The HONORABLE DANIEL M. FRIEDMAN, United States Circuit Judge for *

 the Federal Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2500

___________

Dennis Eugene Wolff, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Jesse Brown, Secretary of the Veterans *

Administration, *

*

Defendant - Appellee. *

___________

Submitted: May 21, 1997

Filed: November 4, 1997

___________

Before BEAM, FRIEDMAN, and LOKEN, Circuit Judges. *

___________

LOKEN, Circuit Judge.

In July 1992, the Veteran’s Administration hired Dennis Eugene Wolff,

a white male, as a licensed practical nurse at the Jefferson Barracks

Medical Center in St. Louis. Assigned to an evening shift in a psychiatric

unit, Wolff could not get along with the other nurses, many if not most of

whom were African-American females. His
The HONORABLE TERRY I. ADELMAN, United States Magistrate Judge for 1

the Eastern District of Missouri, who tried the case with the consent of the parties

under 28 U.S.C. § 636(c).

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conduct triggered many written complaints by co-workers and some patients.

In late November, the head nurse evaluated Wolff's performance as

unacceptable. In mid-December, the hospital transferred him to a day shift

because of his "communication deficiencies." He was discharged in June

1993, prior to the end of his one-year term as a probationary employee.

Wolff then commenced this action, asserting claims of race and sex

discrimination and violations of the Equal Pay Act. The jury returned a

verdict in favor of the VA, and the district court denied Wolff's motion 1

for a new trial. Wolff appeals, asserting instruction and evidentiary

errors. We affirm.

1. Instruction Issues. Wolff argues that the district court

committed plain error by giving a mixed motive instruction regarding his

sex discrimination claim. This issue has its roots in § 107 of the Civil

Rights Act of 1991, which partially overruled Price Waterhouse v. Hopkins,

490 U.S. 228 (1989). In Price Waterhouse, the Supreme Court held that,

when a disparate treatment plaintiff has proved that a forbidden factor

such as gender was a motivating factor in the adverse employment action,

"an employer shall not be liable if it can prove that, even if it had not

taken gender into account, it would have come to the same decision . . .

." Id. at 242 (emphasis added). In the 1991 Act, Congress amended the

statute so as to provide "that proof that an employer would have made the

same employment decision in the absence of discriminatory reasons is

relevant to determine not the liability for discriminatory employment

practices, but only the appropriate remedy." H.R. Rep. No. 102-40(I), at

48 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 586. Congress accomplished

this change by adding two new sections to Title VII: 

Except as otherwise provided in this subchapter, an unlawful

employment practice is established when the complaining party

demonstrates that race,
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color, religion, sex, or national origin was a motivating factor for any

employment practice, even though other factors also motivated the practice.

42 U.S.C. § 2000e-2(m).

On a claim in which an individual proves a violation under

section 2000e-2(m) of this title and a respondent demonstrates

that the respondent would have taken the same action in the

absence of the impermissible motivating factor, the court --

(I) may grant declaratory relief, injunctive relief

(except as provided in clause (ii)), and attorney’s

fees and costs demonstrated to be directly

attributable only to the pursuit of a claim under

section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring,

promotion, or payment, described in subparagraph

(A). 

42 U.S.C. § 2000e-5(g)(2)(B).

Two of the district court's instructions implemented these 1991

amendments. The court's first instruction explained Wolff's burden to

prove unlawful discrimination under § 2000e-2(m):

Your verdict must be for the Plaintiff . . . on

Plaintiff's sex discrimination claim if all the following

elements have been proved by a preponderance of the evidence:

first, Defendant discharged Plaintiff; and second, Plaintiff's

sex was a motivating factor in Defendant's decision. If either

of the above elements has not been proved by a preponderance of

the evidence, your verdict must be for the Defendant and you

need not proceed further in considering this claim.
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That instruction is consistent with our recent decision that the district

court "must tell the jury to resolve the ultimate issue of intentional

discrimination [but] is not 'constrained to' instruct how discrimination

can be proved." Ryther v. KARE 11, 108 F.3d 832, 849-50 (8th Cir.) (en

banc) (Loken, J., dissenting but speaking for a majority of the court on

this issue), cert. denied, 117 S. Ct. 2510 (1997).

