"Me Too" Evidence Can Establish Discrimination

            In Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, ___ Cal.Rptr.3d ___ (No. B198888), the California Appeals Court held that “me too” evidence (evidence that other employees were discriminated against) could be used to establish discrimination in a plaintiff’s employment discrimination case. 

 

            In Johnson, the plaintiff alleged that she was fired because she was pregnant and took disability leave related to her pregnancy.  The employer moved for summary judgment arguing that Johnson was terminated for performance reasons and falsifying timesheets.  In addition to offering evidence that the employer’s reasons were false, in opposing the summary judgment, Johnson offered declarations by several former employees that they were terminated because of their pregnancy.

 

More after the jump

 

            These declarations included negative comments by the supervisor about other pregnant employees, circumstantial evidence that other employees were terminated because of their pregnancy and circumstantial evidence that in terminating these employees the manager created false reasons or inequitably applied performance standards.  The employer argued that such evidence was not admissible to demonstrate discrimination in Johnson’s case.

 

            In reversing a grant of summary judgment, the Court of Appeal disagreed and held that such evidence could be used as evidence of discrimination in Johnson’s case.  The Court stated that “[t]he evidence sets out factual scenarios related by former employees of the defendant that are sufficiently similar to the one presented by the plaintiff concerning her own discharge by defendant, and the probative valve of the evidence clearly outweighs any prejudice that would be suffered by defendant by its admission.” (Johnson opinion at p. 39.)  In so holding, the Court analyzed the recent decision of the United States Supreme Court in Sprint/United Management Co. v. Medelsohn (2008) 552 U.S. ____ [128 S.Ct. 1140].  In Sprint, the court held that such “me too” evidence was neither per se admissible nor per se inadmissible.  Instead, the admissibility depends on many factors, including how closely the evidence is to the plaintiff’s circumstances and theory of the case.” (Sprint at p. __ [128 S.Ct. at p. 1147.])

 

            The decision in Johnson is a positive step for employees, as it allows (in certain circumstances) employees to use the employer’s discrimination of other employees as evidence of discrimination of this employee. 

 

            -- Michael Sachs

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