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. e du/thir dc ir c uit_1997/233Filed 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 Distri ct Judge for the Eastern District of Pennsylvania, sitting by design ation.

**A non-final draft of the Opinion in this matter w as issued September 23, 1997, by reason of certain mechanical errors. T hat version has been rescinded, and the correct final draft is filed her ein.DENNIS K. KUROISHI, ESQUIRE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, Ja mes 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 fav or of the defendant, Georgia-Pacific Corporation. The plainti ffs
contend that the district court abused its discreti on 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 "di rect" to require a burden shifting "mixed-motives" charge un der Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). S econd,
while we believe that the district court erred in e xcluding certain evidence of retaliatory animus, we do not b elieve

2that it committed plain error in doing so. The evid ence

involved remarks by Georgia-Pacific employees outsi de the chain of decisionmakers who had authority to hire a nd fire the plaintiffs. The district court excluded the evi dence at an in limine hearing, at which time the district court described its actions as only "tentative". Although the distr ict court gave certain indications at the hearing that its ru lings might be final, it never countermanded its descript ion of them as "tentative." Thus, we do not believe that t he rulings were sufficiently final under the doctrine of Ameri can Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F. 2d 321 (3d Cir. 1985), to excuse the plaintiffs' obligatio n to make an offer of proof at trial and to preserve the issu es for abuse of discretion review. Since no objections wer e made at trial, we review only for plain error and, inasm uch 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 tha t the district court erred in excluding evidence of the conviction of Georgia-Pacific for tax evasion which plaintiffs of fered 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 witness es who are not directly connected to the underlying crimin al 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, consti tuted the security unit at the Wilmington, Delaware, plan t of Georgia-Pacific's Gypsum and Roofing Division. Wald en was hired as a guard in 1975, followed by Poirier in 19 77 and Murphy in 1984. The events that gave rise to this l awsuit began in August 1990 when a fourth guard, John Crot hers, was fired, according to Carolyn Wunsch, the personn el manager of the Wilmington plant, for a "breach of s ecurity." In September 1990, Crothers was replaced by a young er

3woman, Phyllis Estepp. In October 1990, Crothers fi led an

EEOC charge alleging unlawful age and sex discrimin ation. He named the three plaintiffs as witnesses to his j ob performance during his employment with Georgia-Paci fic.

On May 7, 1991, all three plaintiffs met with an EE OC investigator concerning Crothers' charge. They test ified at trial that, despite Wunsch's request that they misl ead the EEOC investigator about Crothers' performance and m ake statements favorable to the company, they made trut hful statements to the investigator. On May 14, 1991, Wu nsch informed the plaintiffs that Estepp was to be repla ced by OSS Security, an outside security agency that would provide weekend security at the plant. The plaintif fs offered to give up their overtime on weekends to keep all f our guards employed, but Wunsch refused their offer. Es tepp was soon fired, and OSS began to provide the weeken d security services. Estepp filed discrimination char ges with the EEOC, claiming that she was unlawfully discharg ed on
the basis of her sex.

In July 1991, Wunsch established a mandatory rotati on for the plaintiffs' shifts and directed them not to swap their assigned hours. Prior to this change, the plaintiff s had worked out their own rotations, which permitted the m to take account of family and personal obligations. Be cause of these changes in their working conditions, the plai ntiffs filed their own charges with the EEOC in August 199 1.

In October 1991, the plaintiffs invoked the company 's "open door" policy, sending a letter outlining thei r complaints to Donald Glass, the Senior Vice Preside nt of the division, which was based in Atlanta. Glass for warded the letter to Michael Vidan, the division's Vice Pr esident. In November 1991, Vidan wrote to the plaintiffs, infor ming them that James Hurd, the division's Corporate Pers onnel and Labor Relations Manager, would investigate thei r complaints and get back to them. The plaintiffs nev er heard anything further on the subject. Walden testified t hat she approached several plant officials about the plaint iffs' complaints over the next couple of months, but they refused to speak to her about them, informing her t hat they had been directed to stay out of the dispute. In Fe bruary 1992, Hurd arrived from Atlanta and fired the plain tiffs.

4The plaintiffs filed retaliation charges with the E EOC,

contending that they had been wrongfully terminated for protected activity in violation of Title VII, 42 U. S.C. S 2000e3(a)(1996).1 After receiving a right to sue letter from the EEOC, the plaintiffs filed a complaint in the Distr ict Court
for the District of Delaware.2 The case was tried t o 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 sec urity services after the temporary employment of an outsi de agency during the 1990 Christmas season demonstrate d its cost effectiveness. In February 1991, she, Geor ge 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, bu t agreed to replace one of the guards with an outside servic e on weekends. According to Wunsch's testimony, Estepp w as replaced because she was the least senior guard. Ho ward Schutte, the division's Operations Manager, testifi ed that, in January 1992, he received a memorandum from Char les Terry, named interim Wilmington plant manager after Palmowski was fired, recommending that the entire g uard unit be replaced to save costs. Based on this recommendation, Schutte decided to discharge the

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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 Croth ers and Estepp investigations; and (3) filed complaints with the E EOC alleging
retaliation for their participation in the Crothers and Estepp matters.

