## The HONORABLE DANIEL M. FRIEDMAN, United S tates 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 ma le, as a licensed practical nurse at the Jefferson Barrack s Medical Center in St. Louis. Assigned to an evening shift in a psychiatri c unit, Wolff could not get along with the other n urses, many if not most of whom were African-American females. His

## The HONORABLE TERRY I. ADELMAN, United States Magistrate Judg e for 1 

## the Easter n District of Missouri, who tried the case with the consent of the partie s under 28 U.S.C. § 636(c).
-2- conduct triggered many written complaints by co- workers and some patients. In lat e November, the head nurse evaluated Wolff's performance a s unacceptable. In mid-December, the hospital transferred him to a day shif t bec ause of his "communication deficiencies." He was discharged in Jun e 1993, pri or to the end of his one-year term as a probationary employee

. Wolff th en commenced this action, asserting claims of race and se x discrimination and violations of the Equal Pay Act. The jury returned a verdict infavor of the VA, and the district court denied Wolff's motion 1 for a new trial. Wolff appeals, asserting instruction and evidentiar y errors. We affirm.

1. Instruction Issues. Wolff argues that the district cour t committed plain error by giving a mixed motive instruction regarding his sex discrimination cl aim. This issue has its roots in § 107 of the Civil Rights Act of 1991, which partially overruled Pr ice Waterhouse v. Hopkins , 490 U.S. 228 (1989). In Price Waterhouse , the Supreme Court held that , whe n a disparate treatment plaintiff has proved that a forbidden facto r such as gender was a motivating factor in the adverse employment action, "an employer shall no t be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision . . . ." I d. at 242 (emphasis added). In the 1991 Act, Congress amended th e statute so as to prov ide "that proof that an employer would have made the
same e mployment decision in the absence of discriminatory reasons i s relevan t to determine not the liability for discriminatory employmen t practices, but only t he appropriate remedy ." H.R. Rep. No. 102-40(I), at 48 (1991), reprinted in1991 U.S.C.C.A.N. 549, 5 86. Congress accomplished this change by adding two new sections to Title VII:

Except as otherwise provided in this subchapter, an unlawfu l employment practice is established when the complaining party demonstrates that race,

## -3-

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 unde r section 2000e-2(m) of th is title and a respondent demonstrates that th e respondent would have taken the same action in th e absence of the impermissible motivating factor, the court -- (I) may grant declaratory r elief, injunctive relief (except as provided in clau se (ii)), and attorney’s fees and costs demonstrated to be directl y att ributable only to the pursuit of a claim unde r section 2000e-2(m) of this title; and (ii) shall not award damages or issue an orde r requiring any admission, reinstatement, hiring , prom otion, or payment, described in subparagrap h (A). 42 U.S.C. § 2000e-5(g)(2)(B).

Two of the district court's instructions implemented these 199 1 amendm ents. The court's first instruction explained Wolff's burden t o prove unlawful discrimination under § 2000e-2(m):

Your verdict must be for the Plaintiff . . . o n Plaint iff's sex discrimination claim if all the followin g elements have been proved by a preponderance of the evidence: first, Defendant dischar ged 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 prep onderance of the evidence, your verdict must be for the Defendant and yo u need not proceed further in considering this claim.

## -4-

That instruction is c onsistent with our recent decision that the district court " must tell the jury to resolve the ultimate issue of intentiona l discrimination [but] is not 'constrained to' instruct how discrimination
can b e proved." Ryther v. KARE 11 , 108 F.3d 832, 849-50 (8th Cir.) (e n 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 giv e what Wolff now describes as a plainly erroneous mixed motive instruction:

If you find in favor of Plaintiff on his sex discriminatio n cla im, then you must answer the following question in th e Verdict Form: "Has it been proved by the preponderance of the evi dence that Defendant would have discharged Plaintif f regardless of his sex?"
Because Wolff only sought damages for wrongful d ischarge, this instruction is consistent with th e 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 it s 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 d iscriminated on account of gender. We agree that both Price Waterhouse andthe new statute expressly place this burden on the employer. But the instruction in this case was
mer elyambiguous 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) (pl ain error occurs only when an instruction "produced a miscarriage o f 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

## -5-

employment discrimination case, a business judgment instruction is 'crucia l 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 distric t court did not abuse its discretion by giving this instruction.

