     Case: 16-20403      Document: 00513991569         Page: 1    Date Filed: 05/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-20403                              FILED
                                                                            May 12, 2017

JARREL CALDWELL,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

LILLIAN LOZANO; VICTORIANO TREVINO; CARLOS DE ALEJANDRO;
HARRIS COUNTY,

              Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-3044


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jarrel Caldwell sued Harris County and three police officers pursuant to
42 U.S.C. § 1983, alleging that his First Amendment rights were violated
because his protected speech motivated an adverse employment decision, that
he was subjected to racial discrimination, and that he was subjected to a hostile




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 16-20403
work environment based on race.        The district court granted summary
judgment in favor of the defendants. We affirm.
                                       I
      Jarrel Caldwell was a motorcycle division supervisor in the Harris
County Precinct 6 Constable’s Office. He brought suit against Lillian Lozano,
an Administrative Lieutenant; Carlos De Alejandro, a Captain and Caldwell’s
direct supervisor; Victor Trevino, the Precinct 6 Constable; and Harris County
(Appellees). Caldwell is African-American, and Lozano, De Alejandro, and
Trevino are Hispanic.     Caldwell claims that Appellees violated the First
Amendment by constructively discharging him in retaliation for his protected
speech, violated his liberty interest by constructively discharging him and
damaging his reputation, and violated the Equal Protection Clause by racially
discriminating against him and creating a hostile work environment.
      Before Caldwell’s alleged constructive discharge, the Constable’s Office
began receiving reports of a rogue motorcycle officer who was harassing
drivers. Caldwell, as head of the motorcycle unit, investigated the incident.
He initially concluded that the suspected culprit, who was under Caldwell’s
command, was not responsible. Though Caldwell claims to have maintained
open communication with his supervisors regarding the investigation,
Appellees allege that Caldwell attempted to protect the suspected officer by
failing to identify him. Trevino initiated an investigation of Caldwell and
claimed that Caldwell was uncooperative with the investigation.             The
Constable’s Office issued a series of questions to Caldwell in August and
September of 2013, which Appellees allege Caldwell answered evasively. De
Alejandro subsequently attempted to notify Caldwell to ask him additional
questions.
      On the same day that De Alejandro attempted to notify Caldwell that
additional questions required a response, Caldwell left work to see a physician,
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                                 No. 16-20403
claiming effects from his hypertension medication. He never returned to work.
In essence, Caldwell asserts that his physician would not clear him to return
to work and that he properly informed his supervisor, De Alejandro, of his
inability to return to work. Caldwell states he placed a Family Medical Leave
Act request letter in the personal boxes of De Alejandro, Trevino, and Chief
Deputy Carolyn Lopez. De Alejandro told Caldwell that his leave request
would not be honored because Caldwell had failed to state an end date. On
October 8, Caldwell emailed De Alejandro a copy of a physician’s note excusing
Caldwell from work until October 27. As Caldwell admits, the “2” in “27” had
been changed from a “1,” but Caldwell alleges the physician’s assistant
changed the number.
      While Caldwell was on this contested medical leave, De Alejandro wrote
a memorandum to Trevino requesting to have Caldwell removed from Precinct
6 for insubordination and absence without leave. De Alejandro stated that he
had had a difficult time confirming Caldwell’s medical leave. De Alejandro
claimed that he and Caldwell agreed to meet so that Caldwell could submit a
physician’s note, but he asserted that Caldwell did not “report to duty.” After
receiving the altered physician’s note on October 8th, the Constable’s Office
claims to have contacted the physician’s office to learn whether the physician
had excused Caldwell from work only until October 17.
      On Friday, October 18, Chief Deputy Lopez sent Caldwell a letter
informing him that the Constable planned to terminate him on Monday. The
letter concluded with “[i]f you have any reasons why he should not do so, please
let me know immediately in writing and I will convey them to the Constable.”
The letter also stated that Trevino had planned to terminate Caldwell for job
abandonment because Caldwell had had unexcused absences from September
26 through October 5. However, the letter stated that “[s]ubmitting a false
doctor’s note alone is grounds for termination.”
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                                 No. 16-20403
      Caldwell submitted a resignation letter dated October 18, citing in part
“professionally unorthodox events by Pct. 6 command,” events which
“exacerbate[d]” his condition.    Before submitting his resignation letter,
Caldwell had planned to transfer to Precinct 1, whose Constable had offered
Caldwell a position. Caldwell accused Lozano of attempting to undermine his
transfer by misrepresenting to Precinct 1 that he was under both an internal
and a criminal investigation.
      Caldwell alleges that Appellees retaliated against him for two instances
of protected speech. First, Caldwell alleges as protected speech his interviews
with a District Attorney Investigator named Jimmy Jones, who was
investigating Trevino for possible illegal campaign practices.            Jones
interviewed at least 165 individuals from Precinct 6 and interviewed Caldwell
at least twice, in December of 2011 and August of 2012.           According to
Caldwell’s deposition, Caldwell did not reveal any illegal campaign practices
during the interviews, and Jones stated that Caldwell did not provide any
information harmful to Trevino. Caldwell now contends that he provided
information regarding illegal campaign practices to Jones.
      Second, Caldwell alleges that he spoke out against “disparate treatment
of African-American employees at Precinct 6,” giving six specific instances.
Caldwell alleges that (1) he reported and opposed Lozano’s act of reprimanding
and ultimately suggesting termination for an African-American officer she
accused of working an extra job on sick leave; (2) he opposed Lozano and
Trevino’s decision not to reprimand a white officer whom Caldwell accused of
insubordination and harassment of citizens; (3) he reported to Jones that
Lozano had instructed a deputy to follow an African-American officer to find a
reason to terminate the African-American officer; (4) he encouraged an
African-American officer to file an EEOC complaint against Lozano for alleged
discriminatory treatment and volunteered to testify for the officer; (5) he
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                                       No. 16-20403
encouraged a female African-American officer to file a complaint against De
Alejandro for sexual harassment and then encouraged her to appeal her
dishonorable discharge; and (6) he accused Lozano of encouraging a Hispanic
employee to file a false complaint against him.
      Caldwell also notes two specific discriminatory statements Lozano
allegedly made. First, he alleges that Lozano told De Alejandro that “[a]s long
as I am in power there will never be a Black supervising Hispanics.” Second,
when a deputy told Lozano that he worked under Caldwell, she allegedly
responded, “Not for long.”
      Caldwell filed this suit pursuant to 42 U.S.C. § 1983, and Appellees filed
motions for summary judgment. The district court ruled from the bench at the
summary judgment hearing, granting summary judgment in favor of Appellees
as to all of Caldwell’s claims. Caldwell moved for a new trial to offer new
evidence—specifically, declarations from the assistant at the physician’s office
and three statements by officers. He also moved to amend his complaint to
include Title VII claims. The district court denied the motion for new trial
because the evidence was not “newly discovered evidence” and denied the
motion to amend because it saw “no indication that [Caldwell’s] allegations
would have fared better . . . under Title VII.” Caldwell appealed.
                                             II
      This court reviews “a grant of summary judgment de novo, applying the
same standard as the district court.” 1 “[S]ummary judgment is appropriate
only ‘if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” 2




