     Case: 18-40561      Document: 00515105069         Page: 1    Date Filed: 09/04/2019




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

                                                                              FILED
                                      No. 18-40561                     September 4, 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:*
       The opinion in this matter filed on July 10, 2019 is hereby withdrawn
and the following opinion is substituted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-40561      Document: 00515105069        Page: 2    Date Filed: 09/04/2019



                                    No. 18-40561
                                           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 March
or April 2015, “the investigation cleared [Mandujano].”
      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.” However, on
September 30, 2015, 1 the City Manager told Mandujano that “the [second]
investigation had been cleared.” Mandujano resigned from the Fire


      1  It appears that this was after Mandujano’s September conversation with the Fire
Chief, although Mandujano does not provide an exact date for his September conversation
with the Fire Chief.
                                           2
    Case: 18-40561    Document: 00515105069     Page: 3   Date Filed: 09/04/2019



                                 No. 18-40561
Department on November 13, 2015. Several months after his resignation, the
City Manager “represented that [Mandujano] was under investigation at the
time of his separation of employment.”
      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
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
                                       3
    Case: 18-40561     Document: 00515105069       Page: 4   Date Filed: 09/04/2019



                                   No. 18-40561
[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
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
                                         4
    Case: 18-40561     Document: 00515105069      Page: 5   Date Filed: 09/04/2019



                                   No. 18-40561
(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
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


                                        5
    Case: 18-40561      Document: 00515105069      Page: 6   Date Filed: 09/04/2019



                                    No. 18-40561
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
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 the proposed 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. While the proposed amended
complaint   certainly    provides    greater   detail   to   Mandujano’s    claims,
Mandujano’s new allegations nonetheless fail to bring his claim across the
threshold for constructive discharge. Mandujano’s proposed amended
                                         6
    Case: 18-40561    Document: 00515105069     Page: 7   Date Filed: 09/04/2019



                                 No. 18-40561
complaint alleges that the Fire Chief told him that a finding would be made
against him in the sexual-harassment investigation despite a lack of evidence
and that he would soon be fired. However, he also alleges that the City
Manager subsequently told him that he was cleared in the investigation.
Accordingly, at the time he resigned, Mandujano had no basis to believe that
the sexual-harassment investigation was still active or that he would soon be
fired. These additional allegations therefore do not meaningfully aid
Mandujano’s constructive-discharge claim. Mandujano also alleges that Cortez
made inappropriate remarks to him, but Cortez resigned long before
Mandujano, so her comments similarly could not have been the driving force
behind his resignation. Accordingly, Mandujano’s amended complaint fails to
plausibly allege that working conditions had become “so intolerable that a
reasonable person would feel compelled to resign.” Suders, 542 U.S. at 147.
      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
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.




                                       7
    Case: 18-40561    Document: 00515105069      Page: 8   Date Filed: 09/04/2019



                                  No. 18-40561
JENNIFER WALKER ELROD, Circuit Judge, concurring in part and
dissenting in part:

      I concur with most of the majority’s opinion. However, because I would
hold that that Mandujano’s proposed amended complaint pleaded an allegation
of constructive discharge that was sufficient to survive a motion to dismiss,
and that our original panel opinion therefore erred by affirming the district
court’s denial of leave to amend based on the grounds of futility, I respectfully
dissent in part.
      It is well-established that when we review the sufficiency of a complaint
at the motion to dismiss stage, we are to draw all reasonable inferences in favor
of the nonmoving party. See, e.g., Morgan v. Swanson, 659 F.3d 359, 401 (5th
Cir. 2011) (en banc); Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005)
(“The complaint must be liberally construed, with all reasonable inferences
drawn in the light most favorable to the plaintiff.”).
      Mandujano’s proposed amended complaint pleaded: (1) that he was
subjected to unjustified sexual harassment investigations based on his sex; (2)
that the fire chief told him a sexual harassment finding would be made against
him even without any evidence; and (3) that the fire chief told him he would be
fired soon. Accepting those allegations as true, which we must at this point, I
believe Mandujano plausibly alleged that his working conditions had become
“so intolerable that a reasonable person would have felt compelled to resign.”
Pa. State Police v. Suders, 542 U.S. 129, 147 (2004).
      The majority opinion states that Mandujano’s proposed amended
complaint is deficient because it also pleaded that the City Manager
represented to Mandujano that the investigation had been “cleared” prior to
his resignation, and that Mandujano therefore “had no basis to believe that the
sexual-harassment investigation was still active or that he would soon be
                                        8
    Case: 18-40561     Document: 00515105069     Page: 9   Date Filed: 09/04/2019



                                  No. 18-40561
fired.” I think the majority opinion draws its inference in the wrong direction.
Nothing in the proposed amended complaint asserts that Mandujano believed
the City Manager’s representation.      In fact, the preceding clause of that
sentence notes that Mandujano “never received anything in writing” about the
investigation being closed. A reasonable inference to be drawn from that
sentence of the pleading is that Mandujano was skeptical about the City
Manager’s representation, because he had already been told by the Fire Chief
that the fix was in.      Indeed, the majority opinion’s contrary inference
contradicts the thrust of the entire complaint, which alleges that Mandujano
was being unfairly targeted with sexual harassment investigations that forced
him to resign.
      Accordingly, I disagree as to whether Mandujano’s proposed amended
complaint pleaded enough to bring his constructive discharge claim across the
threshold at the motion to dismiss stage. Cf. Faruki v. Parsons S.I.P., Inc., 123
F.3d 315, 319 (5th Cir. 1997) (noting that an “employee can prove constructive
discharge by showing that [he] faced [a] choice between resigning or being
fired” (citing Burks v. Oklahoma Pub. Co., 81 F.3d 975, 978 (10th Cir. 1996)).
I respectfully dissent in part.




                                       9
