                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2315
                                    ___________

Karen Harris,                          *
                                       *
           Plaintiff – Appellant,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Western District of Missouri.
Dinesh Chand,                          *
ADT Security Services,                 *
                                       *
           Defendants – Appellees.     *
                                  ___________

                              Submitted: March 14, 2007
                                 Filed: November 13, 2007
                                  ___________

Before MELLOY, SMITH, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

       Karen G. Harris, an African-American, sued ADT Security Services, Inc.,
for race discrimination and retaliation in violation of Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e. The jury returned a verdict for ADT. Harris appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                           I.

     ADT hired Harris as a Customer Service Specialist in 1997, promoting her to
Team Manager the next year. Harris was responsible to coach her team members and
provide one standard evaluation and three quality assurance (QA) evaluations each
month. In January 2001, Harris began reporting to Unit Manager, Dinesh Chand.
Harris kept a notebook of Chand’s comments she considered offensive, such as
calling her “girlfriend,” and telling her she was wearing a “ghetto outfit.” Harris also
notified ADT’s human resources specialist of her complaints.

       In March 2002, Chand determined Harris had failed to deliver monthly reviews
to team members. Harris and Chand met to discuss her performance. The next day,
Harris began leave under the Family Medical Leave Act. During the leave, ADT
temporarily assigned another manager to Harris’s team. The new manager found that
Harris had team members’ confidential QA passcodes, and entered evaluations in the
computer system for absent members, in violation of company policy. ADT required
employees to be present during evaluations and enter their QA codes as verification.

       Returning to work, Harris met with Chand and M. Jane Wenk, ADT’s Human
Resources Manager. Harris told them her team members gave her their QA codes and
that she reviewed their evaluations over the phone. ADT concluded that Harris was
not being honest and falsified company documents. ADT terminated her.

       Harris sued, alleging race discrimination and retaliation. The district court1
entered judgment for ADT on all counts. Harris claims the district court erred in (1)
allowing the use of after-acquired evidence, (2) excluding evidence of similarly
situated incidents, and (3) restricting the presentation of her case.




      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                          -2-
                                          II.

      No error in either the admission or the exclusion of evidence and no
      error or defect in any ruling or order or in anything done or omitted by
      the court . . . is ground for granting a new trial or for setting aside a
      verdict . . . unless refusal to take such action appears to the court
      inconsistent with substantial justice. The court at every stage of the
      proceeding must disregard any error or defect in the proceeding which
      does not affect the substantial rights of the parties.

McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1100 (8th Cir. 2005), quoting
Fed R. Civ. P. 61.

                                         A.

      Harris first contends that the district court erred in allowing ADT to use after-
acquired evidence to prove liability, and in prohibiting her questions to an ADT
employee about a previous misrepresentation on Harris’s application.

       During discovery, ADT learned that Harris listed college degrees in her
employment and promotion applications, when she had none. ADT also discovered
that Harris provided a false explanation of an (initially undisclosed) welfare-fraud
conviction. ADT tried to introduce evidence of both misrepresentations as after-
acquired evidence on the issue of damages. The district court allowed evidence of the
educational misrepresentation but excluded evidence of the criminal conviction,
finding “the prejudicial effect of that testimony substantially outweighs any probative
value it may have.”

       This district court has wide discretion in admitting and excluding evidence –
reviewed for abuse of discretion – and will not be reversed absent a showing that the
ruling had a substantial influence on the jury’s verdict. McPheeters, 427 F.3d at
1101; see also United States v. Pirani, 406 F.3d 543, 555 (8th Cir.) (en banc) (a

                                          -3-
district court’s evidentiary rulings are reviewed for a clear abuse of discretion)2, cert.
denied 546 U.S. 909 (2005). Once an employer learns about wrongdoing that would
lead to termination, this court does not "require the employer to ignore the
information, even if it is acquired during the course of discovery in a suit against the
employer and even if the information might have gone undiscovered absent the suit."
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362 (1995). However, the
employer must establish that the wrongdoing “was of such severity” that the employee
would have been terminated on those grounds alone. Id. at 362-63; Sellers v. Mineta,
358 F.3d 1058, 1064 (8th Cir. 2004).

