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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40458                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
BRIAN WATERMAN,                                                           March 22, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

MCKINNEY INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CV-170


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       The McKinney Independent School District (“MISD”) chose not to renew
Plaintiff-Appellant Brian Waterman’s teaching contract due to allegations that
he behaved inappropriately toward his coworkers. Waterman sued MISD,
contending that his non-renewal was retaliation for exercising his First
Amendment rights to report certain of MISD’s practices.                   After the jury
returned a verdict in favor of MISD, Waterman moved for a new trial,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40458
asserting, inter alia, that the district court deprived him of a fair trial. The
district court denied Waterman’s motion for a new trial. Finding no reversible
error in the district court’s pretrial and evidentiary rulings or in its conduct of
the trial, we AFFIRM.
                                         I.
        During the 2010-2011 school year, Waterman taught at MISD’s Collin
County Juvenile Center, County Residential Center (the “CRC”), a juvenile
detention facility.     Minors incarcerated at the CRC are taught by MISD
teachers in common areas outside the jail cells called “pods.” In February 2011,
one of Waterman’s coworkers, Natasha Knapton, filed a sexual harassment
complaint against Waterman with the CRC’s principal, Cynthia Morton.
According to the complaint, on February 18, 2011, Waterman brought Knapton
to a pod where he was teaching an all-male class and allowed the class to make
sexually    offensive   comments.      Knapton     complained    that Waterman
participated in the behavior and that she felt embarrassed and uncomfortable.
Pursuant to MISD policy, Morton investigated Knapton’s complaint.
        As part of the investigation, Morton interviewed Knapton and Waterman
and received statements from both employees. Morton also reviewed a video
recording of the incident and took statements from other witnesses. Based on
her investigation, Morton determined that Waterman had harassed his
coworkers and provided these findings to Dr. Jay Davis, MISD’s Chief Human
Resources Officer and Title IX Coordinator.
        Davis performed a follow-up investigation, during which Waterman was
placed on paid administrative leave. At the conclusion of the investigation,
Davis    agreed   with    Morton’s    findings   and   recommended      to   MISD
Superintendent Dr. J.D. Kennedy that Waterman’s contract not be renewed.
Kennedy accepted Davis’s conclusion and recommended Waterman’s non-
renewal to the MISD Board of Trustees (the “Board”). After being notified of
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                                      No. 15-40458
the Board’s intent to non-renew his contract, Waterman appealed the proposed
non-renewal under Section 21.207 of the Texas Education Code. Pursuant to
this provision, Waterman received an evidentiary hearing before the Board. 1
After the hearing, the Board voted to non-renew Waterman’s contract.
Waterman appealed this decision to the Texas Commissioner of Education,
who affirmed the non-renewal.
      At some point prior to the incident in the pod, Waterman reported the
following improper practices at the CRC to Morton: (1) “social grading” of the
CRC’s GED students without testing; (2) inflation of student enrollment to
receive increased funding; (3) deprivation of unencumbered lunch periods; and
(4) mishandling of the Teacher of the Year Award. Waterman contends that
his non-renewal was actually based on these previous reports rather than the
purported harassment.
      Waterman filed suit against MISD, asserting § 1983 claims under the
First, Ninth, and Fourteenth Amendments. After MISD moved to dismiss the
complaint under Rule 12(b)(6), the magistrate judge recommended that
Waterman’s Ninth and Fourteenth Amendment claims be dismissed. The
district court adopted this recommendation, leaving only Waterman’s First
Amendment claim. The case proceeded to a jury trial. After the final pretrial
conference, Waterman sought leave to amend his complaint to add a
Fourteenth Amendment liberty interest claim. The district court denied leave
to amend. A three-day trial resulted in a jury verdict in favor of MISD.
Waterman moved for a new trial, and the district court denied the motion.
      Waterman now appeals, bringing a laundry list of challenges to the
denial of his motion for a new trial, including that the district court (1) erred




