                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT

                             _____________________

                                  No. 00-10199
                                Summary Calendar
                             _____________________



HELEN I. SMITH,

                                                       Plaintiff-Appellant,

                                      versus

WILLIAM S. COHEN,
U.S. Secretary of Defense,

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                Northern District of Texas, Dallas
                     USDC No. 3:98-CV-0429-AH
_________________________________________________________________
                          January 3, 2001

Before JOLLY, SMITH, and DeMOSS Circuit Judges.

PER CURIAM:*

      This is a Title VII employment discrimination action filed by

Helen Smith, an employee of the Army and Air Force Exchange Service

(“AAFES”). The magistrate judge granted summary judgment for AAFES

on   three   of    Smith’s     four   retaliation    claims.   The   fourth

retaliation claim was argued before a jury, which returned a

verdict in favor of AAFES.            On appeal, Smith contends that the


      *
      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this opinion should not be published and is not precedent except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.
trial court erred in granting summary judgment on her claim that

she was denied a desk audit and given a lowered performance

evaluation report.     Smith also contends that the trial court erred

in regard to three evidentiary rulings during the trial.            Having

concluded that the trial court committed no reversible error, we

affirm the partial summary judgment and the jury’s verdict.

                                      I

     Helen Smith was an accounting technician with the Army and Air

Force Exchange Service (“AAFES”), a store that provides goods and

services to Army and Air Force personnel.           Beginning in 1992,

Smith’s primary responsibility was to perform accounting functions

for “The Club,” a dining facility at the AAFES’s headquarters in

Dallas, Texas.    The Club was operated jointly by AAFES and the Air

Force Services Agency, and the AAFES had agreed to provide a

manager and accountant for the Club.

     Between 1990 and 1996, Smith filed numerous EEO complaints

against her supervisors, argued with her supervisors about her

duties as accounting technician for the Club, and was accused of

filing late and inaccurate financial reports.

     In 1996 and 1997, the Club was in the process of being

converted   to   an   Air   Force   Club.   In   January   1997,   Smith’s

supervisor informed her that Bea Crider, the chief accountant for

the Air Force Services Agency, would be coming to Dallas to teach

Smith about the Air Force Services Agency’s accounting system.          A

problem arose because Smith had always used commercial accounting

                                      2
software called “DAC-Easy” to perform the accounting functions, but

the Club decided to switch to UNIX software that the Air Force

Services Agency had used for many years.            Smith informed her

supervisor that she did not want to be trained by Ms. Crider.

     When Crider arrived on January 21, 1997, she was asked to

provide software training to Smith and to assist her in producing

the Club’s financial report for the final quarter of 1996.           Crider

informed   Smith’s   supervisor   that   Smith    had   not   been    fully

cooperative during the training session.     On January 22, Smith and

her immediate supervisor quarreled over how long it would take to

produce the quarterly financial report.          Smith then requested a

meeting with Colonel Campbell, the director of administration at

the AAFES.   In the presence of several AAFES officials, Colonel

Campbell issued what he called a “very stern counseling” to Smith.

     The parties disagree about what happened immediately after the

meeting with Colonel Campbell. Smith alleges that she was given no

further instructions with regard to the Club’s quarterly financial

statement.   Smith’s supervisor, however, claims that he personally

requested that Smith provide him with the raw financial data from

the fourth quarter of 1996.   Crider testified that Smith gave the

raw data to her shortly after lunch.     Smith’s supervisor testified

that he asked Smith about the financial information later that

afternoon; that she ignored his requests and walked away; that he

sent an e-mail reporting Smith’s “gross insubordination” to Colonel

Campbell, the human resources manager, and others; and that Smith

                                   3
finally provided the information to him shortly after he sent the

e-mail.     Smith’s supervisor contacted Colonel Campbell again and

requested    that “personnel action” be taken immediately.

     In February 1997, Colonel Campbell informed Smith that she

would be suspended from work for three days because of her actions

on January 22.         Smith served her suspension from March 10 to

March 12, 1997. In May 1997, Smith received her annual performance

evaluation.     Although she received a “satisfactory” rating, her

supervisor noted that he found Smith difficult to work with, and

Colonel     Campbell    said   that   she   was   the   “most   sullen   and

uncooperative” employee he had known.




                                      II

     In February 1998, Smith filed a complaint in the United States

District Court, alleging that the AAFES had violated Title VII of

the Civil Rights Act of 1964.         The complaint contained numerous

allegations of illegal discrimination on the bases of sex and age,

as well as allegations of unlawful retaliation.           With the consent

of the parties, the case was assigned to a magistrate judge.

     In January 1999, AAFES filed a motion for summary judgment.