2. The plaintiffs initially named many Georgia-Paci fic 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 failu re to rehire,
defamation against Gardner, and breach of contract--and hence only the retaliatory discharge claim went to the jury.

5plaintiffs. According to Georgia-Pacific, the elimi nation 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 fa vor. The plaintiffs filed a motion for a new trial, Fed. R. Civ. P. 59, which the district court denied. This appeal follow ed. The district court exercised subject matter jurisdictio n under 28 U.S.C. S 1331, and we have appellate jurisdiction o ver its
final order under 28 U.S.C. S 1291.

II. The Jury Instruction: Did the Plaintiffs Introd uce at Trial Sufficient "Direct" Evidence of Retaliatory A nimus 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 co ntend that they introduced at trial sufficient "direct" eviden ce 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

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4. The plaintiffs object to the jury instructions i n several additional respects. First, they submit that the evidence show s that Georgia-Pacific failed to investigate the plaintiffs' October 1991 letter of complaint in accordance with the company's "open door" policy. B ased on this evidence, they contend that the district court erre d in failing to
instruct the jury that Georgia-Pacific's act of "closing" th e 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 disc harge as a cause of action, listing the closing of the open do or policy as a piece of evidence that they would prove at trial to support their wrongful discharge theory. Alternatively, the plaintiffs con tend that the district court erred in refusing to instruct the jury that t he letter to Glass constituted protected activity. As a matter of law, this letter could not constitute protected activity. Rather, it was a gen eral grievance about changes in working conditions, the perceived threat to the plaintiffs' job security, and the derogatory comments made by Virgi l Gardner about them. It did not complain of any acts that are unla wful 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 lett er to Glass and the

6by the plaintiff is so revealing of retaliatory ani mus that it

is unnecessary to rely on the McDonnell Douglas /Bu rdine burden-shifting framework, under which the burden o f proof remains with the plaintiff. See McDonnell Dou glas Corp. v. Green, 411 U.S. 792 (1973); Texas Departme nt 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 retali ation 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 Ci r. 1994).5 We generally review jury instructions for abuse of discretion, but our review is plenary when the ques tion is whether the instruction misstates the law, see Sava rese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989), as the plaintiffs

here contend.

As we have explained in prior cases, whether a plai ntiff has presented a pretext or a mixed motives case dep ends on the quality of the evidence that the plaintiff a dduces 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 evide nce of the company's retaliation for protected activity. Moreover, plain tiffs' counsel was permitted to refer to the letter as protected activ ity 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 unlaw ful retaliation was a "motivating factor" in the plaintiffs' discharge. O ur decision in Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997), de cided after the plaintiffs filed their brief in this appeal, forecl oses 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 fram ework of pretext cases under McDonnell Douglas and Burdine, and mixe d-motives cases under Price Waterhouse have been amply explained in prior cases, and we need not dwell on them here. See, e.g., Starcesk i v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095-96 n.4 (3d Cir. 199 5); Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1224-25 ( 3d Cir. 1994).

71995); Starceski v. Westinghouse Elec. Corp., 54 F. 3d 1089

(3d Cir. 1995); Armbruster, 32 F.3d 768; Hook v. Er nst & Young, 28 F.3d 366 (3d Cir. 1994). Not all evidence that is probative of illegitimate motives suffices to entit le 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 evidenc e that an illegitimate criterion was a substantial factor in the decision." Price Waterhouse, 490 U.S. at 276 (O'Con nor, J., concurring) (emphasis added). In other words, the e vidence
must be such that it demonstrates that the "decisionmakers placed substantial negative relianc e on an illegitimate criterion in reaching their decision." Id. at 277.

In point of fact, the term "direct evidence" is som ewhat of a misnomer, for we have held that certain circumsta ntial
evidence is sufficient for a mixed motives instruct ion, 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., 9 88 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 mu st clear a high hurdle to qualify for a mixed motives instru ction: "The burden of persuasion shifts to the employer`on ly after the plaintiff ha[s] proven that her employer acted unlawfully,' and not merely `on the basis of a prim a 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 war ranted only when the "evidence is sufficient to permit the factfinder to infer that [a discriminatory] attitud e 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 suc h
"direct" evidence as follows:

[S]tray remarks in the workplace, while perh aps probative of sexual harassment, cannot justi fy requiring the employer to prove that its hir ing or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to th e

8decisional process itself, suffice to satisf y the plaintiffs'

burden in this regard.

