United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS               June 28, 2007
                        FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                    Clerk

                              No. 06-50102

                        ))))))))))))))))))))))))))

SUZAN RUSSELL,

                  Plaintiff-Appellant,

     versus

UNIVERSITY OF TEXAS OF THE PERMIAN BASIN,

                  Defendant-Appellee.


            Appeal from the United States District Court
                  for the Western District of Texas
                           No. MO-04-CV-131



Before KING, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Dr. Suzan Russell (“Dr. Russell”) sued her

former employer, the University of Texas of th e Permian Basin

(“UTPB”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., alleging gender discrimination, sexual harassment,

and retaliation.      The district court denied UTPB’s motion for

summary judgment as to gender discrimination, but granted its motion

regarding   the   sexual   harassment   and   retaliation   claims.        Dr.


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT RULE
47.5.4.
Russell’s gender discrimination claim proceeded to trial, and the

jury returned a verdict in favor of UTPB.   Dr. Russell now appeals

the district court’s order with respect to the sexual harassment and

retaliation claims.   Additionally, Dr. Russell appeals the district

court’s denial of her proposed jury instruction on spoliation.

                 I. FACTUAL AND PROCEDURAL HISTORY

     UTPB hired Dr. Russell in July 2002 to fill a one-year, non-

tenure track position as a Visiting Assistant Professor in English

in the Department of Humanities and Fine Arts (“the Department”).

In October 2002, Dr. Russell also accepted a non-tenure track, one-

year appointment as the Faculty Advisor to The Mesa Journal, UTPB’s

campus newspaper.

     Dr. Russell alleges that, beginning in September 2002 and

continuing through May 2003, Dr. Sarah Shawn Watson (“Dr. Watson”),

her supervisor and Chair of the Department at that time, sexually

harassed her.   The alleged harassment consisted of both suggestive

remarks and provocative touching. Specifically, Dr. Russell alleges

that Dr. Watson: (1) “provocatively rubbed the side” of her hand;

(2) called her “honey” and “babe” on numerous occasions from

September 2002 through May 2003; (3) said to her “I wouldn’t mind

watching the movie in bed with you”; (4) once rubbed Dr. Russell’s

thigh with her hand while in Dr. Russell’s office; and (5) sat next

to her and said “I want to move to NYC,” which Dr. Russell

understood as implying that Dr. Watson wanted to live with her.



                                  2
     Meanwhile, in November 2002, Dr. Russell applied for an open

tenure-track position in Nineteenth Century American Literature.

A committee composed of six UTPB professors was chosen to select a

candidate to fill the open position.                 Dr. Watson chaired the

committee,     and    Drs.   Sophia    Andres,     Mark   Wildermuth,    Joanna

Hadjicostandi, Ken Sherwood, and Richard Spence comprised the

remainder of the committee.            UTPB received between seventy and

eighty applications for the position.              The committee reviewed the

applications,    and    decided   to    interview     approximately     eighteen

candidates at the Modern Language Association Convention (“the

Convention”)    in     December   2002.       Drs.    Watson,    Sherwood,   and

Wildermuth interviewed the candidates at the Convention and selected

three finalists from that group.            Though Dr. Russell was unable to

attend the Convention, Drs. Watson, Sherwood, and Wildermuth gave

her a Convention-style interview on-campus in February 2003.              After

interviewing    Dr.    Russell,   the       full   committee    considered   the

applications of the three finalists plus Dr. Russell.

     The full committee decided to invite two finalists, Dr. Todd

Richardson and Caroline Miles, for on-campus interviews.                At this

point, Dr. Russell was out of the running.                The full committee

unanimously recommended Dr. Richardson for the open tenure-track

position.      The committee did not, however, have the ultimate

authority to hire Dr. Richardson.            The committee’s recommendation

had to be accepted by Dr. Olsen, the Dean of the College of Fine

Arts and Sciences.      After accepting the committee’s recommendation,

                                        3
Dr. Olsen had to pass the recommendation to Dr. Fannin, the Vice

President of Academic Affairs, for final approval. UTPB offered the

tenure-track position to Dr. Richardson after Drs. Olson and Fannin

concurred in the committee’s recommendation.

