Fourth Circuit Takes On ‘Me Too’ Evidence and ‘Mini-Trials’ In Recent Decision

herrmannseanBy Sean F. Herrmann

Recently, in Calobrisi v. Booz Allen Hamilton, Inc, No. 15-1331 (4th Cir. Aug. 23, 2016), the U.S. 4th Circuit Court of Appeals specified certain types of evidence that district courts must, at a minimum, consider when ruling on summary judgment motions. It held that the trial court erred when it granted summary judgment, in part, to the employer in an age and gender discrimination and retaliation case. This decision will impact practitioners and district court judges alike.

In partially reversing the district court’s decision, the 4th Circuit first noted that the lower court did not “individually analyze each piece of other employee evidence.” Specifically, the appellant-plaintiff, a then age 55-year-old female, submitted testimony from seven other “middle-aged women,” who stated that they experienced adverse actions at the workplace similar to those alleged by the plaintiff. The district court, in one sentence, determined that the plaintiff’s “me-too” evidence would not be admissible at trial and, accordingly, did not consider it when ruling on the summary judgment motion.

The 4th Circuit found that the district court should have individually analyzed each piece of other employee evidence. It also should have determined how similar that evidence was to that put forth by the plaintiff. As support, the 4th Circuit looked to Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 281 (2008) and pointed out that other employee or “me too” evidence “is neither per se admissible nor per se inadmissible.” It also cited a 6th Circuit case, Griffin v. Finkbeiner, 689 F.3d 584, 599 (6th Cir. 2012), for factors that courts should weigh when analyzing admissibility in these circumstances. Those factors include: whether the other discriminatory behavior described “is close in time to the events at issue in the case, whether the same decision-makers were involved, whether the witness and the plaintiff were treated in a similar manner, and whether the witness and the plaintiff were otherwise similarly situated.”

This decision presented another intriguing, and related, wrinkle—mini-trials. The 4th Circuit continued, explaining that in reaching its conclusion, “[t]he district court also placed too much emphasis on its concern with ‘mini-trials.’” It said that the concern is legitimate, but that emphasizing it too strictly would exclude “other acts” evidence, “regardless of how closely related it is to the plaintiff’s circumstances.”

Calobrisi benefits employees fighting summary judgment motions and requires district court judges to conduct more wide-ranging analyses when ruling on those motions. However, the decision does not necessarily place a value on “me too” or pattern or practice evidence. It simply says that district courts should not summarily dismiss it with little or no analysis.