Price Waterhouse, 490 U.S. at 277 (internal citatio ns omitted). This is borne out in Armbruster, supra, a n ADEA case. There the plaintiffs introduced age-related c omments by a Unisys Vice-President, Robert Markell. Markell had resigned at least three months before the adverse employment actions at issue, but several months bef ore he resigned, Markell allegedly stated that Unisys coul d not "afford to keep people over 50 and 50," meaning tho se over 50 years of age who were earning over $50,000 a yea r. 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 wit h the challenged employment decision, although in his cap acity as Vice President he was often involved in hiring a nd firing decisions. We concluded that "Markell's alleged sta tement
is not attributable to a decisionmaker connected wi th the . . . employment decisions and is too remote in tim e. . . to constitute overt evidence sufficient to show Unisys had a discriminatory animus towards older employees." Armbruster, 32 F.3d at 779. Thus, statements that a re unconnected to the decision at issue, even if made by people who hold positions of authority with the emp loyer, are not direct evidence of unlawful discharge.

The plaintiffs point to several pieces of evidence that they contend, taken together, constitute sufficient dire ct evidence to entitle them to a mixed motives charge. First, they point to testimony that, in December 1990, pla intiff Walden was subpoenaed as a witness in an arbitratio n hearing for Raymond Gottshall, a fired union employ ee. At the time of that hearing, Virgil Gardner, the divis ion'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 abou t Gardner's threat, but she nevertheless decided to t estify. 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

9upset. She was a non-union hourly employee at a uni on

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 deta ils of the EEOC charge filed by Phyllis Estepp. In thefina l paragraph, he recommended that the company seriousl y consider contracting out all of the security work. He wrote: "My personal terminology is that we used the Securi ty Guard positions as a home for the sick, lame, and l azy. 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 re ceived notice of the plaintiffs' August EEOC charge. Palmo wski testified that Division Production Manager Watson telephoned him and "was upset" about the charge. Wa tson
told Palmowski that "we can't have bullshit like th is" 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 ca ll, Palmowski confronted plaintiffs Walden and Poirier, informed them that Atlanta was upset, and urged the m to consider withdrawing the EEOC charge because "the t iming was absolutely poor." Palmowski testified that"I wa s being pressured to eliminate their jobs, and I didn't wan t to."

Finally, the plaintiffs point to evidence that the company's open door policy was "closed." The plaint iffs submit that the evidence shows that the company, an d in particular James Hurd, failed to investigate their complaints contained in the letter to Division Seni or VicePresident Donald Glass in accordance with the open door policy.

Georgia-Pacific contends that the forgoing evidence does not demonstrate sufficient retaliatory animus by pe rsons actually connected to the decision to replace the p laintiffs

10to constitute "direct evidence" under Price Waterho use, and

hence that the district court properly gave the jur y a pretext charge. Moreover, Division Operations Manag er Schutte testified that he alone made the decision t o terminate the plaintiffs, based on Wilmington Inter im Plant Manager Terry's recommendation. Plaintiffs' counsel acknowledged as much in his closing argument when h e 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 ani mus 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 plaintif fs' briefs point to any such evidence).

The plaintiffs rejoin that all of the above-mention ed Georgia-Pacific personnel were somehow involved in the decision to replace the plaintiffs. They contend th at "[r]eality dictates that those who have direct acce ss to the decisionmakers and are likely to influence their de cision should be considered persons in the `decisionmaking process.' " Thus, even though Schutte testified tha t it was only he who made the decision to fire the plaintiff s, the plaintiffs urge us to take a broader view of who qu alifies as a decisionmaker. They submit that, in determining t he direct evidence question, we should consider statem ents and conduct of other Georgia-Pacific employees if t hose 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 shoul d assume that statements by other Georgia-Pacific man agers influenced Schutte's decision.

We agree with the plaintiffs that the fact that the y acknowledged that Schutte was the sole decisionmake r does not foreclose the Price Waterhouse determinati on. Indeed, there is much to support a conclusion that many Georgia-Pacific managers recommended and approved o f replacing the plaintiffs with the outside guard ser vice. Schutte testified that the idea to replace the guar ds was initially proposed by Wilmington Personnel Manager

11Wunsch and Wilmington Plant Production Superintende nt

George Woodham in February or March 1991. And EEO Coordinator Gardner, in the July 1991 memorandum to Hurd, recommended replacing the guards with an outs ide security service. Nevertheless, that evidence canno t
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 f irst to the comments that Gardner is alleged to have made a t the
Gottshall arbitration. That arbitration occurred in December 1990, long before the plaintiffs engaged i n their first protected activity -- meeting with the EEOC investigator in May 1991. Hence, the statements wer e not only remote in time from the decision to fire the p laintiffs over a year later, but they cannot constitute direc t evidence that the plaintiffs were replaced in retaliation fo r protected activity because they were made before that activit y.

