                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                          No. 98-20547
                        Summary Calendar

                        SANDY G. TOLLETT,

                      Plaintiff-Appellant,

                             VERSUS

                       THE CITY OF KEMAH,

                       Defendant-Appellee.



                          No. 98-20631
                        Summary Calendar

                        SANDY G. TOLLETT,

                       Plaintiff-Appellee,

                             VERSUS

                       THE CITY OF KEMAH,

                      Defendant-Appellant.


          Appeals from the United States District Court
                for the Western District of Texas
                         (96-H-CV-3131)
                       September 13, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
     Tollett appeals the district court’s decision to deny her


     *
      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this opinion should not be published and is not precedent except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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motion for a new trial.    On cross-appeal, City of Kemah appeals the
district court’s order granting sanctions. We affirm the denial of
motion for a new trial and remand for assessment of sanctions.
                      I.   FACTS AND PROCEEDINGS
     Sandy Tollett was hired as a full-time, unpaid police officer
within the City of Kemah in August, 1993.      As an unpaid officer,
Tollett worked under the same conditions as the paid officers: she
wore the same uniforms as paid officers, had access to patrol
vehicles, and received the same training.    Tollett was required to
attend all mandatory meetings and was considered on-duty 24 hours
a day.
     When Tollett was hired, she was assigned to a field training
officer, Sargeant Pete Munoz.    Tollett claims that Munoz expressed
dislike toward women police officers and that superior officers,
including the chief of police, did not discourage Munoz’s attitude.
Tollett claims that she was unable to complete the minimum hour
requirements for the field training because of Munoz.    When she was
unable to complete the minimum hours, she transferred from the
field training program to bicycle patrol.       Tollett subsequently
left the patrol because of pregnancy. After her pregnancy, she was
required to enter the field training program again.
     On September 26, 1996, Tollett filed this suit pursuant to 42
U.S.C. § 2000e.    On May 13, 1997, Tollett filed a motion to compel
answers to her interrogatories and compel production of employment
records.   The City objected to the production of employment files
stating that the files were privileged under Texas law.     Further,
the City claimed that it was conducting research to answer the
interrogatories.    The district court granted Tollett’s request.
Tollett, however, did not receive any supplemental answers to
interrogatories.    In addition, the City stated that it could not
locate the employment files that Tollett requested.
     On October 6, 1997, the court held docket call.       At docket

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call, the City claimed that it understood the court’s order to
compel the production of employees’ files who were similarly
situated to Tollett.          On October 9, 1997, Tollett filed a motion
for sanctions against the City.
     On March 10, 1998, the case proceeded to trial. During trial,
the City produced employee files of paid and unpaid officers.
Tollett moved for a mistrial in order to review the employee files.
The court denied this motion.           Tollett also filed a motion for a
continuance to review the employment files which the district court
denied.
     The jury returned a verdict in favor of the City.                        The
district court denied Tollett’s motion for a new trial pursuant to
Fed. R. Civ. P.      59.       The court also entered an order granting
Tollett’s   motion      for   sanctions,     assessing    $5000   in   sanctions
jointly and severally against the City and several employees.
                                 II.   DISCUSSION
     In   her   first    point    of   error,   Tollett    contends    that   the
district court erred in denying her motion for a new trial pursuant
to Fed. R. Civ. P. 59.            We will overturn a decision denying a
motion for a new trial only where we find an abuse of discretion by
the district court.       See Jones v. Wal-Mart Stores, Inc., 870 F.2d
982, 986 (5th Cir.1989).          We conclude the district court did not
abuse its discretion.
     In order for newly discovered evidence to warrant a new trial,
we consider whether the evidence: (1) would have changed the
outcome of the trial; (2) could have been discovered earlier with
due diligence; and (3) is merely cumulative or impeaching.                    See
Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995).               Tollett
has not directed us to, nor have we found, any evidence that would
have changed the outcome of the trial.
     In her second point of error, Tollett contends that the
district court should have set aside the jury’s verdict on the

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ground   that     the   verdict    was     the   result   of    fraud     and
misrepresentation pursuant to Fed. R. Civ. P. 60.              Because this
claim was raised for the first time on appeal, we shall not address
it.   See Shanks v. Allied Signal, Inc., 169 F.3d 988, 993 n.6 (5th
Cir. 1999).
      On cross-appeal, the City contends that the district court
abused its discretion in granting Tollett’s request for sanctions.
We review the district court’s imposition of sanctions for abuse of
discretion.     See Resolution Trust Corp. v. Bright, 6 F.3d 336, 340
(5th Cir.1993).     A court abuses its discretion when its ruling is
based on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.       See Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990).
      We conclude that the district court abused its discretion in
imposing sanctions.     Under Rule 37 of the Federal Rules of Civil
Procedure, a party may be liable for reasonable expenses including
attorney’s fees caused by the failure to comply with a discovery
order. The language of Rule 37 provides that only the expenses and
fees caused by the failure to comply may be assessed by the
noncomplying party.     See Fed. R. Civ. P. 37(b)(4);      Batson v. Neal
Spelce Assocs., Inc., 765 F.2d 511, 516 (5th Cir. 1985).
       The district court sanctioned the City “the sum of $5,000 in
attorneys [sic] fees and all court costs....”          The City contends,
and Tollett concedes, that the sanction imposed by the court is not
supported by proof of the incurred fees and expenses.                   It is
necessary,    therefore,   to     remand   for   a   redetermination      and
assessment of reasonable attorney’s fees and costs under Rule 37.
                            III. CONCLUSION
      For the foregoing reasons, the district court did not abuse
its discretion in denying Tollett’s motion for a new trial.                We
remand, however, for reconsideration and assessment of sanctions.


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AFFIRMED and REMANDED.




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