     In March 2003, Dr. Watson informed Dr. Russell that she had not

been selected for the position, and she attributed Dr. Russell’s

failed candidacy to her lack of publication.1    Though Dr. Russell

was not selected for the tenure-track position, in June 2003, UTPB

offered to extend her appointments as the Faculty Advisor to The

Mesa Journal and as a Visiting Assistant Professor of English for

the 2003-2004 academic year.   Dr. Russell accepted the extension.

     Though Dr. Russell agreed to renew her appointments for another

year in June 2003, she alleges that Dr. Watson began to treat her

unfavorably after she rejected Dr. Watson’s sexual advances.    Dr.

Russell contends that Dr. Watson excluded her from departmental

meetings, cancelled some of her classes, and refused to give her

desired class assignments.   These incidents prompted Dr. Russell to

file an informal grievance against Dr. Watson in October 2003.2

     In April 2004, UTPB informed Dr. Russell that it would not

     1
       Dr. Russell alleges that, at this meeting, Dr. Watson asked
her what she was going to do now that she was not getting the
tenure-track position. Dr. Russell replied that was going back to
New York City, to which Dr. Watson allegedly responded “I will be
two steps behind you when you go.” Dr. Russell asked Dr. Watson
what she meant by this and, according to Dr. Russell, Dr. Watson
nervously got up and walked out.
     2
       Dr. Russell had filed a sexual harassment grievance against
Dr. Patricio Jaramillo in April 2003.

                                 4
renew her contract as a Visiting Assistant Professor.             UTPB did,

however, invite Dr. Russell to apply for a new non-tenure track

position   as   Director    of   The   Mesa    Journal.   Dr.   Russell   had

previously expressed an interest in the position as a means of

remaining at UTPB.         She alleges that the appointment had been

originally represented to her as an “open rank position,” which,

according to Dr. Russell, meant that the position could eventually

result in a tenured professorship.            In her complaint, Dr. Russell

explains that she rejected the offer because the position, as

defined in the invitation, was a non-tenure track, lecturer position

with a master’s degree as the minimum qualification.            The position

was unsuitable, she believed, for someone of her professional

status.3

     On September 27, 2004, Dr. Russell sued UTPB under Title VII,

alleging gender discrimination and retaliation. Dr. Russell alleges

that her rejection of Dr. Watson’s unwelcome sexual advances led to

the rejection of her application for the tenure-track position,

denial of requested class assignments, attempts to remove her from

the Department, and exclusion from faculty meetings.            Dr. Russell

filed an amended complaint on January 4, 2005, adding a sexual

harassment claim.    UTPB filed a motion for summary judgment on all

claims.    The district court denied the motion with respect to the

gender discrimination claim, but granted it on the sexual harassment


     3
       Dr. Russell has a Ph.D. from New York University and had
experience teaching at a number of colleges and universities.

                                       5
and retaliation claims.

     Dr. Russell’s gender discrimination claim went to trial on

December 8, 2005.        At the conclusion of evidence, Dr. Russell

requested   that   the   district   court   include   an   instruction   on

spoliation of evidence in its jury charge.            The district court

denied the request.      The jury returned a unanimous verdict in favor

of UTPB.    The district court entered final judgment on the jury’s

verdict on December 16, 2005.

     Dr. Russell now appeals the district court’s order granting

UTPB’s motion for summary judgment on the sexual harassment and

retaliation claims and the district court’s denial of her proposed

jury instruction on spoliation.

               II. JURISDICTION AND STANDARD OF REVIEW

     Dr. Russell appeals a final judgment of the district court, so

this court has jurisdiction over the appeal under 28 U.S.C. § 1291.

     We review a summary judgment de novo.            Dallas County Hosp.

Dist. v. Assocs. Health & Welfare Plan, 

, 285 (5th Cir.

2002). Summary judgment is proper when the pleadings, discovery

responses, and affidavits show that there is no genuine issue of

material fact and that the moving party is entitled to a judgment as

a matter of law.   FED. R. CIV. P. 56(c).    A dispute about a material

fact is genuine if the evidence is such that a reasonable jury could

return a verdict for the non-moving party.            Anderson v. Liberty

Lobby, Inc., 

, 248 (1986).      When deciding whether there

is a genuine issue of material fact, this court must view all

                                    6
evidence in the light most favorable to the non-moving party.

