“Although stray remarks by non-decisionmakers alone are insufficient to establish discriminatory intent, we have held that such remarks can still constitute evidence of the atmosphere in which the employment decision was carried out, and therefore can be relevant to the question of [discrimination].”
How later courts described this case
- “Although stray remarks by non-decisionmakers alone are insufficient to establish discriminatory intent, we have held that such remarks can still constitute evidence of the atmosphere in which the employment decision was carried out, and therefore can be relevant to the question of [discrimination].”
- “We have generally held that comments by those individuals outside of the decisionmaking chain are stray remarks, which, standing alone, are inadequate to support an inference of discrimination.”
Written by the judges who cited it.
The opinion
Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
9-26-1997
Walden v. Georgia Pacific Corp
Precedential or Non-Precedential:
Docket 96-7045
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Filed September 26, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 96-7045
LINDA S. WALDEN; JAMES P. MURPHY;
GEORGE C. POIRIER,
APPELLANTS
v.
GEORGIA-PACIFIC CORP.; VIRGIL H. GARDNER;
MICHAEL A. VIDAN; HOWARD SCHUTTE; DAVID M.
WATSON; CURT RIGGIN; ROBERT LINDSEY; JAMES R.
HURD; FELMER CUMMINS; GEORGE FOSTER; RICH
MOODY; JOHN DOE; JANE DOE
On Appeal From the United States District Court
For the District of Delaware
(D.C. Civ. No. 92-cv-00735)
Argued: June 5, 1997
Before: BECKER, SCIRICA, Circuit Judges, and
KELLY, District Judge.*
(Filed September 26, 1997)**
_________________________________________________________________
*Honorable James McGirr Kelly, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
**A non-final draft of the Opinion in this matter was issued September
23, 1997, by reason of certain mechanical errors. That version has been
rescinded, and the correct final draft is filed herein.
DENNIS K. KUROISHI, ESQUIRE
(ARGUED)
7 East Kings Highway
Mt. Ephraim, New Jersey 08059
Attorneys for Appellants
KEVIN M. INGHAM, ESQUIRE
R. STEVE ENSOR, ESQUIRE
(ARGUED)
Alston & Bird
1201 West Peachtree Street
One Atlantic Center
Atlanta, GA 30309
DAVID H. WILLIAMS, ESQUIRE
Morris, James, Hitchens & Williams
222 Delaware Avenue
P.O. Box 2306
Wilmington, DE 19899-2306
Attorneys for Appellees
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal by plaintiffs Linda S. Walden, James P.
Murphy, and George C. Poirier from an order of the district
court denying them a new trial in an employment
discrimination case following a jury verdict in favor of the
defendant, Georgia-Pacific Corporation. The plaintiffs
contend that the district court abused its discretion in not
granting them a new trial in the face of errors in the jury
charge and in the exclusion of certain evidence. We affirm.
First, we reject plaintiffs' contention that their proffered
evidence of retaliatory animus was sufficiently "direct" to
require a burden shifting "mixed-motives" charge under
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Second,
while we believe that the district court erred in excluding
certain evidence of retaliatory animus, we do not believe
2
that it committed plain error in doing so. The evidence
involved remarks by Georgia-Pacific employees outside the
chain of decisionmakers who had authority to hire and fire
the plaintiffs. The district court excluded the evidence at an
in limine hearing, at which time the district court described
its actions as only "tentative". Although the district court
gave certain indications at the hearing that its rulings
might be final, it never countermanded its description of
them as "tentative." Thus, we do not believe that the rulings
were sufficiently final under the doctrine of American Home
Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321
(3d Cir. 1985), to excuse the plaintiffs' obligation to make
an offer of proof at trial and to preserve the issues for
abuse of discretion review. Since no objections were made
at trial, we review only for plain error and, inasmuch as the
excluded evidence was cumulative of other evidence of
corporate animus (which the jury obviously rejected), we
find none.
Finally, addressing a question of first impression at the
circuit level, we reject plaintiffs' contention that the district
court erred in excluding evidence of the conviction of
Georgia-Pacific for tax evasion which plaintiffs offered to
impeach the defendant's witnesses. We conclude that Fed.
R. Evid. 609 does not permit corporate convictions to be
used to impeach the credibility of employee witnesses who
are not directly connected to the underlying criminal act.
Since there was no evidence of such a connection in the
present case, the district court properly excluded the
Georgia-Pacific convictions as improper impeachment
evidence.
I. Facts and Procedural History
The plaintiffs, Walden, Murphy, and Poirier, constituted
the security unit at the Wilmington, Delaware, plant of
Georgia-Pacific's Gypsum and Roofing Division. Walden was
hired as a guard in 1975, followed by Poirier in 1977 and
Murphy in 1984. The events that gave rise to this lawsuit
began in August 1990 when a fourth guard, John Crothers,
was fired, according to Carolyn Wunsch, the personnel
manager of the Wilmington plant, for a "breach of security."
In September 1990, Crothers was replaced by a younger
3
woman, Phyllis Estepp. In October 1990, Crothers filed an
EEOC charge alleging unlawful age and sex discrimination.
He named the three plaintiffs as witnesses to his job
performance during his employment with Georgia-Pacific.
On May 7, 1991, all three plaintiffs met with an EEOC
investigator concerning Crothers' charge. They testified at
trial that, despite Wunsch's request that they mislead the
EEOC investigator about Crothers' performance and make
statements favorable to the company, they made truthful
statements to the investigator. On May 14, 1991, Wunsch
informed the plaintiffs that Estepp was to be replaced by
OSS Security, an outside security agency that would
provide weekend security at the plant. The plaintiffs offered
to give up their overtime on weekends to keep all four
guards employed, but Wunsch refused their offer. Estepp
was soon fired, and OSS began to provide the weekend
security services. Estepp filed discrimination charges with
the EEOC, claiming that she was unlawfully discharged on
the basis of her sex.
In July 1991, Wunsch established a mandatory rotation
for the plaintiffs' shifts and directed them not to swap their
assigned hours. Prior to this change, the plaintiffs had
worked out their own rotations, which permitted them to
take account of family and personal obligations. Because of
these changes in their working conditions, the plaintiffs
filed their own charges with the EEOC in August 1991.
In October 1991, the plaintiffs invoked the company's
"open door" policy, sending a letter outlining their
complaints to Donald Glass, the Senior Vice President of
the division, which was based in Atlanta. Glass forwarded
the letter to Michael Vidan, the division's Vice President. In
November 1991, Vidan wrote to the plaintiffs, informing
them that James Hurd, the division's Corporate Personnel
and Labor Relations Manager, would investigate their
complaints and get back to them. The plaintiffs never heard
anything further on the subject. Walden testified that she
approached several plant officials about the plaintiffs'
complaints over the next couple of months, but they
refused to speak to her about them, informing her that they
had been directed to stay out of the dispute. In February
1992, Hurd arrived from Atlanta and fired the plaintiffs.
