Audrey Newsome v. Collin County Community College District

* 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this opinion should not be published and is not precedent except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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
July 14, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 05-41791
_____________________
AUDREY NEWSOME,
Plaintiff - Appellant,
v.
COLLIN COUNTY COMMUNITY COLLEGE DISTRICT,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CV-00265
_________________________________________________________________
Before JOLLY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Audrey Newsome appeals from the district
court’s grant of judgment as a matter of law in favor of
Defendant-Appellee Collin County Community College District
(“CCCCD”) on her claim of Title VII retaliation. Because Newsome
fails to introduce legally sufficient evidence rebutting CCCCD’s
reasons for terminating her as pretextual, we AFFIRM the district
court’s order.

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1 CCCCD states that Newsome’s supervisor in 1993, Juanita
Austin, recommended that Newsome be terminated because of
communication problems. Johnson became Newsome’s supervisor in
1993.
2
I
CCCCD hired Newsome on November 28, 1988 as a
counselor/advisor for its grant program. In 1993, Norma Johnson
became Newsome’s supervisor when Newsome transferred to the
Academic Advising department. In February 2000, Newsome
complained to McRae about the sexual harassment she endured by
Johnson’s husband. She never filed a formal sexual harassment
complaint with the college. McRae advised Johnson of Newsome’s
complaints, who in turn spoke with her husband. Newsome did not
have any further interaction with Johnson’s husband.
In May 2000, Johnson recommended Newsome to be promoted to
Assistant Director of Academic Advising, which included increased
job responsibilities and a five percent pay raise. Newsome
accepted the promotion. Newsome contends that prior to February
2000 she had received no disciplinary action from Johnson or the
university,1 and that it was not until she had complained in
February 2000 of sexual harassment that Johnson began to write
her up. Beginning in October 2000, Johnson wrote up Newsome five
times. Johnson issued Newsome her first written warning for
failure to communicate with her supervisor, Johnson, in seeking
pre-approval for professional leave and travel. Newsome received
further written warnings from Johnson in April 2001, August 2002,

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November 2002, and December 2002, relating to job performance.
The written warnings describe several instances in which Newsome
failed to communicate with Johnson and others, including students
whom she was advising. The transcript of a February 2004 meeting
with Newsome, her lawyer, McRae, Johnson, and two members of the
human resources department revealed Newsome to be insubordinate
and defiant, evidencing little, if any, intent to communicate
effectively with Johnson in the future. CCCCD terminated Newsome
in April 2004.
Newsome filed her original complaint on July 21, 2004. The
district court granted CCCCD’s motion for summary judgment as to
all of Newsome’s claims except for Title VII retaliation. Trial
commenced on September 6, 2005. On September 8, 2005, CCCCD
moved for judgment as a matter of law at the conclusion of
Newsome’s evidence. On September 9, 2005, the district court
granted the judgment as a matter of law in favor of CCCCD. It
stated the reason for the directed verdict was that Newsome had
not presented any legally sufficient evidence of pretext other
than “suspicious timing” which, by itself, cannot support an
inference of pretext. Newsome timely appealed.
II
We review de novo a district court’s ruling on a motion for
judgment as a matter of law, applying the same test as did the

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district court. Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.
1994). Under Federal Rule of Civil Procedure 50(a), a judgment
as a matter of law is appropriate after the plaintiff rests when
“there is no legally sufficient evidentiary basis for a
reasonable jury to find for [the plaintiff] on that issue.” FED.
R. CIV. P. 50(a)(1). When considering the entire trial record, we
“draw[] all reasonable inferences and resolv[e] all credibility
determinations in the light most favorable to the non-moving
party.” Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d
831, 838 (5th Cir. 2004). “The ‘decision to grant a directed
verdict . . . is not a matter of discretion, but a conclusion of
law based upon a finding that there is insufficient evidence to
create a fact question for the jury.” Conkling, 18 F.3d at 1300-
01 (citing In re Letterman Bros. Energy Sec. Litig., 799 F.2d
967, 972 (5th Cir. 1986)). “A court should grant a Rule 50(a)
motion not only when the non-movant presents no evidence, but
also when there is not a sufficient ‘conflict in substantial
evidence to create a jury question.’” Travis v. Bd. of Regents
of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.
1997)(citing Foreman v. Bancock & Wilcox Co., 117 F.3d 800, 804
(5th Cir. 1997)). To be substantial, evidence must be “of such
quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions”
regarding the case’s outcome. Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir. 1969). Conclusory allegations, speculation,

