IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-50590
Summary Calendar
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OSCAR G. FAVELA,
Plaintiff-Appellant,
versus
SOUTHERN PACIFIC TRANSPORTATION
COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, El Paso
(EP-97-CV-161-H)
_________________________________________________________________
March 15, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Oscar G. Favela appeals a take-nothing judgment--based on a
jury verdict--in favor of the Southern Pacific Transportation
Company on his claim for unlawful retaliation under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. His only
argument on appeal is that the district court erred in excluding
from evidence his coworkers’ statements regarding James Smothers’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
purported prejudice against Hispanics. We find no error and we
affirm.
Favela argues that the district court erred in excluding as
hearsay his testimony that several coworkers told him to watch out
for Smothers, that Smothers was a very prejudiced individual, that
Smothers was very prejudiced against Hispanics and other
minorities, and that Smothers was out to get him. Favela contends
that these statements are not hearsay because they were not offered
to establish the truth of the matter asserted, but to show his
state of mind when he filed his July 27, 1995 charge of national
origin discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Favela therefore argues that the statements
were relevant and material, as they were necessary to establish an
essential element of his retaliation claim--that he had filed a
good faith charge of natural origin discrimination with the EEOC in
1995.
We review a district court’s exclusion of evidence under the
deferential abuse of discretion standard. Kelly v. Boeing
Petroleum Services, Inc., 61 F.3d 350, 356 (5th Cir.
1995)(citations omitted). Even an erroneous evidentiary ruling by
the district court is insufficient to constitute reversible error,
unless we find that the ruling has affected the complaining party’s
substantial rights. Id. at 361. If, after a review of the record,
we are sure that the error did not influence the jury or had but a
very slight effect on its verdict, then it cannot be said that a
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party’s substantial rights have been affected. Id. (citing EEOC.
v. Manville Sales Co., 27 F.3d 1089, 1094 (5th Cir.), cert. denied,
513 U.S. 1190 (1995)).
As a threshold matter, we note that although it is true, as
Favela argues, that an employee must demonstrate that he had “at
least a ‘reasonable belief’ that the [employment] practices he
opposed were unlawful,” this showing only assists the plaintiff in
establishing the first element in a prima facie case of
retaliation–-that he engaged in protected activity. Sherrod v.
American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); Long
v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996)(citations
omitted). To be sure, the ultimate issue for the jury in a case of
unlawful retaliation is simply whether the employee’s statutorily
protected activity was the “but for” cause of the adverse
employment action. Long, 88 F.3d at 304-05 n.4 (citing McDaniel v.
Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985)). It
is this latter point upon which we focus in order to resolve the
evidentiary issue put before us today.
After a careful review of the record, and a close study of the
parties’s briefs, we are left with the definite and firm conclusion
that even if we assume that the district court erred in excluding
Favela’s proffered evidence, this error had no effect on Favela’s
substantial rights, so as to warrant reversal of the jury verdict
in the favor of Southern Pacific. Although we have previously held
that the exclusion of evidence probative of discrimination can
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taint a jury’s verdict, the record in the instant matter
demonstrates that this is not such a case.
On the issue of “but for” causation, Favela’s theory of the
case at trial was that Smothers orchestrated his termination in
retaliation for the 1995 EEOC claim that he filed against Smothers
and Southern Pacific, and that Smother’s retaliatory intent should
be imputed to Michael L. Riley, the Southern Pacific plant manager
who made the decision to terminate Favela for insubordination. See
Sherrod, 132 F.3d at 1122; Long, 88 F.3d at 307. The gist of
Favela’s case was that Riley conducted no independent investigation
of insubordination charges against him, but merely “rubber stamped”
Smothers’s retaliatory decision to discharge him. See Id. To
support his position, Favela presented evidence that Smothers was
the true draftsman of the July 18, 1996 action letter that charged
him with insubordination, notwithstanding that the document was
signed by Keith Lancaster, Favela’s supervisor. Favela further
testified that Smothers told him that he knew about the 1995 EEOC
charge, that he (Smothers) had fired Favela previously, and that he
would fire him again. Finally, based on the fact that the phrase
“one shred of probative evidence” appeared in both his termination
letter and in an employee disciplinary letter, which was previously
drafted by Smothers, Favela attempted to establish that Smothers
had also written his discharge letter, which was signed by Riley.