       ADT’s human resource specialist testified that ADT’s policy is to terminate
individuals who falsify employment applications, and that two people were terminated
during the relevant time period for making educational misrepresentations. Although
Harris argues that ADT did not meet its burden of proof, she did not question the
sufficiency of ADT’s evidence at trial. The district court did not abuse its discretion
in allowing ADT to present after-acquired evidence, as ADT proved both policy and
practice.

       According to Harris, the district court erroneously allowed evidence of her
misrepresentations in order to determine liability. Pretrial, the district court stated,
“As a preliminary proposition it is my intention to admit after acquired evidence on
the issue of liability.” However, at trial, the court instructed the jury that evidence that
Harris misrepresented her level of education and managerial experience “is admissible
only on the issue of damages and is not to be considered on the issue of liability.”
Contrary to Harris’s assertion, the district court limited the use of after-acquired
evidence to the issue of damages. See McKennon, 513 U.S. at 360-63.


       2
         Harris cites the Blue Bird case for the standard of review. “Pirani’s holding
on this issue implicitly overruled our holding in United States v. Blue Bird, 372 F.3d
989, 991 (8th Cir. 2004), that we review de novo a district court’s admission of
evidence.” United States v. Chase, 451 F.3d 474, 479 n. 3 (8th Cir. 2006).
                                            -4-
        Harris admits she misrepresented her education, but claims ADT’s failure to
terminate her after discovering her welfare-fraud conviction is proof it would not have
fired her for the educational misrepresentation. Although Harris argued in her trial
brief that evidence of the welfare fraud conviction should be excluded, she now claims
this exclusion destroyed her opportunity to show that ADT would not have fired her
for the other misrepresentation.

       A district court’s exclusion of evidence is reviewed for an abuse of discretion.
Elmahdi v. Marriot Hotel Services, Inc., 339 F.3d 645, 653 (8th Cir. 2003). A
district court abuses its discretion if “evidence of a critical nature is excluded and
there is ‘no reasonable assurance that the jury would have reached the same
conclusion had the evidence been admitted.’” Id., quoting Adams v. Fuqua Indus.,
Inc., 820 F.2d 271, 273 (8th Cir. 1987). Here, Harris argued at trial that the prior
misrepresentation should be excluded, and the court did so finding the information
was more prejudicial than probative. The district court did not abuse its discretion.

                                            B.

       Harris asserts that the district court erred in not allowing her to present evidence
relating to a similarly situated incident, in order to establish discriminatory pretext.
The district court has “wide discretion in admitting and excluding evidence,” and its
decision will not be disturbed absent a clear abuse of discretion. McPheeters, 427
F.3d at 1101; see also Elmahdi, 339 F.3d at 653. Harris must show “(1) that the
district court abused its discretion, and (2) that the evidentiary ruling was prejudicial
to the point of producing a different verdict.” Mems v. City of St. Paul, Dep’t of Fire
& Safety Services, 327 F.3d 771, 779 (8th Cir. 2003).

      At trial, Harris sought to present evidence of two white employees (one male
and one female), contending both were sufficiently similar. ADT did not object to
testimony as to the male employee, but objected as to the female employee. The

                                            -5-
female held a different position, in a different department, with a different supervisor.
The district court sustained the objection for relevance, explaining that the “allegation
here is that Mr. Chand acted . . . in a discriminatory manner and that he retaliated
against [Harris]. What some other unit manager did to another employee in a different
situation at a different time doesn’t advance that theory.” The court further explained
that “you’ve got to show me another employee in the same situation with the same
decision maker within the same reasonable period of time.”

