                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                 July 14, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                         _____________________                     Clerk

                              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.


     *
       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this opinion should not be published and is not precedent except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.

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                                  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,

     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
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



                                  3
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,

                                  4
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

                                   5
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

                                 6
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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