                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 00-41424
                          _____________________


PAMELA LOPEZ,

                                                    Plaintiff - Appellee,

                                  versus

WEBB CONSOLIDATED INDEPENDENT SCHOOL DISTRICT; ET AL,
                                                              Defendants,

WEBB CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,

                                                  Defendant - Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. L-97-CV-95
_________________________________________________________________
                            July 3, 2002

Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     Pamela Lopez (“Lopez”) was an English as a Second Language

(“ESL”) teacher and coach for the Webb Consolidated Independent

School District (“Webb”).         Lopez asserts that Webb removed her

coaching   duties   and   later    constructively     discharged   her   in

retaliation for her having filed an Equal Employment Opportunity

Commission (“EEOC”) charge against Webb.       Webb states that it had

     *
      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this opinion should not be published and is not precedent except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.
legitimate reasons for its actions.        A jury found in Lopez’s favor

and awarded her damages on both claims.             The magistrate judge

denied Webb’s motions for judgment as a matter of law (“JML”) and

for a new trial.     We REVERSE the denial of Webb’s motion for JML

and REMAND with instructions to enter JML in Webb’s favor.

                                     I

     At the time of the incidents at issue, Lopez lived in Bruni,

Texas.    Lopez’s son attended a Webb elementary school in December

1990.    In that month she made a report of sexual harassment by the

elementary school principal to the then-Superintendent but did not

file a formal grievance because she wanted to keep the matter

confidential.1   In June 1991 Lopez applied for a teaching job with

Webb, and was hired on a part-time basis by Superintendent David

Jones    (“Jones”)   and   the   school   board2   to   teach   ESL   at   the

elementary school.     Lopez asked to work full-time, but was told

there was insufficient federal funding.            Lopez’s first year of

teaching proceeded without incident.

     At the end of the school year, Lopez was offered, and she

accepted, a part-time contract for the next school year. On August

4, 1992, Webb filed a complaint with the EEOC, alleging that she


     1
      Lopez filed this complaint as a mother; she was not a Webb
employee at the time.
     2
      Dr. Jones made recommendations on teacher contracts to the
school board and the board made the ultimate decision, but both
Lopez and Jones testified that the board had always agreed with
Jones’s recommendations.

                                     2
had not been hired on a full-time basis in retaliation for her

having made the earlier sexual harassment complaint.3                 In August or

September Jones offered her a full-time position at the elementary

school when federal funding became available. In April 1993, Jones

met with Lopez and offered her a full-time position at the high

school teaching ESL and physical education, and serving as the

girls’ varsity volleyball and basketball coach.                      Jones admits

telling Lopez in their meeting, in which he gave her the job, that

he didn’t like the way she “went about it” at the beginning of the

year, and he hoped he could get over it.                Lopez asserts that this

referred to the EEOC charge she filed in August 1992.                  Jones says

this referred to Lopez going directly to the school board in

November 1992 and volunteering to coach sports teams, rather than

coming to him first as she should have.

     It is undisputed that Lopez began to experience discipline

problems with some of her students in October-November 1993,

although the two sides disagreed as to the source of the problems.

Webb High School Principal Humberto Soliz (“Soliz”) testified that

some of Lopez’s students came to him in November 1993 to complain

about the problems and tensions in Lopez’s class.                On November 16,

Soliz    met   with   two   counselors       and   a   number   of   students   who


     3
      This charge was ultimately dismissed in a notice from the
EEOC dated November 15, 1993, because Lopez had “not oppose[d] an
unlawful discrimination practice covered by Title VII of the Civil
Rights Act of 1964" and the EEOC therefore did not have
jurisdiction to consider her claims.

                                         3
complained about Lopez’s alleged anger toward her students, her

raising her voice, and her insults to students.            Jones testified

that he scheduled a meeting for the next day.           Lopez picked up her

mail at lunch that day, and received a notice from the EEOC (dated

November 15) that her charge had been dismissed.           A copy also was

sent to Webb, but Jones testified he was unsure as to what day he

received it.

      There was a meeting the afternoon of November 17, about which

the   two   sides   give   different       accounts.    Jones,   Lopez,   two

counselors (Gloria Ramon and Raul Hernandez), and some of Lopez’s

students with whom she had had problems were all present.             Lopez

testified that Jones allowed students to scream at and berate her

and that he belittled her and reprimanded her in front of the

students.    Counselor Ramon testified that students had come to her

before November 17 to complain about problems in Lopez’s classroom,

no one yelled at Lopez at the meeting, Jones listened fairly to all

sides, and the meeting was constructive.               One of the students

present also testified that there was no yelling and that Jones

treated everyone fairly.

