*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50590

Summary Calendar

_____________________

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
2

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
3

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
4

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
5

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, nonretaliatory 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
6

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
7

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.