2. Evidentiary Issues. Wolff raises two issues regarding variou s internal VA documents that the jury considered. Both issues involve the
same type of document -- memoranda written by other VA employees an d supe rvisors describing specific instances of Wolff’s misconduct or hi s 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 distric t court i mproperly admitted seven employee memoranda under the busines s records exception to the hearsay rule. See Fed. R. Evid. 803(6). Th e documents were prepared either on VA "Memorandum" letterhead, or on V A 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 wh o 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, 127 7 (8th Cir. 1994), cert. denied , 514 U.S. 1017 (1995).

The district court denied Wolff's pretrial motion in limine t o exclude all such documents. When the issue first arose at trial, the cour t ruled tha t, if the VA laid an adequate foundation that a particula r emp loyee memorandum was prepared in the regular course of business, th e document would be admitted as a business record unless it containe d "otherwise improper hearsay or prejudicial matters or untrustworth y matters." Thereafter, the VA presented testimony that its employees and superv isors were required to prepare Reports of Contact and simila r memoranda regarding notable employee conduct. This testimony satisfied th e district court that these documents are

## Wolff argues that three of the memoranda should have been excluded a s 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 privat e counseling for personal problems. The district court admitted thes e 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.
-6- legitimate business records. In addition, the V A 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 e mployment discrimination cases, internal documents relied upo n bythe employer in making an employment decision are not hearsay as that term is defined in Fed. R. Evid. 801(c) -- statements offered to prove th e truth of the matters asserted. Rather, such documents are relevant an d admissible because th ey help explain (or may help explain) the employer's conduct. See Hardie v. Cotter & Co. , 849 F.2d 1 097, 1101 (8th Cir. 1988); Jon es 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 Pa c. 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 betw een August 1992 and April 1993. The original of Exhibit 2 was par t 3 of Wol ff's permanent personnel file maintained by the VA's personne l department. That fil e 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 

## deter mination 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 th e 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

. 198 8) ("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.
-7- encoun tered working with Wolff. Witness Nancy Lauermann, a Personne l Management Specialist who appeared as the custodian of Wolff's personnel file, testified that supervisors often attach such memoranda to performanc e appraisal reports if an employee is rated "unsuccessful" or "less tha n fully successful."

At the end of the trial, counsel for Wolff asked that the origina l of Exh ibit 2 be furnished to the jury during its deliberations. Th e dist rict court agreed but left it to the attorneys to assemble tria l 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 fro mhis personnel file that had not been offered or received int o eviden ce, including seven employee memoranda critical of his jo b perfor mance. Describing the mix-up as unfortunate, the district cour t nonethe less denied relief because these memoranda were cumulative an d 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. Se e 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 b y Peterson v. General Motors Corp. , 904 F.2d 436, 440 (8th Cir. 1990). Here , the emp loyee 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 po st-termination memorandum concerning 5 

## Wolff's c onduct on the day he was terminated was not relevant to the decision t o discharge and was somewhat prejudicial because it disclosed that hospital security had escortedhim from the premises. However, given the evidence that Wolff had bee n 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.
-8- because it offered ot her memoranda describing Wolff's day-to-day problems with his fellow employees, the memoranda in ques tion were genuine, and all but one wer e undoubtedly admissible. Thus, they were not part of th e 5 trial rec ord and should not have been submitted to the jury, but in a substa ntive sense they were not truly "extraneous material." Compar e Neville Construction Co. v. Cook Paint & Varnish Co. , 671 F.2d 1107, 1112 (8t h 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 C ir. 1988). Finally, because the district court left it to th e parties to assemble the documents, because Wolff had insisted that the jur y be given the original of Exhibit 2, and because the testimony created some doubt as to what comprised the complete performance appraisal report, Wolf f
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, th e district court did no t 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.