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Litigation News

Litigation News | 2021

"Me Too" Evidence Can Establish Discrimination Claim

Kelso Lorne St. Jacques Anderson


  • Conflicting evidence in declarations is enough to withstand summary judgment.
  • Conflicting "me too" evidence can be other instances of discrimination or harassment against other employees by the alleged harasser or the same employer.
  • Section leaders believe such evidence has significant admissibility limitations that must be considered by litigants and courts.
"Me Too" Evidence Can Establish Discrimination Claim
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A federal appellate court has ruled that conflicting “me too” evidence—other instances of discrimination or harassment against other employees by the alleged harasser or the same employer—may be sufficient to withstand a defendant’s dispositive motion by aiding a plaintiff in establishing his or her prima facie showing of discrimination. While ABA Litigation Section leaders agree that “me too” evidence is relevant in discrimination cases generally, they also believe such evidence has significant admissibility limitations that must be considered by litigants and courts.

Allegations of Discrimination

In Pineda v. Abbott Laboratories, Inc., the plaintiff sued his former employer in the U.S. District Court for Central District of California, alleging age and disability discrimination following a traumatic brain injury. The undisputed facts established at trial revealed that the defendant provided the plaintiff with 11 of his 12 requested accommodations. The twelfth request, a four-hour workday for six weeks, was in fact provided for two weeks before the plaintiff’s doctor cleared him to return to work full time.

To buttress his disability discrimination claim, the plaintiff pointed to five pieces of evidence: (1) a supervisor’s criticism of him for sighing during a meeting; (2) a supervisor’s comments on his performance at meetings; (3) an email from his supervisor that his medical leave put him further behind on performance; (4) an alleged deficiency in the defendant’s discrimination investigation with respect to failing to interview his supervisor; and (5) the defendant’s termination of him after his medical leaves. Notwithstanding the foregoing evidence, the district court granted the defendant’s motion for summary judgment on all the plaintiff’s claims.

Prima Facie Evidence

The U.S. Court of Appeal for the Ninth Circuit affirmed the district court findings on all claims, save for the plaintiff’s age discrimination claim, which the court reversed and remanded. Referencing the McDonnell Douglas burden-shifting framework for establishing a discrimination claim, the appellate court ruled that the district court applied the wrong standard in finding the plaintiff failed to satisfy the fourth criterion.

To establish a prima facie case of age discrimination under McDonnell Douglas, the court noted, a plaintiff need only show he or she was over the age 40, suffered an adverse employment action, that objective evidence showed the plaintiff was qualified, and that the adverse employment action against the plaintiff was suggestive of unlawful discrimination. Here, the Ninth Circuit concluded that the record showed that genuine issues of material facts existed as to whether the plaintiff was replaced by someone under 40 years old, thereby making the grant of summary judgment improper as to whether defendant’s act of replacing the plaintiff with a younger employee was unlawful.

“Employment discrimination claims are analyzed under the McDonnell Douglas framework,” explains Dustin L. Crawford, Atlanta, GA, chair of the Employment Litigation Subcommittee of the Litigation Section’s Civil Rights Litigation Committee. “Once the plaintiff presents his or her prima facie case, the defendant employer must articulate a legitimate, nondiscriminatory, reason for the adverse employment action,” notes Crawford.

Crawford further explains that once a defendant proffers a legitimate, nondiscriminatory, reason for the adverse employment action, “the burden then shifts back to the plaintiff to show that the employer’s alleged, nondiscriminatory, reason for the adverse employment action is pretextual, that is, not the real reason.” Here, the appellate court concluded that declarations from two supervisors at the defendant indicating they were instructed to “manage out” more “senior employees” were probative of age discrimination even though the declarants subsequently qualified portions of their declarations.

Limitations on “Me Too” Evidence

Despite the Ninth Circuit’s reasoning that conflicting “me too” evidence from the other employees (supervisors) of the defendant was more probative than not to withstand a motion for summary judgment, Section leaders caution that such evidence has potential admissibility limitations. “Relevancy is likely to be an important factor in determining the admissibility of ‘me too’ evidence, that is, whether the evidence tends to make a consequential fact more or less probable,” offers Jerry M. Cutler, New York, NY, cochair of the Section’s Employment & Labor Relations Law Committee.

To determine relevancy of “me too” evidence, Cutler continues, courts will have to “make a fact-based assessment as to whether the circumstances surrounding the dismissal of other employees are similar to those alleged by the plaintiff, what role the supervisor played in the employment action being challenged, the temporal and/or geographical proximity of the evidence, whether the employees were similarly situated in relevant respects, and the nature of each employee's allegations. Courts will also need to consider whether relevant evidence should nonetheless be excluded if its probative value is outweighed by the danger of unfair prejudice.”

Pointing out another admissibility shortcoming of “me too” evidence, Jeffrey C. Brodin, Phoenix, AZ, past cochair of the Section’s Employment & Labor Relations Law Committee observes that, “such evidence should be limited to practices at that employer. The evidence may also be limited by time if evidence is offered of actions distant in time and there is no evidence of further discriminatory actions in the interim.”