IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20028 Summary Calendar

MARTY M. ROCHA,

Plaintiff-Appellant,

versus

HARRIS COUNTY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-898 -------------------- December 19, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Marty M. Rocha, a deputy in the Harris County, Texas

Sheriff’s Department, appeals an adverse judgment in his lawsuit

alleging various types of racial and national origin discrimination

and retaliation prohibited by Title VII of the Civil Rights Act of

1964. 42 U.S.C. §§ 1981a and 2000e et seq. Finding no abuse of

discretion in the exclusion of statistical evidence at trial, we

affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Rocha contends that he was denied a promotion, wrongfully

given a low job evaluation, denied a job assignment, denied

transfers and denied the right to work extra jobs. The jury

returned a verdict in favor of Harris County and the district court

entered a take-nothing final judgment against Rocha.

Rocha’s sole argument on appeal is that the district

court, wrongfully granted Harris County’s pretrial motion in limine

concerning statistical evidence. Harris County had asked the court

to prohibit Rocha from offering as evidence the statistics

concerning the racial makeup of the Harris County Sheriff’s

Department. The evidence sought to be admitted allegedly

established that: (1) only four out of 141 detectives in the

Sheriff’s Department are Hispanic; and (2) only seven out of

approximately 180 sergeants are Hispanic.

A district court’s ruling to exclude evidence is reviewed

for abuse of discretion. See Polanco v. City of Austin,

(5th Cir. 1996). There is no abuse of discretion if the

error is harmless.

This court “‘will not disturb an

evidentiary ruling, albeit an erroneous one, unless it affects a

substantial right of the complaining party.’”

(quoting

Polythane Sys. Inc. v. Marina Ventures Int’l, Ltd.,

,

1208 (5th Cir. 1993).

Rocha argues that the district court’s order prevented

him from submitting statistical evidence supporting his claim that

2 the county had a discriminatory motive. Harris County counters

that the statistical evidence was not relevant or probative because

its exclusion was not harmful and did not deprive Rocha of a

substantial right. Because Rocha brought his claim under a

disparate treatment theory, as opposed to disparate impact, Harris

County argues that the number of Hispanics in the workforce was of

no consequence to the question of intentional discriminatory

motive. Harris County also contends that Rocha never offered

comparative evidence that would have made such statistics

meaningful.

In a disparate treatment case, statistical evidence of an

employer’s general hiring pattern “carries less probative weight

than it does in a disparate impact case” and “rarely suffices to

rebut an employer's legitimate, nondiscriminatory rationale for its

decision[s].” LeBlanc v. Great American Insurance Co.,

(1st Cir. 1993). An employer’s “overall employment

statistics will, in at least many cases, have little direct bearing

on the specific intentions of the employer . . .”

Although

“gross statistical disparities may be probative of discriminatory

intent, motive, or purpose,” mere evidence that a certain

percentage of employees were Hispanic is insufficient to support an

inference of discriminatory motive. See Scales v. Slater,

, 709 n.5 (5th Cir. 1999). Such statistics will be probative of

intent only “in an unusual case” where the employee alleges that

3 the discriminatory action was part of a larger pattern targeting

similar employees. See Walther v. Lone Star Gas Co.,

(5th Cir. 1992). However, statistical evidence of a general

underrepresentation adds little to a disparate treatment claim.

Molthan v. Temple Univ.,

, 963 (3rd Cir. 1985). The

excluded evidence has little if any probative value in determining

Harris County’s discriminatory motive. The district court did not

abuse its discretion by granting the defendant’s motion in limine.

AFFIRMED.

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