidence. See Merrick v. testify about the circumstances surround Co., Northern Natural Gas Div. Enron employment them departure). In this of (10th Cir.1990) case, Corp., 911 F.2d the other employees’ (noting the ADEA logically Sprint’s require tied to does not alleged motive in selecting employee produce to the RIF. Al to direct evidence of though Mendelsohn intent; and the other employ- discriminatory employee rather the it, ages RIF and it has on then I the employer’s the only need show belief). game jury. fair for the think that it’s unworthy of We justification is in- disagree with the dissent’s respectfully of Gossett.

terpretation my It to preclude was never intention Moreover, “the dis- the dissent claims putting Plaintiff from on evidence about interpre- apply a narrow trict court did RIF, worked, Sprint it whether the how admissibility evidence of of tation RIF procedures, followed its own et. discrimination,” the because cetera. admitted into evidence exhib- district court at 2. Those exhibits are

its 3 and 4. Dissent Appx. at 92-93. In re- Aplt’s Supp. Sprint documents used compilation regarding concerns the sponse RIF includes during process improper use of this evidence the district containing, among other spreadsheets ruling in limine court reiterated that data, employ- Sprint the names and excluding was aimed at “other termi- being considered for ees who were I coming saying, ... addition, permitted In the court nation. RIF’d, my age” it was because of Resources, Renda, Director of Human Jo ruling applied to this evidence. Id. at concerning the use of these docu- testify court made clear Mendel- 93-94. The process. during ments With evidence have to sohn’s use of this would however, Mendelsohn, none of exception of ruling. to the in limine See id. at conform spread- identified Therefore, these exhibits were not 55-56. at trial. The dissent fails sheets testified showing pretext purpose offered for the purpose for which recognize limited theory policy had a under the admitted this evidence as the district court Instead, the favoring younger employees. well as the distinct characteristic this evidence under district court admitted in its the district court excluded evidence theory pretext by showing a different motion in limine. ruling on the not follow its own RIF criteria. Sprint did addition, Jo Renda was able use to the case was particular Of relevance examples employ- to find of older proce- Sprint followed its own whether retained, even Sprint whom had ees for the when it selected Mendelsohn dures supervised by Red- though they were fact, the district court denied RIF. Thus, court’s in limine the district dick. summary judgment on Sprint’s motion for Mendelsohn further ruling disadvantaged very The district court made issue. portray it- Sprint allowed to because 4 as well as clear that exhibits 3 and quite employees, aside retaining as older self in to come Renda’s was allowed Mendelsohn, though these em- even determining Sprint’s purpose for the by Red- supervised not all ployees were procedures: with its compliance dick. your I motion for reason overruled [T]he 3 and 4 did not Admission of exhibits

summary judgment was because there made remedy the error the district court was, in the thought, I sufficient evidence concerning Sprint’s excluding in evidence Sprint didn’t follow its own record of other and treatment I think that makes procedures. surrounding their know, the circumstances you game, fair process, whole the evidence The nature of and was it fol- termination. procedure what was the vastly is different was Mendelsohn spreadsheet And if this lowed? considered— from the evidence part implementation used 1230