4
The plaintiffs filed retaliation charges with the EEOC,
contending that they had been wrongfully terminated for
protected activity in violation of Title VII, 42 U.S.C. S 2000e-
3(a)(1996).1 After receiving a right to sue letter from the
EEOC, the plaintiffs filed a complaint in the District Court
for the District of Delaware.2 The case was tried to a jury on
one count of retaliatory discharge in December 1995.3
At trial, Georgia-Pacific introduced evidence that the
plaintiffs were fired to effect large cost savings. Wunsch
testified that she proposed contracting out the security
services after the temporary employment of an outside
agency during the 1990 Christmas season demonstrated
its cost effectiveness. In February 1991, she, George
Woodham, the Wilmington plant Production
Superintendent, and Dave Watson, the division's
Production Manager, raised the idea with Montgomery
Palmowski, the Wilmington plant manager. Palmowski
rejected the proposal to replace all the guards, but agreed
to replace one of the guards with an outside service on
weekends. According to Wunsch's testimony, Estepp was
replaced because she was the least senior guard. Howard
Schutte, the division's Operations Manager, testified that,
in January 1992, he received a memorandum from Charles
Terry, named interim Wilmington plant manager after
Palmowski was fired, recommending that the entire guard
unit be replaced to save costs. Based on this
recommendation, Schutte decided to discharge the
_________________________________________________________________
1. The plaintiffs' original complaint alleges that the defendants
retaliated
against the plaintiffs because they (1) cooperated with the EEOC in its
investigation of the charges filed by Crothers and Estepp; (2) refused to
lie to the EEOC to protect the company in the Crothers and Estepp
investigations; and (3) filed complaints with the EEOC alleging
retaliation
for their participation in the Crothers and Estepp matters.
2. The plaintiffs initially named many Georgia-Pacific executives and
managers as defendants. They voluntarily dismissed the claims against
all the individual defendants except Virgil Gardner, the division's
Manager of Industrial Relations and EEO Coordinator.
3. The district court granted summary judgment for the defendants on
several of plaintiffs' claims--retaliation in failure to rehire,
defamation
against Gardner, and breach of contract--and hence only the retaliatory
discharge claim went to the jury.
5
plaintiffs. According to Georgia-Pacific, the elimination of
the plaintiffs' jobs was consistent with other cost-cutting
measures employed in the division between 1990 and 1992.
The jury returned a verdict in Georgia-Pacific's favor. The
plaintiffs filed a motion for a new trial, Fed. R. Civ. P. 59,
which the district court denied. This appeal followed. The
district court exercised subject matter jurisdiction under 28
U.S.C. S 1331, and we have appellate jurisdiction over its
final order under 28 U.S.C. S 1291.
II. The Jury Instruction: Did the Plaintiffs Introduce at
Trial Sufficient "Direct" Evidence of Retaliatory Animus to
Qualify for a Mixed Motives Instruction Under Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989)?
The district court, over the plaintiffs' objection, gave the
jury a pretext charge. On appeal, the plaintiffs contend that
they introduced at trial sufficient "direct" evidence of
retaliatory animus to qualify for a mixed motives
instruction under Price Waterhouse v. Hopkins, 490 U.S.
228 (1989).4 In a mixed motives case, the evidence put forth
_________________________________________________________________
4. The plaintiffs object to the jury instructions in several additional
respects. First, they submit that the evidence shows that Georgia-Pacific
failed to investigate the plaintiffs' October 1991 letter of complaint in
accordance with the company's "open door" policy. Based on this
evidence, they contend that the district court erred in failing to
instruct
the jury that Georgia-Pacific's act of "closing" the open door policy gave
rise to a cause of action. The plaintiffs, however, did not properly plead
this as a cause of action either in their complaint or pre-trial
memorandum. Both documents plead only wrongful discharge as a
cause of action, listing the closing of the open door policy as a piece of
evidence that they would prove at trial to support their wrongful
discharge theory. Alternatively, the plaintiffs contend that the district
court erred in refusing to instruct the jury that the letter to Glass
constituted protected activity. As a matter of law, this letter could not
constitute protected activity. Rather, it was a general grievance about
changes in working conditions, the perceived threat to the plaintiffs' job
security, and the derogatory comments made by Virgil Gardner about
them. It did not complain of any acts that are unlawful under Title VII.
See Barber v. CSX Distrib. Servs., 68 F.3d 694 (3d Cir. 1994). At all
events, any error in this respect would be harmless. The plaintiffs were
able to put on all of their evidence about the letter to Glass and the
6
by the plaintiff is so revealing of retaliatory animus that it
is unnecessary to rely on the McDonnell Douglas /Burdine
burden-shifting framework, under which the burden of
proof remains with the plaintiff. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). Rather,
the burden of production and risk of nonpersuasion shift to
the defendant, which must show that, even if retaliation
was a motivating factor in the adverse employment
decision, it would have made the same employment
decision in the absence of retaliatory animus. See
Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994).5
We generally review jury instructions for abuse of
discretion, but our review is plenary when the question is
whether the instruction misstates the law, see Savarese v.
Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989), as the plaintiffs
here contend.
As we have explained in prior cases, whether a plaintiff
has presented a pretext or a mixed motives case depends
on the quality of the evidence that the plaintiff adduces in
support of the claim of illegal discrimination. See Wilson v.
Susquehanna Township Police Dep't, 55 F.3d 126 (3d Cir.
_________________________________________________________________
subsequent investigation, or lack thereof, as evidence of the company's
retaliation for protected activity. Moreover, plaintiffs' counsel was
permitted to refer to the letter as protected activity in his closing
argument to the jury.
Additionally, plaintiffs contend that, because the Civil Rights Act of
1991 governs their claim, the district court should have instructed the
jury that it could find for the plaintiffs if unlawful retaliation was a
"motivating factor" in the plaintiffs' discharge. Our decision in Woodson
v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997), decided after the
plaintiffs filed their brief in this appeal, forecloses this contention.
Under
Woodson, the "motivating factor" standard of S 107 of the 1991 Act does
not apply to retaliation claims. See id. at 935.
5. The differences between the burden-shifting framework of pretext
cases under McDonnell Douglas and Burdine, and mixed-motives cases
under Price Waterhouse have been amply explained in prior cases, and
we need not dwell on them here. See, e.g., Starceski v. Westinghouse
Elec. Corp., 54 F.3d 1089, 1095-96 n.4 (3d Cir. 1995); Mardell v.
Harleysville Life Ins. Co., 31 F.3d 1221, 1224-25 (3d Cir. 1994).
7
1995); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089
(3d Cir. 1995); Armbruster, 32 F.3d 768; Hook v. Ernst &
Young, 28 F.3d 366 (3d Cir. 1994). Not all evidence that is
probative of illegitimate motives suffices to entitle a plaintiff
to a mixed-motives/Price Waterhouse charge. Rather, as
Justice O'Connor explained in her Price Waterhouse
concurrence, the employee must show "direct evidence that
an illegitimate criterion was a substantial factor in the
decision." Price Waterhouse, 490 U.S. at 276 (O'Connor, J.,
concurring) (emphasis added). In other words, the evidence
must be such that it demonstrates that the
"decisionmakers placed substantial negative reliance on an
illegitimate criterion in reaching their decision." Id. at 277.
