United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 20-50067 March 22, 2021 Lyle W. Cayce Clerk Brandy Newbury,

Plaintiff—Appellant,

versus

City of Windcrest, Texas,

Defendant—Appellee.

Appeal from the United States District Court for the Western District of Texas No. 5:18-CV-98

Before Jones, Smith, and Elrod, Circuit Judges. Jerry E. Smith, Circuit Judge: Brandy Newbury worked as an officer for the Windcrest Police Department but resigned during her first, probationary year. She then sued the City of Windcrest (“the city”), bringing sex-discrimination, retaliation, and constructive-discharge claims under Title VII and Texas law, a 42 U.S.C. § 1983 claim, and a claim for intentional infliction of emotional distress. The district court granted summary judgment. We affirm.

I. Newbury began work for the department in March 2016. As a new Case: 20-50067 Document: 00515790910 Page: 2 Date Filed: 03/22/2021

No. 20-50067

officer, she was an at-will employee—a “probationary”—during her first year. Probationary officers work with and receive training from Field Train- ing Officers (“FTOs”) for about fourteen weeks. During Newbury’s probationary year, she encountered and occa- sionally worked closely with Officer Blanca Jaime, who is also female. Jaime and Newbury did not work well together, butting heads on two occasions in April 2016. First, they had a heated dispute about the proper use of grammar in an incident report. During that encounter, Jaime questioned Newbury’s level of education and yelled at her in front of her colleagues. Second, Jaime and another officer filmed Newbury on their phones while confronting her about her presence in the field without her FTO. Beyond those incidents, Newbury alleges that Jaime generally treated her rudely and dismissively, once giving her a dirty look and sometimes ignoring her or declining to shake her hand. Newbury first raised her concerns about Jaime in April 2016 and formally alleged sexual harassment in a feedback form in July 2016. The city took the accusation seriously, hiring a law firm to investigate. The investi- gators concluded that, although Jaime had been rude to Newbury, the sex- discrimination allegations were unsubstantiated. In January 2017, Newbury resigned. She filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) Division of the Texas Workforce Commission in March 2017 and received a right-to-sue letter that October. Newbury sued the city, bringing several claims: sex dis- crimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e–2(a), and the Texas Commission on Human Rights Act, Tex. Lab. Code § 21.051; retaliation under Title VII and Texas Labor Code § 21.055; a violation of her right to privacy under the Fourth and Fourteenth Amendments per § 1983; and intentional infliction of emotional

2 Case: 20-50067 Document: 00515790910 Page: 3 Date Filed: 03/22/2021

No