merely names and dates of birth. Evi own Hennepin motives.” Hawkins v. Center, (8th employer’s alleged prior an dence of dis Technical 900 F.2d 153 Cir. 1990) (citation omitted). criminatory employ conduct toward other The evidence protected long in the class has ees been which present, Mendelsohn seeks to “is employer’s admissible to show an state of certainly not age conclusive evidence of mind attitude or toward members of the itself, surely but it is See, protected e.g., class. McDonnell kind of fact which could cause a reasonable 804, Douglas Corp., 411 U.S. at 93 S.Ct. trier of fact eyebrow, pro to raise an Aikens, 1817; 2, 460 at n. U.S. 713-14 103 ceed to employer’s explanation” assess the 1478; Ford, S.Ct. Estes v. Dick Smith for its motive in terminating Mendelsohn. Inc., (8th 1097,1102-03 Cir.1988); F.2d 856 Greene, Age 98 F.3d at 561. as a motiva Corp., Engine Hunter v. Allis-Chalmers tion for selection of Din, (7th 1417, 1423-24 Cir. probable the RIF becomes more when the 1986). These other should have fact-finder is allowed to consider evidence been allowed to testify take the stand and (1) discrimination, an atmosphere subject, course, any district court (2) Sprint’s selection of other older ruling regarding proper use and limita employees to the RIF.4 testimony.3 tions of such C. Generally, a evidentiary court’s Finally, Sprint argues the tes ruling is entitled to deference. See Shu timony should be excluded under Fed. gart v. Co-op., Central Rural Elec. 110 R.Evid. 403. Rule 403 allows a district (10th Cir.1997). F.3d But the court to exclude relevant evidence when court’s evidentiary discretion over matters confusion, prejudice, concerns over unfair unfairly prevent should not a plaintiff a full or waste of substantially outweigh time opportunity present her case. See Gos- sett, probative value of the evidence. 245 F.3d at pretrial 1178. Blanket argues that exclusions, allowing the evidentiary in evidence would particular, “can prejudice Sprint especially be because it would damaging employment result cases, Sprint having in which plaintiffs multiple must to defend face the claims of difficult persuading sure, task of the fact-finder discrimination. To be the district employer’s disbelieve an account of its power retains its to limit cumulative standard____” disagree Larson, We do not legal with the dissent Ohlander v. support statistical evidence to an inference of F.3d For in- useful, stance, company-wide policy per- Capital Thiessen v. General Electric haps quite convincing. See Corp., Dissent at 1232- 1105-08 Cir. 2001), 33. But may, "[s]tatisitical while we held the district court abused its circumstances, pur- certain be relevant to this decertifying discretion in plaintiffs a class of Beaird, pose!,]” required we have never it. because the "pat- court failed to consider the 145 F.3d at 1168. practice” legal tern and applicable framework plaintiffs' to the claim of discrimination. In manner, the same 4. court question The district here dissent characterizes the abused its admissibility discretion when it excluded judgment as a classic call and readily acknowledges upon testimonial evidence based its erroneous that had the district court admitted conclusion that Arambum controlled the the evidence it would have fate dissent, Floyd acted within of the evidence in its discretion. this case. See also how- ever, Ortiz, 1223, (10th Cir.2002) overlooks our 300 F.3d 1227 established rule that a (holding necessarily district court abuses discretion the district court abused its its discre- law,” it Wyandotte denying plaintiff's request "when commits an error of tion in for re- Sebelius, 1247, (10th hearing Nation v. 1252 because the district court relied on an Cir.2006), so). applicable legal or "fails to premise consider the erroneous to do

1231 testimony. enough proffered testimony But marginally relevant —the otherwise, Excluding employees satisfy other- failed to the rele- disagree. we vancy prejudice requirements under Rule 403 of Rule admissible evidence wise Moreover, remedy majority 403. I extraordinary should believe the [that] “is in holding testimony States v. Rob- makes mistake that sparingly.” be used United erts, 872, employees similarly “In from other not situat- balancing, the court ed is admissible even performing the 403 where independent showing its maximum rea- has made no of a give should the evidence company-wide policy force and its minimum of discrimination. probative sonable value.” Deters v. prejudicial reasonable A. Servs., Inc., 202 F.3d Equifax Credit Info. Cir.2000) (internal quota- A brief review of the evidence the court omitted). Little doubt exists that the