Proceeding solely on this “imputation” theory at trial, Favela
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offered no proof that Riley, the decision-maker, intended to
retaliate against him because of his 1995 EEOC charge.
Southern Pacific, however, offered a legitimate, non-
retaliatory reason for Favela’s termination–-insubordination. On
July 18, 1996, Southern Pacific charged Favela with insubordination
because he failed to take a “return to work” physical examination
as Lancaster instructed on July 10, 1996, which also included drug
and alcohol testing. There is no dispute that the physical was
required of all Southern Pacific employees who, similar to Favela,
had been absent from work for thirty days or more. Riley testified
that after a formal investigative hearing was held on the
insubordination charges on August 18, 1996, Smothers asked him to
issue a ruling in the case. Riley testified that in accordance
with Southern Pacific policy, he reviewed the transcript of the
hearing, and ultimately decided that Favela should be terminated--
there was essentially no dispute that Favela failed to submit to a
uniform drug and alcohol test when instructed to do so. Riley
further testified that Smothers never told him that he wanted
Favela discharged, that Smothers never pressured him to terminate
Favela, and that, in any event, Smothers was not in a position to
exert such influence over him. Riley also testified that he, not
Smothers, had drafted Favela’s termination letter. Regarding the
similarities in Favela’s discharge letter and the disciplinary
letter previously written by Smothers, Riley explained that
Southern Pacific dismissal letters were standard form letters, and
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that he had been using the phrase “one shred of probative evidence”
as early as 1993, and even in 1994. Finally, on the issue of
Favela’s 1995 EEOC charge, Riley testified that he was aware of
Favela’s statement in the transcript that he had filed the claim.
Riley explained, however, that when he made the decision to
terminate Favela, he knew nothing about the EEOC complaint,
including whether it had been actually filed as Favela alleged.
The record clearly demonstrates that there were, as to be
expected, two sides to this retaliation case. The jury heard the
competing versions, and in concluding that Favela had not been
terminated in retaliation for filing the 1995 EEOC charge, the jury
chose to believe Southern Pacific’s view of the evidence. This
credibility determination was within the province of the jury to
make, and it is one which we are compelled to accept. See Polanco
v. City of Austin, Texas, 78 F.3d 968, 980 (5th Cir. 1996). In the
light of this record, which contains no evidence from which
reasonable and fair-minded persons could conclude that Smothers’s
retaliatory intent should be imputed to Riley, so as to establish
the necessary causal link between Favela’s EEOC complaint and his
subsequent termination, the district court’s exclusion of the
coworkers’ statements regarding Smothers’s purported anti-Hispanic
bias--which was not offered for the truth of the assertions--could
have hardly affected the jury’s verdict. Even if the coworkers’
statements would have convinced the jury of Favela’s state of mind
when he filed the EEOC charges, this evidence nonetheless would not
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have been probative of retaliation in Riley’s decision to terminate
Favela. See Nichols v. Loral Vought Systems, Co., 81 F.3d 38, 41-
42 (5th Cir. 1996). As the record makes clear, the coworkers’
comments were solely about Smothers, whose discriminatory animus
could not reasonably be imputed to the relevant decision-maker,
Riley. This is especially true, where at trial, Favela failed to
rebut Riley’s assertions that Smothers never urged him to discharge
Favela, and that when he terminated Favela he was unaware that
Favela had actually filed an EEOC against Southern Pacific.
In sum, the jury verdict was not tainted, nor were Favela’s
substantive rights affected by the exclusion of evidence that did
nothing to inform the ultimate issue before the trier of fact--
whether Favela’s 1995 EEOC charge was the “but for” cause of his
termination. We therefore conclude that the district court did not
err in excluding Favela’s proffered evidence. The judgment of the
district court is hereby
A F F I R M E D.
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