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High Court punts on age-bias issue

WASHINGTON – The Supreme Court on Tuesday decided not to decide one of its most closely watched job discrimination cases. The non-decision was unanimous.

At issue was whether a laid-off older worker who is suing her employer for age bias can rely on the testimony of other older workers who were fired from the same company.

A federal trial judge had excluded testimony from five co-workers from the age-bias case brought by Ellen Mendelsohn, a 51-year manager who was dismissed by Sprint’s headquarters in Overland Park, Kan. The judge said in a two-sentence order that the plight of these co-workers is not relevant because they had been fired by other supervisors, not the supervisor who laid off Mendelsohn.

Taking the opposite view, the 10th U.S. Circuit Court of Appeals in Denver said this kind of testimony always should be heard because it is “relevant to (the company’s) animus toward older workers.”

On Tuesday, the Supreme Court said both views were wrong.

So, when should testimony from other workers be heard in job-bias cases?

The justices gave no answer. It “depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” Justice Clarence Thomas said in Sprint v. Mendelsohn.

The justices gave no signal whether the co-workers should be heard in this case. Instead, they sent it back to the trial judge to start over and explain her thinking in greater detail.

That did not stop advocates on both sides from proclaiming victory. The adversaries said they were delighted the court had rejected their opponent’s claim.

“We won,” said Paul W. Cane Jr., a San Francisco lawyer who represented Sprint. “The court unanimously rejected the 10th circuit’s rule” that would have included all such testimony from co-workers. “And that’s a win in anybody’s book,” he said.

“The bottom line is, I’m happy,” said Dennis E. Egan, a lawyer in Kansas City who represented Mendelsohn. “Sprint and the business community had urged the court to say this evidence is never admissible, and the court said ‘no’ to that.”

Others who had followed the case also had contrary reactions.

The National Federation of Independent Business put out a statement hailing “victory!” The group said it was “pleased that the court ruled against allowing ‘me too’ evidence to be used in all employment discrimination cases.”

AARP was “… pleased with the decision because of what could have been the result,” said Dan Kohrman, an attorney for the advocacy group for older Americans. “The business community was seeking a sweeping exclusion of testimony from co-workers, and that doesn’t reflect the reality of the workplace.”

It is not unusual for the high court to disagree with both a trial judge and an appeals court in the same case. It is unusual, however, for the justices not to set forth a rule of law to be followed.

“That is the frustrating part here. We thought the court would provide more guidance,” Egan said.

Cane, Sprint’s lawyer, said “the court could have helped by laying out more precise markers. This means there will be future fights over whether this kind of evidence can be admitted.”