tions place ruling perspec- admitted will its about other admission of evidence First, despite pre-trial ruling tive. its re- would inconven- of discrimination episodes garding testimony, the witness the court fact would Sprint. Sprint But the ience admitted 3 and voluminous Exhibits testimony this is not itself have to rebut plan- documents from “succession probative value of enough outweigh file, ning” including notes on evidence. Mendelsohn’s See pursuant slated for termination Based on the Bingman, 937 F.2d at 557. company-wide RIF. Both exhibits show us, say cannot the evi- record before Sprint kept gen- information on the unduly prejudicial.5 dence is der, ethnicity per- information on their alongside other the reasons stated Accordingly, perceived Sig- “potential.” formance and denying court’s order above the district nificantly, Exhibit also contains notes for a new trial is Mendelsohn’s motion indicating other workers over to the district court reversed. We remand Reddick, report who did not were ter- proceedings for further consistent with part of the RIF. minated opinion. Second, the court also allowed and REMANDED.6 REVERSED RIF El- regarding the dismissal of Marc ster, TYMKOVICH, peers who was 51 at Judge, one of Reddick’s Circuit addition, time of his termination. dissenting. Renda, executive, called as Jo I not respectfully I dissent because do at trial and examined an adverse witness the district court abused its discre- believe policies behind the and the about evidentiary rulings excluding tion 4. tes- employees identified Exhibit She outset, I testimony. agree At the that the regarding fired who did tified is to deci- ruling district court’s difficult report to Reddick. solely at the min- pher, especially looking trial, This evidence shows that the district ute order. In the context of the however, apply interpreta- court did not a narrow ruling I think the court’s is clear ruling Nothing to limit Sprint lastly argues any error the district 6. in our intended might during made was harmless because discretion trial to the district court’s Mendelsohn did not have a submissible Ms. limiting rulings instructions or concern- issue age the case of discrimination. Based on proper purpose which Mendel- the for us, light in of the evidence record before and may be introduced. sohn's evidence excluded, court we conclude Ms. the district present a case to Mendelsohn has submissible jury. trial, admissibility presented to the evidence of basis of all at

tion of reject Sprint’s firing reasons for Mendel- proffered by that plaintiffs age sohn and “conclude explained court in re- Mendelsohn. As the determining [Sprint’s] a factor in decision objection sponse to the admis- employment.” (Jury to terminate her sion of Exhibit 12.) Instr. you really compre- I’m afraid that don’t sum, appears plain- it to me that the in saying what I was the motion in hend adequate opportunity tiff had an to intro- in limine—or on the motion limine. It corpo- duce relevant evidence of Sprint’s my preclude plaintiff intent to was never policies practices surrounding rate and the RIF, putting from on evidence about the argue that the RIF was itself a it worked followed how whether pretext age for discrimination. I am fur- own RIF et cetera. I procedures, studying ther convinced of this after factual background think because of the proposed testimony of the five witnesses claim, plaintiffs get we have to into proffered by Mendelsohn and excluded happened what employees. other proposed the district court. Their testi- mony hearsay seems a mixture of * * * speculation marginally that would be ad- [Defense wanted the court counsel] [via any I say missible event. cannot that its order in prohibit limine] the court erred in excluding such testimo- say- ... from coming ny under the standards of Rule 403. RIF’d, ing, my I was it was because of sure, testimony may To be age thing. and that sort of So that’s helped Mendelsohn’s case. But this is not I was targeting my ruling. where And I question here. properly We are con- by that ruling. stand I don’t want that cerned with whether the court abused its kind of evidence to in. I come But think excluding discretion in testimony. I totally a question that’s different think not. judgment This seems a classic RIF, question whether the which is readily call. I admit that the court would your reason, stated nondiscriminatory evidence, in admitting not have erred pretext for discrimination. see, e.g., K Spulak Corp., v. Mart (Tr. 93-94.) at Cir.1990), but I am equal- Finally, addition admitting actual ly confident the court did not abuse pretext, evidence of the district court re- its discretion in choosing to exclude it. jected jury proffered by instruction B.

Sprint, jurors which would have instructed only to consider evidence about larger problem The majority’s with the similarly situated to Mendelsohn. position suggests The is it that anecdotal evi- explained that evidence of dence from throughout large outside per se organization admissible Reddick’s chain will be of command had been al- when offered context of dis- lowed to come in as ques- relevant to the crimination in appeal a RIF. This illus- pretext: tion of “The I reason said trates approach the hazard of such an could offer that sort of evidence was be- several reasons. might yield cause it an inference that the legitimate so-called nondiscriminatory rea- any first reason is the lack of statis- (Tr. 1228.) pretextual.” sons were at In- tical or supports other direct evidence that deed, the court included an instruction that enterprise-wide an inference of discrimina- could, reminded the it on the tion. Sprint, Given the size of the fact that reading gives former it to Aramburu. The found five so- supervisor” called “same rule they age were victims of articulated who believed recognizes that case that meaningful employ- until a where discrimination is not putatively ee has been fired for the viola- evidentiary foundation has been specific rule, tion of a workplace an inference of here is de- proffer laid. The evidence likely more where the that independent showing void of evidence supervisor disciplines similarly same situ- company-wide discriminatory Sprint had employees differently. ated Aramburu v. taking as true Mendel- policies. Even Co., Boeing The that these sohn’s assertion witnesses Cir.1997). that man- provide would credible evidence agers other than Reddick were motivated equally plausible But it is that an em- animus, discriminatory this does not in

