Mailly v. Park Place Entrtnmt, et al

* 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that this opinion should not be published and is not precedent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
September 28, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60548
BRADFORD C. MAILLY,
Plaintiff-Appellant,
versus
PARK PLACE ENTERTAINMENT CORP, doing business as Grand Casino
Tunica; BL DEVELOPMENT CORP,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:01-CV-194
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Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, Bradford Mailly (“Mailly”), appeals the
district court’s grant of Defendant-Appellee’s motion for
judgment as a matter of law on his 42 U.S.C. § 1981 race
discrimination in employment claim. Mailly also appeals an
evidentiary ruling at trial below that excluded testimony
relevant to his Title VII retaliation claim. The jury found

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1 At oral argument, Appellant abandoned his third point of
appeal: his contention that the district court erred in admitting
Mailly’s EEOC file into evidence. Accordingly, it is not
addressed here.
against Mailly on that claim.1
Mailly asserts that judgment as a matter of law was
wrongfully granted because he presented sufficient evidence for a
reasonable jury to find that racial discrimination was a
motivating factor in the decision to fire him. Specifically,
Mailly argues that he presented sufficient evidence for a jury to
find either (i) that the legitimate, non-discriminatory reason
proffered by the Defendant, Park Place Entertainment (“PPE”), was
mere pretext or (ii) that, in addition to PPE’s proffered reason,
racial discrimination was a motivating factor under a “mixed
motive” analysis. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133 (2000); Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003).
Having reviewed the record, and after hearing oral
arguments, we find no error which would require setting aside the
judgment of the district court.
With respect to Mailly’s appeal of the district court’s
grant of judgment as a matter of law, we review the district
court’s ruling de novo, making all reasonable inferences in favor
of Mailly, the non-moving party. See Hidden Oaks Ltd. v. City of
Austin, 138 F.3d 1036, 1042 (5th Cir. 1998). Having done so, we
conclude that he did not raise a fact issue on pretext. With

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respect to Mailly’s mixed motive theory, Mailly never raised such
a theory before the district court. Instead, he makes the
argument for the first time on appeal. Accordingly, we find that
Mailly waived his mixed motive claim. Nevertheless, we have
reviewed his argument and, were it not waived, we would easily
conclude that he did not raise a fact issue on a mixed motive
theory.
With respect to Mailly’s appeal of the district court’s
evidentiary ruling, we find no error in the trial court’s ruling.
We review evidentiary rulings under an abuse of discretion
standard. Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir.
1998). The evidence in question comes exclusively from a
settlement conference and thus falls squarely within the
protection granted by Rule 408 of the Federal Rules of Evidence.
Fed. R. Evid. 408. Therefore, the district court did not abuse
its discretion by excluding the evidence.
For the foregoing reasons, the opinion of the district court
is in all ways AFFIRMED.

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