IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20028
Summary Calendar
MARTY M. ROCHA,
Plaintiff-Appellant,
versus
HARRIS COUNTY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-898
--------------------
December 19, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Marty M. Rocha, a deputy in the Harris County, Texas
Sheriff’s Department, appeals an adverse judgment in his lawsuit
alleging various types of racial and national origin discrimination
and retaliation prohibited by Title VII of the Civil Rights Act of
1964. 42 U.S.C. §§ 1981a and 2000e et seq. Finding no abuse of
discretion in the exclusion of statistical evidence at trial, we
affirm.
*
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should not be published and is not precedent except under the limited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.
Rocha contends that he was denied a promotion, wrongfully
given a low job evaluation, denied a job assignment, denied
transfers and denied the right to work extra jobs. The jury
returned a verdict in favor of Harris County and the district court
entered a take-nothing final judgment against Rocha.
Rocha’s sole argument on appeal is that the district
court, wrongfully granted Harris County’s pretrial motion in limine
concerning statistical evidence. Harris County had asked the court
to prohibit Rocha from offering as evidence the statistics
concerning the racial makeup of the Harris County Sheriff’s
Department. The evidence sought to be admitted allegedly
established that: (1) only four out of 141 detectives in the
Sheriff’s Department are Hispanic; and (2) only seven out of
approximately 180 sergeants are Hispanic.
A district court’s ruling to exclude evidence is reviewed
for abuse of discretion. See Polanco v. City of Austin, 78 F.3d
968, 981 (5th Cir. 1996). There is no abuse of discretion if the
error is harmless. Id. This court “‘will not disturb an
evidentiary ruling, albeit an erroneous one, unless it affects a
substantial right of the complaining party.’” Id. (quoting
Polythane Sys. Inc. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201,
1208 (5th Cir. 1993).
Rocha argues that the district court’s order prevented
him from submitting statistical evidence supporting his claim that
2
the county had a discriminatory motive. Harris County counters
that the statistical evidence was not relevant or probative because
its exclusion was not harmful and did not deprive Rocha of a
substantial right. Because Rocha brought his claim under a
disparate treatment theory, as opposed to disparate impact, Harris
County argues that the number of Hispanics in the workforce was of
no consequence to the question of intentional discriminatory
motive. Harris County also contends that Rocha never offered
comparative evidence that would have made such statistics
meaningful.
In a disparate treatment case, statistical evidence of an
employer’s general hiring pattern “carries less probative weight
than it does in a disparate impact case” and “rarely suffices to
rebut an employer's legitimate, nondiscriminatory rationale for its
decision[s].” LeBlanc v. Great American Insurance Co., 6 F.3d
836, 848 (1st Cir. 1993). An employer’s “overall employment
statistics will, in at least many cases, have little direct bearing
on the specific intentions of the employer . . .” Id. Although
“gross statistical disparities may be probative of discriminatory
intent, motive, or purpose,” mere evidence that a certain
percentage of employees were Hispanic is insufficient to support an
inference of discriminatory motive. See Scales v. Slater, 181 F.3d
703, 709 n.5 (5th Cir. 1999). Such statistics will be probative of
intent only “in an unusual case” where the employee alleges that
3
the discriminatory action was part of a larger pattern targeting
similar employees. See Walther v. Lone Star Gas Co., 977 F.2d 161,
162 (5th Cir. 1992). However, statistical evidence of a general
underrepresentation adds little to a disparate treatment claim.
Molthan v. Temple Univ., 778 F.2d 955, 963 (3rd Cir. 1985). The
excluded evidence has little if any probative value in determining
Harris County’s discriminatory motive. The district court did not
abuse its discretion by granting the defendant’s motion in limine.
AFFIRMED.
4