                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                August 24, 2006
                         United States Court of Appeals                             Charles R. Fulbruge III
                                       for the Fifth Circuit                                Clerk
                                            _______________

                                              m 05-41162
                                            Summary Calendar
                                            _______________



                                           GERALD BARNES,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                DAVID SIMMONS; TYLER INDEPENDENT SCHOOL DISTRICT,

                                                               Defendants-Appellees.


                                     _________________________

                             Appeal from the United States District Court
                                  for the Eastern District of Texas
                                          m 6:04-CV-193
                               ______________________________


Before SMITH, GARZA, and PRADO,                                               I.
  Circuit Judges.                                          Barnes sued Tyler Independent School Dis-
                                                       trict (“TISD”) and its superintendent, David
PER CURIAM*:                                           Simmons, after Barnes was demoted from As-
                                                       sistant Superintendent to Supervisor of Trans-
   Gerald Barnes challenges the exclusion of           portation. According to TISD, Barnes’s de-
evidence from the trial of his civil rights suit.      motion was part of a district-wide plan to re-
For the following reasons, we affirm.                  structure the administration to promote effi-
                                                       ciency and reduce expenses.
   *
    Pursuant to 5th Cir. R. 47.5, the court has de-      Summary judgment whittled Barnes’s suit
termined that this opinion should not be published     down to one claim against TISD of employ-
and is not precedent except under the limited cir-     ment racial discrimination under title VII of
cumstances set forth in 5th Cir. R. 47.5.4.
the Civil Rights Act of 1964. At a pre-trial            leading the jury . . . .” FED R. EVID. 403.
hearing, the court excluded, as irrelevant, one
of Barnes’s exhibits, a copy of the standing                Barnes contends that the 1970 order was
1970 federal desegregation order issued                 relevant to whether TISD intended to discrim-
against TISD. The jury found in favor of                inate against him on the basis of his race when
TISD.                                                   it demoted him. Such intentional discrimina-
                                                        tion is a required element of Barnes’s title VII
    On appeal, Barnes challenges only the ex-           claim. See 42 U.S.C. § 2000e-2. The argu-
clusion of the 1970 order. The order imposed            ment for the order’s relevance is that showing
a number of procedural hiring requirements on           a knowing violation of the order by TISD
TISD in an effort to ensure equal treatment of          would tend to make it more likely that dis-
minority employees during the integration of            criminatory intent existed. Barnes’s challenge
the dual school system that had existed under           fails for three reasons.
segregation. Barnes argues that because
TISD’s decision to demote him did not comply                First, it is inaccurate to assume that a hiring
with the terms of the order, the order should           decision that does not abide by the terms of
be admitted as evidence relevant to whether             the 1970 order is more likely to be discrimina-
his demotion was motivated by discrimination.           tory than is any other hiring decision. Even if
                                                        TISD’s decision to demote Barnes was legally
                        II.                             governed by the order, the order prescribes
    We review evidentiary rulings only for              merely one method of making non-discrimina-
abuse of discretion. Johnson v. Ford Motor              tory hiring decisions and is by no means the
Co., 988 F.2d 573, 578 (5th Cir.1993). “The             only non-discriminatory way for the school
trial court’s discretion to admit or exclude evi-       district to make those decisions. TISD’s de-
dence is generally broad, but competent evi-            cision to demote Barnes satisfies title VII if it
dence cannot be excluded without a sound and            was non-discriminatory, and whether the de-
acceptable reason.” Seatrax, Inc. v. Sonbeck            motion complies with the 1970 order is irrele-
Int’l, Inc., 200 F.3d 358, 370 (5th Cir. 2000).         vant to that question.
We will reverse an evidentiary ruling only after
finding that the substantial rights of a party             Second, even if we assume that TISD’s in-
were affected. Id.                                      tentionallyignoring a desegregation order gov-
                                                        erning its decisions would be evidence of
                      III.                              discriminatory intent, there remains a question
   Rule 401 of the Federal Rules of Evidence            whether the 1970 order actually covered
permits the introduction of evidence “having            TISD’s decision to demote Barnes. If the
any tendency to make the existence of any fact          order placed no obligations on TISD in regard
that is of consequence to the determination of          to Barnes, the text of the order is irrelevant to
the action more probable or less probable than          this case.
it would be without the evidence.” FED. R.
EVID. 401. Evidence that does not meet this                TISD claims that the order only governs
description is inadmissible. FED R. EVID. 402.          employment decisions related to desegrega-
Evidence is inadmissible when its relevance “is         tion, and Barnes’s demotion had nothing to do
substantially outweighed by the danger of               with desegregation. There is broad support
unfair prejudice, confusion of issues, or mis-          for the proposition that desegregation orders

                                                    2
such as the 1970 TISD order apply only in the                 Barnes’s admitted strategy was to link vio-
desegregation context and not to a school                 lations of the order to discrimination in the
district’s everyday employment decisions.1                jurors’ minds. Allowing him essentially to try
Thus it is debatable whether TISD officials had           TISD for a violation of the 1970 order in the
any reason to consider the 1970 order before              context of a title VII case would plainly have
demoting Barnes.                                          risked confusing the issues and misleading the
                                                          jury as to the standard of liability.
   It is not for us to decide here whether TISD
was required to follow the 1970 order when it                Because the 1970 order arguably did not
demoted Barnes. The burden was on Barnes                  speak to any material issue in the case, argu-
to show the district court why his proffered              ably did not place any legal obligations on
exhibit was relevant to a material issue.                 TISD in regard to Barnes, and was arguably
                                                          more confusing than probative, the district
   Barnes could have tried to lay a predicate             court acted well within its broad discretion
for his exhibit by establishing that TISD was             when it excluded the 1970 order. The judg-
legally obligated by the order when it made the           ment is AFFIRMED.
demotion decision, but he failed to do so.
Thus even accepting Barnes’s relevance the-
orySS that TISD’s failure to follow the terms
of a legally binding desegregation order when
demoting him would be evidence of discrimi-
nation against himSSthe challenge to the exclu-
sion of the order fails, because Barnes has not
established that the order applied to the demo-
tion decision.

    Finally, introducing the 1970 order into evi-
dence would have created a danger of con-
fusing the issues and misleading the jury, as
warned against by rule 403. The school dis-
trict was not on trial for violating the 1970 or-
der; it was accused only of discriminating
against Barnes in violation of title VII.


   1
     See, e.g., Lee v. Russell County Bd. of Educ.,
563 F.2d 1159, 1161 (5th Cir. 1977) (declaring
that the state-wide desegregation criteria an-
nounced in Singleton v. Jackson Mun. Separate
Sch. Dist., 419 F.2d 1211 (5th Cir. 1970), apply
only to “demotions or dismissals caused by deseg-
regation” rather than to all employment decisions
the school district makes. The desegregation plan
announced in Singleton was nearly identical to that
prescribed in the 1970 TISD order.

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