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and unsubstantiated assertions are inadequate to satisfy
Newsome’s burden. Ramsey v. Henderson, 286 F.3d 264, 269 (5th
Cir. 2002) (citing Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415, 1429 (5th Cir. 1996)).
Newsome’s retaliation claim hinges on the timing of
Johnson’s written warnings to her, and her subsequent
termination. She maintains that previous to her report of sexual
harassment, she received no disciplinary action from CCCCD for a
period of twelve years. The evidence shows that Johnson promoted
Newsome after she reported sexual harassment. Newsome first
received written warnings eight months after she reported sexual
harassment. After having received five written warnings over a
period of approximately four years, CCCCD terminated Newsome.
“[W]here there is close timing between an employee’s protected
activity and an adverse employment action, the employer must
offer a legitimate, nondiscriminatory reason that explains both
the adverse action and the timing.” Shackleford v. Deloitte &
Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999) (internal
citations omitted). CCCCD argues that the warnings were a result
of Newsome’s promotion to Assistant Director of Academic
Advising. In that position, communication and cooperation with
Johnson, the Director of Academic Advising, were essential. Each
of these warnings included language to the effect that if Newsome
continued to fail to comply with her performance expectations,
she would be subject to further disciplinary action, including

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the possibility of termination of employment. CCCCD terminated
Newsome after the February 2004 meeting where Newsome indicated
she would not communicate with Johnson in the future.
Because CCCCD introduced evidence which, if true, would
permit the conclusion that Newsome’s firing was non-retaliatory,
we turn our attention to the ultimate question whether there is
sufficient evidence to support Newsome’s claim that CCCCD
unlawfully retaliated against Newsome. Id. “The ultimate
determination in an unlawful retaliation case is whether the
conduct protected by Title VII was a ‘but for’ cause of the
adverse employment decision.” Id. (citing McDaniel v. Temple
Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985). Even if
retaliation was a motivating factor in Newsome’s termination, “no
liability for unlawful retaliation arises if the employee would
have been terminated even in the absence of the protected
conduct.” Long, 88 F.3d at 305 n.4. See also Laxton v. Gap,
Inc., 333 F.3d 572, 579 (5th Cir. 2003) (“[T]o survive
[defendant’s] motion for judgment as a matter of law, [the
plaintiff] must produce evidence permitting the jury to
disbelieve that [CCCCD’s] proferred reason was its true
motivation.”)
Newsome reiterates the following evidence to rebut CCCCD’s
claim that she was fired because of her poor communication
skills: (1) she had a discipline-free record with CCCCD prior to
her notifying McRae of having been sexually harassed by Johnson’s

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then-husband.; (2) the aforementioned temporal connection between
her complaint of sexual harassment to McRae and the first of a
series of written warnings to Newsome by Johnson; and (3) the
testimony of several of her colleagues admitting that Newsome had
complained of sexual harassment in February 2000.
Significantly, Newsome did not introduce evidence to rebut
any of the incidents for which she received a written warning.
Newsome fails to introduce a source of doubt that, in combination
with her evidence of suspicious timing, would create a jury
question. See Shackleford, 190 F.3d at 409. Newsome’s evidence
does not support a finding that her complaints of sexual
harassment were the but-for cause of her firing.
We find that the evidence in the record, when viewed in its
totality and in the light most favorable to Newsome, does not
create a sufficient conflict in substantial evidence to create a
jury question. AFFIRMED.

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