Daniels v. City of Arlington, 

, 502 (5th Cir. 2001).

                           III. DISCUSSION

A.   Sexual Harassment

     In Oncale v. Sundowner Offshore Services, Inc., 

(1998), the Supreme Court held that Title VII prohibits same-sex

sexual harassment.    The Supreme Court stressed, however, that, like

all plaintiffs alleging sexual harassment, the employee claiming

same-sex harassment must “prove that the conduct at issue was not

merely tinged with offensive sexual connotations, but actually

constituted discrimination because of sex.”       

(internal

quotation marks and alterations omitted).

     This circuit has established a two-step process for evaluating

same-sex sexual harassment cases.       See, e.g., La Day v. Catalyst

Tech., Inc., 

(5th Cir. 2002).      Per Oncale, in La Day,

we determined that the employee must first demonstrate that the

sexual harassment was “discrimination because of sex.”        

The employee may make this showing by: (1) establishing that the

harasser made “explicit or implicit proposals of sexual activity and

providing credible evidence that the harasser was homosexual;” (2)

demonstrating that the harasser was “motivated by general hostility

to the presence of members of the same sex in the workplace;” or (3)

offering   “direct,   comparative   evidence   about   how   the   alleged

harasser treated members of both sexes in a mixed-sex workplace.”



                                    7


case, Dr. Russell has created a fact issue that the

sexual harassment was discrimination because of sex since                     Dr.

Russell put on evidence that Dr. Watson made sexual advances to her

and it is undisputed that both Dr. Russell and Dr. Watson are

lesbians.

      If the employee establishes that the same-sex sexual harassment

was discrimination because of sex, then the court must decide

whether the alleged conduct meets the applicable standards for

either a quid pro quo or hostile work environment claim.                  La 

.4     Whether    the    employee   suffered   a    tangible

employment action determines whether we analyze the claim as a quid

pro quo sexual harassment claim or as a hostile work environment

claim.    Casiano v. AT&T Corp., 

, 283 (5th Cir. 2000).

A tangible employment action constitutes “a significant change in

employment status such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.”                   Burlington

Indus., Inc. v. Ellerth, 

, 761 (1998).              If the employee

experienced a tangible employment action, then the case moves

forward as a quid pro quo claim; if not, then it proceeds as a

hostile work environment claim.              

.       Here,

there was a tangible employment action because UTPB failed to

promote      Dr.   Russell   to   the   tenure-track      position   in   American

      4
      At this point, the court uses the same analysis for all types
of sexual harassment cases, including same-sex sexual harassment.

                                         8
Literature.

      1.   Quid Pro Quo Claim

      For Dr. Russell to succeed on a quid pro quo harassment claim,

she must show that (1) she suffered a tangible employment action and

(2) the tangible employment action resulted from her acceptance or

rejection of her supervisor’s alleged sexual advances.   La 

(citing 

).   In other words, in

order to survive summary judgment, Dr. Russell must demonstrate a

genuine issue of material fact regarding whether Dr. Watson, her

alleged harasser, took a tangible employment action against her

because she rejected Dr. Watson’s sexual advances.   See 

(finding no tangible employment action when an

employee was denied access to a training program because another

manager, not the harassing supervisor, was responsible for the

decision); see also Durkin v. City of Chi., 

, 611 (7th

Cir. 2003) (“When a supervisor engages in sexual harassment, the

employer is liable for the harassment only if the harasser took a

tangible employment action as part of his harassment.”) (citing

Faragher v. City of Boca Raton, 

, 807 (1998)).    If the

employee proves that the tangible employment action resulted from

her acceptance or rejection of her supervisor’s sexual advances,

then the employer is vicariously liable, and may not assert the

Ellerth/Faragher affirmative defense.5    

.

      5
       The affirmative defense consists of two prongs, both of which
the   employer must fulfill: “(a) that the employer exercised

                                  9
In this case, the district court rejected Dr. Russell’s quid pro

claim because it concluded that Dr. Russell “failed to establish

that the tangible employment action resulted from [her] rejection of

Dr. Watson’s alleged advances.”              We agree.

