Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

On Tuesday, Feb. 26, 2008, in Sprint/United Management Co. v. Mendelsohn, the U.S. Supreme Court found the 10^th Circuit had erred in concluding that a district court decision had applied a “per se” rule excluding evidence of discriminatory conduct against employees not “similarly situated” to the plaintiff. The Court remanded the matter for clarification by the District Court as to the basis for its exclusion of the evidence.

The ruling makes it clear that “me too” evidence – evidence by other workers for the same company but not working for the same department or supervisors, that they’ve been treated unfairly, it neither per se admissible nor inadmissible under the federal rules. Instead, the admissibility of such evidence is fact-specific, depending upon the nature of the “me too” evidence and its relationship to the specific allegations in the case.

Justice Thomas drafted the opinion for the unanimous court.

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In Johnson v. Riverside Health Care System, the Ninth Circuit upheld the dismissal of Johnson’s discrimination claims.  The court upheld the dismissal of the 42 U.S.C. § 1981 claim,  finding no hostile work environment where there was only one alleged incident of racial discrimination; other incidents, while offensive, were not shown to have arisen from racial animus rather than personal dislike.  The state law discrimination claim under California’s Unruh Act, Calf. Civil Code Act § 51,  was properly dismissed as the allegation was for employment discrimination, but the statute covered discrimination in the provision of goods and services.

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In Wolfe v. George, the Ninth Circuit affirmed the grant of summary judgment in a case brought by a litigant who had previously established his standing to challenge California’s vexatious litigant statute. Among Wolfe’s challenges to the statute, which requires a “vexatious litigant” to provide security against costs when suing, were claims that it was a bill of attainder; violated the prohibition against ex post facto laws; and violated his first, fifth, sixth, eighth, ninth and fourteen amendment rights. The Court rejected these claims, finding no violation of fundamental rights, and that a rational basis for the legislation exited.  The Court noted that vexatious litigants are not a protected class.

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