Mendelsohn v. Sprint/United Management Co.

F I L E D United States Court of Appeals Tenth Circuit PUBLISH November 1, 2006 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT ELLEN MENDELSOHN, Plaintiff-Appellant, v. No. 05-3150 SPRINT/UNITED MANAGEMENT COMPANY, Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (03-CV-02429-KHV)

Dennis E. Egan of The Popham Law Firm, P.C., Kansas City, Missouri, for Plaintiff-Appellant.

Mark G. Arnold (John J. Yates of Husch & Eppenberger, LLC, Kansas City, Missouri and Christine F. Miller, with him on the brief), of Husch & Eppenberger, LLC, St. Louis, Missouri, for Defendant-Appellee.

Before BRISCOE, BALDOCK, and TYMKOVICH, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Ellen Mendelsohn sued her former employer Defendant Sprint/United

Management Company (Sprint), alleging Sprint unlawfully discriminated against her on the

basis of age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 . Mendelsohn alleged she was selected for termination on account of her age

during a company-wide reduction in force (RIF). After a trial on the merits, a jury returned

a verdict for Sprint. At issue in this appeal is whether the district court erred in excluding

testimonial evidence from former Sprint employees who alleged similar discrimination

during the same RIF. We have jurisdiction under 28 U.S.C. § 1291 . Because the evidentiary

exclusion deprived Mendelsohn of a full opportunity to present her case to the jury, we

conclude the district court abused its discretion in excluding the evidence. We reverse and

remand for a new trial.

I.

Mendelsohn worked for Sprint from 1989 until November 2002, when Sprint

terminated her as part of an ongoing company-wide RIF. At the time, Mendelsohn was fifty-

one years old and the oldest manager in her unit. Mendelsohn brought her claim under the

ADEA alleging Sprint selected her for the RIF based on her age. As evidence of Sprint’s

alleged discriminatory animus toward older employees, Mendelsohn sought to introduce

evidence that Sprint terminated five other employees over the age of forty as part of the same

RIF. These employees apparently believed they too were victims of age discrimination.

Through their testimony as well as her own, Mendelsohn sought to introduce evidence of a

pervasive atmosphere of age discrimination at Sprint.

Prior to trial, Sprint filed a motion in limine seeking to exclude, among other things,

any evidence of Sprint’s alleged discriminatory treatment of other employees. Relying

exclusively on Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997), Sprint 2 argued any reference to alleged discrimination by any supervisor other than Paul Reddick,

Mendelsohn’s supervisor, was irrelevant to the issue in this case–i.e. whether Mendelsohn’s

age motivated Sprint to terminate her. Apparently persuaded by Sprint’s argument, the

district court granted the motion in part without much explanation, and limited Mendelsohn’s

evidence to “Sprint employees who are similarly situated to her.” 1 To prove the employees

were “similarly situated,” the district court required Mendelsohn to show Reddick supervised

the employees and Sprint terminated them in close temporal proximity to Mendelsohn’s

termination. Because Reddick did not supervise any of the other employees Mendelsohn

sought to place on the stand, the district court excluded their testimony at trial. Following

the court’s in limine ruling, Mendelsohn submitted in writing a proper offer of proof.

1 The district court, without the benefit of a proffer or a hearing, decided the motion by minute entry on the docket sheet. The entry reads:

Paragraph 1 is SUSTAINED as to evidence that Sprint has a pattern and practice, culture or history of age discrimination . . . . Plaintiff may offer evidence of discrimination against Sprint employees who are similarly situated to her. “Similarly situated employees,” for purposes of this ruling, requires proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity.

We believe this approach lacking. As we previously have explained, district courts must be sufficiently detailed in their rulings so as to provide us with an understanding of the process the court used to reach its decision. Otherwise, we have difficulty reviewing the trial court’s decision, in particular when our review is for an abuse of discretion. See United States v. Roberts, 88 F.3d 872, 882 (10th Cir. 1996) (“As an appellate court, we are in no position to speculate about the possible considerations which might have informed the district court’s judgment. Instead, we require an on the record decision by the court explaining its reasoning in detail.”).

3 Following an eight-day trial, the jury returned a verdict for Sprint finding Sprint did

not discriminate against Mendelsohn on the basis of age. Mendelsohn then filed a motion

for a new trial renewing her objections to the district court’s in limine ruling. See Fed. R.