Second, as to Palmowski's warning to the plaintiffs that the company was upset about the EEOC charge, Palmow ski was discharged several months before the plaintiffs were themselves fired, and therefore, could not have bee n involved in Schutte's termination decision, even th ough as plant manager he had the authority to fire the guar ds. Moreover, there is no evidence suggesting that Palm owski ever recommended that the plaintiffs be replaced. I n fact, there is significant evidence that Palmowski worked to save the plaintiffs' jobs. The plaintiffs respond that P almowski's statements reflected the retaliatory animus of the GeorgiaPacific managers who actually participated in the d ecision to fire them. But Palmowski's statement is vague an d unconnected to any specific participant in the deci sion to replace the plaintiffs. As such, it could not const itute 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 Mana ger Hurd, shut down the open door policy also is not su fficient to require a mixed motives charge. As the human res ources director for the entire division, Hurd himself was not in the

12direct chain of command over the plaintiffs, and th ere is no

evidence that he was involved in the decision to re place the plaintiffs with the outside guard service in any wa y. Moreover, this evidence, even if probative of retal iatory motive, is circumstantial evidence that does not ri se to the level of evidence that "directly" reflects retaliat ory 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 t oo far.") after he learned of the plaintiffs' EEOC charge. Wa tson was
in the direct chain of command involved in the deci sion to fire the plaintiffs -- Schutte was his supervisor a nd 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 tha t 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 show s, statements even by decisionmakers cannot constitute direct evidence if there is no evidence somehow linking th at person to the actual decision. Under such circumsta nces, 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. Desp ite the connection to Schutte, however, we conclude that th e memorandum also does not constitute direct evidence . It was written more than six months before the plainti ffs 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

13that a decisionmaker received a memorandum containi ng a

statement that allegedly reflects retaliatory animu s 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 "di rect 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 Georgi a-Pacific acted unlawfully in firing the plaintiffs in Februa ry 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 en gaged in by the plaintiffs, i.e. speaking truthfully to the EEOC investigator in May 1991. In other words, the state ment
does not demonstrate that retaliation was more like ly than not the motivating factor in the decision to replac e the plaintiffs with the outside guard service, as our c ase 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 becaus e the plaintiffs did not produce sufficient "direct" evid ence of retaliatory animus to require a mixed motives burde n shifting charge.

III. Did the District Court Err in Excluding the St atements 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, stat ements allegedly made by George Woodham, the Wilmington pl ant Production Superintendent, and Robert Fuller, the Wilmington plant Warehouse Superintendent, to the plaintiffs. In September 1991, after the plaintiffs filed their EEOC charge, Woodham allegedly said to Walden, in t he 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 ma ker too.

14In August 1991, Fuller allegedly told the plaintiff s:

if [I] was [your] boss [you] would all be fi red. 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 b e fired, if I was your boss.

The district court's ruling to exclude the statemen ts was made pre-trial at an in limine hearing, and the pla intiffs failed to make an offer of proof at trial. Given th e applicable standard of review, we reject the plaintiffs' chall enge.6

A. Was the District Court's Exclusionary Pretrial Evidentiary Ruling Insufficiently Final that the Pl aintiffs 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 ma ny useful purposes. See generally United States v. Dow ning, 753 F.2d 1224, 1241 (3d Cir. 1985); In re Paoli R.R . Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990) ("Paol i I"); Manual for Complex Litigation, Third S 21.642 (1985 ). When

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6. We also reject three of the plaintiffs' other ev identiary 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 eig ht years before the plaintiffs lost their jobs, and was therefore too r emote in time to be of probative value. Additionally, the statement is vag ue and does not clearly reflect a company policy of retaliating against "tr oublemakers," as the plaintiffs suggest.

Second, the plaintiffs contend that the district co urt erred in excluding evidence that the quality of the guard services pro vided by OSS was poor, which the plaintiffs submit was relevant to p roving that the company's asserted reason for firing the plaintiffs --cost savings--was pretextual. We disagree. The evidence that OSS' per formance was lacking does nothing to discredit the evidence that the com pany saved a significant amount of money by contracting out the security jobs. Finally, the district court did not abuse its discr etion in excluding evidence that the company properly handled the open door policy complaints of two other employees.

15a definitive evidentiary ruling is made pretrial, t here 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 rulin g excluded it. On the other hand, if the in limine ruling is o nly tentative, which is how the district court describe d its rulings here, then it is preferable that a definiti ve 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 g ame would hardly be worth the candle. But that is what we are faced with here, hence we deal with it. The key que stion is whether the in limine ruling excluding the Woodham and Fuller statements was sufficiently final that the p laintiffs' failure to make an offer of proof at trial operates to render
the standard of review here abuse of discretion rat her than plain error.

