Gallaspy v. Raytheon Tech Svc

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 5, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
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
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Appeal from the United States District Court
for the Western District of Texas
(3:04-CV-12)
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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

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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

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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

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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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