     Case: 18-40561      Document: 00515028137         Page: 1    Date Filed: 07/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 18-40561
                                                                                 FILED
                                                                             July 10, 2019
                                                                            Lyle W. Cayce
CARLOS MANDUJANO,                                                                Clerk

              Plaintiff - Appellant

v.

CITY OF PHARR, TEXAS,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 7:18-CV-3


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Carlos Mandujano, a former employee of the City of Pharr Fire
Department, sued the city for sex discrimination. The district court dismissed
his complaint with prejudice under Federal Rule of Civil Procedure 12(c),
denied him leave to amend, and denied his motion to alter or amend the
judgment. Mandujano appeals. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       I.
      Carlos Mandujano was formerly employed as a deputy fire chief by
appellee City of Pharr (the “City”). In early 2014, the City opened an
investigation into Mandujano for sexual harassment, apparently based on
letters of complaint submitted by City Fire Marshal Jacob Salinas, Deputy Fire
Chief Carlos Arispe, and Assistant Fire Marshal Dagoberto Soto. The letters
reportedly accused Mandujano of sexually harassing a former City employee,
Blanca Cortez. Denying that he harassed anyone, Mandujano alleges that Ms.
Cortez had told him that he looked like a “pollito” (Spanish for “chick”) and, on
two other occasions, had referred to him as a “hot young boss.” According to
Mandujano, he responded to Ms. Cortez’s comments by telling her that he did
not like the “pollito” comment and advising her to “be professional.”
      In August 2015, the City opened another investigation into Mandujano
concerning “the same subject matter as the prior investigation.” Later that
month, Mandujano made a complaint to the City Manager “about harassment
by two deputy chiefs who were creating a negative and hostile work
environment through further statements and commentary by the two
individuals in connection with the [February 2014] sexual harassment
complaints and continued through the date of [Mandujano’s complaint to the
City Manager].” Mandujano alleges that in September 2015, the Fire Chief told
him “that a sexual harassment finding would be made against [Mandujano]
even though there was no evidence to support such a finding.” Mandujano
resigned from the Fire Department on November 13, 2015.
      Mandujano brought suit against the City in Texas state court, alleging
sex discrimination under Title VII of the Civil Rights Act of 1964. The City
removed the case to federal court. Mandujano’s proposed amended complaint
alleges that the City constructively discharged him on the basis of his sex by
investigating him for sexual harassment. The City filed a motion to dismiss for
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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Mandujano filed an opposition to the City’s motion in which he requested, in
the alternative, leave to amend his complaint, but he did not attach a proposed
amended complaint to his opposition.
      The district court granted the City’s motion to dismiss and denied
Mandujano’s motion to amend. In considering the City’s motion, the district
court noted that the 12(b)(6) motion had been filed after the City had filed its
answer. The district court therefore converted the City’s motion into a motion
for judgment on the pleadings under Rule 12(c), which is reviewed under the
same standard as a 12(b)(6) motion. Under that standard, the district court
concluded, Mandujano had failed to state a claim for sex discrimination. It
accordingly dismissed the case with prejudice and denied Mandujano’s request
for leave to amend.
      On the same day the district court signed its order dismissing
Mandujano’s complaint, but one day before the order had been docketed,
Mandujano filed a supplemental response in opposition to the City’s motion
with a proposed amended complaint attached. Simultaneously, he also filed a
stand-alone motion to amend with the same proposed amended complaint
attached. The district court denied this motion to amend in a second order.
Mandujano then filed a motion for a “[n]ew [t]rial and/or . . . to [a]lter or
[a]mend [j]udgment,” which the district court also denied. The district court
entered final judgment, and Mandujano now appeals.
                                       II.
      Mandujano first argues that the district court erred in converting the
City’s 12(b)(6) motion into a 12(c) motion. Rule 12(c) provides that a motion for
judgment on the pleadings may be made “[a]fter the pleadings are closed.”
According to Mandujano, the pleadings had not yet “closed” at the time the
district court granted dismissal under 12(c) because he could have amended
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his pleadings as a matter of course at the time the City filed its 12(b)(6) motion.
This argument misunderstands when pleadings are closed for purposes of
12(c). Rule 7(a) allows only the following as pleadings: a complaint, an answer,
an answer to a counterclaim, an answer to a crossclaim, a third-party
complaint, an answer to a third-party complaint, and, if ordered, a reply to an
answer. Accordingly, for purposes of 12(c), “the pleadings are closed upon the
filing of a complaint and an answer (absent a court-ordered reply), unless a
counterclaim, crossclaim, or third-party claim is interposed.” 5C Charles Alan
Wright et al., Federal Practice and Procedure § 1367 (3d ed. Apr. 2019 Update).
At the time the district court issued its order, a complaint and answer had been
