On Appeal From the United States District Court For the District of Delaware
(D.C. Civ.No. 92-cv-00735)
Before: BECKER, SCIRICA, Circuit Judges, and KELLY, District Judge. *fn*
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 defendants, Georgia-Pacific Corporation and one of its executives. 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 discriminatory animus, we do not believe that it committed plain error in doing so. The evidence involved stray 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 v. Sunshine Supermarket, Inc., 753 F.2d 321 (3d Cir. 1985) to excuse the plaintiffs' obligation to reassert their objections at trial, accompanied by offers of proof, in order 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 GeorgiaPacific 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 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.
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. Section(s) 2000e-3(a). *fn1 After receiving a right to sue letter from the EEOC, the plaintiffs filed a complaint in the District Court for the District of Delaware. *fn2 The case was tried to a jury on one count of retaliatory discharge in December 1995. *fn3
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 the 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 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. Section(s) 1331, and we have appellate jurisdiction over its final order under 28 U.S.C. Section(s) 1291.
II. The Jury Instruction: Did the Plaintiff 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). *fn4 In a mixed motives case, the evidence put forth 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). *fn5 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. Agress, 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. 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); Griffiths v. CIGNA, 988 F.2d 457 (3d Cir. 1993). Not all evidence that is probative of illegitimate motive 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, 988 F.2d at 470). 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.' " Griffiths, 988 F.2d at 470 (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 employment 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 decisional process itself, suffice to satisfy the plaintiffs' burden in this regard.
Price Waterhouse, 490 U.S. at 277. 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 that 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 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 the final 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." JA 91. 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 ...