A jury awarded a former professor “upward of $13 million” for gender discrimination, and the Court of Appeal reversed. One reason, according to Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, was that the jury heard about complaints that weren’t tied to the plaintiff’s claims. Evidence of how other employees were treated can come into a California employment trial, but only for limited purposes and only when it’s closely connected to the plaintiff’s case. Enforcing those limits is the defense.
What is “me too” evidence?
It’s evidence that the employer treated other employees the way the plaintiff says the employer treated the plaintiff.
The Pinter-Brown court defined it as “evidence that an employer waged the same type of discrimination against other employees as is it did against a plaintiff.” It usually arrives as testimony or declarations from coworkers, lists of agency complaints, prior lawsuits, or internal reports.
The legal starting point is Evidence Code section 1101. Subdivision (a) says evidence of a person’s character, including “specific instances of his or her conduct,” is “inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) creates the opening plaintiffs use: it doesn’t prohibit evidence of other acts “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident…) other than his or her disposition to commit such an act.”
When is “me too” evidence admissible against an employer?
When it’s offered to show intent or motive about the plaintiff’s own protected class, and it’s similar enough to matter.
The leading example is Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740. The plaintiff claimed the firing followed a pregnancy disclosure and offered declarations from four former employees who, as the Pinter-Brown court later described them, “worked at the same office and under the same three supervisors as the plaintiff, and who also alleged they were fired for being pregnant.” The Johnson court held “that the contested declarations are admissible and they constitute substantial circumstantial evidence which is sufficient to raise triable issues of material fact as to the reason for plaintiff’s termination,” and reversed summary judgment for the employer.
Johnson shows when this evidence is most dangerous: same protected characteristic, same type of decision, and an overlap in the people involved. Those are also the features a defense lawyer attacks when they’re missing.
What limits did the court enforce in Pinter-Brown?
Three of them, and each is a basis for a motion in limine.
The Pinter-Brown opinion summarized the rules this way: “‘me too’ evidence can be admissible only to prove intent and motive, among other things, with respect to the plaintiff’s own protected class. Additionally, the admissibility of ‘me too’ evidence hinges on how closely related the evidence is to the plaintiff’s circumstances and theory of the case. ‘Me too’ evidence is never admissible to prove an employer’s propensity to harass.”
The trial court in that case let the jury hear about an outside investigation into racial and ethnic bias across the campus and admitted a list of agency complaints from the entire University of California system. The plaintiff’s claim was gender discrimination at the medical school. The Court of Appeal noted that on re-cross-examination, the university showed that “only 13 complaints took place in Los Angeles and, of those 13, only four involved gender.” It concluded that the plaintiff used the campus-wide report “to paint UCLA as a hotbed of discrimination and harassment,” and that it “served only to convince the jury that the Medical School had a propensity to harass.”
The reversal rested on several errors together, including a presentation the trial judge gave the jury about the civil rights movement, so the case isn’t a holding that errors over this kind of evidence alone require a new trial. But it’s a clear published statement of the limits.
| Limit | Where it comes from | What the employer argues |
|---|---|---|
| Not to prove propensity | Evid. Code § 1101(a); Pinter-Brown | The evidence shows only that the employer is the kind of company that discriminates |
| Same protected class | Pinter-Brown | Complaints about race don’t prove gender bias, and vice versa |
| Close connection to the plaintiff’s circumstances | Pinter-Brown | Different decision-makers, departments, time periods, or types of decisions |
| Probative value vs. prejudice | Evid. Code § 352 | Mini-trials on other employees’ claims would waste time and mislead the jury |
How does Evidence Code 352 help the defense?
It gives the trial judge discretion to keep out evidence that’s more distracting than useful.
Section 352 provides that “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Each “me too” witness invites a second trial about whether that witness was really mistreated. Unproven agency complaints are the most vulnerable here, because a complaint is only an allegation. In Pinter-Brown, the university elicited testimony that the list of complaints “did not indicate whether the complaints had any merit.” That’s a point worth making to the judge before the jury ever hears the number.
When should an employer raise the issue?
Early, and in writing.
The best time is a motion in limine filed before trial, supported by a showing of how the other employees’ situations differ. Pinter-Brown also illustrates the preservation point: the university had filed a motion in limine to exclude evidence of mistreatment of other employees, and the Court of Appeal noted that “Generally, once a motion in limine is denied, no more is needed to preserve the record on appeal.”
Discovery is where the fight starts. Plaintiffs often ask for every complaint of discrimination companywide for many years. Narrowing those requests to the same protected class, the same decision-makers, and a reasonable time period keeps the trial record smaller later. Workplace comments raise a related set of issues covered in the firm’s post on stray remarks after Reid v. Google.
What to do when a plaintiff names other employees
- Preserve the records about each employee the plaintiff names, including their complaint files and personnel decisions, under a litigation hold once a claim arrives.
- Calendar the response deadlines on the complaint and any discovery requests seeking companywide complaint data, and check for an arbitration agreement and an EPLI policy with notice requirements.
- Identify the decision-makers for each named employee and compare them to the plaintiff’s, and stop any further action against the plaintiff or the named coworkers that could look like retaliation.
- Pull the documents the admissibility fight depends on: the protected characteristic each employee claimed, the department, the dates, and how each complaint was resolved.
- Talk to a lawyer before responding to discovery, contacting the plaintiff or their lawyer, or offering anything to settle.
Fights over “me too” evidence are a regular part of trial preparation for California employment defense lawyers, and they’re usually decided before the jury is seated.
FAQ
Can a plaintiff use complaints by employees in a different protected class?
Generally not to prove discrimination against the plaintiff. Pinter-Brown said “me too” evidence can be admissible to prove intent and motive about the plaintiff’s own protected class, and found it was error to let a gender discrimination plaintiff rely on a report about racial and ethnic bias. Employers should object when the other complaints involve a different characteristic.
Are lists of CRD or EEOC complaints admissible?
They’re vulnerable to objection. A complaint is an allegation, not a finding, and a raw list says nothing about who was involved or whether the complaint had merit. In Pinter-Brown, the Court of Appeal held that a systemwide list of agency complaints should not have been admitted. Hearsay and section 352 objections are both worth raising.
Does the employer have to object again at trial if its motion in limine is denied?
Pinter-Brown said that generally, once a motion in limine is denied, no more is needed to preserve the issue for appeal. Many trial lawyers still object at trial when the evidence comes in, especially if it goes beyond what the motion addressed. Renewed objections keep the record clear about exactly what the jury heard.
Is “me too” evidence only an issue at trial?
No. It often first appears in opposition to a summary judgment motion, as in Johnson, where declarations from other employees helped defeat the employer’s motion. It also drives discovery fights over companywide complaint records. Employers should treat it as an issue from the first discovery request.
If a plaintiff is building a case on other employees’ complaints
If your company has been sued by a former employee who points to complaints by coworkers, how closely those other situations match the plaintiff’s usually decides how much the jury hears. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including discrimination claims that rely on “me too” evidence. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
Evidence Code sections 352 and 1101; Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740; Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.