Civ. P. 50(b). The district court denied the motion, and Mendelsohn timely appealed.

II.

Mendelsohn argues the district court committed reversible error by requiring her to

show she and the other employees shared a supervisor as a precondition for admissibility of

their testimony. According to Mendelsohn, the testimony of other employees in the

protected age group who were subject to substantially similar RIF terminations was relevant

and admissible as reflecting on Sprint’s discriminatory intent in selecting Mendelsohn to the

RIF. Sprint, on the other hand, maintains any evidence of its treatment toward other

employees is not relevant to the determination of this action because the evidence does not

make it more likely that Sprint discriminated against Mendelsohn.

We review the district court’s ruling to exclude evidence for an abuse of discretion.

See Whittington v. Nordan Group Inc., 429 F.3d 986, 1000 (10th Cir. 2005). Applying this

standard, we will reverse the district court only if it “made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” Bryant v. Farmers Ins.

Exchange, 432 F.3d 1114, 1122 (10th Cir. 2005) (citation omitted). An “[e]rror may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right of the

party is affected . . . .” Fed. R. Evid. 103(a). Applying these standards, we agree with

Mendelsohn that the evidence she sought to introduce is relevant to Sprint’s discriminatory 4 animus toward older workers, and the exclusion of such evidence unfairly inhibited

Mendelsohn from presenting her case to the jury. See, e.g., Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1168 (10th Cir. 1998) (identifying as a theory of pretext in RIF cases

evidence of an employer’s general policy of using a RIF to terminate older employees in

favor of younger employees).

A.

To prevail on a discriminatory discharge claim under the ADEA, a plaintiff bears the

burden of proving age was the motivating factor for the employer’s decision to terminate her.

See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000). As part of her

proof, the plaintiff must persuade the jury that the employer’s proffered reason for its

conduct is unworthy of belief. See Pippin v. Burlington Resources Oil And Gas Co., 440

F.3d 1186, 1193 (10th Cir. 2006). Because direct testimony as to the employer’s mental

processes seldom exits, see Reeves, 530 U.S. at 141 , evidence of the employer’s general

discriminatory propensities may be relevant and admissible to prove discrimination. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-805 (1973) (“Other evidence that

may be relevant to any showing of pretext includes . . . [the employer’s] general policy and

practice with respect to minority employment.”); see also United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711 , 713-14 n. 2 (1983).

We have previously recognized the testimony of employees, other than the plaintiff,

concerning how the employer treated them as relevant to the employer’s discriminatory

intent. See Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). For example, in 5 Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), and Bingman v. Natkin &

Company, 937 F.2d 553 (10th Cir. 1991), we recognized evidence the employer had

terminated other older employees was relevant as evidence of a pattern of dismissal based

on age. Similarly, in Coletti v. Cubb Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999),

we found testimony of other employees regarding how defendant treated them relevant to the

defendant’s discriminatory intent where “testimony establishes a pattern of retaliatory

behavior or tends to discredit the employer’s assertion of legitimate motive.” 2 Sprint would have us extend the “same supervisor” rule announced in Aramburu to

this case. In Aramburu, we held in the context of a discriminatory discipline action that

plaintiffs seeking to present testimony of other employees who were treated more favorably

for violating the same work rule (or another of comparable seriousness) as evidence of

discriminatory intent, must show they shared the same supervisor with the proffered

witnesses. As we have observed elsewhere: “The ‘same supervisor’ test has been found to

be relevant in cases involving allegations of discriminatory disciplinary actions.” Equal

Employment Opportunity Comm’n v. Horizon/CMS Healthcare, 220 F.3d 1184 , 1198 n. 10

(10th Cir. 2000). In discussing Aramburu, we explained comparison of a supervisor’s

disciplinary action with other disciplinary action of the same supervisor is relevant to show 2 Sprint points out Mendelsohn’s proffered evidence resembles “pattern and practice” but she does not allege a claim for a pattern and practice of discrimination. Yet we have allowed evidence of a pattern and practice in individual cases of discrimination as circumstantial evidence of a defendant’s discriminatory animus. See, e.g., Greene, 98 F.3d at 561 ; Bingman, 937 F.2d at 556-57; see also Gossett v. Oklahoma ex rel. Bd. of Regents for Langston University, 245 F.3d 1172, 1177-78 (10th Cir. 2001).