     Needless to say, Dr. Russell contends that she demonstrated

that her failure to receive the tenure-track position resulted from

her rejection of Dr. Watson’s unwanted sexual advances.                    As proof of

causation,      Dr.     Russell    submits    that    she    established     a    “close

temporal proximity” between her rejection of the advances and her

failure    to     gain    the     promotion.         The    fact    that   Dr.    Watson

participated in the hiring decision, Dr. Russell argues, helps to

create a genuine issue of material fact as to causation.                         Finally,

Dr. Russell maintains that numerous instances of post-rejection

animus     such    as    depriving     her     of    desired       class   assignments

demonstrate causation. According to Dr. Russell, the combination of

temporal    proximity,       Dr.    Watson’s    participation         in   the    tenure

decision, and the post-rejection animus provides sufficient evidence

of causation to survive UTPB’s summary judgment motion.

     Though we have often held that evidence of close temporal

proximity can serve as proof of causation for retaliation claims,

see, e.g., Evans v. City of Houston, 

, 354 (5th Cir.



reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
otherwise.” 

.

                                          10
2001), we have never used such evidence as proof of causation for

quid pro quo claims.   Some of our sister circuits have accepted

temporal proximity as proof of causation in quid pro quo cases, but

we need not reach this issue in this instance.       See Cotton v.

Cracker Barrel Old Country Store, Inc., 

, 1232 (11th

Cir. 2006) (stating “temporal proximity between the harassment and

the tangible employment action can give rise to a genuine issue of

fact as to causation”); Farrell v. Planters Lifesavers Co., 

, 285 (3d Cir. 2000) (holding that the timing of appellant’s

termination was suggestive of causation for both the retaliation and

the quid pro quo claims).   Irrespective of whether there was close

temporal proximity between Dr. Russell’s rejection of Dr. Watson’s

sexual advances and Dr. Russell’s failure to attain the tenure-track

position, we hold that there was no causation because Dr. Russell

has not shown that her alleged harasser, Dr. Watson, made the

decision not to promote her.

     Dr. Russell’s quid pro quo sexual harassment claim cannot

withstand UTPB’s motion for summary judgment because she has failed

to demonstrate that Dr. Watson caused the tangible employment

action.   In other words, she has presented no competent summary

judgment evidence that her alleged harasser was responsible for the

decision not to hire her for the tenure-track position.         See

(finding no tangible employment action

where an employee was denied access to a training program because

another manager, not the harassing supervisor, was responsible for

                                11
the decision); Cf. Long v. Eastfield Coll., 

, 307 (5th

Cir. 1996) (stating that the “causal link” between retaliatory

intent and adverse employment action is broken if those with the

retaliatory intent are not responsible for the adverse employment

action).    The search committee, and not Dr. Watson, made the initial

recommendation to hire Dr. Richardson, and that recommendation did

not become final until Drs. Olson and Fannin approved it.          We have,

however, held that “if the employee can demonstrate that [those with

discriminatory intent] had influence or leverage over the official

decisionmaker . . . it is proper to impute their discriminatory

attitudes to the formal decisionmaker.”         Russell v. McKinney Hosp.

Venture, 

, 226 (5th Cir. 2000).       In addition to cases of

influence    or   leverage,   the   Russell   court   recognized   that   the

ultimate decisionmaker could inherit the taint of discriminatory

intent if he “merely acted as a rubber stamp, or the ‘cat’s paw,’

for a subordinate employee’s prejudice, even if the manager lacked

discriminatory intent.”       

     In Laxton v. Gap Inc., 

(5th Cir. 2003),                  a

Pregnancy Discrimination Act case, we held that Laxton had presented

sufficient evidence of causation even though the supervisor with the

discriminatory animus, Karen Jones, was not directly responsible for

her termination.    Mary Carr and Carla Dotto fired Laxton for various

violations of company policy.       

    Carr testified that

she relied on Jones for the facts underlying the violations.         Carr’s

reliance on Jones provided sufficient evidence of Jones’s influence

                                      12
over the ultimate decisionmakers to demonstrate causation.

       We reached a similar conclusion in Gee v. Principi, 

(5th Cir. 2002), a sexual harassment case brought under Title

VII.   Sinda Gee, an employee at the Veteran Affairs Medical Center

in Waco, Texas, reported to Wallace Hopkins, the director of the

center, that she had been sexually harassed by Dr. John Bryan.    

