                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     November 17, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                              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   brought   a   Title   VII    employment

discrimination case 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 exercise


     *
       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this opinion should not be published and is not precedent except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.
                                No. 04-60476
                                     -2-

of   its   peremptory    challenges   was    pretextual    and   therefore   a

violation of the Equal Protection Clause under Batson v. Kentucy2;

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 had 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 the


      2
          476 U.S. 79 (1986).
      3
           987 F.2d 1102, 1108 - 09 (5th Cir. 1993).
                                No. 04-60476
                                     -3-

Service to state a nondiscriminatory reason for challenging juror

#5.   The court denied the request.

      Goldsmith used her last challenge to remove another white

juror.   The    Service,    without   exhausting   its   single   remaining

peremptory challenge, accepted the jury, which 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 fact 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 court is not in a position to really render a

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

      On appeal, Goldsmith argues that the Service’s peremptory

challenge was a pretext for its purposeful discrimination against
                                  No. 04-60476
                                       -4-

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     prima       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 black 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 abuse 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 the



     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.”).
                               No. 04-60476
                                    -5-

promotions 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 value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading 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.




      5
          FED. R. EVID. 403.
