                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit             December 15, 2004

                                                        Charles R. Fulbruge III
                                                                Clerk
                             No. 03-21025



                            YOLANDA FRANK,

                                               Plaintiff-Appellant,

                                VERSUS


                            HARRIS COUNTY,
                                                Defendant-Appellee.



             Appeal from the United States District Court
         For the Southern District of Texas, Houston Division
                            (4:99-CV-2383)
Before BARKSDALE, GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:*

     Plaintiff-Appellant Yolanda Frank (“Frank”), a former deputy

for Defendant-Appellee Harris County (the “county”), appeals the

district court’s summary judgment dismissal of her 42 U.S.C. § 1983

claim.    Frank also appeals the district court’s grant of judgment

as a matter of law on her Title VII quid pro quo harassment and

retaliation claims, 42 U.S.C. § 2000e et seq.    We AFFIRM.

                              BACKGROUND

     Frank was hired on February 1, 1997, to serve as a deputy


     *
      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this opinion should not be published and is not precedent except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.
constable,    under    the    supervision       of   Constable      A.B.   Chambers

(“Chambers”), in the Absent Student Assistance Program division

(“ASAP”), a contract program with the Houston Independent School

District.    Based on the affiliation with the school district, ASAP

employees were hired for a limited period of one school year and

let go at the end of each year.        Employees submitted new employment

applications for each following school year.                 Accordingly, Frank

was terminated at the end of the year on May 11, 1998, and rehired

on July 29, 1998, for the 1998-99 school year.               Once rehired, Frank

entered into a new 90-day probationary period, consistent with

policy.    Frank was terminated on October 16, 1998, within the 90-

day probationary period.          The parties dispute the reason for

Frank’s    termination.        Frank   claims        she   was     terminated    for

rejecting, yet not reporting, the numerous sexual advances of

Constable Chambers.          Frank describes at least six incidents of

unwanted and offensive sexual advances and touchings she endured

from Chambers.        The county responds that Frank was terminated

because of some five incidents of insubordination or failure to

obey orders during her 90-day probationary period.

     Frank filed suit against the county, alleging that Constable

Chambers    sexually   harassed    her     on    the   job   and    that   she   was

wrongfully terminated.          The county filed a motion for summary

judgment as to all claims. The district court granted the county’s

motion for summary judgment on Frank’s § 1983 claim and denied

summary judgment as to the sexual harassment and retaliation claims

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arising under Title VII.    By written memorandum and order, the

district court held that: (1) Frank was an employee of Harris

County; (2) Constable Chambers, as an elected official, was not an

employee of Harris County; (3) Frank failed to establish a genuine

issue of material fact as to whether the county had a well-settled

custom or policy causing her injury and therefore that summary

judgment was properly granted to the county on the § 1983 claim;

(4) a genuine issue of material fact precluded summary judgment as

to Frank’s sexual harassment claim on a quid pro quo theory; and

(5) a genuine issue of material fact precluded summary judgment as

to Frank’s retaliation claim.

     The surviving Title VII claims were tried to a jury, and a

verdict was rendered for Frank in excess of $400,000.      After the

jury returned its verdict, the county reurged its motion for

judgment as a matter of law under FED. R. CIV. P. 50, and the

district court granted the county’s motion by written memorandum

and order.   The district court reiterated its prior determination

of the employment status of the individuals — that Frank was an

employee of the county and Chambers, as an elected constable, was

not an employee of the county.       Then the district court granted

judgment as a matter of law to the county on both Frank’s quid pro

quo harassment claim and retaliation claim.

                            DISCUSSION

     Frank argues that three issues require reversal and remand.


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As explained here, we disagree.

I.   Summary Judgment Properly Entered on § 1983 Claim

       First, Frank argues the district court erred in granting

summary judgment to the county on her § 1983 claim.            This Court

reviews the grant of summary judgment de novo and uses the same

standard as does the district court in evaluating the motion,

examining the record in the light most favorable to the nonmovant,

here, Frank.    See Duckett v. City of Cedar Park, 950 F.2d 272, 276

(5th   Cir.   1992).    Summary    judgment   is   appropriate    “if   the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       In order for the county to be liable under § 1983, Frank must

show, among other things, either the unconstitutional action of

policymakers or an unconstitutional policy or custom.          See Johnson

v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).           The district court

correctly determined that Frank failed to raise a genuine issue of

material fact as to whether any official policy or custom governed

the alleged conduct and whether Chambers was the final policy

maker.    See Rhode v. Denson, 776 F.2d 107 (5th Cir. 1985) (holding

elected    constable   not   the   final   policymaker   and     therefore

unconstitutional acts of elected county official not chargeable

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against the county); see also Drain v. Galveston County, 979 F.