   Gee applied for a new job within the medical center, but

Lee Gibbs, the Information Resources Management chief, hired someone

else for the position.    

  Prior to denying Gee the

position, Gibbs was present at a meeting attended by, among others,

Dr. Bryan, Hopkins, Wallace, and Dr. Gary Melvin.         Dr. Melvin

testified that Gee’s fate was sealed at the meeting when Dr. Bryan,

the alleged harasser, and Hopkins, who knew about the harassment,

made derogatory comments about Gee.    

  We held that Gee

provided sufficient evidence that Gibbs was improperly influenced by

Dr. Bryan and Hopkins when he made the decision not to hire Gee.

This influence created a fact issue regarding causation.

       Unlike the appellants in Laxton and Gee, Dr. Russell has

presented no competent summary judgment evidence that Dr. Watson

exercised influence over any of the other decisionmakers in this

case, namely, the other committee members, Dr. Olson, and Dr.

Fannin.    The six-person search committee unanimously selected Dr.

Richardson as their choice to fill the tenure-track position.     Dr.

Richardson was therefore the search committee’s choice, and not the

personal choice of Dr. Watson.   Without any evidence that Dr. Watson

                                  13
influenced the committee, we cannot impute Dr. Watson’s allegedly

discriminatory animus to the committee’s selection.                      Cf. 

.           Though Dr. Watson was the chair of the committee,

Dr. Russell has introduced no evidence that being chair entitled Dr.

Watson to a greater voice in the proceedings than other members of

the committee.        Furthermore, the record does not reflect that any

other       members   of    the    committee     knew   about   the   alleged   sexual

harassment at the time of the hiring decision.6

     Admittedly, the record does contain some indication that Dr.

Watson might have influenced the committee’s decision, but it is not

competent summary judgment evidence. At her deposition, Dr. Russell

testified that Dr. W. David Watts, the president of UTPB, told her

that he could not give her a tenure-track job because Dr. Watson did

not believe she was qualified.              This evidence does not create a fact

issue concerning the tenure-track job in Nineteenth Century American

Literature       because     Dr.    Watts    played     no   role   in   filling   that

position.       The search committee recommended Dr. Richardson and Drs.

Olson and Fannin approved the recommendation.                       Dr. Russell also

testified that Dr. Andres, a member of the search committee, told

her that Dr. Watson said “some really nasty things” about Dr.


        6
       Dr. Russell testified at her deposition that she told Dr.
Andres about Dr. Watson’s alleged sexual harassment in March 2003
and that she informed Dr. Olson in October 2003. Though both Drs.
Andres and Olson participated in the hiring process, it is clear
from Dr. Russell’s deposition that they did not learn of Dr.
Watson’s allegedly harassing conduct until after the hiring
decision had been made.

                                            14
Russell during the search process and that Dr. Watson “did [Dr.

Russell] in” during the committee meetings.         This testimony is, of

course, inadmissible hearsay, and is therefore not competent summary

judgment evidence.       See Warfield v. Byron, 

, 559 (5th

Cir. 2006) (noting that hearsay evidence is inadmissible for summary

judgment purposes under Federal Rule of Civil Procedure 56).

     Even if we were to assume that the committee’s choice was

imbued    with   Dr.   Watson’s   allegedly   discriminatory   animus,   Dr.

Russell would have to surmount additional hurdles by demonstrating

that Dr. Watson either influenced Drs. Olson and Fannin or that they

merely rubber stamped the committee’s recommendation without an

independent review.      Cf. 

-27; but see 

(holding that the degree to which the ultimate

decisionmaker based his decision on an independent investigation is

a question of fact reserved for the jury).         She has not done so.

     For the reasons stated above, we hold that Dr. Russell’s sexual

harassment claim cannot survive summary judgment under a quid pro

quo theory because she has not provided sufficient evidence to show

that she suffered a tangible employment action that resulted from

her rejection of Dr. Watson’s alleged sexual advances.