In point of fact, the term "direct evidence" is somewhat of
a misnomer, for we have held that certain circumstantial
evidence is sufficient for a mixed motives instruction, if that
evidence can " `fairly be said to directly reflect' the alleged
unlawful basis" for the adverse employment decision. Hook,
28 F.3d at 374 (quoting Griffiths v. CIGNA Corp., 988 F.2d
457, 470 (3d Cir. 1993), overruled on other grounds, Miller
v. Cigna Corp., 47 F.3d 586 (3d Cir. 1995)(en banc)). We
have also repeatedly made clear that a plaintiff must clear
a high hurdle to qualify for a mixed motives instruction:
"The burden of persuasion shifts to the employer`only after
the plaintiff ha[s] proven that her employer acted
unlawfully,' and not merely `on the basis of a prima facie
showing.' " Hook, 28 F.3d at 374 (quoting Binder v. Long
Island Lighting Co., 933 F.2d 187, 192 n.1 (2d Cir. 1991)).
Put differently, a mixed motives instruction is warranted
only when the "evidence is sufficient to permit the
factfinder to infer that [a discriminatory] attitude was more
likely than not a motivating factor in the employer's
decision." Griffiths, 988 F.2d at 470.
Justice O'Connor shed light on what constitutes such
"direct" evidence as follows:
[S]tray remarks in the workplace, while perhaps
probative of sexual harassment, cannot justify
requiring the employer to prove that its hiring or
promotion decisions were based on legitimate criteria.
Nor can statements by nondecisionmakers, or
statements by decisionmakers unrelated to the
8
decisional process itself, suffice to satisfy the plaintiffs'
burden in this regard.
Price Waterhouse, 490 U.S. at 277 (internal citations
omitted). This is borne out in Armbruster, supra, an ADEA
case. There the plaintiffs introduced age-related comments
by a Unisys Vice-President, Robert Markell. Markell had
resigned at least three months before the adverse
employment actions at issue, but several months before he
resigned, Markell allegedly stated that Unisys could not
"afford to keep people over 50 and 50," meaning those over
50 years of age who were earning over $50,000 a year. Yet
we held that not even this statement was sufficient direct
evidence to require a mixed motives charge.
Markell had testified that he had no connection with the
challenged employment decision, although in his capacity
as Vice President he was often involved in hiring and firing
decisions. We concluded that "Markell's alleged statement
is not attributable to a decisionmaker connected with the
. . . employment decisions and is too remote in time. . . to
constitute overt evidence sufficient to show Unisys had a
discriminatory animus towards older employees."
Armbruster, 32 F.3d at 779. Thus, statements that are
unconnected to the decision at issue, even if made by
people who hold positions of authority with the employer,
are not direct evidence of unlawful discharge.
The plaintiffs point to several pieces of evidence that they
contend, taken together, constitute sufficient direct
evidence to entitle them to a mixed motives charge. First,
they point to testimony that, in December 1990, plaintiff
Walden was subpoenaed as a witness in an arbitration
hearing for Raymond Gottshall, a fired union employee. At
the time of that hearing, Virgil Gardner, the division's
Manager of Industrial Relations and EEO Coordinator, told
Gottshall that "you should leave people out of this,
especially people that aren't in the union because they will
lose their job over it." Gottshall told Walden about
Gardner's threat, but she nevertheless decided to testify.
Wilmington Plant Manager Palmowski, also present at the
hearing, testified that Gardner asked him "What the hell is
she doing here?" Palmowski testified that "[h]e was very
9
upset. She was a non-union hourly employee at a union
employee arbitration."
Second, the plaintiffs point to a July 11, 1991,
memorandum from Gardner to Division Vice-President
Vidan. In that memorandum, Gardner related the details of
the EEOC charge filed by Phyllis Estepp. In thefinal
paragraph, he recommended that the company seriously
consider contracting out all of the security work. He wrote:
"My personal terminology is that we used the Security
Guard positions as a home for the sick, lame, and lazy.
Their loyalties do not rest with the Company's best
interests." The memorandum shows that copies were
forwarded to Labor Relations Manager Hurd, Division
Operations Manager Schutte, and Plant Manager
Palmowski.
Third, the plaintiffs introduced evidence that, in late
September or early October 1991, Georgia-Pacific received
notice of the plaintiffs' August EEOC charge. Palmowski
testified that Division Production Manager Watson
telephoned him and "was upset" about the charge. Watson
told Palmowski that "we can't have bullshit like this" and
also that "we have to end this situation now. It's gone too
far."
The plaintiffs' fourth piece of evidence stems from
Palmowski's response to Watson's call. After the call,
Palmowski confronted plaintiffs Walden and Poirier,
informed them that Atlanta was upset, and urged them to
consider withdrawing the EEOC charge because "the timing
was absolutely poor." Palmowski testified that"I was being
pressured to eliminate their jobs, and I didn't want to."
Finally, the plaintiffs point to evidence that the
company's open door policy was "closed." The plaintiffs
submit that the evidence shows that the company, and in
particular James Hurd, failed to investigate their
complaints contained in the letter to Division Senior Vice-
President Donald Glass in accordance with the open door
policy.
Georgia-Pacific contends that the forgoing evidence does
not demonstrate sufficient retaliatory animus by persons
actually connected to the decision to replace the plaintiffs
10
to constitute "direct evidence" under Price Waterhouse, and
hence that the district court properly gave the jury a
pretext charge. Moreover, Division Operations Manager
Schutte testified that he alone made the decision to
terminate the plaintiffs, based on Wilmington Interim Plant
Manager Terry's recommendation. Plaintiffs' counsel
acknowledged as much in his closing argument when he
referred to Schutte as the "sole decisionmaker." As such,
according to Georgia-Pacific, none of the evidence put forth
by the plaintiffs directly reflects retaliatory animus on the
part of those involved in the decision to fire the plaintiffs
because there was no evidence at trial that Schutte or Terry
made any statements or engaged in any conduct that
reflected a retaliatory motive (nor do the plaintiffs' briefs
point to any such evidence).
The plaintiffs rejoin that all of the above-mentioned
Georgia-Pacific personnel were somehow involved in the
decision to replace the plaintiffs. They contend that
"[r]eality dictates that those who have direct access to the
decisionmakers and are likely to influence their decision
should be considered persons in the `decisionmaking
process.' " Thus, even though Schutte testified that it was
only he who made the decision to fire the plaintiffs, the
plaintiffs urge us to take a broader view of who qualifies as
a decisionmaker. They submit that, in determining the
direct evidence question, we should consider statements
and conduct of other Georgia-Pacific employees if those
employees had access to or were likely to influence
Schutte's decision. The plaintiffs in effect argue that the
evidence shows that the entire chain of command was
infected with retaliatory animus, and that we should
assume that statements by other Georgia-Pacific managers
influenced Schutte's decision.
We agree with the plaintiffs that the fact that they
acknowledged that Schutte was the sole decisionmaker
does not foreclose the Price Waterhouse determination.
Indeed, there is much to support a conclusion that many
Georgia-Pacific managers recommended and approved of
replacing the plaintiffs with the outside guard service.
Schutte testified that the idea to replace the guards was
initially proposed by Wilmington Personnel Manager
11
Wunsch and Wilmington Plant Production Superintendent
George Woodham in February or March 1991. And EEO
Coordinator Gardner, in the July 1991 memorandum to
Hurd, recommended replacing the guards with an outside
security service. Nevertheless, that evidence cannot
constitute direct evidence if it was not linked to Schutte's
specific decision to fire the plaintiffs because we could not
say that it directly reflects retaliatory animus on the part of
the decisionmakers. See Hook, 28 F.3d at 374.