Supp. 1101 (S.D. Tex. 1997) (holding county cannot be held liable

for conduct of elected official constable under § 1983 because he

is not final policymaker).

     Frank argues on appeal that her case is distinguishable from

those relied upon by the district court because Constable Chambers

admitted in deposition testimony that he was the final policymaker,

creating an issue that should have been submitted to the jury.          The

county disputes that Chambers so testified and argues that, even if

he did, such testimony is merely a legal conclusion which is

contrary to established law.        As a matter of law in this Circuit,

an elected county constable is not, absent specific facts not

present   in   this   case,   the   final   policymaker   such   that   his

unconstitutional conduct may be chargeable against the county. See

Rhode, 776 F.2d at 109-10.



     The determining factor, however, is neither that a constable
     is elected by voters from a subunit of the County nor that the
     commissioner's court controls his salary. The critical
     circumstance is that . . . a constable . . . was not given
     that discretion, or range of choice, that is at the core of
     the power to impose one's own chosen policy. It is true that
     a constable possesses a limited range of choice, which is
     essential even to virtually ministerial tasks. But a
     constable's range of choice is no greater than that, for
     example, of a peace officer who must decide whether to arrest
     for a misdemeanor committed in his presence.

Id. at 109.

     Chambers’s testimony is not controlling on the issue of


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whether,   as   a   matter   of   law,       he   was   the   final   policymaker.

Moreover, Frank did not adduce evidence or argument, beyond this

testimony, to support a finding that an unconstitutional custom or

policy of sexual harassment existed.                    Because Frank failed to

submit a genuine issue of material fact on the question of whether

an unconstitutional custom or policy of sexual harassment existed,

the district court properly granted judgment to the county on the

§ 1983 claim.

II.   Judgment as a Matter of Law on Frank’s Title VII Claims

      Next, Frank appeals the district court’s grant of judgment as

a matter of law under Rule 50 as to her Title VII claims for both

quid pro quo harassment and retaliation.                 This Court reviews the

grant of a Rule 50 motion de novo, applying the same standards as

the district court applied and considering all the evidence in the

light most favorable to the jury’s verdict. Resolution Trust Corp.

v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993).                 “If during a trial

by jury a party has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable jury to find

for that party on that issue, the court may determine the issue

against that party and may grant a motion for judgment as a matter

of law against that party.”        FED. R. CIV. P. 50(a)(1).

      A.   Frank’s Title VII quid pro quo harassment claim

      In determining that judgment should be entered for the county

on Frank’s Title VII quid pro quo harassment claim, the district


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court made several initial findings, each now challenged by Frank.

First, the district court found, initially on the motion for

summary judgment and again – but without new evidence – on the Rule

50 motion, that Frank was employed by Harris County.           The court

applied the hybrid economic realities/control test as described in

Bloom v. Bexar County, 130 F.3d 722 (5th Cir. 1997), and per this

Court’s instruction, analyzed the control factor under Texas law.

Finding   that    the   county   exercises   considerable   control   over

deputies (e.g., salary and benefit provisions, tax withholding, and

establishment of terms and conditions of employment), Frank was

correctly held to be an employee of Harris County for purposes of

Title VII.

     Next, the court determined that Chambers was not employed by

the county, primarily because he is an elected official who is not

subject to the civil service laws of the state government.        See 42

U.S.C. § 2000e(f). For purposes of Title VII, the Equal Employment

Opportunity Act of 1972 provides that elected officials are not

employees.    Id.   Frank argued to the district court and argues now

on appeal that the county can be liable for Chambers’s conduct –

irrespective of his employment status – because he was Frank’s

supervisor.      For this proposition, Frank relies upon Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.

City of Boca Raton, 524 U.S. 775 (1998).            Burlington does not

support Frank’s argument in this regard because the supervisor in


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Burlington was an employee of the defendant employer, a private

corporation.    524 U.S. at 747.          In Faragher, the Court considered

a governmental employer, but again, the supervisor was an employee.

524 U.S. at 780 (“This case calls for identification of the

circumstances under which an employer may be held liable under

Title VII . . . for the acts of a supervisory employee.”).                 Neither

case supports Frank’s position.

      This Circuit has recognized that employers may be liable under

Title VII for the conduct of non-employees in the workplace when

the employer knows of the harassment but fails to act.                  Garziano v.