     2.     Hostile Work Environment Claim

     Though Dr. Russell cannot demonstrate that UTPB is liable for

sexual harassment under a quid pro quo theory, her sexual harassment

claim might defeat summary judgment if she could create a fact issue

regarding whether Dr. Watson’s alleged harassment created a hostile

                                      15
work environment.          See La 

.      In order to prevail

on a hostile work environment claim, Dr. Russell would have to

demonstrate that: (1) she belongs to a protected group; (2) she was

subjected      to    unwelcome     sexual    harassment;    (3)    the   harassment

complained of was based on sex; and (4) it affected a term,

condition, or privilege of employment.               Watts v. Kroger Co., 

, 509 (5th Cir. 1999) (setting out the elements of a hostile

work environment claim when the alleged harasser is a supervisor).

UTPB is liable for Dr. Watson’s harassment if Dr. Russell can prove

that the harassment created a hostile work environment, but, in the

absence   of     a   tangible    employment      action,   UTPB   may    assert   the

Ellerth/Faragher affirmative defense.              

the fourth

element is disputed.

       Sexual harassment affects a term, condition, or privilege of

employment when it is “severe or pervasive.”                La 

.    Furthermore, “[i]n order to be actionable under Title VII, a

sexually objectionable environment must be both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive to

be so.”      

work environment meets this standard

“depends on ‘all the circumstances,’ including the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether     it      unreasonably    interferes      with   an     employee’s      work

performance.”        

district court did not err in granting summary judgment on

Dr. Russell’s sexual harassment claim because, viewed in light of

all circumstances, Dr. Watson’s alleged conduct was neither severe

nor pervasive.   Dr. Russell alleges that, on one occasion each, Dr.

Watson rubbed the side of her hand and her thigh; that Dr. Watson

twice intimated that she wanted to move to New York City with Dr.

Russell; that Dr. Watson once stated that she would not mind

watching a movie in bed with Dr. Russell; and that Dr. Watson called

her “honey” or “babe” on numerous occasions.           These actions are no

more severe than those in previous cases where this court has held

that the employee did not demonstrate a hostile work environment.

For example, in Hockman v. Westward Communications, LP, 

, 327-28 (5th Cir. 2004), we held that, as a matter of law, the

appellant could not establish a hostile work environment based on

the facts that the alleged harasser, among other things, commented

about another employee’s body, slapped her on the behind with a

newspaper, grabbed or brushed against her breast and behind, and

once attempted to kiss her.      At best, Dr. Russell’s allegations are

on the same plane as those we found insufficient to establish

“severe or pervasive” harassment in Hockman. We therefore hold that

Dr. Watson’s allegedly harassing behavior did not create a hostile

work environment.

B.   Retaliation

     In   addition   to   her   sexual    harassment   claim,   Dr.   Russell

contends that UTPB violated the law by retaliating against her after

                                     17
she engaged in activities protected by Title VII.                     To establish a

prima facie case of retaliation, Dr. Russell must demonstrate that:

(1) she engaged      in   a   statutorily     protected           activity,    (2)   she

suffered an adverse employment action,              and (3) there was a causal

link between the protected activity and the adverse employment

action.    Webb v. Cardiothoracic Surgery Assoc., 

, 540

(5th Cir. 1998).    The causal link need not rise to the level of “but

for” causation at the prima facie stage.                Gee v. Principi, 

, 345 (5th Cir. 2002).      Once the employee has established a prima

facie case, the burden then shifts to the employer to demonstrate a

legitimate,   non-retaliatory        reason       for       the   adverse    employment

action.    

employer satisfies this burden, then the

employee   must    demonstrate      that    the    employer’s        non-retaliatory

purpose is “merely a pretext for the real, [retaliatory] purpose.”

court found that Dr. Russell satisfied the first

two elements.     Dr. Russell engaged in a protected activity on three

occasions, namely, when she filed a sexual harassment grievance

against Dr. Jaramillo in April 2003, when she began an informal

grievance against Dr. Watson in October 2003, and when she filed an

EEOC complaint on May 11, 2004.        The district court determined that

an adverse employment action occurred when UTPB refused to renew Dr.

Russell’s contract in April 2004.             Dr. Russell, according to the

district   court,    could    not    establish          a    prima   facie    case    of

retaliation because she could not show a causal connection between

                                       18
the protected activities and the adverse employment action.     The

district court explained that Dr. Russell presented no direct

evidence of a causal link and that too much time had elapsed between

her protected activities (April 2003 and October 2003) and the

adverse employment action (April 2004) to infer a causal link solely

from temporal proximity.

