                        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 DANIEL M. FRIEDMAN, United States Circuit Judge for
      the Federal Circuit, sitting by designation.
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 court1 denied Wolff's motion
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,




      1
       The HONORABLE TERRY I. ADELMAN, United States Magistrate Judge for
the Eastern District of Missouri, who tried the case with the consent of the parties
under 28 U.S.C. § 636(c).

                                        -2-
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.




                                    -3-
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




                                    -4-
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




                                    -5-
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 1993.3 The original of Exhibit 2 was part
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




      2
        Wolff argues that three of the memoranda should have been excluded as
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.
      3
       The record on appeal does not contain a copy of Exhibit 2 as offered by Wolff,
so we are left to reconstruct its contents from the trial testimony.

                                         -6-
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




      4
        Though the ultimate issue is reviewed for abuse of discretion, the district court's
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.

                                           -7-
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.5 Thus, they were not part of the
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.




      5
       As the district court recognized, one post-termination memorandum concerning
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.

                                         -8-