6 the bias of the supervisor. For example:

If X fires A, an Hispanic, for particular misconduct, but gives only a warning to B, a non-Hispanic, for identical misconduct, one might infer that something beyond the misconduct (such as a bias by X against Hispanics) motivated the disciplinary action. But if it was Y, not X, who decided not to impose a harsher sanction against B, one cannot infer that X’s decision to fire A must have been motivated by something other than A’s misconduct. X may simply have a less tolerant view toward misconduct than Y does. Cf. Kendrick, 220 F.3d at 1233 (“Different supervisors will inevitably react differently to employee insubordination.”).

Rivera v. City and County of Denver, 365 F.3d 912, 922 (10th Cir. 2004). This case, on the

other hand, is not about individual conduct but about a company-wide policy of which all

Sprint’s supervisors were allegedly aware. Accordingly, we decline to extend the “same

supervisor” rule beyond the context of disciplinary cases.

Since deciding Aramburu, we have only applied the “same supervisor” rule in the

context of alleged discriminatory discipline. See, e.g., MacKenzie v. City and County of

Denver, 414 F.3d 1266, 1277 (10th Cir. 2005); Rivera, 365 F.3d at 922 ; Kendrick v. Penske

Transp. Services, Inc., 220 F.3d 1220, 1232 (10th Cir. 2000). For example, in Gossett v.

Oklahoma ex rel. Bd. of Regents for Langston University, 245 F.3d 1172 (10th Cir. 2001),

a gender discrimination case, we declined to extend the application of the “same supervisor”

rule beyond its original context. There we noted that while “in the context of allegations of

discriminatory discipline, this court has looked to whether the plaintiff and others with whom

he seeks to compare himself worked under the same supervisor,” in the context of a faculty-

wide policy, “the failure of the plaintiff and [the other witnesses] to share the same

supervisor does not preclude the consideration of that evidence . . . .” 245 F.3d at 1177-78 .

7 Similarly, in Horizon/CMS Healthcare, a pregnancy discrimination case, we explained the

“same supervisor” rule was not legally relevant to the inquiry of whether a plaintiff has been

the victim of an allegedly discriminatory company-wide policy. 220 F.3d at 1198 n. 10.

Thus, the fact that plaintiff and the affiants did not share the same supervisor in that case did

not preclude consideration of affiants’ evidence.

Aramburu has no application where, as here, plaintiff claims to be a victim of a

company-wide discriminatory RIF. Applying Aramburu’s “same supervisor” rule in the

context of an alleged discriminatory company-wide RIF would, in many circumstances,

make it significantly difficult, if not impossible, for a plaintiff to prove a case of

discrimination based on circumstantial evidence. Conceivably, a plaintiff might be the only

employee selected for a RIF supervised by a particular supervisor. Meanwhile, scores of

other employees within the protected group also selected for the RIF might work for different

supervisors. In such cases, the constraints of Aramburu would preclude a plaintiff from

introducing testimony from those other employees. Applying Aramburu to cases of

discrimination based on an alleged company-wide discriminatory RIF would create an

unwarranted disparity between those cases where the plaintiff is fortunate enough to have

other RIF’d employees in the protected class working for her supervisor, and those cases

where the plaintiff is not so fortunate. We do not think such disparity should exist.

B.

The testimony of the other employees concerning Sprint’s alleged discriminatory

treatment and similar RIF terminations is “logically or reasonably” tied to the decision to 8 terminate Mendelsohn. Spulak, 894 F.2d at 1156 n. 2 (upholding a district court’s decision

to allow former employees in the protected age group to testify about the circumstances

surrounding their employment departure). In this case, the other employees’ testimony is

logically tied to Sprint’s alleged motive in selecting Mendelsohn to the RIF. Although

Mendelsohn and the other employees worked under different supervisors, Sprint terminated

all of them within a year as part of an ongoing company-wide RIF. All the employees were

in the protected age group, and their selection to the RIF was based on similar criteria.

Accordingly, testimony concerning the other employees’ circumstances was relevant to

Sprint’s discriminatory intent.

According to the dissent, the evidence Mendelsohn proffered need not be admitted

because it is “devoid of independent evidence showing that Sprint had company-wide

discriminatory policies.” Dissent at 4. The dissent, however, does not explain what this

independent evidence might be. In Gossett, we noted that evidence regarding the

discriminatory application of an enterprise-wide policy by other supervisors was admissible

when the plaintiff has “other evidence of that policy[.]” 245 F.3d at 1177 . Thus, we required

a plaintiff to proffer evidence, other than her own testimony, concerning the alleged

application of said policy. In Gossett, the plaintiff satisfied this requirement by introducing

an affidavit from a former student and professor concerning the application of the policy.