       Here, Harris attempted to present the evidence as to the female, first during her
case and then during ADT’s case. Harris claims that the district court erred because
the correct standard is whether the employees were “‘involved in or accused of the
same or similar conduct and were disciplined in different ways.’” See Turner v.
Gonzales, 421 F.3d 688, 695 (8th Cir. 2005), quoting Rodgers v. U.S. Bank, 417 F.3d
845, 852 (8th Cir. 2005). This is the standard for a prima facie case. See Turner, 421
F.3d at 695; Rodgers, 417 F.3d at 851. However, “[t]o be able to introduce evidence
comparing the plaintiff to other similarly situated employees in a discrimination case,
the other employees must have been ‘similarly situated to the plaintiff in all relevant
aspects.’” Kight v. Auto Zone, Inc., 494 F.3d 727, 734 (8th Cir. 2007), quoting
Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691-92 (8th Cir. 2002). “When
employees have been terminated by different decision makers, it would be rare for
them to be considered similarly situated because any difference in treatment may well
be attributable to nondiscriminatory reasons. Kight, 494 F.3d at 734. See generally
Riser v. Target Corp., 458 F.3d 817, 821 (8th Cir. 2006), cert. denied 127 S.Ct. 1382
(2007); Wells v. SCI Mgmt., L.P., 469 F.3d 697, 701 (8th Cir. 2006); Johnson v.
Univ. of Iowa, 431 F.3d 325, 330 (8th Cir. 2005); Rodgers, 417 F.3d at 851.

       Harris asserts that she and the female had the same decision maker – Wenk.
Harris proffered evidence from Wenk’s deposition that both she and Chand made the
decision to terminate Harris. In an affidavit, Wenk stated, “Chand and I determined
to terminate Harris.” However, at trial Wenk testified that although she consults with

                                           -6-
managers, she defers to their determinations and that the managers “actually make the
final decision.” Wenk was not asked at trial about the statements in her deposition
and affidavit, probably because she also stated in her deposition, “of course I always
ask the unit manager, this is not my decision to terminate people.”

      Given Wenk’s testimony that the managers “actually make the final decision,”
Harris has not shown that the court abused its wide discretion in excluding the
evidence based on a determination that there were different decision makers.

                                           C.

       Harris also argues that the district court abused its discretion in placing time
limits on her case. Six months before trial, the court set a three-day time limit –
allotting Harris two days and ADT one day. During her case in chief, Harris called
11 witnesses. At the end of the second day at 4:59 p.m., while she was directing
questions to her last witness, the district court told Harris that her time was up. Harris
asserts she was restricted in questioning her last witness and was not able to call
Wenk, Chand, and three other ADT employees due to the time limit.

       “Trial courts are permitted to impose reasonable time limits on the presentation
of evidence to prevent undue delay, waste of time, or needless presentation of
cumulative evidence.” Life Plus Int’l v. Brown, 317 F.3d 799, 807 (8th Cir. 2003);
see also Johnson v. Ashby, 808 F.2d 676, 678 (8th Cir. 1987) (a judge “not only may
but must exercise strict control over the length of trials”). Trial management decisions
are within the court’s discretion and are reversed only for an abuse of discretion. Life
Plus, 317 F.3d at 807; see also United States v. American Horse, 671 F.2d 286, 289
(8th Cir. 1982) (length of direct and cross examination is a determination within the
court’s discretion). Abuse may occur when a court excludes “probative, non-
cumulative evidence simply because its introduction will cause delay.” Life Plus, 317
F.3d at 807, quoting Johnson, 808 F.2d at 678. Time limits formulated before trial

                                           -7-
must be “sufficiently flexible to accommodate adjustment if it appears during trial that
the court’s initial assessment was too restrictive.” Id. When there is an objection to
the exclusion of evidence as a result of time limits, the record must show a proper
basis or explanation by the district court for the exclusion. See First Nat’l Bank and
Trust Co. v. Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991). To preserve this
issue for appeal, Harris must have timely objected and made an offer of proof of the
evidence excluded by the time limits. See Life Plus, 317 F.3d at 807. If no offer of
proof was made at trial, this court may review for plain error. See Hollingsworth, 931
F.2d at 1305.

