Walden v. Georgia-Pacific Corp., GEORGIA-PACIFIC

• Citation: 126 F.3d 506
• Decision Date: 26 September 1997
• Docket Number: GEORGIA-PACIFIC,No. 96-7045,96-7045
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1761, 47 Fed. R. Evid. Serv. 1158 Linda S. WALDEN; James P. Murphy; George C. Poirier, Appellants, v.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.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 506

126 F.3d 506

74 Fair Empl.Prac.Cas. (BNA) 1761,

47 Fed. R. Evid. Serv. 1158

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.

No. 96-7045.

United States Court of Appeals Third Circuit.

Argued June 5, 1997.

Decided Sept. 26, 1997. ^*

Dennis K. Kuroishi (Argued), Mt. Ephraim, NJ, for Appellants.

Kevin M. Ingham, R. Steve Ensor (Argued), Alston & Bird, Atlanta, GA, David H. Williams, Morris, James, Hitchens & Williams, Wilmington, DE, for Appellees.

Before: BECKER, SCIRICA, Circuit Judges, and KELLY, District Judge. ^**

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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Second, while we believe that the district court erred in excluding certain evidence of retaliatory animus, we do not believe 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 woman, Phyllis Estepp. In October 1990, Crothers filed an EEOC charge alleging unlawful age and sex discrimination. He named the three plaintiffs as witnesses to his job performance during his employment with Georgia-Pacific.

On May 7, 1991, all three plaintiffs met with an EEOC investigator concerning Crothers' charge. They testified at trial that, despite Wunsch's request that they mislead the EEOC investigator about Crothers' performance and make statements favorable to the company, they made truthful statements to the investigator. On May 14, 1991, Wunsch informed the plaintiffs that Estepp was to be replaced by OSS Security, an outside security agency that would provide weekend security at the plant. The plaintiffs offered to give up their overtime on weekends to keep all four guards employed, but Wunsch refused their offer. Estepp was soon fired, and OSS began to provide the weekend security services. Estepp filed discrimination charges with the EEOC, claiming that she was unlawfully discharged on the basis of her sex.

In July 1991, Wunsch established a mandatory rotation for the plaintiffs' shifts and directed them not to swap their assigned hours. Prior to this change, the plaintiffs had worked out their own rotations, which permitted them to take account of family and personal obligations. Because of these changes in their working conditions, the plaintiffs filed their own charges with the EEOC in August 1991.

In October 1991, the plaintiffs invoked the company's "open door" policy, sending a letter outlining their complaints to Donald Glass, the Senior Vice President of the division, which was based in Atlanta. Glass forwarded the letter to Michael Vidan, the division's Vice President. In November 1991, Vidan wrote to the plaintiffs, informing them that James Hurd, the division's Corporate Personnel and Labor Relations Manager, would investigate their complaints and get back to them. The plaintiffs never heard anything further on the subject. Walden testified that she approached several plant officials about the plaintiffs' complaints over the next couple of months, but they refused to speak to her about them, informing her that they had been directed to stay out of the dispute. In February 1992, Hurd arrived from Atlanta and fired the plaintiffs.

The plaintiffs filed retaliation charges with the EEOC, contending that they had been wrongfully terminated for protected activity in violation of Title VII, 42 U.S.C. § 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 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. § 1331, and we have appellate jurisdiction over its final order under 28 U.S.C. § 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). ⁴ In a mixed motives case, the evidence put forth by the plaintiff is so revealing of retaliatory animus that it is unnecessary to rely on the McDonnell Douglas /Burdine burden-shifting framework, under which the burden of proof remains with the plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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 ...