                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                                                                December 5, 2006
                   IN THE UNITED STATES COURT OF APPEALS
                                                              Charles R. Fulbruge III
                          FOR THE FIFTH CIRCUIT                       Clerk
                          _____________________

                               No. 05-51621
                               No. 06-50409
                            (Summary Calendar)
                          _____________________


PAUL GALLASPY,

                                                    Plaintiff-Appellant

versus

RAYTHEON TECHNICAL SERVICES COMPANY,
doing business as RAYTHEON CO., doing
business as PATRIOT OVERSEAS SUPPORT
COMPANY,

                                                     Defendant-Appellee

                        ---------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                             (3:04-CV-12)
                        ---------------------

Before SMITH, WIENER and OWEN, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant Paul Gallaspy brought suit against his

employer, Defendant-Appellee Raytheon, asserting that racial animus

was   a   reason    for   Raytheon’s   adverse   employment    action     in

terminating or not renewing Gallaspy’s assignment as an adviser to

the United States Army in Korea, relegating him instead to a less


      *
       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this opinion should not be published and is not precedent except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.
lucrative     and   less   desirable   position   in   the   United     States.

Gallaspy argues that Raytheon treated him disparately because of

his race, in violation of Title         VII, 42 U.S.C. § 2000(e) et seq.

This appeal follows the district court’s grant of Raytheon’s motion

for judgment as a matter of law at the conclusion of Gallaspy’s

case-in-chief.      We affirm.

       Although, on appeal, Gallaspy fully and correctly explicates

the procedural minuet developed in McDonnel-Douglas and its progeny

that   is    applicable    in   discrimination    cases   devoid   of    direct

evidence of discrimination, his case had advanced beyond the usual

Rule 12(b)(6) and summary judgment stages, at which the McDonnel-

Douglas methodology is usually applied; his case had proceeded to

trial.      Thus, the prima facie case/legitimate non-discriminatory

reason/pretext rubric so extensively addressed by Gallaspy on

appeal had become essentially inapposite:           Beyond the preliminary

phases of dismissal under Rule 12(b)(6) or summary judgment, those

alternating burdens of producing or going forward with the evidence

for the most part become anachronisms, and the case proceeds to a

trial on the customary burden of proof rules.             At that point, an

employment discrimination case under Title VII based on, inter

alia, racial discrimination (as is Gallaspy’s) proceeds as does

virtually any civil trial, with the plaintiff being required to

prove the elements of his case by a preponderance of the evidence

—— here that (1) he is a member of a protected class, (2) an

adverse employment action was taken against him which favored a

                                       2
member of a non-protected class or a less qualified member of the

protected class, and (3) racial animus was a motivating factor of

the adverse employment action taken.

     Our review of the briefs of the parties and the record on

appeal satisfies us that, in his case-in-chief, Gillaspy, a black,

failed to adduce probative evidence that the actions of Raytheon’s

white supervisors taken against him in the adverse employment

action    complained   of   (if,   indeed,      it   was   they   and   not   Army

personnel who made the decision) was motivated, even in part, by

racial animus.     Gallaspy proved his membership in a protected

class, proved that he was replaced in Korea by a white of inferior

experience, ability, and evaluations, and proved that Raytheon’s

action in recalling him to the United States and prohibiting his

return to Korea constituted an adverse employment action.                But the

record contains no evidence or reasonable inferences that any

animosity    conceivably    harbored       by   Raytheon    personnel    against

Gallaspy contained a racial component at all. Even if the evidence

that the trial court excluded —— a purported statement by a

Raytheon supervisor to the effect that Raytheon had been out to

terminate Gallaspy for ten years —— had been admitted, it might

have proved favoritism or personal animosity, but not racial

animus.

     In the end, we agree with the district court that the case

presented by Gallaspy at trial is devoid of evidence, or any

reasonable inferences to be made from it, on which the jury could

                                       3
have reasonably concluded that Raytheon’s adverse employment action

against Gallaspy was, in whole or in part, motivated by racial

animus or discrimination.   We are also satisfied that the district

court did not abuse its discretion in excluding the statement that

one of Raytheon’s supervisors had allegedly made about trying to

get rid of Gallaspy.   We conclude that no rulings of the district

court, including the quantum of its award of costs to Raytheon,

constituted reversible error. Accordingly, the court’s rulings and

its take-nothing judgment are, in all respects,

AFFIRMED.




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