        When Harris called her final witness at the end of the second day of trial, she
said she had only 5 questions for the witness. The court stated she had two minutes
for direct; she responded “Got it.” Harris initially attempted to read 5 questions and
answers from the witness’s deposition into the record, but the court correctly denied
the request because the witness was present in court. After Harris asked 13 questions,
the court indicated that her time was up. Harris’s response was “Thank you.” She
made no objection or offer of proof. On the third day of trial, Harris (apparently)
cross-examined that same witness when ADT called him in its case. According to the
partial transcript, Harris never made an offer of proof as to her final witness.

       Earlier on the second day of trial, Harris “affirmatively move[ed] to withdraw”
one of the three other ADT employees as a witness. As to this witness, Harris waived
any claim regarding the time limit. Harris made no offer of proof as to the other two
ADT employees, and in fact, never even mentioned them at trial (according to the
partial transcript provided). It is Harris’s burden to make an offer of proof as to the
probative value of the witness’s testimony. See Fed. R. Evid. 103(a). The record at
trial does not show that the testimony of the three ADT employees has any probative
value.3

      3
       The declaration the dissent cites (to prove the probative value of one
employee’s testimony) was filed a year before trial and was never mentioned during
                                          -8-
       Since Harris made no offer of proof as to her final witness and the two (non-
withdrawn) ADT employees, we review for plain error. See Williams v. Wal-Mart
Stores, 922 F.2d 1357, 1360 (8th Cir. 1990). “Plain-error review permits reversal
only if the error ‘was so prejudicial as to have affected substantial rights resulting in
a miscarriage of justice.’” United States v. Urkevich, 408 F.3d 1031, 1036 (8th Cir.
2005), quoting United States v. Griffith, 301 F.3d 880, 883 (8th Cir. 2002).

       Harris called 11 witnesses over two days. At the end of the defendant’s case,
there was an hour and a half of time remaining. When the court asked Harris if she
wished to call witnesses in rebuttal, she did not call a single witness, but simply stated
she would “ask the record to reflect my continuing objections.” As Harris never
objected to the time limit interrupting her final witness, and never attempted to call
the other two ADT employees, the district court “certainly committed no plain error
by not admitting [the evidence] sua sponte.” See United States v. Lewis, 436 F.3d


the trial. Contrary to the dissent’s implication, the district court did not disallow an
offer of proof. The quotations in the dissent all relate to Wenk, Chand, and punitive
damages, not to the final witness or the other three ADT employees. Harris was
allowed to speak multiple times about her objections as to Wenk, Chad, and punitive
damages. In fact, the quotations in the dissent are part of an objection by Harris that
proceeds for three full pages of transcript, without mentioning any witness besides
Wenk and Chand.

       According to the dissent, the district court should have “held an evidentiary
hearing, or given some indication that [the three ADT employees] testimony would
have impermissibly lengthened the trial.” The dissent bases this conclusion on
Hollingsworth, 931 F.2d 1295. Hollingsworth, however, held only that it was clear
error for the district court, without explanation, to prohibit the defendant from
testifying, remanding for a hearing to determine whether the testimony had any
probative value. Here, the district court could not have held an evidentiary hearing,
or given an indication that the three witnesses’ testimony would impermissibly
lengthen the case, because Harris did not make the district court aware, at trial, that
she wanted to call them.

                                           -9-
939, 944 (8th Cir. 2006), cert. denied 127 S.Ct. 3042 (2007); Life Plus, 317 F.3d at
807 (finding no abuse of discretion where plaintiff did not make an offer of proof
concerning what evidence it was forced to forego due to time limits).