In her response to the motion for summary judgment, Smith withdrew

her claims based on sex and age discrimination.             The magistrate

judge considered Smith’s claims that she was the target of illegal

retaliation when (1) she was denied a desk audit and not given a

                                      4
correct job description in 1996; (2) she was suspended without pay

from March 10 to March 12, 1997; (3) she was forced from her

position as account technician in May 1997; and (4) her performance

evaluation report was lowered in June 1997.           In August 1999, the

magistrate judge granted AAFES’s motion for summary judgment on all

the claims except the one related to the March 1997 suspension.

The magistrate judge concluded that the other three claims did not

constitute ultimate or adverse employment actions under the law of

the Fifth Circuit.

     The parties consented to a jury trial before the magistrate

judge. The sole issue was whether Smith had been suspended without

pay for three days in March 1997 in retaliation for her prior EEO

filings.

     The    magistrate    judge   made    three   significant   evidentiary

rulings.    First, at a pretrial conference, the magistrate judge

granted AAFES’s motion in limine preventing Smith from mentioning

in the jury’s presence the substance of any of her eight prior EEO

complaints.     Second,    during   the    trial,   the   magistrate   judge

excluded Smith’s prior performance evaluation reports.           Third, at

the commencement of the trial, the magistrate judge did not allow

tape recordings of certain conversations to be sent to the jury

room because (1) the transcripts had been previously excluded, and

(2) neither party had played the tapes during trial.

     The jury returned a verdict in favor of AAFES, and this appeal

followed.

                                     5
                                     III

     Smith raises four issues on appeal.           The first issue concerns

the magistrate judge’s partial grant of summary judgment in favor

of AAFES.    Smith contends that the court erred in holding that the

denial of a desk audit and a poor performance evaluation were not

adverse employment actions under Title VII. The second, third, and

fourth issues concern the magistrate judge’s evidentiary rulings at

trial.      Smith contends that the district court erred in (1)

preventing    Smith   from   offering     evidence   about   the    prior   EEO

complaints, (2) excluding Smith’s prior performance evaluation

reports, and (3) not allowing the tape recordings to be sent to the

jury during deliberations.       We consider these four issues in turn.

                                      A

     First, we consider the magistrate judge’s grant of summary

judgment on Smith’s three retaliation claims.

     Summary judgment is appropriate only if the record discloses

“no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.”               FED. R. CIV.

P. 56.   When a district court has granted a motion for summary

judgment,    we   review   the   question   de   novo,   applying    the    same

substantive test set forth in Rule 56.           Horton v. City of Houston,

179 F.3d 188, 191 (5th Cir. 1999).

     In order to make a prima facie case of retaliation, Smith

needed to prove that (1) she had engaged in activity protected by

Title VII, (2) she suffered an adverse employment action, and (3)

                                      6
there is a causal connection between the participation in the

protected activity and the adverse employment action.               See, e.g.,

Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

     The issue in this case is whether the two employment actions--

a lowered performance evaluation and the denial of a desk audit--

constitute adverse employment actions under Title VII.              This court

has explained that Title VII was designed to address only “ultimate

employment decisions,” such as hiring, discharging, promoting, and

compensating employees.      Dollis v. Rubin, 77 F.3d 777, 781-82 (5th

Cir. 1995).   It is clear that negative performance evaluations and

the denial of a desk audit do not qualify as ultimate employment

actions.    See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th

Cir. 1997) (stating that “disciplinary filings and supervisor’s

reprimands,” for examples, are not ultimate employment actions even

though these actions might jeopardize employment in the future);

Dollis, 77 F.3d at 782 (“[T]he denial of a desk audit is not the

type of ultimate employment decision that Title VII was intended to

address.”).    The decisions in Dollis and Mattern are binding, and

we have no authority to reconsider this circuit’s definition of

adverse employment actions.

                                       B

     The second issue is whether the magistrate judge committed

reversible error when he granted AAFES’s motion in limine and thus

prevented    Smith   from   offering       evidence   about   the   prior   EEO

complaints.

                                       7
     This   court     shows   considerable        deference   to   the   district

court’s evidentiary rulings.

     We review the district court’s evidentiary rulings for
     abuse of discretion. Johnson v. Ford Motor Co., 988 F.2d
     573, 578 (5th Cir.1993). Under Federal Rule of Civil
     Procedure 61, we may not set aside a verdict based on an
     error in the exclusion of evidence, ‘unless refusal to
     take such action appears to the court inconsistent with
     substantial justice.’ FED. R. CIV. P. 61. To vacate a
     judgment based on such an error, we ‘must find that the
     substantial rights of the parties were affected.’ Carter
     v. Massey-Ferguson, Inc., 716 F.2d 344, 349 (5th Cir.
     1983).