Taking each piece of evidence separately, we turn first to
the comments that Gardner is alleged to have made at the
Gottshall arbitration. That arbitration occurred in
December 1990, long before the plaintiffs engaged in their
first protected activity -- meeting with the EEOC
investigator in May 1991. Hence, the statements were not
only remote in time from the decision to fire the plaintiffs
over a year later, but they cannot constitute direct evidence
that the plaintiffs were replaced in retaliation for protected
activity because they were made before that activity.
Second, as to Palmowski's warning to the plaintiffs that
the company was upset about the EEOC charge, Palmowski
was discharged several months before the plaintiffs were
themselves fired, and therefore, could not have been
involved in Schutte's termination decision, even though as
plant manager he had the authority to fire the guards.
Moreover, there is no evidence suggesting that Palmowski
ever recommended that the plaintiffs be replaced. In fact,
there is significant evidence that Palmowski worked to save
the plaintiffs' jobs. The plaintiffs respond that Palmowski's
statements reflected the retaliatory animus of the Georgia-
Pacific managers who actually participated in the decision
to fire them. But Palmowski's statement is vague and
unconnected to any specific participant in the decision to
replace the plaintiffs. As such, it could not constitute
evidence that directly reflects retaliatory animus on the part
of the decisionmakers.
Similarly, the evidence presented by the plaintiffs that
the company, and in particular Labor Relations Manager
Hurd, shut down the open door policy also is not sufficient
to require a mixed motives charge. As the human resources
director for the entire division, Hurd himself was not in the
12
direct chain of command over the plaintiffs, and there is no
evidence that he was involved in the decision to replace the
plaintiffs with the outside guard service in any way.
Moreover, this evidence, even if probative of retaliatory
motive, is circumstantial evidence that does not rise to the
level of evidence that "directly" reflects retaliatory animus.
We turn next to Division Production Manager Watson's
comments to Palmowski ("we can't have bullshit like this."
and "we have to end this situation now. It's gone too far.")
after he learned of the plaintiffs' EEOC charge. Watson was
in the direct chain of command involved in the decision to
fire the plaintiffs -- Schutte was his supervisor and he
directly supervised the Wilmington plant manager
(Palmowski and then Terry). Although he was in the direct
chain of command, however, there is no evidence that he
was involved in the decision to fire the plaintiffs, i.e. there
is no evidence that he recommended the replacement of the
plaintiffs or that he influenced Schutte's decision. His
comments were also made several months before the
plaintiffs were fired. Therefore, although Watson's
comments are quite probative of retaliatory animus, it
would be pure speculation to conclude that Schutte acted
on the basis of Watson's advice. As Armbruster shows,
statements even by decisionmakers cannot constitute direct
evidence if there is no evidence somehow linking that
person to the actual decision. Under such circumstances,
we could not say that Watson's statements directly reflect
retaliatory animus on the part of those involved in the
decision.
We are left with Gardner's memorandum of July 1991 to
Division Vice-President Vidan recommending that the
guards be replaced, in which Gardner wrote that the
plaintiffs' "loyalties do not rest with the Company's best
interests." The memorandum shows that the
decisionmaker, Schutte, was sent a copy of it. Despite the
connection to Schutte, however, we conclude that the
memorandum also does not constitute direct evidence. It
was written more than six months before the plaintiffs were
fired, and there is no evidence linking Gardner to the
February 1992 decision to fire the plaintiffs. Even though
Schutte presumably received a copy of the memo, the fact
13
that a decisionmaker received a memorandum containing a
statement that allegedly reflects retaliatory animus does not
show that the decisionmaker shared that retaliatory
animus.
But even if the connection between Gardner's
memorandum and Schutte's decision was closer, the
statement in Gardner's memo does not constitute "direct
evidence." Although probative of retaliatory animus, we find
that the statement does not rise to the high level required
of direct evidence, as it does not show that Georgia-Pacific
acted unlawfully in firing the plaintiffs in February 1992.
Gardner's statement that the plaintiffs' "loyalties do not rest
with the Company's best interests" is vague and not
specifically connected to any protected activity engaged in
by the plaintiffs, i.e. speaking truthfully to the EEOC
investigator in May 1991. In other words, the statement
does not demonstrate that retaliation was more likely than
not the motivating factor in the decision to replace the
plaintiffs with the outside guard service, as our case law
requires. See Griffiths, 988 F.2d at 470.
In sum, we conclude that the district court did not err in
charging the jury with a pretext instruction because the
plaintiffs did not produce sufficient "direct" evidence of
retaliatory animus to require a mixed motives burden
shifting charge.
III. Did the District Court Err in Excluding the Statements
by Woodham and Fuller Allegedly Reflecting a
Retaliation Animus?
The plaintiffs next contend that the district court erred in
excluding from evidence, on relevancy grounds, statements
allegedly made by George Woodham, the Wilmington plant
Production Superintendent, and Robert Fuller, the
Wilmington plant Warehouse Superintendent, to the
plaintiffs. In September 1991, after the plaintiffsfiled their
EEOC charge, Woodham allegedly said to Walden, in the
presence of Poirier:
[Y]ou should all be fired, you were disloyal to the
company . . . . [I] should have fired all of[you] when
[we] got rid of Estepp, she was a trouble maker too.
14
In August 1991, Fuller allegedly told the plaintiffs:
if [I] was [your] boss [you] would all be fired. I'd bring
the agency guards in here so fast your head would
spin! You are disloyal to the company. They pay you,
you should be loyal to them. You would all be fired, if
I was your boss.
The district court's ruling to exclude the statements was
made pre-trial at an in limine hearing, and the plaintiffs
failed to make an offer of proof at trial. Given the applicable
standard of review, we reject the plaintiffs' challenge.6
A. Was the District Court's Exclusionary Pretrial
Evidentiary Ruling Insufficiently Final that the Plaintiffs
Waived Their Right to Appeal the Ruling by Failing to
Make an Offer of Proof at Trial, So that We Review for
Plain Error?
An in limine pretrial evidentiary hearing serves many
useful purposes. See generally United States v. Downing,
753 F.2d 1224, 1241 (3d Cir. 1985); In re Paoli R.R. Yard
PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990) ("Paoli I");
Manual for Complex Litigation, Third S 21.642 (1985). When
_________________________________________________________________
6. We also reject three of the plaintiffs' other evidentiary challenges.
First, the district court did not err in excluding as irrelevant the
statement from the "Thoughts for the Day" column of the company's
1984 EEO newsletter that "People who mind their own business will
never be unemployed." The statement was written eight years before the
plaintiffs lost their jobs, and was therefore too remote in time to be of
probative value. Additionally, the statement is vague and does not clearly
reflect a company policy of retaliating against "troublemakers," as the
plaintiffs suggest.
Second, the plaintiffs contend that the district court erred in excluding
evidence that the quality of the guard services provided by OSS was
poor, which the plaintiffs submit was relevant to proving that the
company's asserted reason for firing the plaintiffs--cost savings--was
pretextual. We disagree. The evidence that OSS' performance was lacking
does nothing to discredit the evidence that the company saved a
significant amount of money by contracting out the security jobs.
