               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                           _____________________

                               No. 95-10220

                              Summary Calendar
                           _____________________


          TAMALYN A. TIPS,

                                     Plaintiff-Appellant,

          v.

          REGENTS OF TEXAS TECH UNIVERSITY, ET AL.,

                                     Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                          (5:94 CV 193 C)
_________________________________________________________________
                           August 3, 1995


Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Tamalyn   A.   Tips   appeals    the   dismissal   of   her   suit   with

prejudice based on the district court's presumption that the case

had been settled.    We reverse.

     On August 2, 1994, Tips filed suit against the Board of

Regents of Texas Tech University and ten individual defendants


     *
      Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
pursuant to the Rehabilitation Act of 1973 (Rehabilitation Act),

the Americans with Disabilities Act of 1990 (ADA), the Fourteenth

Amendment, and state tort law.      Tips alleged that she was a person

with a disability or handicapping condition within the meaning of

the   Rehabilitation   Act   and   the   ADA,   and   she   challenged   the

University's decision to dismiss her from its doctoral program in

clinical psychology without making reasonable accommodations to her

disability.     The defendants answered the complaint, and district

court entered a scheduling order directing that all motions and

pleadings be filed by January 3, 1995.

      On November 21, 1994, Tips' attorney notified the district

court coordinator by telephone that there was "a pending settlement

in the matter."    That same day, the district court entered an order

which stated:

                The parties have indicated to the Court
           that    they   have    settled   this    case.
           Accordingly, this case is administratively
           closed without prejudice to its being reopened
           to enter an order of dismissal or if the
           settlement is not consummated.     Counsel in
           this case are ordered to file the papers
           necessary to dismiss this action on or before
           thirty (30) days from the date of this order.

      According to the affidavit of Tips' attorney, after learning

that the defendants had rejected the settlement, he called the

court coordinator on December 21, 1994, to "inform the Court that

the settlement had fallen through."1            The affidavit states that

the court coordinator told the attorney that a written filing would


      1
       The district court records do not reflect that the court
received this information.

                                    2
be required, but not that it must be filed by a certain date.



     On December 28, 1994, the district court sua sponte dismissed

the suit with prejudice.           The order of dismissal states that,

because the parties have not notified the court that they have not

consummated a settlement, the court "presumes that the            . . . cause

has been finally settled."         On December 29, 1994, Tips' attorney

filed a "Notice to Court of Non-Settlement."           The district court

denied "any relief requested in the Notice [of Non-Settlement],"

and it denied Tips' motion for a new trial.2         Tips appeals.

     A district court may sua sponte dismiss an action for failure

to prosecute, FED. R. CIV. P. 41(b), and it may order any sanctions

"as are just" for a party's failure to obey a pretrial order. FED.

R. CIV. P. 16(f). Although it is unclear whether the district court

dismissed this suit pursuant to Rule 41(b) or Rule 16(f), this

court    reviews   a   dismissal    under   either   rule   for    abuse   of

discretion.    Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th

Cir. 1992) (Rule 41(b)); S.E.C. v. First Houston Capital Resources

Fund, Inc., 979 F.2d 380, 381-82 (5th Cir. 1992) (Rule 16(f)).

     The court will affirm a dismissal with prejudice

            for failure to prosecute only when (1) there
            is a clear record of delay or contumacious
            conduct by the plaintiff, and (2) the district
            court has expressly determined that lesser
            sanctions    would   not    prompt    diligent
            prosecution, or the record shows that the

     2
       On the same day that she filed her notice of appeal, Tips
also filed a FED. R. CIV. P 60(b) motion, which was denied by the
district court. The denial of that motion is not before the
court at this time.

                                      3
            district court employed lesser sanctions that
            proved to be futile.

Berry, 975 F.2d at 1191 (footnote omitted).      In most cases in which

this court has affirmed a dismissal with prejudice for failure to

prosecute, the court has also found one of three aggravating

factors:    "(1) delay caused by the plaintiff himself and not his

attorney; (2) actual prejudice to the defendant; or (3) delay

caused by intentional conduct."          Id. (internal punctuation and

citation omitted).

      The court has characterized its review of a sanction under

Rule 16(f) as "determining whether the punishment fits the crime."

First Houston, 979 F.2d at 382.         A dismissal under Rule 16(f) is

"generally permitted . . . only in the face of a clear record of

delay or contumacious conduct by the [party]."       Id. (quotation and

citation omitted).      The record must also show that the district

court expressly considered whether a less drastic sanction would

suffice.    Id. at 382-83.

      In this case, the district court dismissed the suit with

prejudice based on the failure of Tips' counsel to comply timely

with only one order; the court did not expressly determine that

lesser sanctions would be futile; and none of the aggravating

factors exists.      Berry, 975 F.2d at 1191; First Houston, 979 F.2d

at   382.    Under   these   circumstances,   dismissal   of   Tips'   suit

constituted an abuse of discretion.

      The judgment of the district court is REVERSED, and the case

is REMANDED with instructions to reinstate the case.



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