      1   Haverda v. Hays County, 723 F.3d 586, 591 (5th Cir. 2013).
      2   Id. (quoting FED. R. CIV. P. 56(a)).
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                                             No. 16-20403
                                                   III
          Caldwell alleges that Appellees violated his First Amendment rights by
retaliating against him for his protected speech. For a public employee to
prevail on a First Amendment speech-retaliation claim, the employee must
establish
          (1) he suffered an adverse employment decision; (2) his speech
          involved a matter of public concern; (3) his interest in speaking
          outweighed the governmental defendant’s interest in promoting
          efficiency; and (4) the protected speech motivated the defendant’s
          conduct. 3
Caldwell contends he engaged in two types of protected speech: complaining of
discriminatory behavior within the Constable’s Office and speaking as a
witness in the criminal investigation of Constable Trevino. He alleges he
suffered an adverse employment action when Appellees retaliated against him
by constructively discharging him.
          We need not reach the last three elements of this test because we
conclude that Caldwell has failed to allege an adverse employment action.
Adverse employment actions for the purposes of § 1983 “can include
discharges, demotions, refusals to hire, refusals to promote, . . . reprimands,”
and “a transfer, because it may serve as a demotion.” 4                          This court has
“recognized that constructive discharge may be an appropriate basis for a
section 1983 action.” 5
          We have used a “reasonable employee test” to determine if an employer’s
actions constituted a constructive discharge. 6 To establish a constructive
discharge, an employee “must offer evidence that the employer made the



          3   Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016), cert. denied, 137 S. Ct. 815
(2017).
          4 Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999).
          5 Kline v. N. Tex. State Univ., 782 F.2d 1229, 1234 (5th Cir. 1986).
          6 Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008).

