A recent decision by the Fifth Circuit Court of Appeals illustrates one of the many challenges in showing discrimination. In Lawson v. Graphic Packaging International, Inc., No. 13-30205 (5th Cir. 12/13/13), the plaintiff (a Human Resources manager at a paper mill) attempted to show a pattern and practice of discrimination by testifying about other co-workers and how they were discriminated against on the basis of age. They had all been discriminated against by the same mill manager. The district court did allow Mr. Lawson to discuss the experience of one particular co-worker regarding the mill manager. But, the lower court did not allow testimony about the adverse personnel actions endured by other co-workers. The Fifth Circuit affirmed this refusal to allow some of the plaintiff’s evidence, but not regarding the one worker.
An employee has long had the right to show discrimination by showing that the employer engaged in a modus operandi of getting rid of older workers. That method of proof has been around since Title VII was first passed in 1964. So, sure, testimony from "similarly situated" workers is relevant to show discrimination against the plaintiff. See, e.g., Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984); Harpring v. Continental Oil Co., 628 F.2d 406, 409 (5th Cir. 1980). The lower court in Lawson did allow the plaintiff to testify about discriminatory conduct toward other workers by the same mill manager, despite objections from the employer’s lawyer. The court also allowed the plaintiff’s lawyer to cross-examine the mill manager about his discriminatory comments toward other older workers.
So, the court did allow a substantial amount of pattern and practice evidence. What the lower court did not allow was "detailed" testimony about one particular co-worker and how he was treated. The Fifth Circuit found that the lower court struck a considered balance between allowing pattern and practice evidence while not allowing cumulative evidence. In effect, the appellate court simply "blessed off" on the lower court’s approach. The appellate court did not get into specifics about why one story was admissible while another was not. The Lawson opinion does not change the law regarding pattern and practice evidence. District courts may still allow pattern and practice evidence. But, they may also disallow cumulative evidence. The real issue is when is pattern and practice evidence cumulative? The Lawson opinion makes no attempt to address that critical issue. See decision here.
So, it would be an over-statement to suggest the Fifth Circuit will no longer allow "mini-trials" within a trial, as one blog suggests. See Ogletree Deakins blog post. The Lawson decision does not "level" the playing field. Instead, the opinion simply leaves the playing field much as the court found it, ambiguous and subject to interpretation.