* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 17, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60476

GALA GOLDSMITH,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICES,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. CV-02-178

--------------------

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *

Appellant Gala Goldsmith brou ght a Title VII employment

discrimination ca s e against her employer, the U.S.D.A. Forest

Services (the “Service”). Goldsmith claims that, in retaliation

for an EEOC race discrimination claim that Goldsmith filed against

the service in 1996, the Service did not promote her in 2001. The

jury found for the Service and Goldsmith now appeals. She raises

two issues on appeal: 1) that the district court erred in failing

to address adequately the issue of whether the Service’s exerciseNo. 04-60476

-2-

2 476 U.S. 79 (1986).

3 987 F.2d 1102, 1108 - 09 (5th Cir. 1993). o f its peremptory challenges was pretextual and therefo re a

violation of the Equal Protection Clause under Batson v. Kentucy 2 ;

and 2) that the district court erred by excluding evidence that the

Service denied Goldsmith promotions and lateral transfers on nine

previous occasions. For the reasons stated herein, we affirm the

district court’s rulings.

I.

As to the first issue, in United States v. Seals , this Court

set forth the three-step process for Batson challenges:

First, the defendant [or any litigant] must make a prima

facie showing that the prosecution [or other party]

exercised peremptory challenges on the basis of a juror’s

cognizable racial background. Second, the burden shifts

to the prosecution [or challenged party] to articulate a

race-neutral explanation for removing the juror in

question. Finally, the trial court must determine

whether the defendant has met his burden of proving

purposeful discrimination. 3

During voir dire, both parties ha d three peremptory challenges.

Goldsmith first used two peremptory challenges to remove two white

jurors. The Service used its first peremptory challenge to remove

a white juror and its second to remove a black juror--- juror #5.

Goldsmith objected and asked the district court to require theNo. 04-60476

-3-

Service to state a nondiscriminatory reason for challenging juror

#5. The court denied the request.

Go ldsmith used her last challenge to remove another white

juror. The Service, without exhausting its single remaining

peremptory challenge, accepted the jury, whic h at that point was

all white. Goldsmith objected, arguing that the Service’s failure

to exercise its remaining peremptory challenge in combination with

its previous challenge of the only black juror seated constituted

a Batson violation. The district court ordered the Service, “to

make the record complete, provide a reason why you struck Juror

Number 5.” The Service’s counsel responded that juror #5 was

challenged because he was not paying attention to the questions and

because he was retired and had no management work experience.

Goldsmith’s attorney argued that the juror’s intelligent responses

showed that in fa ct he was paying careful attention and that the

Service’s acceptance of a retired white juror cast doubt on that as

the reason for its challenge of juror #5. Goldsmith contended that

both of the Service’s reasons were pretexts and that it had failed

to indicate a non-biased reason for the challenge. The district

court denied the Batson challenge, stating: “The court can’t find

that in this matter with only one black juror being challenged.

And further, the co urt is not in a position to really render a

quarrel with the defendant’s exercise in this instance.”

On ap peal, Goldsmith argues that the Service’s peremptory

challenge was a pretext for its purposeful discrimination againstNo. 04-60476

-4-

4 See Jon-T Chemicals, Inc. V. Freeport Chemical Co. , 704

F.2d 1412, 1417 (5th Cir. 1993) (“Absent proof of abuse an

appellate court will not disturb a district court’s evidentiary

rulings.”). black jurors on the basis of their race. We conclude, however,

that the district court did not err in finding that Goldsmith

failed to establish a pri ma facie case of purposeful

discrimination. We see no error in the district court’s finding

that Goldsmith failed to show that the Service’s exercise of a

single peremptory challenge against a bla ck juror established a

prima facie case of a Batson violation. Consequently, we need not

reach the questions of whether the district court clearly erred in

determining that the Service carried its burden of articulating a

race-neutral explanation for removing juror #5 and whether

Goldsmith failed to meet her burden of proving purposeful

discrimination.

II.

It was not an abu se of discretion for the district court to

exclude evidence of the nine previous occasions on which Goldsmith

was not promoted or laterally transferred. 4 While the evidence may

have tended to make more probable the existence of the Service’s

personal animus toward Goldsmith, Goldsmith’s proffer revealed that

the evidence lacked the ability to show that those previous denials

were based upon racially discriminatory reasons. When the district

court asked Goldsmith’s counsel what evidence she had that she had

been unlawfully discriminated against when she was denied theNo. 04-60476

-5-

5 F ED . R. E VID . 403. promo tions and transfers, counsel responded that she didn’t have

any such evidence other than the fact that she didn’t get the jobs

over a long period of time. This information elicited during

Goldsmith’s proffer showed little indication that the nine previous

job denials were based on race rather than other reasons.

Accordingly, we conclude that the district court did not abuse its

discretion in excluding this evidence. “Although relevant,

evidence may be excluded if its probative v alue is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or mi sleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence.” 5 In Goldsmith’s case, the district court reasonably

could have determined that the slight probative value of the

previous denials of her advancement was substantially outweighed by

the danger of unfair prejudice, confusion of the issues, undue

delay, and waste of time in the presentation of only marginally

relevant evidence.

For the foregoing reasons we AFFIRM the district court’s

rulings.

AFFIRMED

.