Although decisions to exclude evidence are generall y reviewed for abuse of discretion, see, e.g., Barker v. Deere & Co., 60 F.3d 158, 161 (3d Cir. 1995), when a part y fails to preserve the right to appeal an exclusion, we re view for plain error. Under Fed. R. Evid. 103(a), a party ma y not appeal a ruling excluding evidence unless the party asserting error made an offer of proof at trial. 7 GeorgiaPacific points out that the district court expressl y stated that its in limine rulings were "tentative," and co ntends that, by failing to attempt to introduce the Woodha m and Fuller statements at trial, the plaintiffs waived t heir right to appeal the ruling under Rule 103 so that our review is subject to a plain error standard. The plaintiffs r espond
that the district court made comments at that heari ng that suggested that the rulings were final, and thus, un der

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7. Fed. R. Evid. 103(a) reads:

Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unl ess a substantial right of the party is affected, and . . .

(2) Offer of proof. In case the ruling is on e excluding evidence,
the substance of the evidence was made known to the court by offer or was apparent from the context withi n which questions

were asked.

16these circumstances, their opposition to Georgia-Pa cific's

motion in limine was a sufficient offer of proof un der 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 obj ect at
trial to the admission of evidence in cases where t he district court had previously denied that party's pre-trial motion to exclude that evidence. We rejected Sunshine's conte ntion that American Home had waived its right to appeal t he admission of the evidence when it failed to object at trial, reading Fed. R. Evid. 103(a) in conjunction with Fe d. R. Civ. P. 46, which makes formal objections unnecessa ry.8

We reasoned:

Here, counsel for American Home filed a writ ten pretrial motion requesting that the evidence . . . be
ruled inadmissible. The motion set forth rea sons, including case citations, in support of the request. The trial court held a hearing at which it consi dered the arguments of counsel and made a definitive o ral ruling with no suggestion that it would reconsider the matter at trial. Under these circumstances, requiri ng an objection when the evidence was introduced a t trial
would have been in the nature of a formal ex ception and, thus, unnecessary under Rule 46.

753 F.2d at 324-25; see also Government of the Virg in Islands v. Joseph, 964 F.2d 1380, 1384 (3d Cir. 199 2); Bruno v. W.B. Saunders Co., 882 F.2d 760, 767-68 (3 d Cir. 1989).

Therefore, if a party files an unsuccessful motion in

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8. Fed. R. Civ. P. 46 reads:

Formal exceptions to rulings or orders of th e 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 ther efor; and if a party

has no opportunity to object to a ruling or orde r at the time it is made, the absence of an objection does not thereaf ter prejudice the
party.17limine seeking the exclusion of certain evidence, t hat party

need not formally object at trial when the evidence in question is introduced if two conditions are satisf ied: (1) the party filed a written pre-trial motion setting fort h reasons and case citations in support of the request that t he evidence be excluded; and (2) the district court ma de a "definitive" ruling with no suggestion that it woul d
reconsider the matter at trial.

American Home presented the obverse of the case at bar: American Home sought to have certain evidence exclu ded, and then failed to object to the introduction of th at evidence. In contrast, the plaintiffs here opposed GeorgiaPacific's motion in limine to exclude certain evide nce and then failed to make an offer of proof at trial. Des pite 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 di spense with formal objections and offers of proof at trial following a final ruling on a motion in limine. As we explain ed in American Home, "if an issue is fully briefed and th e trial court is able to make a definitive ruling, then the motion in limine provides a useful tool for eliminating unnec essary trial interruptions." American Home, 753 F.2d at 32 4.

These efficiency concerns are, of course, predicate d on

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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 Fi rst 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 proponen t would have to engage in the wasteful and inconvenient task of sum moning witnesses or organizing demonstrative evidence that the proponen t 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-exa mination. At all
events, despite the difficulties that may be involved in pr offers of evidence in some cases, we find that the benefits, described in fra at n. 10, outweigh any burdens that such proffers might place on the p roponents of evidence when the district court has made only a te ntative pretrial ruling.