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                                      No. 16-20403
employee’s working conditions so intolerable that a reasonable employee would
feel compelled to resign.” 7 A plaintiff may also be “constructively discharged if
the employer gives the employee an ultimatum to quit or be fired.” 8 We have
previously determined that no constructive discharge took place when a
“reasonable employee had other options . . . before choosing to leave his job” 9
and that a “reasonable employee attempts resolution of employment concerns
before quitting.” 10
       In this case, Chief Deputy Lopez sent Caldwell a letter detailing why
Constable Trevino intended to terminate Caldwell’s employment. The letter
recited facts that, from Trevino’s perspective, constituted job abandonment, for
which Trevino was “about to terminate [Caldwell’s] employment.” The letter
also alleged that Caldwell had submitted a false or forged physician’s note
purporting to excuse absences from work and that “[s]ubmitting a false doctor’s
note alone is grounds for termination.”            The letter ended by stating that
Constable Trevino planned to terminate Caldwell, but it informed Caldwell
that “[i]f you have any reasons why he should not do so, please let me know
immediately in writing and I will convey them to the Constable.”
       Caldwell did not respond and did not offer any reasons why Trevino
should not terminate him.          He did not “attempt[] resolution” of Trevino’s
concerns or pursue options besides resignation, 11 even though Lopez’s letter
gave him that opportunity.          Instead, Caldwell responded with a written
resignation letter dated the same day he received Lopez’s letter.



       7 Id. (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)).
       8 Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338 (5th Cir. 2014).
       9 Haley v. All. Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004) (citing Bozé v.

Branstetter, 912 F.2d 801, 805 (5th Cir. 1990) (per curiam)).
       10 Keelan v. Majesco Software, Inc., 407 F.3d 332, 343 (5th Cir. 2005) (citing Haley,

391 F.3d at 652).
       11 See Haley, 391 F.3d at 652 (quoting McKethan v. Tex. Farm Bureau, 996 F.2d 734,

741 (5th Cir. 1993)).
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                                     No. 16-20403
      Caldwell was not given an “ultimatum to quit or be fired.” 12 The letter
gave him notice of Trevino’s intent to terminate him as well as an opportunity
to explain why Trevino should not do so.                 By resigning under these
circumstances, Caldwell does not allege a constructive discharge.
      To the extent Caldwell argues more generally that working conditions
were so intolerable that a reasonable person would resign, that claim is not
supported by evidence that raises a material fact issue. “To prove constructive
discharge, a party must show that ‘a reasonable party in his shoes would have
felt compelled to resign.”” 13       “The claim requires a ‘greater severity of
pervasiveness or harassment than the minimum required to prove a hostile
work environment.’” 14      This court has held that the following events are
relevant in determining if a reasonable employee would feel compelled to
resign:
      (1) demotion; (2) reduction in salary; (3) reduction in job
      responsibilities; (4) reassignment to menial or degrading work; (5)
      badgering, harassment, or humiliation by the employer calculated
      to encourage the employee’s resignation; or (6) offers of early
      retirement that would make the employee worse off whether the
      offer were accepted or not. 15
Because, as discussed below, Caldwell’s allegations do not state a prima facie
case of a hostile work environment claim, we conclude that his alleged work
conditions were not so intolerable that a reasonable person would resign.
      Caldwell’s retaliation claim rests on his alleged constructive discharge.
Because we conclude that his alleged facts fail to support a claim of




      12 Perret, 770 F.3d at 338.
      13  Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011) (quoting
Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)).
      14 Id. (quoting Benningfield, 157 F.3d at 378).
      15 Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (quoting

Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 481 (5th Cir. 2008)).
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                                      No. 16-20403
constructive discharge, the district court did not err in granting summary
judgment on this claim.
                                            IV
       Caldwell asserts that Appellees violated the Equal Protection Clause
because he was subjected to racial discrimination and a race-based hostile
work environment. For § 1983 claims asserting racial discrimination in the
employment context, the court has borrowed the elements of a Title VII claim
of racial discrimination, 16 as “inquiry into intentional discrimination is
essentially the same for individual actions brought under sections 1981 and
1983, and Title VII.” 17 To establish a prima facie case of racial discrimination
in employment, an employee must demonstrate that he
       (1) is a member of a protected group; (2) was qualified for the
       position at issue; (3) was discharged or suffered some adverse
       employment action by the employer; and (4) was replaced by
       someone outside his protected group or was treated less favorably
       than other similarly situated employees outside the protected
       group. 18
       As considered above, Caldwell has failed to raise a fact question
regarding constructive discharge and therefore has not raised a fact question
as to whether he suffered an adverse employment action. To the extent that
Caldwell bases his racial discrimination claim on a different adverse
employment action, he has failed to allege that he was “replaced by someone
outside his protected group or was treated less favorably than other similarly
situated employees outside the protected group.” 19