Finally, the district court did not abuse its discretion in excluding
evidence that the company properly handled the open door policy
complaints of two other employees.
15
a definitive evidentiary ruling is made pretrial, there is
surely no point to taking the time at trial to make an
objection if the in limine ruling admitted certain evidence,
or to make an offer of proof if the in limine ruling excluded
it. On the other hand, if the in limine ruling is only
tentative, which is how the district court described its
rulings here, then it is preferable that a definitive ruling be
made in the context of a fuller (trial) record.
We are hard pressed to see the advantages of an in limine
hearing that only produces tentative rulings. The game
would hardly be worth the candle. But that is what we are
faced with here, hence we deal with it. The key question is
whether the in limine ruling excluding the Woodham and
Fuller statements was sufficiently final that the plaintiffs'
failure to make an offer of proof at trial operates to render
the standard of review here abuse of discretion rather than
plain error.
Although decisions to exclude evidence are generally
reviewed for abuse of discretion, see, e.g., Barker v. Deere
& Co., 60 F.3d 158, 161 (3d Cir. 1995), when a party fails
to preserve the right to appeal an exclusion, we review for
plain error. Under Fed. R. Evid. 103(a), a party may not
appeal a ruling excluding evidence unless the party
asserting error made an offer of proof at trial. 7 Georgia-
Pacific points out that the district court expressly stated
that its in limine rulings were "tentative," and contends
that, by failing to attempt to introduce the Woodham and
Fuller statements at trial, the plaintiffs waived their right to
appeal the ruling under Rule 103 so that our review is
subject to a plain error standard. The plaintiffs respond
that the district court made comments at that hearing that
suggested that the rulings were final, and thus, under
_________________________________________________________________
7. Fed. R. Evid. 103(a) reads:
Effect of erroneous ruling. Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right
of the party is affected, and . . .
(2) Offer of proof. In case the ruling is one excluding evidence,
the substance of the evidence was made known to the court by
offer or was apparent from the context within which questions
were asked.
16
these circumstances, their opposition to Georgia-Pacific's
motion in limine was a sufficient offer of proof under Rule
103(a).
In American Home Assurance Co. v. Sunshine
Supermarket, Inc., 753 F.2d 321 (3d Cir. 1985), we dealt
with the question whether a party must formally object at
trial to the admission of evidence in cases where the district
court had previously denied that party's pre-trial motion to
exclude that evidence. We rejected Sunshine's contention
that American Home had waived its right to appeal the
admission of the evidence when it failed to object at trial,
reading Fed. R. Evid. 103(a) in conjunction with Fed. R.
Civ. P. 46, which makes formal objections unnecessary.8
We reasoned:
Here, counsel for American Home filed a written
pretrial motion requesting that the evidence . . . be
ruled inadmissible. The motion set forth reasons,
including case citations, in support of the request. The
trial court held a hearing at which it considered the
arguments of counsel and made a definitive oral ruling
with no suggestion that it would reconsider the matter
at trial. Under these circumstances, requiring an
objection when the evidence was introduced at trial
would have been in the nature of a formal exception
and, thus, unnecessary under Rule 46.
753 F.2d at 324-25; see also Government of the Virgin
Islands v. Joseph, 964 F.2d 1380, 1384 (3d Cir. 1992);
Bruno v. W.B. Saunders Co., 882 F.2d 760, 767-68 (3d Cir.
1989).
Therefore, if a party files an unsuccessful motion in
_________________________________________________________________
8. Fed. R. Civ. P. 46 reads:
Formal exceptions to rulings or orders of the court are
unnecessary;
but for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or
order
of the court is made or sought, makes known to the court the action
which the party desires the court to take or the party's objection
to
the action of the court and the grounds therefor; and if a party
has
no opportunity to object to a ruling or order at the time it is
made,
the absence of an objection does not thereafter prejudice the
party.
17
limine seeking the exclusion of certain evidence, that party
need not formally object at trial when the evidence in
question is introduced if two conditions are satisfied: (1) the
party filed a written pre-trial motion setting forth reasons
and case citations in support of the request that the
evidence be excluded; and (2) the district court made a
"definitive" ruling with no suggestion that it would
reconsider the matter at trial.
American Home presented the obverse of the case at bar:
American Home sought to have certain evidence excluded,
and then failed to object to the introduction of that
evidence. In contrast, the plaintiffs here opposed Georgia-
Pacific's motion in limine to exclude certain evidence and
then failed to make an offer of proof at trial. Despite this
difference, we see no reason why the American Home rule
should not apply to this case.9 In both instances, the same
concern for efficiency motivates our decision to dispense
with formal objections and offers of proof at trial following
a final ruling on a motion in limine. As we explained in
American Home, "if an issue is fully briefed and the trial
court is able to make a definitive ruling, then the motion in
limine provides a useful tool for eliminating unnecessary
trial interruptions." American Home, 753 F.2d at 324.
These efficiency concerns are, of course, predicated on
_________________________________________________________________
9. We acknowledge that it is generally easier for a party who seeks to
exclude evidence to object at trial than it is for a party who seeks to
admit evidence to make an offer of proof. As the First Circuit has
observed, "To require that the evidence be offered again at trial would
certainly give the trial court a second chance, but doing so can hardly
be described as easy: on the contrary, the proponent would have to
engage in the wasteful and inconvenient task of summoning witnesses or
organizing demonstrative evidence that the proponent has already been
told not to offer." Fusco v. General Motors Corp., 11 F.3d 259, 262 (1st
Cir. 1993). We note however that a proffer in this case, at least of
Woodham's statement, would not have been difficult. Woodham testified
at trial and was the subject of extensive cross-examination. At all
events,
despite the difficulties that may be involved in proffers of evidence in
some cases, we find that the benefits, described infra at n. 10, outweigh
any burdens that such proffers might place on the proponents of
evidence when the district court has made only a tentative pretrial
ruling.
18
the district court's actually making a final decision before
trial. If the district court makes only a tentative ruling on
a motion in limine an objection or offer of proof at trial is
not unnecessary or "formal." Rather, there are separate
interests, noted in the margin, that are promoted by
requiring the unsuccessful party to make an objection or
offer of proof at trial.10
_________________________________________________________________
10. First, motions in limine often present issues for which final decision
is best reserved for a specific trial situation. American Home, 753 F.2d
at 324; cf. Luce v. United States, 469 U.S. 38, 41-42 (1984) (holding that
criminal defendant must testify to preserve claim of improper
impeachment with prior conviction) ("The [in limine] ruling is subject to
change when the case unfolds, particularly if the actual testimony differs
from what was contained in the defendant's proffer. Indeed even if
nothing unexpected happens at trial, the district judge is free, in the
exercise of sound judicial discretion, to alter a previous in limine
ruling."). This is particularly true when the evidence is challenged as
irrelevant or prejudicial; the considerations weighed by the court will
likely change as the trial progresses. See Rosenfeld v. Basquiat, 78 F.3d
84, 91 (2d Cir. 1996) ("Unlike rulings that involve balancing potential
prejudice against probative value, the ruling in the present case was not
fact-bound and no real purpose other than form would have been served
by a later objection.").