18the district court's actually making a final decisi on before

trial. If the district court makes only a tentative ruling on a motion in limine an objection or offer of proof a t trial is not unnecessary or "formal." Rather, there are sepa rate interests, noted in the margin, that are promoted b y requiring the unsuccessful party to make an objecti on or offer of proof at trial.10

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10. First, motions in limine often present issues f or which final decision is best reserved for a specific trial situation. Am erican 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 o f improper impeachment with prior conviction) ("The [in limine ] ruling is subject to change when the case unfolds, particularly if the a ctual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district j udge is free, in the exercise of sound judicial discretion, to alter a p revious in limine ruling."). This is particularly true when the evide nce is challenged as irrelevant or prejudicial; the considerations weigh ed by the court will likely change as the trial progresses. See Rosenfel d v. Basquiat, 78 F.3d 84, 91 (2d Cir. 1996) ("Unlike rulings that involve balancing potential prejudice against probative value, the ruling in th e present case was not fact-bound and no real purpose other than form woul d have been served by a later objection.").

We have also made clear that rulings excluding evid ence on Rule 403 grounds should rarely be made in limine. "[A] court cannot fairly ascertain the potential relevance of evidence for R ule 403 purposes until it has a full record relevant to the putatively obj ectionable evidence. We
believe that Rule 403 is a trial-oriented rule. Pre cipitous Rule 403 determinations, before the challenging party has ha d an opportunity to develop the record, are therefore unfair and improp er." 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 ci rcumstances, if a
district court makes a tentative pre-trial ruling, it has th e 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 evidentia ry ruling at issue. Appellate review of a tentative ruling based only o n 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 obje ction, "it is precisely

19Thus, a party who unsuccessfully opposes an in limi ne

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 tenta tive in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the ag grieved party attempts to offer such evidence at trial.

The critical question before us, then, is whether t he district court's in limine ruling to exclude the Wo odham and Fuller statements was "a definitive . . . ruling wi th no suggestion that it would reconsider the matter at t rial." American Home, 753 F.2d at 325.11 Georgia-Pacific s ubmits that the plaintiffs cannot make this showing becaus e the district court expressly stated at the opening of t he hearing that its rulings were tentative:

I want to be helpful, and maybe I'm not goin g to be helpful. I'm going to make some tentative ru lings on what I read in the briefing, and then we wil l go from there, and to have some refinement. I want t his 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 begi n with the different aspects of the case.

In response, the plaintiffs point to a colloquy tha t occurred after the court made all of its rulings. W hen the plaintiffs' counsel challenged the court's ruling e xcluding a statement in the company's 1984 EEO newsletter, the court responded:

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because appellant comes before us not having attemp ted to offer evidence during the trial that we cannot rule intel ligently on the underlying evidentiary questions; he presents us wi th an abstract intellectual exercise, rife with conjecture, rather than affording us an opportunity to inspect concrete evidence, offered a nd 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 parti es' pretrial papers satisfactorily briefed the district court on the ev identiary issues.

20THE 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 a nd get along. I'm trying to tailor my rulings to th e 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 t o get evidence that relates to the, and things tha t might otherwise indicate a corporate animus. You a re going to lose some and you are going to win some. If I'm wrong, you will get me reversed. If I'm righ t, I will get
affirmed. I'm not concerned about that. I'm trying to make rulings in time and germane to the issu e we're trying. Don't reargue each one. We will be h ere 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 Circu it will say, You didn't say anything at the time.

THE COURT: All they have to do is look at y our brief, and you have every case in there. You analyze, reanalyze cases. I have tried to address the m in terms of rulings in the context of the facts of th is 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 Federa l 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 d istrict court's rulings, despite the court's initial descri ption of them as tentative, were in fact final. Several aspe cts of the court's admonition to plaintiffs' counsel suggest t hat the plaintiffs could obtain relief from the rulings onl y through appellate review. Moreover, the court's comments ma y have suggested that plaintiffs' counsel had already pres erved his objections for appeal.

Nevertheless, under American Home, a party is only excused from an offer of proof at trial if the dist rict court's

21in limine ruling was definitive with no suggestion that the

court would reconsider the ruling. The district cou rt clearly stated at the outset of the hearing that its ruling s were tentative and that it would reconsider those ruling s at trial, and the court never retreated from that position. A lthough the district court told plaintiffs' counsel not to reargue every ruling, it did not countermand its clear open ing statement that all of its rulings were tentative, a nd counsel never requested clarification, as he might have don e. Moreover, and tellingly, plaintiffs' counsel attemp ted to
introduce at trial other evidence that was excluded at the in limine hearing, which suggests that he understood t he court's protocols.12

Finally, we note that the court's admonition, which forms the basis of plaintiffs' requested reprieve, was ma de after

the court ruled on the Woodham and Fuller statement s, and addressed only the decision to exclude the 1984 EEO newsletter. This undermines plaintiffs' blanket con tention. Additionally, it is clear to us that plaintiffs' ab le and resolute counsel was never cowed by his colloquy wi th the
district court. We hold that under these circumstan ces, 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 t he rule is taken from Rule 52(b) of the Federal Rules of Crimi nal Procedure. Accordingly, we have taken guidance on o ur

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12. More specifically, while at the in limine heari ng, 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.