E.I. Du Pont de Nemours & Co., 818 F.2d 380, 387 (5th Cir. 1987).

Based upon Chambers’s status as a non-employee, Frank may state a

Title VII claim against the county for Chambers’s unconstitutional

and tortious conduct, only if the county knew or should have known

of   the   conduct   and    failed   to       take    immediate   and   appropriate

corrective action.         See 29 C.F.R. § 1604.11(e).

      The district court found that Frank adduced no evidence of the

county’s knowledge.         The district court, in its order regarding

summary judgment, believed that Frank filed her EEOC charge on

January 22, 1998, thereby permitting time for the EEOC and Texas

Commission on Human Rights to inform the county of the problem and

conduct    investigation.        But      to    the    contrary,   at    trial   the

undisputed fact emerged that Frank did not file her first complaint

regarding Chambers’s conduct until February 1999, four months after


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her employment ended. By Frank’s own testimony, she did not report

the offensive conduct until after her termination. Also, Frank did

not report the conduct to the human resources department, to any of

her supervisors, to the district attorney’s office, or to the

mental health program.        Therefore, the district court’s original

assumption   that    the    county    had   knowledge   of    the   problem   was

incorrect; and in the subsequent order regarding the Rule 50

motion, the district court corrected this inaccuracy.

     Frank argues that another individual’s prior cause of action,

in which the plaintiff complained of Chambers’s conduct, Moore v.

Harris County,      No.    98-01776    (S.D.   Tex.   filed    June   5,   1998),

provided the requisite knowledge to the county to support quid pro

quo liability for a non-employee’s conduct.              The district court

rejected this argument because Moore resulted in a judgment for

Chambers on the merits, and therefore did not advance Frank’s

argument, and because the evidence of the existence of other

complaints against Chambers was admitted solely for the purposes of

showing Chambers’s motive, opportunity, or intent to sexually

harass Frank.

     Even if the county knows or should know of harassment once a

suit is filed and some evidence of harassment is presented, the

Moore case is, on this record, insufficient to reverse the judgment

for the county because no other evidence of the county’s knowledge

was presented and, most importantly, Frank does not argue that the


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testimony or depositions or other evidence presented in Moore put

the county on notice of Chambers’s conduct.           Instead she merely

argues that the case’s existence is sufficient to provide notice.

We disagree.     On this record, we affirm the district court’s

judgment as matter of law on Frank’s Title VII claim for harassment

by a non-employee.

     B.   Frank’s Title VII retaliation claim

     The district court also entered judgment as a matter of law

for the county on Frank’s retaliation claim.         To state a claim for

retaliatory discharge under Title VII, Frank must show that: (1)

she engaged in a protected activity; (2) the employer took an

adverse employment action against her; and (3) there was a causal

connection    between   the   protected   activity    and   that   adverse

reaction.    Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d

512, 519 (5th Cir. 2001).

     The court reversed the jury’s verdict on this claim because it

determined Frank failed to engage in a protected activity.              A

protected activity is “opposition to any practice rendered unlawful

by Title VII, including making a charge, testifying, assisting, or

participating in any investigation, proceeding, or hearing under

Title VII.”    Id. (citing 42 U.S.C. § 2000e-3(a) and Evans v. City

of Houston, 246 F.3d 344, 352-53 (5th Cir. 2001)).          The district

court found that Frank, by her own testimony, did not participate

in a protected activity, that is, filing an EEOC complaint, until


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after her termination.

     On appeal, Frank argues that the protected activity she

engaged   in    was    her   “express    rejection”   of   Chambers’s   sexual

advances. But Frank provides no authority for the proposition that

a single “express rejection” to Chambers constitutes as a matter of

law a protected activity for purposes of retaliation.             Also, Frank

offers no explanation or evidence in support of the required

element of causal connection. To demonstrate causation, Frank must

adduce evidence that “but for” the protected activity, the adverse

employment action would not have occurred.             See Mota, 261 F.3d at

519 (internal quotation marks and citations omitted).             Frank fails

to explain on appeal, as below, how her opposition to Chambers’s

advances,      which   by    her   own   testimony    consisted   largely   of

unexpressed disapproval and was not reported to the county or the

EEOC prior to termination, caused her ultimate termination.

     Therefore, we affirm the district court’s grant of judgment as

a matter of law on the retaliation claim.

                                   CONCLUSION

     Having fully considered the briefs, record on appeal and oral

arguments of the parties, we conclude the district court properly

entered judgment for the county on both the motion for summary

judgment and the motion for judgment as a matter of law.

AFFIRMED.




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