                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 September 28, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-60548




BRADFORD C. MAILLY,

                                      Plaintiff-Appellant,

versus


PARK PLACE ENTERTAINMENT CORP, doing business as Grand Casino
Tunica; BL DEVELOPMENT CORP,

                                      Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                      USDC No. 2:01-CV-194
                      --------------------

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant, Bradford Mailly (“Mailly”), appeals the

district court’s grant of Defendant-Appellee’s motion for

judgment as a matter of law on his 42 U.S.C. § 1981 race

discrimination in employment claim.    Mailly also appeals an

evidentiary ruling at trial below that excluded testimony

relevant to his Title VII retaliation claim.    The jury found



     *
          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that this opinion should not be published and is not precedent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.
against Mailly on that claim.1

     Mailly asserts that judgment as a matter of law was

wrongfully granted because he presented sufficient evidence for a

reasonable jury to find that racial discrimination was a

motivating factor in the decision to fire him.   Specifically,

Mailly argues that he presented sufficient evidence for a jury to

find either (i) that the legitimate, non-discriminatory reason

proffered by the Defendant, Park Place Entertainment (“PPE”), was

mere pretext or (ii) that, in addition to PPE’s proffered reason,

racial discrimination was a motivating factor under a “mixed

motive” analysis.    Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133 (2000);    Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003).

     Having reviewed the record, and after hearing oral

arguments, we find no error which would require setting aside the

judgment of the district court.

     With respect to Mailly’s appeal of the district court’s

grant of judgment as a matter of law, we review the district

court’s ruling de novo, making all reasonable inferences in favor

of Mailly, the non-moving party.    See Hidden Oaks Ltd. v. City of

Austin, 138 F.3d 1036, 1042 (5th Cir. 1998).   Having done so, we

conclude that he did not raise a fact issue on pretext.    With



     1
       At oral argument, Appellant abandoned his third point of
appeal: his contention that the district court erred in admitting
Mailly’s EEOC file into evidence. Accordingly, it is not
addressed here.
respect to Mailly’s mixed motive theory, Mailly never raised such

a theory before the district court.    Instead, he makes the

argument for the first time on appeal.    Accordingly, we find that

Mailly waived his mixed motive claim.    Nevertheless, we have

reviewed his argument and, were it not waived, we would easily

conclude that he did not raise a fact issue on a mixed motive

theory.

     With respect to Mailly’s appeal of the district court’s

evidentiary ruling, we find no error in the trial court’s ruling.

We review evidentiary rulings under an abuse of discretion

standard.    Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir.

1998).    The evidence in question comes exclusively from a

settlement conference and thus falls squarely within the

protection granted by Rule 408 of the Federal Rules of Evidence.

Fed. R. Evid. 408.    Therefore, the district court did not abuse

its discretion by excluding the evidence.

     For the foregoing reasons, the opinion of the district court

is in all ways AFFIRMED.