     The district court ruled on the summary judgment motion before

the Supreme Court decided Burlington Northern & Santa Fe Railway Co.

v. White, 

(2006), which rejected the approach taken

by several circuits, including this one, for determining adverse

employment actions in retaliation     cases.   Prior to Burlington

Northern, this circuit had held that only an “ultimate employment

decision” such as “hiring, granting leave, discharging, promoting or

compensating” constituted an adverse employment action.   See, e.g.,

Ackel v. Nat’l Commc’ns, Inc., 

, 385 (5th Cir. 2003).

Instead of the “ultimate employment decision” standard, the Supreme

Court in Burlington Northern held that an employee suffers an

adverse employment action if “a reasonable employee would have found

the challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from making

or supporting a charge of 

(internal quotation marks omitted).

     Though the district court held that the non-renewal of Dr.

Russell’s contract constituted an adverse employment action under

this circuit’s more stringent pre-Burlington Northern standard, we

                                19
decline to decide whether non-renewal of a contract amounted to an

adverse employment action in this instance.7 Nevertheless, we affirm

the district court’s ruling because Dr. Russell has failed to

establish a causal connection between her grievance and the non-

renewal of her contract.   Dr. Russell argues that she has presented

temporal proximity evidence which creates an inference of causation.

We disagree.   Numerous courts have held that temporal proximity

evidence alone cannot support an inference of causation when there

is a four-month gap between the protected activity and the adverse

employment action.   See Clark County Sch. Dist. v. Breeden, 

, 273-74 (2001) (surveying temporal proximity cases and noting

cases have found a lapse of up to three or four months too large to

support causation); but see Evans v. City of Houston, 

,

354 (5th Cir. 2001) (noting that a district court has found a four-

month gap sufficient to establish causation).       We cannot infer

causation in this case because the temporal proximity evidence shows

a six-month gap between Dr. Russell’s filing of the grievance

(October 2003) and the non-renewal of the contract (April 2004).

     Admittedly, in Shirley v. Chrysler First, Inc., 

(5th Cir. 1992), we held that a causal nexus existed between the

protected activity and the adverse employment action after a passage


     7
       UTPB has asserted, and Dr. Russell does not deny, that her
visiting assistant professor contract could not be extended beyond
a second year. Furthermore, Dr. Russell has presented no evidence
that UTPB has violated its official policy by occasionally
extending visiting professorships beyond two years.

                                 20
of fourteen months.    In that case, however, the appellant did not

rest on temporal proximity alone.       The appellant presented evidence

that her boss complained to her about the EEOC complaint and that

criticisms of her work performance only arose after she filed the

complaint.   

  Here, Dr. Russell does not allege that Dr.

Watson harangued her about the grievance, and the record shows that

many of the problems between the two--such as Dr. Russell’s failure

to get desired course assignments and the cancellation of her

classes--began before Dr. Russell filed her October 2003 grievance.

For example, Dr. Watson had learned by September 2003, at the

latest, that she would not get her desired course assignments for

the fall 2003 semester.

     Though we affirm the district court’s holding that Dr. Russell

has not presented     sufficient   evidence   to   create   a   fact   issue

regarding whether her grievances caused UTPB not to renew her

contract, our inquiry into her retaliation claim does not end here.

In Dr. Russell’s complaint and in her opposition to UTPB’s motion

for summary judgment, she alleged that UTPB unlawfully retaliated

against her by downgrading the Director of The Mesa Journal position

in April 2004.   The district court did not address this allegation,

and instead focused its analysis exclusively on the non-renewal of

Dr. Russell’s contract.   Dr. Russell cannot establish a prima facie

case of retaliation concerning the downgrading of The Mesa Journal

position for the same reason that she failed to establish a prima

facie case for the non-renewal of her contract: too much time

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elapsed between her protected activities (April 2003 and October

2003) and the alleged adverse employment action (April 2004) to

support an inference of causation.                 Put differently, evidence of

temporal proximity alone cannot sustain an inference of causation

when there is a six-month gap between the protected activity and the

alleged adverse employment action.