       16 Lee v. Conecuh Cty. Bd. of Educ., 634 F.2d 959, 962 (5th Cir. Jan. 1981) (“Logic
dictates that the McDonnell Douglas factors may be used to establish a prima facie case in
cases of racially motivated employment discrimination brought under section 1983 whether
or not Title VII is used as a parallel remedy.”).
       17 Lauderdale v. Tex. Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 166

(5th Cir. 2007) (quoting Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)).
       18 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam).
       19 See id.

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                                     No. 16-20403
      Caldwell points to the lack of discipline De Alejandro and Lopez faced
after allegedly wrongfully accusing Caldwell.             He also cites the lack of
discipline for an officer who did not obey orders. “We require that an employee
who proffers a fellow employee as a comparator demonstrate that the
employment       actions    at   issue   were     taken    ‘under    nearly    identical
circumstances.’” 20    Although “[w]e do not . . . interpret ‘nearly identical’ as
synonymous with ‘identical,’” 21 Caldwell’s suggested comparators were not
accused of conduct that was similar—much less nearly identical—to his.
      We also conclude that Caldwell has not established a prima facie race-
based hostile work environment claim. Under our hostile-work environment
test, Caldwell must show that
      (1) [he] belongs to a protected group; (2) [he] was subjected to
      unwelcome harassment; (3) the harassment complained of was
      based on race; (4) the harassment complained of affected a term,
      condition, or privilege of employment; (5) the employer knew or
      should have known of the harassment in question and failed to
      take prompt remedial action. 22
If the claim is that the supervisor harassed the employee, the plaintiff need
not satisfy the fifth element. 23 “Harassment affects a ‘term, condition, or
privilege of employment’ if it is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.’” 24
      Caldwell provides few specific instances of harassment. He alleges that
individuals heard Lozano state that an African American would never



      20 Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Little v.
Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).
      21 Id.
      22 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
      23 Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
      24 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting

Ramsey, 286 F.3d at 268).
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                                    No. 16-20403
supervise a Hispanic at Precinct 6 and that Caldwell would not be at Precinct
6 much longer. He also contends that Lozano told an employee to file a false
complaint against Caldwell. His other examples of alleged harassment are
actions Appellees took while Caldwell was on contested sick leave, such as De
Alejandro issuing a disciplinary recommendation and Lopez sending the final
letter. These instances do not rise to the necessary level of pervasiveness to
alter the conditions of Caldwell’s employment and create an abusive working
environment. 25
                                           V
      Caldwell claims Appellees violated the Fourteenth Amendment by
infringing his liberty interest when they caused his termination and
stigmatized his career. An employee’s Fourteenth Amendment liberty interest
is infringed if he is “discharged in a manner that creates a false and defamatory
impression about him and thus stigmatizes him and forecloses him from other
employment opportunities.” 26 To prevail on this claim, Caldwell must meet
the seven elements of the “stigma-plus-infringement” test by showing:
      (1) he was discharged; (2) stigmatizing charges were made against
      him in connection with the discharge; (3) the charges were false;
      (4) he was not provided notice or an opportunity to be heard prior
      to the discharge; (5) the charges were made public; (6) he requested
      a hearing to clear his name; and (7) the employer denied the
      request. 27
      The district court dismissed the claim, determining that Caldwell did not
request a hearing and that Appellees did not deny a hearing. We agree with
the district court. “Though an employee need not use the term ‘name-clearing
hearing’ to satisfy the sixth element of the stigma-plus-infringement test, the


      25See Ramsey, 286 F.3d at 268.
      26Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006) (quoting White v.
Thomas, 660 F.2d 680, 684 (5th Cir. Nov. 1981)).
     27 Id.