filed, and no other pleadings enumerated under Rule 7(a) were interposed. The
district court’s consideration of the motion was therefore timely.
      Mandujano next contends that his initial complaint passed muster under
12(c). “The standard for Rule 12(c) motions for judgment on the pleadings is
identical to the standard for Rule 12(b)(6) motions to dismiss for failure to state
a claim.” Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019). We review a
district court’s ruling on such a motion de novo. Id. at 598–99. To survive a
12(c) motion, “a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570
(2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to meet this standard. Id.
      Mandujano’s sex-discrimination claim rests on a theory that the City’s
investigations into him created a hostile work environment and resulted in his
constructive discharge. To state a claim of constructive discharge, a plaintiff
must allege that working conditions became “so intolerable that a reasonable
person would have felt compelled to resign.” Pa. State Police v. Suders, 542
U.S. 129, 147 (2004). Mandujano’s initial complaint did not plausibly allege
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that this occurred. It should first be noted that Mandujano’s initial complaint
contained much fewer facts than the recitation of facts above, which we took
largely from Mandujano’s proposed amended complaint. The initial complaint
alleged only that Mandujano “was a victim of sex discrimination,” was
“constructively discharged,” was twice investigated “on the basis of his sex,”
and “could not continue his employment due to the intolerable and hostile work
environment he endured from the complaints and investigations.” Setting
aside the obvious legal conclusions above, the complaint alleges only that
Mandujano was investigated for sexual harassment. This falls far short of
plausibly alleging constructive discharge. The district court therefore did not
err in dismissing the complaint.
      Mandujano next argues that the district court should have granted his
request for leave to amend included at the end of his response to the City’s
motion to dismiss. We review the denial of leave to amend for an abuse of
discretion. Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003). The
district court did not abuse its discretion in denying the motion. As the district
court explained, leave may be denied where, as here, the movant insisted his
complaint sufficed to state a claim and “fail[ed] to apprise the district court of
the facts that he would plead in an amended complaint, if necessary, to cure
any deficiencies.” Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017) (quoting
Gentilello v. Rege, 627 F.3d 540, 546 (5th Cir. 2010)).
      Mandujano finally argues that the district court erred in denying his
independent motion for leave to amend, which did include an amended
complaint, as well as his motion for a “[n]ew [t]rial and/or . . . to [a]lter or
[a]mend [j]udgment.” The district court denied the independent motion for
leave to amend on the grounds that the action had been dismissed with
prejudice and thus no action existed to prosecute. It alternatively found that
Mandujano’s motion failed the Rule 15(a) standard for leave to amend. We
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express no opinion on the district court’s first ground for denial (that the case
had already been dismissed). Instead, we conclude Mandujano’s request for
leave fails the Rule 15(a) standard. Once again, we review a district court’s
rulings on such motions for abuse of discretion. Id. at 291. “The district court
properly exercises its discretion . . . when it denies leave to amend for a
substantial reason, such as undue delay, repeated failures to cure deficiencies,
undue prejudice, or futility.” U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354, 367
(5th Cir. 2014).
      We conclude the district court did not abuse its discretion in denying this
motion because any amendment to Mandujano’s complaint would be futile.
Whether an amendment would be futile depends on whether the amended
complaint states a claim on which relief can be granted, applying “the same
standard of legal sufficiency as applies under Rule 12(b)(6).” Stripling v.
Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (quoting Shane v. Fauver,
213 F.3d 113, 115 (3d Cir. 2000)). Applying this standard, the amended
complaint fails for the same reasons as the first. Although the proposed
amended complaint adds some detail to Mandujano’s allegations, the only new
potentially pertinent facts we can discern from it are that the Fire Chief
acknowledged the investigations were unfair and that one of the complainants
made inappropriate remarks to Mandujano on three occasions. This, together
with what has already been alleged, does not demonstrate that Mandujano’s
work environment had become so intolerable that it would compel any
reasonable person to resign. Thus, Mandujano’s amendment would have been
futile, and the district court did not err in denying him leave to amend.
      Mandujano’s motion for a “[n]ew [t]rial and/or . . . to [a]lter or [a]mend
[j]udgment” largely restates his arguments on appeal. Since we have already
concluded those arguments fail on the merits, they a fortiori fail under the
more deferential standard for motions to alter or amend judgment. See Templet
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                                No. 18-40561
v. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (motion to alter or amend
judgment “serve[s] the narrow purpose of allowing a party to correct manifest
errors of law or fact or to present newly discovered evidence.” (alteration in
original) (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.
1989)).
      The judgment of the district court is therefore AFFIRMED.




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