      On November 30, Jones informed Lopez in writing that he was

“discontinuing” her supplemental girls’ athletics coaching duties

because:

      •     Coaching responsibilities and duties are negatively
            affecting your classroom management.
      •     Coaching responsibilities and duties are negatively
            affecting   your  instructional   responsibilities to


                                       4
            students, in particular, ESL classes.
     •      Comments to student athletes and students in the ESL
            classroom are uncalled for.4

Jones and Lopez met on November 30 to discuss the removal of her

coaching duties.    At this meeting Lopez told Jones she had been

secretly tape-recording their conversations. She said that she did

not trust him to keep his promises to her.      Lopez testified that

Jones reacted angrily and told her she should have taken her

recordings to the EEOC because maybe that would have helped her

case.

     Lopez describes a number of minor occurrences after November

30 that were allegedly discriminatory.     These included: a delay in

installing a markerboard in her classroom; changing the locks to

the gym and not giving her a key even though she was a gym teacher;

secretly removing a telephone from her classroom; and investigating

her telephone usage.    It appears that all teachers experienced a

delay in getting markerboards.        Further, no other teachers had

telephones in their classrooms,5 and it appears that Lopez was not

treated differently in any substantial way from the other teachers

in this respect.

     On May 10, 1994, Jones offered Lopez a contract for the 1994-

95 school year, which she accepted.       However, on May 17, Jones

issued a written reprimand to Lopez, which directed her to improve


     4
        Letter from David Jones to Pamela Lopez, November 30, 1993.
     5
        Lopez’s classroom used to be the tax office.

                                  5
in four problem areas: 1) Lopez’s failure to follow school policy

by bringing complaints directly to the school board rather than to

Soliz and Jones first; 2) Lopez’s unwillingness/inability to have

a   good   working   relationship    with    her   coworkers;    3)    Lopez’s

unprofessional comments to her students; and 4) Lopez’s failure to

communicate with her supervisors when she was going to be absent,

despite having been told to do so beforehand.           The letter warned

Lopez that Jones might not recommend the renewal of her contract

for the 1995-96 school year if she did not comply with the

directives in the letter.

      On May 20, Lopez failed to attend a required teacher workshop,

scheduled to begin at 8:00 a.m., and did not call in beforehand.

She testified that this was because she had been up all night

arguing with her husband about Jones’s actions.           Lopez testified

that by this time, she was “wrung out emotionally” and was “an

emotional wreck [] . . . shaking, not sleeping, and that sort of

thing.”

      In the light of Lopez’s disregard of the directive to call in

before her absences, Jones decided to recommend to the school board

that they not renew Lopez’s 1994-95 contract.          Although the school

board alone had the power to make the decision, it had never

disagreed with one of Jones’s recommendations, which Lopez knew.

Jones put his recommendation to terminate Lopez on the school

board’s    agenda.      A   school   board    member    talked    to    Lopez



                                     6
approximately two weeks before the meeting and told her that Jones

was recommending that they not renew Lopez’s contract.            Lopez

submitted her resignation to Dr. Jones several hours before the

school board meeting.    She testified: “I resigned because I didn’t

want to be fired.”

                                  II

      On July 10, 1997, Lopez filed suit against Webb under Title

VII of the Civil Rights Act of 1964.         She alleged that Webb had

retaliated against her for the EEOC complaint she had filed, in

violation of Title VII, by removing her from her coaching duties

and   accompanying    compensation,    and   later   by   constructively

discharging her.     The case was tried before a magistrate judge and

jury, and the jury found in Lopez’s favor on her two retaliation

claims.   The jury awarded her $15,600 in lost earnings and $69,400

in compensatory damages for the loss of her coaching duties, and

$15,000 in lost earnings and $100,000 in compensatory damages for

her constructive discharge.       The magistrate judge reduced the

compensatory awards to $100,000 to conform with the statutory cap,

and the lost earnings to $21,302.85 to conform with the evidence,

although it was not clear which portions of the award were reduced.

Webb moved for JML at the close of Lopez’s case, at the close of

all the evidence, after the verdict was returned, and after the

magistrate judge rendered the judgment, at which time Webb also

sought a new trial.      The magistrate judge denied all of Webb’s



                                   7
motions.

                                III

     We first address whether Lopez produced sufficient evidence to

support the jury’s finding that Webb’s decision to remove her

supplemental coaching duties and accompanying pay was motivated by

the fact that she had filed a charge with the EEOC.   We review the

magistrate judge’s denial of JML to Webb on this issue de novo.

See Rubinstein v. Administrators of the Tulane Educational Fund,

218 F.3d 392, 401 (5th Cir. 2000), cert. denied, 532 U.S. 937

(2001).    A motion for JML in a jury case “is a challenge to the

legal sufficiency of the evidence supporting the jury’s verdict.”

Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997).        In

evaluating the sufficiency of the evidence, this court considers

“all of the evidence — not just that evidence which supports the

non-mover’s case — but in the light and with all reasonable

inferences most favorable to the party opposing the motion. If the

facts and inferences point so strongly and overwhelmingly in favor

of one party that the Court believes that reasonable men could not

arrive at a contrary verdict, granting [JML] is proper.”    Boeing

Co. v Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc),

overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107

F.3d 331 (5th Cir. 1997) (en banc).   See also Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 149 (2000) (in considering

motion for JML, courts review all the evidence in the record with



                                 8
all reasonable inferences in favor of the non-moving party, and do

not make credibility determinations or weigh the evidence).

     We review the denial of Webb’s motion for a new trial for

abuse of discretion.         Thomas v. Texas Dept. of Criminal Justice,

220 F.3d 389, 392 (5th Cir. 2000).           “The [district court’s] denial

[of a motion for a new trial] will be affirmed unless, on appeal,

the party that was the movant in district court makes a ‘clear

showing’ of ‘’an absolute absence of evidence to support the jury's

verdict,’ thus indicating that the trial court had abused its

discretion in refusing to find the jury's verdict ‘contrary to the

great   weight    of   the    evidence.’‘”     Whitehead    v.   Food    Max   of

Mississippi, Inc., 163 F.3d 265, 269 (5th Cir. 1998) (quoting Hidden

Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998)

((quoting Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir.

1986))).

     However,     “[t]he     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.”                  Long v.

Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996) (citing

McDaniel v. Temple Indep. School District, 770 F.2d 1340, 1346 (5th

Cir. 1985)).     In a Title VII case that has been tried to a jury, we

do not consider the burden-shifting framework of McDonnell-Douglas

v. Green, 411 U.S. 794 (1973), but we instead “inquire whether the

record contains sufficient evidence to support the jury’s ultimate



                                        9
findings.”     Rutherford v. Harris County, Texas, 197 F.3d 173, 180

(5th Cir. 1999) (quoting Smith v. Berry Co., 165 F.3d 390, 394 (5th

Cir. 1999)).

     Thus, with the standards of review as a backdrop, the first

issue we address is whether there is evidence to establish that the

reason Webb removed Lopez from her coaching duties was to retaliate

against her for filing an EEOC charge; or stated differently, is

there evidence to show that if Lopez had never filed an EEOC

charge, she would have been treated differently and she would not

have had her coaching duties taken away.         We must say that the

evidence of animus on the part of Webb that would connect its

actions to the EEOC charge is tenuous.       Lopez filed an EEOC charge

in August 1992. Subsequently, she was offered a full-time position

at the elementary school, and then moved to the high school and was

assigned the coaching duties that she desired, all notwithstanding

her filing an EEOC charge.     Her coaching duties were not removed

until November 1993, after problems had arisen in her classroom.

However, it does appear that Webb received the notice of the

dismissal of her EEOC charge sometime in November 1993, and Jones

did reference her EEOC charge in the meeting in which he removed

Lopez’s coaching duties.       Jones’s statement was admittedly in

response to Lopez’s revelation that she had been secretly taping

their   conversations.     Regardless   of   when   Webb   received   the




                                  10
dismissal letter, the protected activity was filing the complaint,

which occurred in August 1992.

     Webb offered legitimate, nondiscriminatory reasons for its

actions.     Dr. Jones, Principal Soliz and Counselor Ramon all

testified that serious problems had arisen in Lopez’s classroom by

November 1993.     Jones, Ramon, and one of the students present at

the November meeting -- that is, all of the witnesses to testify

about the meeting except Lopez -- testified that the meeting was

fair and constructive in addressing the concerns.         Dr. Jones

testified that he removed Lopez’s coaching duties so that she could

instead focus on her classroom teaching.

     Lopez points to another teacher who was also the baseball

coach and was accused of making derogatory comments to students.

He did not immediately lose his coaching duties and pay after these

allegations, but afterward his duties were removed.      He had not

filed an EEOC complaint.

     The question is whether the evidence is sufficient to connect

the removal of Lopez’s coaching duties to her having filed an EEOC

complaint.     Lopez admits that after she filed her EEOC complaint,

she was offered a full-time position.      She admits she was then

transferred to the high school and given the coaching duties that

she desired.    She further admits that it was only after documented

problems arose in her classroom that her coaching duties were

removed.     Lopez admits that she was having problems with her



                                  11
students, and that school counselors and officials had students

come to them with these problems.              Lopez agrees that coaching

duties were supplementary and that it was within Jones’s discretion

to remove them.       The only evidence that connects her removal to her

filing an EEOC charge is a comment by Dr. Jones referencing her

EEOC charge.    This comment was made after Lopez revealed that she

had been secretly taping their conversations.                   The only other

similarly    situated     person   to   whom   Lopez   points    did   have   his

coaching duties removed as well. In sum, the evidence submitted by

Lopez is insufficient to connect her removal from her coaching

duties to her filing an EEOC charge more than one year earlier, and

Webb is entitled to JML on this claim.