In its very next instruction, the district court went on to give what

Wolff now describes as a plainly erroneous mixed motive instruction: 

If you find in favor of Plaintiff on his sex discrimination

claim, then you must answer the following question in the

Verdict Form: "Has it been proved by the preponderance of the

evidence that Defendant would have discharged Plaintiff

regardless of his sex?"

Because Wolff only sought damages for wrongful discharge, this instruction

is consistent with the mandate in § 20003-5(g)(2)(B)(ii) that an employer

is not liable for damages if it would have taken the same action absent its

impermissible motive. Wolff argues that the instruction was plain error

because it failed to place on the VA the burden of proving it would have

made the same decision to discharge had it not discriminated on account of

gender. We agree that both Price Waterhouse and the new statute expressly

place this burden on the employer. But the instruction in this case was

merely ambiguous as to the burden of proving this affirmative defense.

Absent a timely objection by Wolff, or a request that the instruction be

clarified in this regard, it was not plain error to give the instruction

as worded. See Herndon v. Armontrout, 986 F.2d 1237, 1240 (8th Cir. 1993)

(plain error occurs only when an instruction "produced a miscarriage of

justice").

Wolff next argues that the district court erred by giving a business

judgment instruction -- "You may not return a verdict for Plaintiff just

because you might disagree with defendant’s decision or believe it to be

harsh or unreasonable." "[I]n an
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employment discrimination case, a business judgment instruction is 'crucial

to a fair presentation of the case,' [and] the district court must offer

it whenever it is proffered by the defendant." Stemmons v. Missouri Dep’t

of Corrections, 82 F.3d 817, 819 (8th Cir. 1996), quoting Walker v. AT &

T Technologies, 995 F.2d 846, 849 (8th Cir. 1993). Thus, the district

court did not abuse its discretion by giving this instruction.

2. Evidentiary Issues. Wolff raises two issues regarding various

internal VA documents that the jury considered. Both issues involve the

same type of document -- memoranda written by other VA employees and

supervisors describing specific instances of Wolff’s misconduct or his

failure to get along with hospital staff and patients. However, the two

evidentiary issues are very different. 

(a) A Business Records Question. Wolff argues that the district

court improperly admitted seven employee memoranda under the business

records exception to the hearsay rule. See Fed. R. Evid. 803(6). The

documents were prepared either on VA "Memorandum" letterhead, or on VA

forms entitled "Report of Contact." Wolff contends that these documents

should have been excluded because they are not legitimate business records,

contain prejudicial hearsay, and in some cases were authored by persons who

did not testify at trial. We review these evidentiary rulings for clear

abuse of discretion. See Paul v. Farmland Indus., Inc., 37 F.3d 1274, 1277

(8th Cir. 1994), cert. denied, 514 U.S. 1017 (1995). 

The district court denied Wolff's pretrial motion in limine to

exclude all such documents. When the issue first arose at trial, the court

ruled that, if the VA laid an adequate foundation that a particular

employee memorandum was prepared in the regular course of business, the

document would be admitted as a business record unless it contained

"otherwise improper hearsay or prejudicial matters or untrustworthy

matters." Thereafter, the VA presented testimony that its employees and

supervisors were required to prepare Reports of Contact and similar

memoranda regarding notable employee conduct. This testimony satisfied the

district court that these documents are
Wolff argues that three of the memoranda should have been excluded as

2

irrelevant and impermissible character evidence because they recorded Wolff’s

admissions to staff that he is the child of an alcoholic and was receiving private

counseling for personal problems. The district court admitted these documents because

they reflect Wolff's explanations for his performance problems to his supervisors and

therefore support the VA’s claim that performance problems motivated his discharge.

After reviewing these documents, we agree with the district court's analysis. 

The record on appeal does not contain a copy of Exhibit 2 as offered by Wolff, 3

so we are left to reconstruct its contents from the trial testimony.

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legitimate business records. In addition, the VA witnesses testified, and

the court found it significant, that each of the documents in question was

considered by VA decisionmakers in deciding to discharge Wolff. 

In employment discrimination cases, internal documents relied upon

by the employer in making an employment decision are not hearsay as that

term is defined in Fed. R. Evid. 801(c) -- statements offered to prove the

truth of the matters asserted. Rather, such documents are relevant and

admissible because they help explain (or may help explain) the employer's

conduct. See Hardie v. Cotter & Co., 849 F.2d 1097, 1101 (8th Cir. 1988);

Jones v. Los Angeles Comm. College Dist., 702 F.2d 203, 205 (9th Cir.

