“Me-Too” Evidence in Gender Discrimination Cases
“Me-too” evidence – that an employer engaged in similar misconduct with employees other than the plaintiff – is often admitted in gender discrimination cases as circumstantial proof of the employer’s intent or motive in the present case. The recent decision Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, reminds us that “me-too” evidence must be closely related to the plaintiff’s theory of the case and issues to be admissible.
THE PINTER-BROWN EVIDENCE
Dr. Lauren Pinter-Brown was hired as a clinical professor of medicine and director of the lymphoma program in the division of hematology-oncology at the UCLA School of Medicine. After working at UCLA for ten years, she sued the Regents of the University of California under the Fair Employment and Housing Act (FEHA) (Government Code section 12900, et seq.) for discrimination based on gender, age, and age-based harassment. She alleged that one of her colleagues in the lymphoma program was repeatedly disrespectful and tried to humiliate her, challenged her authority, and interfered with her ability to lead the program. She also asserted that after reporting the problem to several superiors in the medical school, she received no assistance.
The jury found in UCLA’s favor on the age discrimination claims but found in favor of Pinter-Brown on her gender discrimination claim, awarding her $13,000,000 in damages. In an opinion highly critical of the trial court’s inability to remain impartial, the court of appeal reversed the judgment.
During trial, Pinter-Brown was allowed over objection to present the results of an investigative report on incidents of racial and ethnic discrimination – not gender discrimination and bias – at UCLA (the Moreno Report). The report was not admitted into evidence, but witnesses were permitted to testify about its findings. UCLA witnesses were asked questions like: “[T]he findings of the report were very damning to the discrimination going on at [UCLA]; correct?”
Pinter-Brown also offered evidence of Department of Fair Employment and Housing (DFEH) complaints against the University of California system as a whole over a five-year period, without showing any of the complaints had merit or involved the individuals about whom Pinter-Brown complained. Of the 198 complaints, only 13 involved UCLA and only four involved gender. Nevertheless, the dean of the medical school was asked whether “[the report] shows that gender complaints ha[ve] been rampant in particular with defendant?”
SORTING THE ADMISSIBLE FROM THE INADMISSIBLE
Evidence Code section 1101 applies to the admission of “me-too” evidence. The section excludes evidence of a person’s character to prove conduct on a particular occasion. It does not, however, prohibit evidence of a crime, civil wrong, or other act when relevant to prove some other fact such as motive, intent, knowledge, absence of mistake. Cal. Evid. Code § 1101(b).
In evaluating “me-too” evidence, the trial court’s first consideration is probative value. In Pinter-Brown, the appellate court found the “me-too” evidence had none. Pinter-Brown misused the content of the Moreno Report to argue: “[B]ecause the entire UCLA campus – not just the medical school – failed to protect racial and ethnic minorities from discrimination, the UCLA medical school failed to protect Dr. Pinter-Brown from gender discrimination (emphasis added).” The Moreno Report served only the (inadmissible) purpose of “convinc[ing] the jury that the medical school had a propensity to harass.” Id. at *96.
Second, the evidence must otherwise be admissible. Even if relevant, the Moreno Report and DFEH complaints contained inadmissible hearsay. Secondary evidence – testimony about the contents of the documents – could not cure this problem and should have been excluded at trial on that ground alone.
Third, although the appellate court did not discuss the issue in depth, “me-too” evidence must pass the test set forth in section 352 of the Evidence Code: Its probative value must substantially outweigh the likelihood of undue prejudice or undue consumption of time. “Me-too” evidence can result in distracting mini-trials during trial on the merits of the other misconduct claims.
The appellate court held that “me-too” evidence of discrimination against employees outside of the plaintiff’s protected class or by persons other than the alleged wrongdoer is inadmissible to show discrimination or harassment against the plaintiff.
Pinter-Brown shows why the admission of “me-too” evidence requires extremely careful analysis by the court in balancing its probative value against its prejudicial effect.
A trial court’s natural reluctance to admit “me-too” evidence can be overcome by showing similarity to the facts of the case, close connection to the defendant in the case, and a non-propensity purpose for which it is offered consistent with the plaintiff’s theory of the case.