Summary Calendar FRED RICHARDSON v. University of Texas at Austin

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-51139
Summary Calendar
FRED RICHARDSON
Plaintiff-Appellant
v.
UNIVERSITY OF TEXAS AT AUSTIN
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-00427
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Fred Richardson (“Richardson”) appeals several of the
district court’s evidentiary rulings in this employment discrimination case.
Richardson began his employment with defendant University of Texas at Austin
(“UT”) in April 1986 as a Building Monitor in the campus student union building
(“Texas Union”). In June 2006, he sued UT alleging both racial discrimination
and retaliation after he was rejected for numerous promotions and transfers to
United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2008
Charles R. Fulbruge III
Clerk

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No. 07-51139
1 He also alleged racial discrimination with regards to pay raises and salary. These
claims were dismissed on summary judgment. That judgment was not appealed.
2
other higher-paying jobs.1 Richardson is African-American. He had filed several
EEOC and/or state complaints from March to May 2005. His suit went to trial
below and the jury reached a verdict in favor of UT. Richardson now timely
appeals.
On appeal, Richardson raises four evidentiary issues. We review
evidentiary rulings under an “abuse of discretion” standard. Abner v. Kansas
City S. R. Co., 513 F.3d 154, 168 (5th Cir. 2008).
First, Richardson contends the district court abused its discretion when
it denied Richardson’s pre-trial discovery request to obtain Building Manager
Reports (BMRs). BMRs describe the activities performed by employees during
a shift. Richardson argues that these BMRs were critical to his case, because
they bolstered his claims that he performed certain tasks at his job that qualified
him for the higher-paying positions for which he had applied. We will reverse
a discovery decision “only if it is ‘arbitrary or clearly unreasonable’ . . . and the
appellant demonstrates prejudice resulting from the decision,” Fielding v.
Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir. 2005) (citation omitted),
otherwise discovery is committed to the “sound discretion of the trial court.”
Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986). The district
court denied the discovery request because it was too broad, general, and overly
burdensome. The court gave several reasons for its ruling. This decision is not
clearly unreasonable or arbitrary. FED. R. CIV. PROC. 26(b)(2)(C); see also In re
Agent Orange Prod. Liability Litig., 517 F.3d 76, 103 (2d Cir. 2008).
Second, Richardson contends the district court abused its discretion in not
admitting proferred evidence consisting of his supervisor Jerry Drake’s
testimony. The testimony concerned circumstances surrounding Drake’s 1999
recommendation to upper management that they grant a pay raise for

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Richardson. The district court excluded the evidence for several reasons. First,
the claims concerning discrimination in raises were already dismissed by
summary judgment. Second, the 1999 evidence was not relevant to retaliatory
acts in 2005. Third, the witness also merely speculates, without substantiation,
disparate treatment was racially motivated. We do not find an abuse of
discretion as these reasons are adequate bases for exclusion. See, e.g., Swanson
v. General Servs. Admin., 110 F.3d 1180, 1189 (5th Cir. 1997).
Third, Richardson contends the district court abused its discretion by
excluding Tres Davis’s testimony regarding “alleged hostile acts” against other
African-American employees at UT. The district court excluded the evidence on
two grounds: (1) the testimony did not present evidence of racial discrimination,
since the witness assumed acts were racially motivated; and (2) the evidence was
built solely on hearsay. We do not find the exclusion an abuse of discretion,
because the witness merely speculates, without substantiation, the disparate
treatment was racially motivated and thus does not present any relevant
evidence of disparate treatment. See id.
Finally, Richardson contends the district court abused its discretion in
excluding evidence from two witnesses regarding how the Texas Union
administration treated African-American students and patrons differently. The
district court excluded the evidence because there was no evidence that the
alleged discrimination against African-American students in 2000 permeated
Richardson’s employment situation in 2005. The district judge carefully
examined the offer of proof and determined that the link between the alleged
treatment of African-American students was too attenuated from the relevant
acts in this case. The district court’s examination of the evidence in this case
“convinces us that the court’s ruling cannot be tarred with the brush of abuse of
discretion.” See Kelly v. Boeing Petro. Servs., Inc., 61 F.3d 350, 360 (5th Cir.
1995).

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For these reasons, we AFFIRM the district court’s judgment.

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