We have also made clear that rulings excluding evidence on Rule 403
grounds should rarely be made in limine. "[A] court cannot fairly
ascertain the potential relevance of evidence for Rule 403 purposes until
it has a full record relevant to the putatively objectionable evidence. We
believe that Rule 403 is a trial-oriented rule. Precipitous Rule 403
determinations, before the challenging party has had an opportunity to
develop the record, are therefore unfair and improper." Paoli I, 916 F.2d
at 859; see also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 747 (3d
Cir. 1994) ("Paoli II"). Under these and similar circumstances, if a
district
court makes a tentative pre-trial ruling, it has the opportunity to
"reconsider [its] in limine ruling with the benefit of having been witness
to the unfolding events at trial." United States v. Graves, 5 F.3d 1546,
1552 (5th Cir. 1993).
Second, requiring an objection or offer of proof at trial when a district
court has made only a tentative ruling permits the appellate court to
undertake a more meaningful review of the evidentiary ruling at issue.
Appellate review of a tentative ruling based only on a hypothetical
pretrial offer of proof is much more difficult than when that offer of
proof
is made in a concrete factual context at trial. As the First Circuit has
observed in a case in which there was no trial objection, "it is precisely
19
Thus, a party who unsuccessfully opposes an in limine
motion to exclude certain evidence can appeal that ruling
without an offer of proof at trial if the district court was
fully informed and made a pretrial ruling with no
suggestion that it would reconsider that ruling at trial.
Concomitantly, where a district court makes a tentative in
limine ruling excluding evidence, the exclusion of that
evidence may only be challenged on appeal if the aggrieved
party attempts to offer such evidence at trial.
The critical question before us, then, is whether the
district court's in limine ruling to exclude the Woodham and
Fuller statements was "a definitive . . . ruling with no
suggestion that it would reconsider the matter at trial."
American Home, 753 F.2d at 325.11 Georgia-Pacific submits
that the plaintiffs cannot make this showing because the
district court expressly stated at the opening of the hearing
that its rulings were tentative:
I want to be helpful, and maybe I'm not going to be
helpful. I'm going to make some tentative rulings on
what I read in the briefing, and then we will go from
there, and to have some refinement. I want this trial to
go as smoothly with the jury as possible. I will make
these tentative rulings with what I have in the briefing,
and then we will see where we are as we begin with the
different aspects of the case.
In response, the plaintiffs point to a colloquy that
occurred after the court made all of its rulings. When the
plaintiffs' counsel challenged the court's ruling excluding a
statement in the company's 1984 EEO newsletter, the court
responded:
_________________________________________________________________
because appellant comes before us not having attempted to offer
evidence during the trial that we cannot rule intelligently on the
underlying evidentiary questions; he presents us with an abstract
intellectual exercise, rife with conjecture, rather than affording us an
opportunity to inspect concrete evidence, offered and excluded in an
actual trial context." United States v. Holmquist, 36 F.3d 154, 164 (1st
Cir. 1994), cert. denied, 514 U.S. 1084 (1995).
11. Georgia-Pacific does not dispute that the parties' pretrial papers
satisfactorily briefed the district court on the evidentiary issues.
20
THE COURT: Let me just tell you something, Mr.
Kuroishi, so we can get along real well. You are going
to have to accept the rulings of the Court and get
along. I'm trying to tailor my rulings to the relevant
issues in this case. You folks are all over the board.
You have a claim of retaliation as properly alleged
and you have three plaintiffs. I am trying to get
evidence that relates to the, and things that might
otherwise indicate a corporate animus. You are going
to lose some and you are going to win some. If I'm
wrong, you will get me reversed. If I'm right, I will get
affirmed. I'm not concerned about that. I'm trying to
make rulings in time and germane to the issue we're
trying. Don't reargue each one. We will be here much
longer than is appropriate for this kind of a case.
MR. KUROISHI: Your Honor, the only concern I
have is many times on appeal the Third Circuit will
say, You didn't say anything at the time.
THE COURT: All they have to do is look at your
brief, and you have every case in there. You analyze,
reanalyze cases. I have tried to address them in terms
of rulings in the context of the facts of this case. You
have all those papers in the record. You don't have to
reargue them with me.
Of course, when an objection is granted or overruled,
there is no exception any more in the Federal System,
so it's on the record. We want to get to the facts of this
case.
We are sympathetic to the plaintiffs' argument that,
based on this colloquy, counsel believed that the district
court's rulings, despite the court's initial description of
them as tentative, were in fact final. Several aspects of the
court's admonition to plaintiffs' counsel suggest that the
plaintiffs could obtain relief from the rulings only through
appellate review. Moreover, the court's comments may have
suggested that plaintiffs' counsel had already preserved his
objections for appeal.
Nevertheless, under American Home, a party is only
excused from an offer of proof at trial if the district court's
21
in limine ruling was definitive with no suggestion that the
court would reconsider the ruling. The district court clearly
stated at the outset of the hearing that its rulings were
tentative and that it would reconsider those rulings at trial,
and the court never retreated from that position. Although
the district court told plaintiffs' counsel not to reargue
every ruling, it did not countermand its clear opening
statement that all of its rulings were tentative, and counsel
never requested clarification, as he might have done.
Moreover, and tellingly, plaintiffs' counsel attempted to
introduce at trial other evidence that was excluded at the in
limine hearing, which suggests that he understood the
court's protocols.12
Finally, we note that the court's admonition, which forms
the basis of plaintiffs' requested reprieve, was made after
the court ruled on the Woodham and Fuller statements,
and addressed only the decision to exclude the 1984 EEO
newsletter. This undermines plaintiffs' blanket contention.
Additionally, it is clear to us that plaintiffs' able and
resolute counsel was never cowed by his colloquy with the
district court. We hold that under these circumstances, an
offer of proof at trial would not have been merely "formal"
and that the plaintiffs were required to make one. As they
failed to do so, we will review the district court's decision to
exclude the Woodham and Fuller statements only for plain
error.
B. Did the District Court Plainly Err in Excluding
the Statements?
The basis for our review of the statements at issue is Fed.
R. Evid. 103(d), which permits us to take notice of "plain
errors affecting substantial rights." The Advisory Committee
notes to Rule 103(d) indicate that the wording of the rule is
taken from Rule 52(b) of the Federal Rules of Criminal
Procedure. Accordingly, we have taken guidance on our
_________________________________________________________________
12. More specifically, while at the in limine hearing, the court excluded
employee petitions complaining of the poor quality of the OSS guards
under Rule 401, at trial, during Walden's testimony, plaintiffs' counsel
attempted to inquire about the poor performance of those guards. An
objection was made and sustained.
22
construction of the civil plain error standard from the
Supreme Court's interpretation of the criminal standard.
Fashauer v. New Jersey Transit Rail Operations, Inc., 57
F.3d 1269, 1289 (3d Cir. 1995).
In United States v. Olano, 507 U.S. 725, 732-34 (1993),
the Court set forth three requirements for a plain error
challenge to succeed. First, there must be an actual error
-- a deviation from or violation of a legal rule. Second, the
error must be plain; that is, the error must be clear and
obvious under current law. Finally, the error must affect
substantial rights. In other words, the error must be
prejudicial and must have affected the outcome of the
district court proceedings. See also Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice & Procedure
S 5043 (1996)(error must produce "substantial injustice"
denying the appellant a fair trial).