Id. at 1177 , 1179 n. 2.

Similarly, Mendelsohn in this case proffered independent evidence in the form of

testimony from other Sprint employees who were similarly terminated during the RIF. The 9 dissent mistakenly reads Gossett to require independent evidence apart from that evidence

which Mendelsohn has proffered. Reading Gossett in such a manner may place an

insurmountable evidentiary burden upon a claimant entitled to prove her case of age

discrimination by circumstantial evidence. See Merrick v. Northern Natural Gas Co., Div.

of Enron Corp., 911 F.2d 426, 429 (10th Cir. 1990) (noting the ADEA does not require an

employee to produce direct evidence of discriminatory intent; rather the employee only need

show the employer’s proffered justification is unworthy of belief). We respectfully disagree

with the dissent’s interpretation of Gossett.

Moreover, the dissent claims “the district court did not apply a narrow interpretation

of admissibility to the evidence of company-wide discrimination,” because the district court

admitted into evidence exhibits 3 and 4. Dissent at 2. Those exhibits are a compilation of

documents Sprint used during the RIF process that includes spreadsheets containing, among

other data, the names and age of Sprint employees who were being considered for

termination. In addition, the court permitted Jo Renda, Director of Human Resources, to

testify concerning the use of these documents during the RIF process. With the exception

of Mendelsohn, however, none of the employees identified in the spreadsheets testified at

trial. The dissent fails to recognize the limited purpose for which the district court admitted

this evidence as well as the distinct characteristic of the evidence the district court excluded

in its ruling on the motion in limine.

Of particular relevance to the case was whether Sprint followed its own procedures

when it selected Mendelsohn for the RIF. In fact, the district court denied Sprint’s motion 10 for summary judgment on this very issue. The district court made quite clear that exhibits

3 and 4 as well as Renda’s testimony was allowed to come in for the purpose of determining

Sprint’s compliance with its procedures:

[T]he reason I overruled your motion for summary judgment was because there was, I thought, sufficient evidence in the record that Sprint didn’t follow its own procedures. I think that makes the whole process, you know, fair game, what was the procedure and was it followed? And if this spreadsheet was used as part of the implementation of the RIF and it has ages on it, then I think that it’s fair game for the jury. *** It was never my intention to preclude Plaintiff from putting on evidence about the RIF, how it worked, whether Sprint followed its own RIF procedures, et. cetera.

Aplt’s Supp. Appx. at 88, 92-93. In response to Sprint’s concerns regarding the improper

use of this evidence the district court reiterated that its in limine ruling was aimed at

excluding “other employees . . . from coming in and saying, I was RIF’d, it was because of

my age” and that the ruling applied to this evidence. Id. at 93-94. The court made clear

Mendelsohn’s use of this evidence would have to conform to the in limine ruling. See id. at

55-56. Therefore, these exhibits were not offered for the purpose of showing pretext under

the theory Sprint had a policy of favoring younger employees. Instead, the district court

admitted this evidence under a different theory of pretext by showing Sprint did not follow

its own RIF criteria. In addition, Jo Renda was able to use this evidence to find examples of

older employees whom Sprint had retained, even though they were not supervised by

Reddick. Thus, the district court’s in limine ruling disadvantaged Mendelsohn further

because Sprint was allowed to portray itself as retaining older employees, aside from 11 Mendelsohn, even though these employees were not all supervised by Reddick.

Admission of exhibits 3 and 4 did not remedy the error the district court made in

excluding evidence concerning Sprint’s alleged treatment of other employees and the

circumstances surrounding their RIF termination. The nature of the evidence Mendelsohn

proffered is vastly different from the evidence the jury considered–merely names and dates

of birth. Evidence of an employer’s alleged prior discriminatory conduct toward other

employees in the protected class has long been admissible to show an employer’s state of

mind or attitude toward members of the protected class. See, e.g., McDonnell Douglas

Corp., 411 U.S. at 804 ; Aikens, 460 U.S. at 713 -14 n. 2; Estes v. Dick Smith Ford, Inc., 856

F.2d 1097, 1102-03 (8th Cir. 1988); Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d

