1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Walden v. Georgia Pacific Corp" (1997). 1997 Decisions. Paper 233.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/233
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rescinded, and the correct final draft is filed herein.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 2000e3(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 VicePresident 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 GeorgiaPacific 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 GeorgiaPacific 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 GeorgiaPacific'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 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, 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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