       Harris did make an offer of proof as to Wenk and Chand, but only in regard to
punitive damages. On the morning of the second day of trial, Harris agreed that she
would examine Wenk and Chand on cross when ADT called them as witnesses, rather
than in her case-in-chief.4 When ADT moved for judgment as a matter of law at the
close of Harris’s case, Harris told the district court she had submitted sufficient
evidence to survive the motion. She made no objections at that time. The district
court denied the motion as to the race discrimination and retaliation claims, but
granted the motion as to punitive damages. Harris objected to the denial of the
punitive damages claim, stating that she did not have enough time to call Wenk. The
following morning, Harris again argued she needed time to call Wenk and Chand.
Harris stated she “want[ed] to make a record on a couple of items, specifically limiting
[the trial] to two days and particularly the ruling as a matter of law and denial of
punitive damages.” She proceeded (for three pages of transcript) to discuss how the
testimony of Wenk and Chand would have assisted her punitive damages claim.

     The district court then reconsidered the timing issue and determined that the
amount given was sufficient:

             The time limitations imposed in this case, [counsel,] were
             imposed exercising my judgment after ten years as a trial
             judge and 35 years of practicing law. That when you strip
             away everything else, this case is a garden variety race
             discrimination case which should be tried in 3 or 4 days.


      4
        There was some confusion whether ADT planned for Wenk and Chand to be
present in court during Harris’s case-in-chief. When they were not present (Harris had
not subpoenaed them), Harris agreed to examine them on cross, stating, “regardless
of who’s calling them, they’re still going to be called.”
                                          -10-
             We spent a lot of time in the plaintiff’s case talking about
             issues that I thought were really not germane to the core
             issues. And had there been a little more focus, I think that
             all the evidence necessary to fairly present the claim could
             have and should have been presented in two days.

Harris requested the opportunity to call Wenk and Chand in rebuttal if ADT did not
call them in its case. The court responded that ADT would call them. The court left
open the option to reconsider the issue of punitive damages at the close of all the
evidence. Harris examined Wenk and Chand on cross-examination. During her
examination of Wenk, Harris elicited testimony about QA training, ADT’s discipline
policies and procedures, the (not-terminated) male manager who had his team
members’ QA codes, and Wenk’s assertion that she defers to management in
employment decisions. In sum, Harris’s cross-examination consumed about three-
fourths of Wenk’s testimony, lasting over an hour.5 Harris did not call Wenk or
Chand in rebuttal.

       Because Harris made an offer of proof as to Wenk and Chand on the issue of
punitive damages, this court will review the time limit for an abuse of discretion as to
those witnesses. This court disapproves rigid time requirements. See Life Plus, 317
F.3d at 807 (reemphasizing “disapproval of rigid hourly time constraints at trial”).
The district court here, however, did not abuse its discretion as to Wenk and Chand.
Harris has failed to show that the limits affected a substantial right. She was able to
examine or cross-examine every witness on her list (except the two ADT employees
whom she did not mention at trial). Harris’s only claim as to Wenk and Chand was
that their testimony in her case-in-chief was necessary for her punitive damages claim.
The district court, however, allowed for the issue of punitive damages to be
reconsidered at the end of all the evidence – after Wenk and Chand testified – rather
than at the end of Harris’s case-in-chief. The district court did not exclude probative,


      5
      The partial trial transcript submitted on appeal does not indicate the length of
Chand’s testimony on cross-examination.
                                          -11-
non-cumulative evidence of which it was made aware. The record shows a proper
basis for, and a sufficient explanation of, the reasons for the time limits. The district
court did not abuse its discretion in its administration of the time limits as to Wenk
and Chand.

                                          III.

      The judgment of the district court is affirmed.

SMITH, Circuit Judge, concurring in part and dissenting in part.

      Because I believe that the district court placed an impermissibly rigid time
constraint on the plaintiff's case, I respectfully dissent.