1417, 1423-24 (7th Cir. 1986). These other employees should have been allowed to take the

stand and testify subject, of course, to any district court ruling regarding the proper use and

limitations of such testimony.3 Generally, a court’s evidentiary ruling is entitled to deference. See Shugart v. Central

Rural Elec. Co-op., 110 F.3d 1501, 1508 (10th Cir. 1997). But the court’s discretion over

evidentiary matters should not unfairly prevent a plaintiff a full opportunity to present her

case. See Gossett, 245 F.3d at 1178 . Blanket pretrial evidentiary exclusions, in particular,

“can be especially damaging in employment cases, in which plaintiffs must face the difficult 3 We do not disagree with the dissent that statistical evidence to support an inference of an company-wide policy is useful, and perhaps quite convincing. See Dissent at 4. But while “[s]tatisitical evidence may, in certain circumstances, be relevant to this purpose[,]” we have never required it. Beaird, 145 F.3d at 1168 .

12 task of persuading the fact-finder to disbelieve an employer’s account of its own motives.”

Hawkins v. Hennepin Technical Center, 900 F.2d 153 (8th Cir. 1990) (citation omitted). The

evidence which Mendelsohn seeks to present, “is certainly not conclusive evidence of age

discrimination itself, but it is surely the kind of fact which could cause a reasonable trier of

fact to raise an eyebrow, and proceed to assess the employer’s explanation” for its motive in

terminating Mendelsohn. Greene, 98 F.3d at 561 . Age as a motivation for Sprint’s selection

of Mendelsohn to the RIF becomes more probable when the fact-finder is allowed to consider

evidence of (1) an atmosphere of age discrimination, and (2) Sprint’s selection of other older

employees to the RIF.4 C.

Finally, Sprint argues the testimony should be excluded under Fed. R. Evid. 403.

Rule 403 allows a district court to exclude relevant evidence when concerns over unfair 4 The dissent characterizes the question of admissibility as a classic judgment call and readily acknowledges that had the district court admitted the evidence it would have acted within its discretion. The dissent, however, overlooks our established rule that a district court necessarily abuses its discretion “when it commits an error of law,” Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006), or “fails to consider the applicable legal standard . . . .” Ohlander v. Larson, 14 F.3d 1531, 1537 (10th Cir. 1997). For instance, in Thiessen v. General Electric Capital Co., 267 F.3d 1095 , 1105-08 (10th Cir. 2002), we held the district court abused its discretion in decertifying a class of plaintiffs because the court failed to consider the “pattern and practice” legal framework applicable to the plaintiffs’ claim of discrimination. In the same manner, the district court here abused its discretion when it excluded the testimonial evidence based upon its erroneous conclusion that Aramburu controlled the fate of the evidence in this case. See also Floyd v. Ortiz, 300 F.3d 1223, 1227 (10th Cir. 2002) (holding the district court abused its discretion in denying the plaintiff’s request for rehearing because the district court relied on an erroneous legal premise to do so).

13 prejudice, confusion, or waste of time substantially outweigh the probative value of the

evidence. Sprint argues that allowing the evidence would prejudice Sprint because it would

result in Sprint having to defend multiple claims of discrimination. To be sure, the district

court retains its power to limit cumulative and marginally relevant testimony. But otherwise,

we disagree. Excluding otherwise admissible evidence under Rule 403 “is an extraordinary

remedy [that] should be used sparingly.” United States v. Roberts, 88 F.3d 872, 880 (10th

Cir. 1996). “In performing the 403 balancing, the court should give the evidence its

maximum reasonable probative force and its minimum reasonable prejudicial value.” Deters

v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000) (internal quotations

omitted). Little doubt exists that the admission of evidence about other alleged episodes of

discrimination would inconvenience Sprint. But the fact Sprint would have to rebut this

testimony is not in itself enough to outweigh the probative value of Mendelsohn’s proffered

evidence. See Bingman, 937 F.2d at 557. Based on the record before us, we cannot say the

evidence is unduly prejudicial.5 Accordingly, for the reasons stated above the district court’s order denying

Mendelsohn’s motion for a new trial is reversed. We remand to the district court for further

proceedings consistent with this opinion.

REVERSED and REMANDED.6 5 Sprint lastly argues any error the district court might have made was harmless because Ms. Mendelsohn did not have a submissible case of age discrimination. Based on the record before us, and in light of the evidence the district court excluded, we conclude Ms. Mendelsohn has a submissible case to present to the jury. 6 Nothing in our ruling is intended to limit the district court’s discretion during trial to issue limiting instructions or rulings concerning the proper purpose for which 14 05-3150, Mendelsohn v. Sprint/United Management Co.

