The Eleventh Circuit Restricts Use of Evidence of Comparators

Employment lawyers are well aware that evidence of how individuals other than the plaintiff were treated under circumstances comparable to those that led to an adverse action administered to the plaintiff is likely be decisive. Plaintiff's counsel will seek to demonstrate that individuals outside of the protected group have been treated more leniently. Counsel may also attempt to show that other individual's in the protected group have, like the plaintiff, been singled out for harsh treatment. The latter are commonly referred to as "me toos." Defense counsel will try to show how the circumstances relating to the alleged comparators are in fact not comparable. They will want to adduce evidence of how people outside of the protected group were treated as severely as the plaintiff.

Clearly evidence of comparators and me toos is relevant and admissible under Federal Rule of Evidence 402. A question that such comparative evidence may present is whether the underlying facts surrounding an alleged comparator or me too are truly comparable. Further if a coworker in the plaintiff's protected group testifies about his or her own mistreatment the defense is in the position of having to show that there is no merit to the claim of the me too. The result is likely to call for a mini-trial of the other individual's claim. If there are a number of me toos or comparators then there is a possibility of several mini-trials within the principal case.

Federal Rule of Evidence 403 provides an approach to this situation. Rule 403 allows the court to exclude relevant evidence where "...its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Courts are admonished to use restraint in excluding relevant evidence under Rule 403. The Eleventh Circuit observed in Ebanks v. Great Lakes Dock and Dredge Co.:

Since the trial judge is granted such a powerful tool by Rule 403, he must take special care to use it sparingly.... If there is doubt about the existence of unfair prejudice, confusion of issues, misleading , undue delay or waste of time, it is generally better practice to admit the evidence taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge....

Vol. I, Weinstein & Burger, Weinstein's Evidence, § 403[0].

Recently the Eleventh Circuit approached the tensions that come up under Rule 403 in a novel and sensible way in Anderson v. WBMG-42, Parker Communications , Inc. While acknowledging that Rule 403 should be used with restraint, the court affirmed the trial court's exclusion of evidence of two purported comparators who the plaintiff contended received less severe discipline than the plaintiff's discharge for comparable conduct. The court reasoned:

There is no abuse of discretion where a trial court prevents counsel from embarking on a lengthy examination of matters which have not been developed in discovery. To have permitted a lengthy examination and perhaps lengthier rebuttal encompassing the efficacy of WBMG's management, or Walker's role or ability as a supervisor, would have in effect generated a mini-trial on collateral issues which would not relate to the racial discrimination in Anderson's claim.

The court emphasized that information surrounding the comparator's discipline and the various rolls of those who were responsible for the plaintiff's discipline and the comparator's discipline were not developed in discovery. It appears that the failure of the plaintiff to develop facts in discovery that would lay a foundation for the admission of evidence of the comparators was the basis for the court's decision. The logic of the court in Anderson should apply in cases involving me toos. Certainly the justification, or lack thereof, for actions taken or not taken in respect to other individuals may require the presentation of a good deal of evidence by the plaintiff and the defendant. This could well result in mini-trials of collateral issues that, though relevant, do not bear directly on the case at bar. Those mini-trials might well side track the evidence relating to the factual issues in the principal case.

The First Circuit applied this reasoning in Ramos-Melendez v. Valdejully, an action under 42 U.S.C. § 1983 in which the plaintiff alleged that his demotion due to his political affiliation violated his First Amendment rights. The appellate court found no error in applying Rule 403 to exclude testimony, in a bench trial before a magistrate, by two other individuals who had similar suits pending "... on the ground that for their testimony to be significant it would be necessary in effect to try their cases, as well as the plaintiffs."

In Johnson v. Yellow Freight System, which involved a jury trial of a 42 U.S.C. §1981 race discrimination claim, the Eighth Circuit found no error in the exclusion of a petition circulated among black supervisors. The petition averred discriminatory denial of promotion of black employees. The court found that the district court acted within its discretion under Rule 403 where it reasoned that "...to allow questions raising a new and unproven claim would necessitate inquiry into the truth or falsity of the claim."

The Second Circuit held it was error in an age discrimination case for the trial court to admit testimony of six former company officers about the circumstances of their own terminations and those of others over a period of 11 years in Haskell v. Kaman Corporation. The court found that "...the probative value was so 'substantially outweighed by the danger of unfair prejudice' that it should have been excluded by the district court in accord with Fed. R. Evid. 403." The court further observed that the testimony of the me toos about occurrences over a period of 11 year was not statistically significant and was therby insufficient to show a pattern and practice of discrimination . It was therefore not relevant to show that the plaintiff had been discharged because of his age. See also Goff v. Continental Oil Company, a 42 U.S.C. § 1981 case where the testimony of three me toos, who had not worked in the plaintiff's division, about their alleged mistreatment was excluded as insufficient to establish a pattern and practice of discrimination. The court also observed that none of these individuals could offer testimony about how the plaintiff was treated or about his supervisors.

Me too testimony and evidence of comparators can spell the difference in the outcome of a case.

If that evidence is not sufficiently related in time and location to the circumstances of the plaintiff, and, under Anderson, supra, if it is not properly developed in the early stages of the case, it is properly excluded under Rule 403.

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