It has been our practice to exercise our power to reverse
for plain error sparingly. Chemical Lehman Tank Lines, Inc.
v. Aetna Cas. & Sur. Co., 89 F.3d 976, 994 (3d Cir.), cert.
denied, ___ U.S. ___, 117 S.Ct. 485, 136 L.Ed.2d 379(1996).
A finding of plain error is only appropriate in the civil
context when the error is so serious and flagrant that it
goes to the very integrity of the trial. Fashauer, 57 F.3d at
1289 (citing United States v. Carson, 52 F.3d 1173, 1188
(2d Cir. 1995), cert. denied ___ U.S. ___, 116 S.Ct. 934, 133
L.Ed.2d 861 (1996)). It is this high standard which we will
apply to the plaintiffs' claim.
The question before us is whether it was plain error for
the District Court to exclude the Woodham and Fuller
statements.13 That is, was it error to exclude statements for
the reason that they were made by individuals "outside the
_________________________________________________________________
13. The plaintiffs contend that if the district court had properly
admitted
these statements, they would have constituted sufficient direct evidence
of retaliation to require a mixed motives charge. But, like the statements
we discussed in section II supra, these statements do not directly reflect
retaliatory animus on the part of persons connected to the decision to
fire the plaintiffs. There is no evidence linking Fuller to that decision.
And although Woodham recommended replacing the guards, he made
that recommendation months before the plaintiffsfirst engaged in any
protected activity.
23
chain of decision-makers who had the authority to hire and
fire" the plaintiffs, Gomez v. Allegheny Health Serv., Inc., 71
F.3d 1079, 1085 (3d Cir. 1995), cert. denied, ___ U.S. ___,
116 S.Ct. 2524, 135 L.Ed.2d 1049 (1996), when those
statements constituted evidence of an atmosphere of
retaliatory animus?
Our cases distinguish between discriminatory comments
made by individuals within and those by individuals
outside the chain of decisionmakers who have the authority
to discharge. We have generally held that comments by
those individuals outside of the decisionmaking chain are
stray remarks, which, standing alone, are inadequate to
support an inference of discrimination. See id. at 1085; see
also Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d
509, 546 (3d Cir. 1992)(arguing that to allow a series of
stray remarks over a five year period to suffice to prove
discriminatory motive would be to overstep the limits of
Title VII).
The statements made by Woodham and Fuller in the
present case fall within the category of stray remarks by
non-decisionmakers. Although both worked at the
Wilmington plant in a supervisory capacity, neither
supervised the plaintiffs. Furthermore, neither Woodham or
Fuller participated in the decision to discharge the
plaintiffs, nor did they have the authority to order the
plaintiffs' termination. Finally, it is also worthy of note that
the statements at issue were somewhat remote in time from
the decision to fire the plaintiffs (the statements occurred in
August 1991, and the plaintiffs were terminated in
February 1992) and, in fact, Woodham was transferred
from the Wilmington facility months before the termination
decision.
Although stray remarks by non-decisionmakers alone are
insufficient to establish discriminatory intent, we have held
that such remarks can still constitute evidence of the
atmosphere in which the employment decision was carried
out, and therefore can be relevant to the question of
retaliation. See Woodson, 109 F.3d at 922; Antol v. Perry,
82 F.3d 1291, 1302 (3d Cir. 1996). Such evidence "may be
critical for the jury's assessment of whether a given
employer was more likely than not to have acted from an
24
unlawful motive." Antol, 82 F.3d at 1302 (quoting Estes v.
Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988));
see also Ezold, 983 F.2d at 546 (evidence of discriminatory
atmosphere may be relevant because it tends "to add `color'
to the employer's decisionmaking processes and to the
influences behind the actions taken with respect to the
individual plaintiff "). Accordingly, stray remarks by non-
decisionmakers may be properly used by litigants as
circumstantial evidence of discrimination. Abrams v.
Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995).
Although stray remarks by non-decisionmakers may be
relevant to proving retaliation, we have never held that
such remarks are at all times admissible. Rather, the
district court retains its normal discretion to exclude such
evidence under general relevancy principles. See Fed. R.
Evid. 401. Of course, the district court must also keep in
mind the import of our prior case law, noted supra, that
stray remarks are not categorically excludable even though
not directly connected to the particular employment
decision at issue.
In the present case, the district court apparently made
just such a blanket exclusion of the Woodham and Fuller
statements. The court found the statements to be"general
and unrelated" to the issue of retaliation, which the court
considered to be the "specific issue" of the case. Although
it is unclear from the record, this finding was presumably
based on the fact that Woodham and Fuller never directly
supervised the plaintiffs, and the fact that Woodham was
transferred from the Wilmington plant months before the
plaintiffs were fired. Because it is clear, however, that stray
remarks by non-decisionmakers may be relevant to the
question whether the plaintiffs were fired in retaliation for
protected activity, these facts in and of themselves are not
sufficient to deem the Woodham and Fuller statements
irrelevant. It is apparent that the district court erred in its
categorical exclusion of the Woodham and Fuller
statements.
Our analysis does not end here, however. As noted,
supra, to satisfy the plain error standard, the error not only
must be clear and obvious under current law, but also
must affect a substantial right. To reiterate, this means
25
that the error must have affected the outcome of the trial
proceedings in a manner that threatens "substantial
injustice." The court's error in excluding the Woodham and
Fuller statements does not reach this threshold.
Although the stray remarks at issue could have provided
additional circumstantial evidence of the defendant's
discriminatory animus, the jury was presented with other
significant evidence of the defendant's possible bias against
"troublemakers" (i.e. those workers who engage in legally
protected activities to enforce their rights) in its
organization, and yet still found for Georgia-Pacific. This
evidence included statements reflecting a similar animus by
Palmowski and Watson, both of whom were in the plaintiffs'
chain of command, as well as additional statements by
Virgil Gardner, the company's EEO coordinator.14 The
plaintiffs introduced, for example, Gardner's memorandum
labeling the plaintiffs as "sick, lame and lazy. . . [whose]
loyalties do not rest with the company's best interests."
Additionally, Gardner's statements designed to deter
plaintiff Walden from being a witness at Gottshall's union
arbitration hearing were placed before the jury.
On this record, we cannot conclude that the outcome of
the trial would have been different had the jury heard the
Woodham and Fuller statements, nor can we conclude that
the error threatened the very integrity of the trial.
Accordingly, we hold that the district court's exclusion of
the Woodham and Fuller statements did not amount to
plain error.
IV. Impeachment of a Corporate Employee with a
Conviction of the Corporation under Rule 609
The plaintiffs next contend that the district court erred in
excluding evidence of Georgia-Pacific's 1991 plea of guilty
to tax evasion charges based on a fraudulent appraisal of
_________________________________________________________________
14. Palmowski testified, for example, that upon hearing of the plaintiffs'
EEOC charges, Watson told him "we have to end this situation now. It's
gone too far." In addition, the jury heard that Palmowski admitted to
Phyllis Estepp that she had been laid off because of the EEOC charge
filed by her predecessor, John Crothers.
26
land in Florida in 1984. The plaintiffs sought to introduce
this evidence under Fed. R. Evid. 609 to impeach the
testimony of individual Georgia-Pacific employee witnesses,
none of whom were shown to have any connection to the
acts underlying the corporate conviction. The district court
excluded the evidence under Fed. R. Evid. 403, finding that
introduction of the evidence would be unduly prejudicial.