22construction of the civil plain error standard from the Supreme Court's interpretation of the criminal stan dard. 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 (19 93), the Court set forth three requirements for a plain error challenge to succeed. First, there must be an actua l error -- a deviation from or violation of a legal rule. S econd, the error must be plain; that is, the error must be cle ar 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 t he district court proceedings. See also Charles Alan W right & Kenneth W. Graham, Jr., Federal Practice & Procedur e S 5043 (1996)(error must produce "substantial injus tice" denying the appellant a fair trial).

It has been our practice to exercise our power to r everse for plain error sparingly. Chemical Lehman Tank Lin es, 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 37 9(1996). A finding of plain error is only appropriate in the civil context when the error is so serious and flagrant t hat 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 erro r for
the District Court to exclude the Woodham and Fulle r statements.13 That is, was it error to exclude stat ements for the reason that they were made by individuals "outs ide the

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13. The plaintiffs contend that if the district cou rt had properly
admitted these statements, they would have constituted suffi cient direct evidence of retaliation to require a mixed motives charge. B ut, 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 F uller to that decision. And although Woodham recommended replacing the guar ds, he made that recommendation months before the plaintiffsfir st engaged in any protected activity.

23chain of decision-makers who had the authority to h ire and

fire" the plaintiffs, Gomez v. Allegheny Health Ser v., 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 commen ts made by individuals within and those by individuals
outside the chain of decisionmakers who have the au thority to discharge. We have generally held that comments by those individuals outside of the decisionmaking cha in are stray remarks, which, standing alone, are inadequat e 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 ser ies of stray remarks over a five year period to suffice to prove discriminatory motive would be to overstep the limi ts of Title VII).

The statements made by Woodham and Fuller in the present case fall within the category of stray rema rks by non-decisionmakers. Although both worked at the Wilmington plant in a supervisory capacity, neither supervised the plaintiffs. Furthermore, neither Woo dham or Fuller participated in the decision to discharge th e plaintiffs, nor did they have the authority to orde r the plaintiffs' termination. Finally, it is also worthy of note that
the statements at issue were somewhat remote in tim e 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 transferre d from the Wilmington facility months before the term ination
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 car ried 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 "m ay be critical for the jury's assessment of whether a giv en employer was more likely than not to have acted fro m an

24unlawful motive." Antol, 82 F.3d at 1302 (quoting E stes v.

Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir . 1988)); see also Ezold, 983 F.2d at 546 (evidence of discri minatory atmosphere may be relevant because it tends "to add `color' to the employer's decisionmaking processes and to t he influences behind the actions taken with respect to the individual plaintiff "). Accordingly, stray remarks by nondecisionmakers 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, t he
district court retains its normal discretion to exc lude such evidence under general relevancy principles. See Fe d. 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 Fu ller statements. The court found the statements to be"ge neral and unrelated" to the issue of retaliation, which t he court considered to be the "specific issue" of the case. Although it is unclear from the record, this finding was pre sumably
based on the fact that Woodham and Fuller never dir ectly supervised the plaintiffs, and the fact that Woodha m 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 th e question whether the plaintiffs were fired in retal iation for protected activity, these facts in and of themselve s are not
sufficient to deem the Woodham and Fuller statement s 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 err or not only must be clear and obvious under current law, but al so must affect a substantial right. To reiterate, this means

25that the error must have affected the outcome of th e trial

proceedings in a manner that threatens "substantial injustice." The court's error in excluding the Wood ham and
Fuller statements does not reach this threshold.

Although the stray remarks at issue could have prov ided
additional circumstantial evidence of the defendant 's discriminatory animus, the jury was presented with other significant evidence of the defendant's possible bi as against "troublemakers" (i.e. those workers who engage in l egally protected activities to enforce their rights) in it s organization, and yet still found for Georgia-Pacif ic. This evidence included statements reflecting a similar a nimus by Palmowski and Watson, both of whom were in the plai ntiffs' chain of command, as well as additional statements by Virgil Gardner, the company's EEO coordinator.14 Th e plaintiffs introduced, for example, Gardner's memor andum labeling the plaintiffs as "sick, lame and lazy. . . [whose] loyalties do not rest with the company's best inter ests." Additionally, Gardner's statements designed to dete r 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 he ard the Woodham and Fuller statements, nor can we conclude that the error threatened the very integrity of the tria l. Accordingly, we hold that the district court's excl usion 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 o f guilty to tax evasion charges based on a fraudulent apprai sal of

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14. Palmowski testified, for example, that upon hea ring 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 Pal mowski admitted to Phyllis Estepp that she had been laid off because o f the EEOC charge filed by her predecessor, John Crothers.