by ployer could have a policy that support and of itself the conclusion using disciplinary actions a pretext Reddick was so motivated.1 Nor does it for unlawful discrimination. a such “subjective that the RIF’s crite- establish case, I suspect modify appli- we would the age pretext ria” was a discrimination. relevancy cable standard in order to ac- Sprint may policies well have had While company- count for and allow evidence of a designed against to discriminate em- older policy. wide more, the ployees, without excluded testi- I would do the same in the RIF context fact, mony nothing does to establish that apply the Aramburu rule in cases like directly nor does it an inference support “independent this one unless evidence of wrong- that Mendelsohn’s termination was specific enterprise-wide policy” has been

fully Carpenter Boeing motivated. See developed. City County Rivera v. (10th Cir.2006) (discuss- Co. 456 F.3d 1183 (10th Cir.2004). Denver, support use statistical evidence to Since Mendelsohn did not establish a foun- treatment). disparate claim of The evi- proffered dation that the evidence would company dence must tend to show that the support finding, a oth- such since she discriminate, merely policy had a a opportunity present erwise had the evi- policy applied discriminatory manner dence to the of other older supervisor supervisors.2 an individual or RIF, subject to the the district court did important The second and more hazard in excluding not abuse its discretion majority’s approach testimony.3 of the is the additional witness narrow witnesses, proffered 1. Of the five one And of the excluded ties the none evidence year policy her. fired full before Mendelsohn and an- decision to terminate other was hired at 52. The had others majority relies on Gossett v. Board of grievances supervisors related to their Regents, 245 F.3d 1172 But general are too to credit on this record. broadly suggest be Gossett cannot read automatically any proffer ad- of evidence is suggest 2. This is not to that some of the missible, meeting requirements without might be relevant. But case, Rules 401 or 701. In that this, having satisfy said the evidence must still (at summary concluded witnesses enough evidence. It is not for a rules of knowledge judgment stage) personal claimed employee former to claim discrimination. discriminatory applica- policy and its always required We have a nexus between the tion. allegation, through and the either personal knowledge support. alternatively suggests majority or statistical that our 3.The foundation, my Without more view Mendel- rule that a district court neces- "established Sprint-wide pol- sarily it sohn has not demonstrated abuses its discretion when commits icy of law ... or fails to consider the of discrimination embodied in the RIF. an error contrary creates a holding to the Our tangen- the most suggests even

rule testimony by prejudicial

tially relevant admissible. per

former is se to our traditional a rule runs counter

Such primary

deference to district courts as admissibility.

arbiters of America,

UNITED STATES of

Plaintiff-Appellee,

Gregory GRAHAM, Godfather, E. a/k/a G, Big Sexy, Defendant-

a/k/a a/k/a

Appellant.

No. 05-8115. Appeals,

United States Court

Tenth Circuit.

Nov. this, legal proper majority applicable done standard” forces reversal rule. The has not -- (internal Majority Op. finding here. at n. but has instead insisted on Mendel- omitted). quotations Assuming, per and citations sohn's evidence to be se admis- argument, despite evidentiary applies sible for the sake of that this rule infirmities. evidentiary majority's ruling operation of our law in the context of note on legal regarding legal logically error therefore in- error in Mendelsohn's case was is harmless, holding require congruent with that Mendelson’s all the rule would application admitted at a new trial. reversal and remand for must be

Case Details

Case Name: Mendelsohn v. Sprint/United Management Co.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 1, 2006

Citation: 466 F.3d 1223

Docket Number: 05-3150

Court Abbreviation: 10th Cir.