1983); Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1322 (11th Cir. 1982).

Thus, the district court did not abuse its discretion by admitting these

employee memoranda as business records relevant to the VA's stated reasons

for Wolff's discharge. See Crimm v. Missouri Pac. R.R., 750 F.2d 703, 709

(8th Cir. 1984).2

(b) Is a New Trial Warranted Because the Jury Saw Documents Not in

Evidence? Exhibit 2 at trial was Wolff's performance appraisal report, a

composite document containing supervisor appraisals and ratings recorded

between August 1992 and April 1993. The original of Exhibit 2 was part

3

of Wolff's permanent personnel file maintained by the VA's personnel

department. That file also contained other documents, including employee

and supervisor memoranda reciting problems they had
Though the ultimate issue is reviewed for abuse of discretion, the district court's 4

determination that Wolff was not unduly prejudiced is more in the nature of a finding

of fact. Prior cases have applied a somewhat inconsistent standard of review to the

question whether the jury's consideration of extraneous materials prejudiced a criminal

defendant. Compare United States v. Thomas, 946 F.2d 73, 76 (8th Cir. 1991) (clearly

erroneous standard), with United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.

1988) ("substantial weight" given to trial court's appraisal of prejudicial effects).

However, our decision in this case is the same under either standard of review.

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encountered working with Wolff. Witness Nancy Lauermann, a Personnel

Management Specialist who appeared as the custodian of Wolff's personnel

file, testified that supervisors often attach such memoranda to performance

appraisal reports if an employee is rated "unsuccessful" or "less than

fully successful."

At the end of the trial, counsel for Wolff asked that the original

of Exhibit 2 be furnished to the jury during its deliberations. The

district court agreed but left it to the attorneys to assemble trial

exhibits for the jury. After the jury returned its adverse verdict, Wolff

moved for a new trial because Exhibit 2 as submitted to the jury included

not only the seven pages in Wolff's Exhibit 2, but also additional pages

from his personnel file that had not been offered or received into

evidence, including seven employee memoranda critical of his job

performance. Describing the mix-up as unfortunate, the district court

nonetheless denied relief because these memoranda were cumulative and

therefore did not unduly prejudice Wolff's case. We review the district

court’s denial of a motion for new trial for abuse of discretion. See

Schultz v. McDonnell Douglas Corp., 105 F.3d 1258, 1259 (8th Cir. 1997).4

In civil cases in this circuit, "the exposure of jurors to materials

not admitted into evidence mandates a new trial only upon a showing that

the materials are prejudicial to the unsuccessful party.” Peterson by

Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir. 1990). Here,

the employee memoranda in question were identified as part of Wolff's

personnel file. Though the VA elected not to offer them, no doubt
As the district court recognized, one post-termination memorandum concerning 5

Wolff's conduct on the day he was terminated was not relevant to the decision to

discharge and was somewhat prejudicial because it disclosed that hospital security had

escorted him from the premises. However, given the evidence that Wolff had been

loud, angry, and threatening to staff on other occasions, we agree with the court that

this memorandum did not prejudice his right to a fair trial.

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because it offered other memoranda describing Wolff's day-to-day problems

with his fellow employees, the memoranda in question were genuine, and all

but one were undoubtedly admissible. Thus, they were not part of the

5

trial record and should not have been submitted to the jury, but in a

substantive sense they were not truly "extraneous material." Compare

Neville Construction Co. v. Cook Paint & Varnish Co., 671 F.2d 1107, 1112

(8th Cir. 1982). In addition, there was no jury misconduct at issue,

simply a mistake by counsel in assembling trial exhibits for review during

deliberations. Nor was the jury exposed to altered business records, as

it was in Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 486-87

(4th Cir. 1988). Finally, because the district court left it to the

parties to assemble the documents, because Wolff had insisted that the jury

be given the original of Exhibit 2, and because the testimony created some

doubt as to what comprised the complete performance appraisal report, Wolff

was primarily to blame if the document submitted to the jury was not the

original Exhibit 2 that he intended to submit. In these circumstances, the

district court did not abuse its discretion in denying Wolff's motion for

a new trial on this ground.

The judgment of the district court is affirmed.

A true copy.

 Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.