26land in Florida in 1984. The plaintiffs sought to i ntroduce

this evidence under Fed. R. Evid. 609 to impeach th e testimony of individual Georgia-Pacific employee wi tnesses, none of whom were shown to have any connection to t he acts underlying the corporate conviction. The distr ict court excluded the evidence under Fed. R. Evid. 403, find ing that introduction of the evidence would be unduly prejud icial. The plaintiffs contend on appeal that use of this c onviction 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, a s the
construction of Rule 609 is an issue of law. See Un ited 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 attacki ng the credibility of a witness,

(1) evidence that a witness other than the accused
has been convicted of a crime shall be admit ted, subject to Rule 403, if the crime was punish able 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 conv icted of a
crime shall be admitted if it involved disho nesty or false statement, regardless of the punishmen t.

Thus, if the prior conviction involved dishonesty o r false statements, the conviction is automatically admissi ble
insofar as the district court is without discretion to weigh the prejudicial effect of the proffered evidence ag ainst 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 d istrict court to engage in balancing, we have held that Rul e 609(a)(2) must be construed narrowly to apply only to those crimes that bear on a witness' propensity to testif y truthfully. See Cree, 969 F.2d at 37.

We assume arguendo that Georgia-Pacific's convictio n for tax evasion falls within the ambit of 609(a)(2). Th e real question before us is whether prior convictions of a

27corporation are admissible under Rule 609 generally to

impeach the testimony of individual employee witnes ses without any evidence that those witnesses participa ted in the conduct underlying the conviction. This is a qu estion of first impression in this circuit, and so we write o n tabula

rasa.

Rule 609 is premised on "the common sense propositi on 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.2 d 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 witne sses whose testimony the jury is asked to believe. See U nited States v. Martinez, 555 F.2d 1273, 1275 (5th Cir. 1 977). The automatic admission provision of Rule 609(a)(2) expresses the idea that some individuals who are fo und to have been dishonest in other contexts are presumed to be more prone to perjury than others. See Conf. Rep. N o. 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 dec eption." Cree, 969 F.2d at 38. It is only the testifying wit ness' own convictions that will bear directly on the likeliho od that he or she will testify truthfully. See United States v . Hayes, 553 F.2d 824, 827 (2d Cir. 1977). Accordingly, it i s axiomatic that it is only the testifying witness' o wn prior
convictions that should be admissible on cross-exam ination to impeach his credibility. See United States v. Au stin, 786 F.2d 986, 992 (10th Cir. 1986). Thus, for the plain tiffs' position to be correct, the 1991 Georgia-Pacific co nviction must be the individual employee's "own" in some meaningful fashion.

We believe that this cannot be the case. Criminal a cts are relevant to a witness' credibility only if that wit ness actually participated in the criminal conduct.15 It strains logic to

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15. The plaintiffs contend in their reply brief tha t the Supreme Court's pre-Rules decision in United States v. Trenton Pott eries Co., 273 U.S. 392

28argue that an employee's credibility is properly br ought into

question by the mere fact that he or she is present ly employed by a corporation that in some unrelated ma nner was guilty of dishonest acts, no matter how egregio us 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 sche me, and thus that scheme could not possibly bear on the lik elihood that those witnesses would testify truthfully.16

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(1927), stands for the proposition that corporate c onvictions 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 t he witness, or that it was preliminary to showing his implication in the s upposed offense, and thus affecting his credibility." Id. at 404-05 (int ernal citations omitted).
Aside from the fact that this case was decided deca des before Rule 609 was enacted, we believe that Trenton Potteries stan ds 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 "prelimin ary" to demonstrating

the witness' own implication in the offense. While Tren ton Potteries also suggests that the corporate conviction could be use d to demonstrate that the witness is biased, such a bias inquiry is irrel evant to our consideration under Rule 609(a)(2). That is, the qu estion presently at issue is whether the corporate conviction bears on the individual witness's propensity to commit perjury as a convict ed 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 o f 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 conv iction is admissible against a witness only if the witness "held a manag erial 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 reaso ning 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.

29Plaintiffs contend that the mandatory nature of Rul e

609(a)(2) precludes the district court from exercis ing any discretion over the admissibility of the Georgia-Pa cific convictions. While the plaintiffs are correct that the district court would be precluded from exercising its Rule 4 03 balancing discretion if the evidence was properly w ithin 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 wi tness is directly connected to a prior conviction for a crim e 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." G len Weissenberger, Federal Rules of Evidence 285-86 (19 95).

In sum, we find that Rule 609 does not permit corpo rate convictions to be used to impeach the credibility o f employee witnesses who were not directly connected to the underlying criminal act. Since there was no evidenc e of such a connection in the present case, the district court properly excluded the Georgia-Pacific convictions a s 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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