       As the majority notes, this court has discouraged district courts from setting the
types of rigid time constraints imposed here. Johnson v. Ashby, 808 F.2d 676, 678 (8th
Cir. 1987); Life Plus Intern. v. Brown, 317 F.3d 799 (8th Cir. 2003) ("We reemphasize
our disapproval of rigid hourly time constraints at trial."). A district court may impose
time constraints to prevent undue delay, waste of time, or the needless presentation
of cumulative evidence. Id. These mischiefs, however, were absent in the instant case.
In fact, the record shows that the district court sought to expedite the case, viewing it
not as unusually time consuming but instead as rather routine. The court stated:

      The time limitations imposed in this case [] were imposed exercising my
      judgment after ten years as a trial judge and 35 years of practicing law.
      That when you strip away everything else, this case is a garden variety
      race discrimination case which should be tried in 3 or 4 days.

(Trial Transcript, P. 68).

      The district court imposed these rigid time constraints before the conclusion of

                                          -12-
discovery and six months before trial had begun. (Doc. 162).We have discouraged such
strict and apparently arbitrary time limits. In First National Bank and Trust Co. v.
Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991), where the district court sought
"to bring the trial to a rapid conclusion," we held that the district court abused its
discretion because the record suggested an improper motive and the record failed to
indicate a proper basis for the time constraint. Id. ("In the absence of some proper basis
in the record, or, more preferably, some explanation from the district court for its
blanket prohibition of the defendant's testimony, we must conclude that the district
court abused its discretion."); see also Johnson, 808 F.2d at 678 ("It may be an abuse
of the trial court's discretion to exclude probative, non-cumulative evidence simply
because its introduction will cause delay, and any time limits formulated in advance
of trial must be fashioned with this in mind."). Here, the time constraints prevented the
plaintiff from offering proof crucial to the cause of action, not mere cumulative
testimony. Therefore, I conclude that the district court abused its discretion.

      Harris preserved this issue by objecting, telling the court that "[t]he time
[constraint] has been so prejudicial that the decision maker and the actual harasser or
whatever you want to name him, were [not] presented to testify." Further, it appears
that Harris attempted to make offers of proof. "Your Honor, in addition to that I also
want to make a record on a couple of items specifically limiting it to two days . . . ."
And also, "I think that, one, it's important that I make a record that the plaintiff has not
been able to zealously advocate her position." No offer of proof appears to have been
permitted. A district court clearly errs when it refuses to allow a party to make an offer
of proof. Gray v. Lucas, 677 F.2d 1086, 1100 (5th Cir. 1982). Therefore, I believe
Harris sufficiently objected and made a reasonable effort to make an offer of proof.

      Additionally, I believe the district court's time limitations prejudiced a
substantial right. Fed. R. Evid. 103. Specifically, although Harris was able to elicit




                                           -13-
testimony from Chand and Wenk,6 the record does not show why the testimony of
Harris's three other proposed witnesses would have lacked probative value. Harris
claims that these three ADT employees would have discredited ADT's reason for her
termination— the unauthorized possession and use of confidential QA codes. In fact,
one of these witnesses' declaration states that, "There was also never any policy in
effect stating that the QA codes were confidential nor was there a policy refraining the
managers from possessing the QA codes." The jury may not have believed Harris's
witnesses but she should have been given the opportunity to present them.

         Lastly, the district court noted that prior to the forced conclusion of her case,
Harris had been inefficient and presented issues that were not germane. Assuming this
to be true, it would still not justify foreclosing three witnesses without a showing that
their presentation would have caused undue delay, wasted time, or needlessly presented
cumulative evidence. If the court had held an evidentiary hearing or given some
indication that these witnesses' testimony would have impermissibly lengthened the
trial, then the district court might have been justified in its observation. Hollingsworth,
931 F.2d 1295, 1305 (stating that the trial court should have held an evidentiary
hearing to determine the effect of the evidence excluded by its desire to bring the trial
to a quick conclusion).

      For these reasons, I dissent.
                       ______________________________




      6
      I agree with the majority that our analysis is complicated by the inexplicable
absence of a complete trial record.
                                           -14-
