           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 29, 2009

                                       No. 09-50010                    Charles R. Fulbruge III
                                                                               Clerk

AVRIL WHITE

                                                   Plaintiff-Appellant
v.

MANAGEMENT & TRAINING CORPORATION

                                                   Defendant-Appellee




               Appeal from the United States District Court for the
                   Western District of Texas, Austin Division
                              USDC No. 1:08-CV-9


Before KING, DAVIS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
       This appeal is from a jury verdict finding that Defendant-Appellee
Management         &    Training      Corporation      (“MTC”)      did    not    terminate
Plaintiff-Appellant Avril White because of her race. MTC previously employed
White, who is African-American, at the Gary Job Corps Center (“Gary”), a
vocational training facility in San Marcos, Texas. The only issue before this
Court on appeal is whether the district court erred in not admitting evidence
concerning the Gary Job Corps Retention Plan (the “Retention Plan”). Since we

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50010

conclude that White’s “substantial rights” were not violated by the failure to
admit the Retention Plan into evidence, we affirm the judgment in favor of MTC.
                                       I.
       When White was terminated, she had been serving as Gary’s
Employability Director, charged with managing the recruitment and retention
of students at the job training center, among other responsibilities. In 2007,
Gary    was   having   considerable    problems    recruiting   and   retaining
students—although MTC had initially contracted with the U.S. Department of
Labor to serve 1,900 students at Gary, there were only approximately 1,400
students enrolled at the facility. To address this problem, in March 2007, White
began working with MTC personnel to develop a recruitment plan to increase
enrollment at the center to 1,900 students (the “Gary 1900 Plan”). Additionally,
during this period, MTC decided to replace Gary’s African-American director and
deputy director with Dean Hoffman and Carol Savage, both of whom are white.
Hoffman and Savage took up their new positions in April 2007, and shortly
thereafter, Savage began to have concerns about White’s performance at Gary.
Savage warned White on April 27, 2007 that she had failed to complete
performance evaluations for certain subordinates, and on May 7, 2007, Savage
recommended White’s termination after discovering that she had failed to
process bonuses for certain Gary employees. Shortly thereafter, White went on
medical leave, but upon her return on June 11, 2007, she was fired. An African-
American replaced White temporarily after her termination, but MTC eventually
hired a white woman to serve as her permanent replacement.
       Subsequently, certain of MTC’s remaining employees developed the
Retention Plan without White’s participation. Specifically, the plan called for
“measurable goals” to be achieved “in arrival characteristics and retention
results,” including shifting from a student population that was 46.2%
African-American, 33.8% Hispanic, and 20% White/Other to a profile that was

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33.3% African-American, 33.3% Hispanic, and 33.3% White/Other. After Gary’s
management team considered the proposed plan at meetings on September 20
and 21, 2007, it was not implemented.
      White filed this lawsuit on November 27, 2007 in Texas state court, and
MTC subsequently removed the case to federal court. White’s only claim against
MTC that advanced to trial was that she was terminated because of her race in
violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1). Prior to trial, MTC filed a motion in limine to exclude
evidence concerning the Retention Plan, arguing that the plan was not
implicated in MTC’s decision to terminate White because she was not a student
at Gary, but rather an employee. On the first day of trial, the district court
granted MTC’s motion, ruling that the Retention Plan was irrelevant. However,
the court allowed White to present evidence concerning the Retention Plan
outside the presence of the jury, to help the court determine if it should
reconsider its order. After hearing testimony concerning the Retention Plan and
repeated offers of proof by White, the district court let its initial ruling stand.
Although the district court did not extensively explain the basis for its ruling, it
appears the court held that the Retention Plan was irrelevant because the plan
did not clearly call for a numerical decrease in African-American enrollment at
Gary nor did it relate to employees such as White. After a three-day trial, the
jury returned a verdict in favor of MTC.
                                        II.
      A district court’s rulings concerning the admission of evidence are
reviewed for abuse of discretion. See Kelly v. Boeing Petroleum Servs., Inc., 61
F.3d 350, 356 (5th Cir. 1996). However, even if a district court has abused its
discretion, an evidentiary ruling should not be reversed unless it affected a
party’s “substantial rights.” 28 U.S.C. § 2111 (2006); see also F ED. R. E VID.
103(a). “An error does not affect substantial rights if the court is sure, after

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reviewing the entire record, that the error did not influence the jury or had but
a very slight effect on its verdict.” Price v. Rosiek Constr. Co., 509 F.3d 704,
707-08 (5th Cir. 2007) (quoting Kelly, 61 F.3d at 361). We conclude that the
district court’s failure to admit evidence concerning the Retention Plan had at
best only a “very slight” effect on the jury’s verdict. Consequently, we need not
address whether the district court abused its discretion by excluding the plan
from evidence.
      White did not solely rely on the Retention Plan to demonstrate her
supervisors’ alleged bias against African-Americans; instead, she presented
other evidence that was much more probative than the plan would have been for
demonstrating employment discrimination. The jury heard that MTC fired,
transferred, or disciplined a number of African-American employees in 2007,
arguably demonstrating a pattern of discrimination. The jury also heard a
former coworker testify that Savage, White’s supervisor, treated minority
employees more harshly than white employees and made disparaging remarks
about minority students.     Additionally, although White could not present
evidence directly concerning the plan, the jury heard testimony from Hoffman
and Savage indicating that after their arrival, they became concerned about the
high proportion of African-American students at Gary. In her testimony before
the jury, Savage confirmed that she felt it did not take a “rocket scientist” to
figure out that white students did not feel “safe” at Gary because there were not
enough of them present on campus.          In short, there was a fair amount of
evidence before the jury demonstrating Hoffman and Savage’s possible bias
against African-Americans when it began its deliberations.
      The jury, however, was not persuaded by the evidence of bias, likely
because it credited the considerable evidence suggesting that MTC’s reasons for
terminating White were not pretextual. Much of the evidence heard by the jury
concerned problems with White’s job performance, including, among other

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things, her failure to process bonuses for certain Gary employees who helped
recruit students, her difficulty getting along with certain coworkers and business
partners,   and   problems    with   her       involvement   in   the   planning   and
implementation of the Gary 1900 Plan. We are confident that the addition of the
Retention Plan to this constellation of evidence would have no effect or at most
only a very slight effect on the jury’s verdict, if any.
                                        III.
      Consequently, since White’s substantial rights were not violated by the
district court’s ruling, we must AFFIRM the judgment below.




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