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                                      No. 16-20403
employee must still petition the employer in a manner that can be construed
as asking for an opportunity to clear his name.” 28 Caldwell acknowledged in
his deposition that he did not request a hearing. Instead, he now claims he
attempted to clear his name by sending notes from his physician to the Precinct
and responding to the charges in his notice of resignation. These acts do not
amount to petitioning his employer for the opportunity to clear his name.
       Caldwell also implies that he was owed a pre-deprivation hearing
because he had a property right in the legitimate expectation of continued
employment by virtue of Texas Government Code Section 614.023(c). The
statute requires that certain actions be taken before disciplining a police officer
on the basis of a complaint filed against the officer. 29 However, this court
recently determined that the statute did not create a property right for police
officers. 30   We accordingly reject Caldwell’s implied argument for a pre-
deprivation hearing.
                                            VI
       Finally, Caldwell appeals the district court’s denial of his motions for a
new trial and for leave to file an amended complaint. Through these motions,
Caldwell sought to introduce additional evidence and add Title VII claims to
his complaint. His additional evidence contained a declaration by the assistant
at the physician’s office, who stated that no one from the Constable’s Office had
contacted her, and three statements by police officers corroborating Caldwell’s
version of events. The district court properly analyzed Caldwell’s motion for a
new trial as a Rule 59(e) motion. 31 The court denied the motion, determining



       28 Id.
       29 TEX. GOV’T CODE ANN. § 614.023(c) (West).
       30 Stem v. Gomez, 813 F.3d 205, 213 (5th Cir. 2016) (holding that the law “require[s]

some action to be taken before termination of employment can occur, but no property right is
created by that requirement”).
       31 Patin v. Allied Signal, Inc., 77 F.3d 782, 785 n.1 (5th Cir. 1996).

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                                    No. 16-20403
that Caldwell’s additional evidence was not “newly discovered evidence” and
would not have altered the outcome. The court also denied the motion to
amend, noting that the Title VII claims in the motion would likely fail for the
same reasons as the § 1983 claims.
      Our standard of review for a Rule 59 motion to reconsider “depends on
whether the district court considered materials attached to the motion for
reconsideration which were not previously provided to the court when it
granted summary judgment.” 32          “If the materials were considered by the
district court, and the district court still grants summary judgment, the
appropriate appellate standard of review is de novo.” 33 “However, if the district
court refuses to consider the materials, the reviewing court applies the abuse
of discretion standard.” 34 The district court properly denied the motion under
either standard.
      “Rule 59(e) ‘serve[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.’” 35 “We
have held that an unexcused failure to present evidence available at the time
of summary judgment provides a valid basis for denying a subsequent motion
for reconsideration.” 36      Here, the “underlying facts were well within
[Caldwell’s] knowledge prior to the district court’s entry of judgment,” 37 and
Caldwell provides no legitimate justification for not presenting the additional
evidence earlier. His primary argument is that Appellees waited until the
summary judgment hearing to reveal that they had confirmed the note was




      32  In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017).
      33  Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004)).
       34 Id. (quoting Templet, 367 F.3d at 477).
       35 Templet, 367 F.3d at 479 (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473

(5th Cir. 1989)).
       36 Id. (citing Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir. 1991)).
       37 Id.

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altered by contacting the physician’s office, and, therefore, the court should
allow him to introduce the declaration of the physician’s assistant. However,
Caldwell knew throughout the proceedings in the district court that whether
he had altered the physician’s note was at issue, and Lopez’s letter to Caldwell
stated “we contacted your doctor’s office to authenticate the note.” Caldwell
provides no justification for not presenting evidence earlier. Further, even
when the district court considered the additional evidence, it determined that
the evidence would not have altered the outcome, as the evidence largely
corroborated Caldwell’s existing allegations. The district court’s decision was
not “manifestly unjust in law or fact,” and the court did not “ignore newly
discovered evidence.” 38
       Nor did the district court abuse its discretion by denying Caldwell’s
motion to add Title VII claims. “In cases where a party seeks to amend her
complaint after entry of judgment, ‘we have consistently upheld the denial of
leave to amend where the party seeking to amend has not clearly established
that he could not reasonably have raised the new matter prior to the trial
court’s merits ruling.’” 39 Caldwell does not attempt to explain why he could
not have reasonably raised the new matter prior to the district court’s decision.
Moreover, at the summary judgment hearing, Caldwell’s counsel repeatedly
insisted that the case was not a Title VII case. For these reasons, we hold that
the district court did not abuse its discretion.
                                     *        *         *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       38 Id.
       39 Vielma v. Eureka Co., 218 F.3d 458, 468 (quoting Briddle v. Scott, 63 F.3d 364, 379
(5th Cir. 1995)).
                                             14