Smith v. Isuzu Motors Ltd., 137 F.3d 859, 863 (5th Cir. 1998).

Furthermore, the “burden of proving substantial prejudice lies with

the party asserting error.”        McDonald v. Steward, 132 F.3d 225, 232

(5th Cir. 1998).

     Smith filed eight previous EEO complaints between 1990 and

1996.   Because the existence of these prior filings was essential

to Smith’s retaliation claim, Smith was allowed to testify that she

had filed these complaints.           But the district court decided not to

allow Smith to testify about the nature and substance of these

complaints.     In its motion in limine, AAFES argued that (1) the

prior EEO complaints had not involved the supervisors who were

responsible for suspending her in March 1997; and (2) detailed

consideration    of    the    prior    complaints     would   be   prejudicial,

unnecessary,    and    wasteful.         At   a    pretrial   conference,     the

magistrate judge granted AAFES’s motion in limine.                   On appeal,

Smith argues that the details of the prior EEO complaints were



                                         8
necessary to establish the “issue of intent, and a pattern and

practice” of discriminatory treatment.

     We conclude that the magistrate judge could have reasonably

concluded that the details of these prior acts were irrelevant,

confusing, dilatory, or prejudicial under Federal Rules of Evidence

401 and 403.   It is not disputed that all prior complaints had been

adjudicated and (with one limited exception) either dismissed on

the merits after an administrative hearing or dismissed as a matter

of law prior to the trial in January 2000.      Further, it is not

disputed that the previous eight complaints involved different

supervisors from those who suspended her for three days in March

1997, which, of course, was the sole subject of the trial below.

In the light of these considerations, we cannot say that the

district court abused its discretion. Smith’s second issue is thus

without merit.

                                  C

     The third issue is whether the magistrate judge committed

reversible error by excluding Smith’s prior performance evaluation

reports.

     At trial, the magistrate judge admitted into evidence Smith’s

performance evaluation report (“PER”) prepared by Smith’s immediate

supervisor and Colonel Campbell, the officials who authorized her

suspension in March 1997.     However, the judge excluded Smith’s

prior PERs from 1985 to early 1996.    Smith claims that her “long

history of glowing reviews” suggests that her supervisors in 1997

                                  9
must have had an improper motive in suspending her.   The magistrate

judge disagreed, concluding that the prior PERs were irrelevant to

the issue at trial.   Smith has not demonstrated why the exclusion

of these written evaluations, which were prepared long before her

suspension and by supervisors who were not involved in the decision

to suspend her, is relevant to the question whether Smith was

suspended in March 1997 in retaliation for filing EEO complaints.

Moreover, the magistrate judge still allowed Smith to testify on

two occasions that she had previously been rated “superior” by her

former supervisors.    In the light of these considerations, we

cannot say that the trial court abused its discretion or that

Smith’s substantial rights were affected by the trial court’s

decision to exclude these written PERs.     Smith’s third issue is

thus without merit.




                                 D

     The fourth issue is whether the magistrate judge committed

reversible error by not allowing the tape recordings to be sent to

the jury during deliberations.

     In late 1996 and early 1997, Smith secretly recorded four

conversations with her immediate supervisor.    She then prepared

transcripts of these taped conversations.    Prior to trial, AAFES

listed the tapes as exhibits, and Smith listed both the tapes and

transcripts as exhibits.     AAFES objected to the transcripts,

                                 10
claiming that they had not been accurately transcribed.                        The

magistrate judge excluded all but one of the transcripts. Although

the tapes were pre-admitted into evidence, neither party played the

tapes at trial.        Nevertheless, at the close of the trial, Smith

requested that the tapes be forwarded to the jury during their

deliberations.         Smith contends that consideration of the tapes

would have affected the jury’s view of the credibility of the

witnesses.      Specifically, Smith argues that the tapes present a

portrait   of    her    supervisor     that    was   different    from   the   one

presented at trial.

     The magistrate judge refused to forward the tapes to the jury

because    most    of     the    transcripts         of   these   tape-recorded

conversations had not been admitted into evidence and, moreover,

the tapes had not been played before the jury.               As the appellee’s

brief points      out,    the   jury   would    almost    certainly   have     been

confused if the judge had allowed these tapes to go the jury room

“with no means for the jury to play them, with no explanation of

what they were or how they were prepared, or even who the voices

were on the tape.” Under these circumstances, the magistrate judge

did not abuse his discretion by deciding not to send the tapes to

the jury room.     Smith’s fourth issue is also without merit.

                                        IV

     For the reasons set forth above, the partial summary judgment

on three of Smith’s retaliation claims and the jury verdict on her

fourth retaliation claim are both

                                        11
     A F F I R M E D.




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