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this opinion should not be published and is not precedent except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