The plaintiffs contend on appeal that use of this conviction
falls under the "automatic" admission provision of Fed. R.
Evid. 609(a)(2), and is therefore not subject to a Rule 403
analysis. Our review of the exclusion is plenary, as the
construction of Rule 609 is an issue of law. See United
States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992).
Fed. R. Evid. 609, as amended in 1990, provides in
relevant part:
(a) General Rule. For the purpose of attacking the
credibility of a witness,
(1) evidence that a witness other than the accused
has been convicted of a crime shall be admitted,
subject to Rule 403, if the crime was punishable by
death or imprisonment in excess of one year under the
law under which the witness was convicted . . . ; and
(2) evidence that any witness has been convicted of a
crime shall be admitted if it involved dishonesty or
false statement, regardless of the punishment.
Thus, if the prior conviction involved dishonesty or false
statements, the conviction is automatically admissible
insofar as the district court is without discretion to weigh
the prejudicial effect of the proffered evidence against its
probative value. See Cree v. Hatcher, 969 F.2d 34, 37 (3d
Cir. 1992); United States v. Wong, 703 F.2d 65, 68 (3d Cir.
1983). Because Rule 609(a)(2) does not permit the district
court to engage in balancing, we have held that Rule
609(a)(2) must be construed narrowly to apply only to those
crimes that bear on a witness' propensity to testify
truthfully. See Cree, 969 F.2d at 37.
We assume arguendo that Georgia-Pacific's conviction for
tax evasion falls within the ambit of 609(a)(2). The real
question before us is whether prior convictions of a
27
corporation are admissible under Rule 609 generally to
impeach the testimony of individual employee witnesses
without any evidence that those witnesses participated in
the conduct underlying the conviction. This is a question of
first impression in this circuit, and so we write on tabula
rasa.
Rule 609 is premised on "the common sense proposition
that one who has transgressed society's norms by
committing a felony is less likely than most to be deterred
from lying under oath." Cummings v. Malone, 995 F.2d 817,
826 (8th Cir. 1993) (citing Campbell v. Greer, 831 F.2d 700,
707 (7th Cir. 1987)). Rule 609 evidence is admitted in order
to inform the jury about the character of the witnesses
whose testimony the jury is asked to believe. See United
States v. Martinez, 555 F.2d 1273, 1275 (5th Cir. 1977).
The automatic admission provision of Rule 609(a)(2)
expresses the idea that some individuals who are found to
have been dishonest in other contexts are presumed to be
more prone to perjury than others. See Conf. Rep. No.
1597, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N.
7051, 7098, 7103.
We have held that admissibility under Rule 609(a)(2)
turns on whether the evidence of the crime bears on the
witness's "propensity for falsehood, deceit, or deception."
Cree, 969 F.2d at 38. It is only the testifying witness' own
convictions that will bear directly on the likelihood that he
or she will testify truthfully. See United States v. Hayes,
553 F.2d 824, 827 (2d Cir. 1977). Accordingly, it is
axiomatic that it is only the testifying witness' own prior
convictions that should be admissible on cross-examination
to impeach his credibility. See United States v. Austin, 786
F.2d 986, 992 (10th Cir. 1986). Thus, for the plaintiffs'
position to be correct, the 1991 Georgia-Pacific conviction
must be the individual employee's "own" in some
meaningful fashion.
We believe that this cannot be the case. Criminal acts are
relevant to a witness' credibility only if that witness actually
participated in the criminal conduct.15 It strains logic to
_________________________________________________________________
15. The plaintiffs contend in their reply brief that the Supreme Court's
pre-Rules decision in United States v. Trenton Potteries Co., 273 U.S. 392
28
argue that an employee's credibility is properly brought into
question by the mere fact that he or she is presently
employed by a corporation that in some unrelated manner
was guilty of dishonest acts, no matter how egregious those
acts may have been. There is no evidence that the
individual witnesses who testified at trial had any
involvement with Georgia-Pacific's tax evasion scheme, and
thus that scheme could not possibly bear on the likelihood
that those witnesses would testify truthfully.16
_________________________________________________________________
(1927), stands for the proposition that corporate convictions are
admissible to demonstrate the bias of the employee witness. They cite
the Court's holding that a corporate employee could be cross-examined
on prior corporate convictions if admissibility of the evidence was "urged
on the ground that it was directed to the bias of the witness, or that it
was preliminary to showing his implication in the supposed offense, and
thus affecting his credibility." Id. at 404-05 (internal citations
omitted).
Aside from the fact that this case was decided decades before Rule 609
was enacted, we believe that Trenton Potteries stands squarely for the
proposition that the witness must be implicated in the corporate
conviction in order for evidence of the conviction to be proper
impeachment material. This is clear from the Court's language; the
corporate conviction is relevant if it is "preliminary" to demonstrating
the
witness' own implication in the offense. While Trenton Potteries also
suggests that the corporate conviction could be used to demonstrate that
the witness is biased, such a bias inquiry is irrelevant to our
consideration under Rule 609(a)(2). That is, the question presently at
issue is whether the corporate conviction bears on the individual
witness's propensity to commit perjury as a convicted felon, not whether
the existence of the conviction somehow would bias the individual
employee witness toward the corporation.
16. The only reported decision since the adoption of the Federal Rules of
Evidence to address this question, CGM Contractors, Inc. v. Contractors
Environmental Services, Inc., 383 S.E.2d 861 (W. Va. 1989), arose under
the West Virginia Rules of Evidence. Based on those rules (which are
identical to the federal rules in pertinent part), the West Virginia
Supreme Court of Appeals held that a corporate conviction is admissible
against a witness only if the witness "held a managerial position at the
time the crime occurred such that it may be fairly inferred that he
shared responsibility for the criminal act, or have actually participated
in
the criminal act." 383 S.E.2d 866. Although we need not announce a
similar rule to resolve the present case, our reasoning and that of the
West Virginia court are consistent, and we believe that the ratio
decidendi of the West Virginia court is sensible in light of the policies
upon which Rule 609 is based.
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Plaintiffs contend that the mandatory nature of Rule
609(a)(2) precludes the district court from exercising any
discretion over the admissibility of the Georgia-Pacific
convictions. While the plaintiffs are correct that the district
court would be precluded from exercising its Rule 403
balancing discretion if the evidence was properly within
Rule 609(a)(2), the district court is not precluded from
determining whether the prior corporate conviction falls
within the ambit of Rule 609 at all. Only if the witness is
directly connected to a prior conviction for a crime involving
dishonesty or a false statement does Rule 609(a)(2)'s
automatic admission provision apply. To allow Rule
609(a)(2) to apply otherwise would be to "override the
fundamental purpose of impeachment evidence, namely,
to expose a defect in the witness's credibility." Glen
Weissenberger, Federal Rules of Evidence 285-86 (1995).
In sum, we find that Rule 609 does not permit corporate
convictions to be used to impeach the credibility of
employee witnesses who were not directly connected to the
underlying criminal act. Since there was no evidence of
such a connection in the present case, the district court
properly excluded the Georgia-Pacific convictions as
improper impeachment evidence.
The order of the district court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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