TYMKOVICH, Circuit Judge, dissenting.

I respectfully dissent because I do not believe the district court abused its discretion

in its evidentiary rulings excluding testimony. At the outset, I agree that the district court’s

ruling is difficult to decipher, especially looking solely at the minute order. In the context

of the trial, however, I think the court’s ruling is clear enough—the proffered testimony from

other employees failed to satisfy the relevancy and prejudice requirements of Rule 403.

Moreover, I believe the majority makes a mistake in holding that testimony from other

employees not similarly situated is admissible even where the plaintiff has made no

independent showing of a company-wide policy of discrimination.

A.

A brief review of the evidence the court admitted will place its ruling in perspective.

First, despite its pre-trial ruling regarding the witness testimony, the court admitted Exhibits

3 and 4, voluminous documents from Sprint’s “succession planning” file, including notes on

employees slated for termination pursuant to the company-wide RIF. Both exhibits show

that Sprint kept information on the gender, ethnicity and age of employees alongside other

information on their performance and perceived “potential.” Significantly, Exhibit 4 also

contains notes indicating that other workers over 40, who did not report to Reddick, were

terminated as part of the RIF.

Second, the court also allowed testimony regarding the RIF dismissal of Marc Elster,

Mendelsohn’s evidence may be introduced. one of Reddick’s peers who was 51 at the time of his termination. In addition, Jo Renda, a

Sprint executive, was called as an adverse witness at trial and examined about the policies

behind the RIF and the employees identified in Exhibit 4. She testified regarding fired

employees who did not report to Reddick.

This evidence shows that the district court did not apply a narrow interpretation of

admissibility to the evidence of company-wide discrimination proffered by Mendelsohn. As

the court explained in response to Sprint’s objection to the admission of Exhibit 4, I’m afraid that you don’t really comprehend what I was saying in the motion in limine – or on the motion in limine. It was never my intent to preclude plaintiff from putting on evidence about the RIF, how it worked whether Sprint followed its own RIF procedures, et cetera. I think because of the factual background of plaintiff’s claim, we have to get into what happened to other employees.

* * * [Defense counsel] wanted the court [via its order in limine] to prohibit other employees . . . from coming in and saying, I was RIF’d, it was because of my age and that sort of thing. So that’s where I was targeting my ruling. And I stand by that ruling. I don’t want that kind of evidence to come in. But I think that’s a totally different question from the question whether the RIF, which is your stated nondiscriminatory reason, is a pretext for age discrimination.

(Tr. at 93–94.)

Finally, in addition to admitting actual evidence of pretext, the district court rejected

a jury instruction proffered by Sprint, which would have instructed jurors to consider only

evidence about employees similarly situated to Mendelsohn. The court explained that 2 evidence outside of Reddick’s chain of command had been allowed to come in as relevant

to the question of pretext: “The reason I said plaintiff could offer that sort of evidence was

because it might yield an inference that the so-called legitimate nondiscriminatory reasons

were pretextual.” (Tr. at 1228.) Indeed, the court included an instruction that reminded the

jury that it could, on the basis of all evidence presented at trial, reject Sprint’s reasons for

firing Mendelsohn and “conclude that plaintiff’s age was a determining factor in [Sprint’s]

decision to terminate her employment.” (Jury Instr. 12.)

In sum, it appears to me that the plaintiff had an adequate opportunity to introduce

relevant evidence of Sprint’s corporate policies and practices surrounding the RIF and argue

that the RIF was itself a pretext for age discrimination. I am further convinced of this after

studying the proposed testimony of the five witnesses proffered by Mendelsohn and excluded

by the district court. Their proposed testimony seems a mixture of hearsay and speculation

that would be marginally admissible in any event. I cannot say that the court erred in

excluding such testimony under the standards of Rule 403.

To be sure, the testimony may have helped Mendelsohn’s case. But this is not the

question here. We are properly concerned with whether the court abused its discretion in

excluding the testimony. I think not. This seems a classic judgment call. I readily admit that

the court would not have erred in admitting the evidence, see, e.g., Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990), but I am equally confident that the court did not abuse

its discretion in choosing to exclude it.

B.