C.     Spoliation

       Unlike Dr. Russell’s sexual harassment and retaliation claims,

her gender discrimination claim proceeded to trial.                           UTPB used a

ranking system, the Likert scale, to rank candidates for the tenure-

track position in Nineteenth Century American Literature.                               The

documents      containing        each    committee   member’s        scoring      of    the

candidates were destroyed.              Based on the destruction of the Likert

scale   documents,       Dr.     Russell    requested     a   jury    instruction        on

spoliation of the evidence by UTPB.                      A spoliation instruction

entitles       the    jury    to   draw    an    inference     that       a    party    who

intentionally         destroys     important     documents    did    so       because   the

contents of those documents were unfavorable to that party.                             See

Vick v. Tex. Employment Comm’n, 

, 737 (5th Cir. 1975).

The district court denied the requested jury instruction and Dr.

Russell now appeals that ruling.

       We review a district court’s refusal to give a requested jury

instruction for abuse of discretion.                 United States v. Cain, 

,    674    (5th    Cir.     2006).     The    district     court      retains

“substantial latitude in formulating its jury charge,” and we may

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reverse “only if the requested instruction is substantially correct;

was not substantially covered in the charge as a whole; and if the

omission   of   the    requested     instruction       seriously       impaired   the

defendant’s ability to present a given defense.”                 

plaintiff is entitled to a jury instruction on

spoliation only if the plaintiff can show that the defendant acted

in “bad faith.”       Condrey v. Suntrust Bank of Ga., 

, 203

(5th Cir. 2003).       “[M]ere negligence is not enough” to warrant an

instruction on spoliation.          

.

     The district court did not abuse its discretion in denying Dr.

Russell’s requested jury charge on spoliation because she has not

shown that UTPB destroyed the records in bad faith.                    Typically, we

do not draw an inference of bad faith when documents are destroyed

under a routine policy.       See 

; see also Coates

v. Johnson & Johnson, 

, 551 (7th Cir. 1985) (declining

to make inference        of   bad   faith    when    documents     were   destroyed

according to routine procedures).            Here, the uncontroverted trial

testimony from Drs. Watson and Andres establishes that UTPB has a

policy of destroying the Likert documents after an open position has

been filled.    At trial, Dr. Watson’s testimony suggested that the

Likert documents are typically destroyed two years after a position

has been filled.       If the documents were destroyed according to this

procedure, that would place their destruction in March 2005, well

after Dr. Russell filed her EEOC complaint (May 11, 2004) and the

present lawsuit (September 27, 2004).               Dr. Watson later testified,

                                        23
however, that she did not know whether Dr. Russell’s documents were

destroyed with the other unsuccessful candidates’ files or at the

end of the committee meeting.

       The district court stated that it would not give the spoliation

instruction because there was no evidence that UTPB destroyed the

Likert documents after it knew of Dr. Russell’s claims.                      Though we

do not automatically draw an inference of bad faith simply because

documents are destroyed after the initiation of litigation, see

, Dr. Russell would have had a stronger

argument      for   spoliation   had   she    been    able     to    prove   that    the

documents were destroyed after UTPB had notice of their relevance to

her claim, see Nation-Wide Check Corp. v. Forest Hills Distributors,

Inc., 

, 218 (1st Cir. 1982).               The evidence produced at

trial did not establish when the documents were destroyed, for they

could have been destroyed either two years after the hiring decision

or at the conclusion of the committee meeting.                 We cannot conclude,

based on this inconclusive evidence, that the district court abused

its discretion in denying the spoliation charge.

       Assuming for the sake of argument that UTPB did act in bad

faith when it destroyed the Likert documents, we may not upset the

district      court’s   ruling   unless      the    omission    of    the    requested

instruction seriously impaired Dr. Russell’s ability to present her

case.    Cf. 

.           The fact that the jury did not

hear    the   spoliation     instruction      did    not   seriously        impair   Dr.

Russell’s ability       to   present   her     case    because       the    jury   heard

                                        24
testimony that the documents were important and that they were

destroyed.   The jury was free to weigh this information as it saw

fit. Furthermore, counsel for Dr. Russell had the opportunity to

question members of the search committee regarding how they ranked

the candidates for the tenure-track position.   Given these facts,

the district court did not abuse its discretion in denying Dr.

Russell’s proposed jury instruction on spoliation.

                          IV. CONCLUSION

     For the reasons stated above, we AFFIRM the decision of the

district court.

     AFFIRMED.




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