                                        IV

     The jury also found that Webb constructively discharged Lopez

in retaliation for her having filed an EEOC charge.              The standards

of review of the denial of Webb’s motions for judgment of a matter

of law and for a new trial on constructive discharge are the same

as those set out in Part III above.

     Again, the question we are presented is whether there was

sufficient evidence to support the jury’s finding that Lopez was

constructively discharged.         “To prove a constructive discharge, a

‘plaintiff     must    establish    that     working   conditions      were   so

intolerable that a reasonable employee would feel compelled to

resign.’” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.)



                                        12
(quoting Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir. 1994)),

cert. denied, 122 S.Ct. 45 (2001).            This court has stated that:

       In determining whether a reasonable employee would feel
       compelled to resign, we have considered the relevancy of
       the following events: (1) demotion; (2) reduction in
       salary; (3) reduction in job responsibilities; (4)
       reassignment   to   menial   or  degrading   work;   (5)
       reassignment to work under a younger supervisor; (6)
       badgering, harassment, or humiliation by the employer
       calculated to encourage the employee to resign; or (7)
       offers of early retirement [or continued employment on
       terms less favorable than the employee’s former status]
       . . . .

Id. (citations omitted). Discrimination alone, without aggravating

factors,      is    insufficient   to   support    a   claim   of   constructive

discharge.         Id. (citations omitted).

       We first must observe that the record contains no evidence of

a    causal    connection    between    the   alleged    intolerable    working

conditions and Lopez’s resignation.               Lopez did not testify, or

offer any other evidence, that she resigned because her working

conditions had become intolerable. In fact, all of the evidence is

to    the     contrary.      Notwithstanding      the    alleged     intolerable

conditions that had occurred over the period of her employment,

Lopez had in fact accepted employment for another school year.                We

find this fact is fairly conclusive evidence that she did not

regard the conditions as so intolerable that she should not be

expected to endure them.           When, a few days after she accepted

employment for another year, she failed to show up at a workshop

without letting anyone know, Dr. Jones decided to recommend her



                                        13
discharge to the board.     At trial, when Lopez was asked why she

resigned, she unequivocally testified: “I resigned because I didn’t

want to be fired.”      She offered no other reasons.    Therefore,

Lopez’s evidence established no connection between her working

conditions and her decision to resign, as required by Brown.

     Even if we were to assume, however, the necessary causal

connection, Lopez’s working conditions were not intolerable under

Brown. As evidence of a constructive discharge, Lopez points to:

the allegedly groundless written reprimand; the delay in getting a

markerboard for her classroom; the changing of the gym locks and

the fact that she was not given a new key, even though she was a

physical education teacher; and the removal of the telephone from

her classroom.    However, no other teachers had telephones in their

classrooms, and a student testified that Lopez at times spoke on

the telephone during class.       Lopez therefore was not treated

differently from any other teacher.

     On the other hand, Lopez admits that shortly after receiving

a written reprimand directing her to inform school officials

beforehand when she was going to be absent, she did not show up at

a required teacher workshop and did not let anyone know that she

would not be there.    It was undisputed that it was only after this

unexcused absence that Jones decided to recommend that her contract

not be renewed.    Lopez offered no evidence of other employees who




                                  14
disobeyed a rule with respect to which they had just been warned

but were not discharged.

     It is therefore clear that the conditions of Lopez’s work were

not, under Brown, so intolerable as to support a constructive

discharge.    A delay in getting a markerboard, which all teachers

experienced, the removal of a telephone which other teachers did

not have, and the denial of keys to the gym do not amount to

intolerable working conditions.    Neither does a written reprimand

that had a basis in fact.   Moreover, if the school board accepted

Jones’s recommendation, Lopez could have appealed this decision and

gone through the grievance procedure rather than resign.   In sum,

the evidence is insufficient to demonstrate any of the Brown

factors and Lopez has failed to produce sufficient evidence that

she was constructively discharged. Webb is entitled to JML on this

claim as well.

                                  V

     Having found that Webb is entitled to JML on Lopez’s two

retaliation claims, the only basis of liability determined by the

jury, we need not address Webb’s challenges to the damages awarded

to Lopez nor Webb’s claim that the jury was prejudiced against the

defendants.

                                  VI




                                  15
     For the foregoing reasons, we REVERSE the denial of Webb’s

motion for judgment as a matter of law and REMAND with instructions

to enter judgment as a matter of law in Webb’s favor.

                                            REVERSED and REMANDED.




                                16