3 The larger problem with the majority’s position is it suggests that anecdotal evidence

from employees throughout a large organization will be per se admissible when offered in

the context of alleged discrimination in a RIF. This appeal illustrates the hazard of such an

approach for several reasons.

The first reason is the lack of any statistical or other direct evidence that supports an

inference of enterprise-wide discrimination. Given the size of Sprint, the fact that

Mendelsohn found five former employees who believed they were victims of age

discrimination is not meaningful until a specific evidentiary foundation has been laid. The

proffer of evidence here is devoid of independent evidence showing that Sprint had

company-wide discriminatory policies. Even taking as true Mendelsohn’s assertion that

these witnesses would provide credible evidence that managers other than Reddick were

motivated by discriminatory animus, this does not in and of itself support the conclusion that

Reddick was so motivated.1 Nor does it establish that the RIF’s “subjective criteria” was a

pretext for age discrimination. While Sprint may well have had policies designed to

discriminate against older employees, without more, the excluded testimony does nothing

to establish that fact, nor does it directly support an inference that Mendelsohn’s termination

was wrongfully motivated. See Carpenter v. Boeing Co. 456 F.3d 1183 (10th Cir. 2006)

(discussing use of statistical evidence to support claim of disparate treatment). The evidence 1 Of the five proffered witnesses, one was fired a full year before Mendelsohn and another was hired at age 52. The others had grievances related to their supervisors that are too general to credit on this record.

4 must tend to show that the company had a policy to discriminate, not merely a policy applied

in a discriminatory manner by an individual supervisor or supervisors.2 The second and more important hazard of the majority’s approach is the narrow

reading it gives to Aramburu. The so-called “same supervisor” rule articulated in that case

recognizes that where an employee has putatively been fired for the violation of a workplace

rule, an inference of discrimination is more likely where the same supervisor disciplines

similarly situated employees differently. Aramburu v. The Boeing Co., 112 F.3d 1398, 1403

(10th Cir. 1997).

But it is equally plausible that an employer could have a company-wide policy of

using disciplinary actions as a pretext for unlawful discrimination. In such a case, I suspect

we would modify the applicable relevancy standard in order to account for and allow

evidence of a company-wide policy.

I would do the same in the RIF context and apply the Aramburu rule in cases like this 2 This is not to suggest that some of the proffered evidence might be relevant. But having said this, the evidence must still satisfy the rules of evidence. It is not enough for a former employee to claim discrimination. We have always required a nexus between the testimony and the allegation, either through personal knowledge or statistical support. Without more foundation, in my view Mendelsohn has not demonstrated a Sprint-wide policy of discrimination embodied in the RIF. And none of the excluded evidence ties the policy to the decision to terminate her.

The majority relies on Gossett v. Board of Regents, 243 F.3d 1172 (10th Cir. 2001). But Gossett cannot be read broadly to suggest that any proffer of evidence is automatically admissible, without meeting the requirements of Rules 401 or 701. In that case, the court concluded the witnesses (at the summary judgment stage) claimed personal knowledge of the discriminatory policy and its application.

5 one unless “independent evidence of specific enterprise-wide policy” has been developed.

Rivera v. City and County of Denver, 365 F.3d 912, 922 (10th Cir. 2004). Since Mendelsohn

did not establish a foundation that the proffered evidence would support such a finding, and

since she otherwise had the opportunity to present evidence to the jury of other older

employees subject to the RIF, the district court did not abuse its discretion in excluding the

additional witness testimony.3 Our holding to the contrary creates a rule that suggests even the most tangentially

relevant and prejudicial testimony by former employees is per se admissible. Such a rule

runs counter to our traditional deference to district courts as the primary arbiters of

admissibility.

3 The majority alternatively suggests that our “established rule that a district court necessarily abuses its discretion when it commits an error of law . . . or fails to consider the applicable legal standard” forces reversal here. Majority Op. at 12 n.4 (internal quotations and citations omitted). Assuming, for the sake of argument, that this rule applies in the context of an evidentiary ruling and that the legal error in Mendelsohn’s case was not harmless, all the rule would require is reversal and remand for application of the proper rule. The majority has not done this, but has instead insisted on finding Mendelsohn’s proffered evidence to be per se admissible despite the evidentiary infirmities. The majority’s note on the operation of our law regarding legal error is therefore logically incongruent with its holding that Mendelson’s evidence must be admitted at a new trial.

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