      1   Waterman’s counsel was unable to attend the hearing and participated by phone.
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                                 No. 15-40458
in denying leave to amend the complaint, (2) erroneously excluded relevant
evidence, and (3) deprived him of a fair trial through biased conduct.
                                      II.
      Waterman’s first asserted ground for a new trial is that he should have
been allowed leave to amend his complaint to add a Fourteenth Amendment
liberty interest claim. We review the district court’s denial of a motion to
amend the complaint for abuse of discretion. Cambridge Toxicology Grp. v.
Exnicios, 495 F.3d 169, 177 (5th Cir. 2007). Generally, “a district court does
not abuse its discretion by refusing to allow an eleventh-hour amendment.”
Hypes ex rel. Hypes v. First Commerce Corp., 134 F.3d 721, 728 (5th Cir. 1998).
      The district court did not abuse its discretion in denying Waterman leave
to amend the complaint. The court’s scheduling order set December 24, 2013,
as the deadline for Waterman to file amended pleadings. Nevertheless, on
September 28, 2014, just two days before jury selection was to begin,
Waterman sought leave to amend his complaint to assert a liberty interest
claim. Waterman did not attempt to add this claim until nearly nine months
after the amendment deadline had passed. This delay is inexcusable, as he
could have asserted the claim much earlier: Waterman’s liberty interest claim
is that he was deprived of a meaningful name-clearing hearing, an argument
that he raised in replying to MISD’s motion for summary judgment on March
31, 2014. Waterman fails to explain why he waited nearly six months after
presenting the argument—and until the eve of trial—to attempt to add the
claim. Waterman’s delay and the close proximity to the trial date justified
refusing the amendment. See Banc One Capital Partners Corp. v. Kneipper,
67 F.3d 1187, 1199–1200 (5th Cir. 1995) (finding no abuse of discretion in
district court’s refusal to allow an amendment sought ten months after the
amendment deadline, particularly where the new issue could have been
discovered and asserted earlier); see also Hypes, 134 F.3d at 728.
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      Waterman also argues that Rule 15(a)’s liberal standard should apply
where leave to amend is sought before the entry of any pretrial orders. We
similarly reject this contention. As we have previously explained, Rule 16(b),
rather than Rule 15(a), “governs amendment of pleadings after the expiration
of a scheduling order deadline and requires a showing of good cause to amend
the order.” Cambridge Toxicology Grp., 495 F.3d at 177. Thus, “[a]s to post-
deadline amendment, a party must show good cause for not meeting the
deadline before the more liberal standard of Rule 15(a) will apply to the district
court’s denial of leave to amend.” Fahim v. Marriott Hotel Servs., Inc., 551
F.3d 344, 348 (5th Cir. 2008) (citation and internal quotation marks omitted).
Waterman cannot show good cause: he waited until the eve of trial and offered
no explanation for his failure to amend earlier. The district court thus did not
abuse its discretion in refusing the amendment. See id. (finding no abuse of
discretion in denying amendment where plaintiff, inter alia, “offered no
explanation for her untimely request”).
      The district court did not abuse its discretion in denying Waterman’s
motion for a new trial on this basis.
                                        III.
      Waterman next contends that he is entitled to a new trial because (1) the
district court improperly excluded admissible evidence, and (2) the district
court’s purported bias and partiality deprived him of a fair trial. We disagree.
                                        A.
      We turn first to Waterman’s evidentiary challenges, where he largely
asserts that the district court erred in granting a number of MISD’s motions
in limine and in excluding relevant evidence.         “Generally, any error in
admitting or excluding evidence is not grounds for a new trial.” Baisden v. I’m
Ready Prods., Inc., 693 F.3d 491, 508 (5th Cir. 2012) (citing Fed. R. Civ. P. 61).


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“We review the admission or exclusion of evidence for abuse of discretion.” 2 Id.
Even if the district court’s evidentiary ruling is an abuse of discretion, it is
subject to harmless error analysis and does not justify reversal “unless it
affected substantial rights of the complaining party.” Id. (citation and internal
quotation marks omitted). “A ruling has affected the substantial rights of the
party if, when considering all of the evidence presented at trial, the ruling had
a substantial effect on the outcome of the trial.” U.S. Bank Nat’l Ass’n v.
Verizon Commc’ns, Inc., 761 F.3d 409, 430 (5th Cir. 2014). Similarly, “[t]he
grant or denial of a motion in limine is considered discretionary, and thus will
be reversed only for an abuse of discretion and a showing of prejudice.” Hesling
v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir. 2005).
                                               1.
       We begin with the challenged evidence regarding Knapton. Waterman
first contends that the district court erred in excluding evidence of a video of
CRC students produced by Knapton that was posted on YouTube and shown
at the Teacher of the Year Ceremony, because the evidence was relevant to
show Knapton received preferential treatment. But, of course, “even relevant
evidence ‘may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury.’”
United States v. Jackson, 549 F.3d 963, 978 (5th Cir. 2008) (quoting Fed. R.
Evid. 403). Here, the district court, noting that the video was made after
Knapton’s internal complaint, found that its “minor” probative value was
outweighed by the danger of confusing the issues and misleading the jury. We
cannot say that this was an abuse of discretion.



       2 MISD’s argument that Waterman failed to preserve any challenges to the motions
in limine by making no offer of proof at trial is meritless. A pretrial objection is sufficient to
preserve error for appellate review so long as the court rules definitively on the record. See
United States v. Lewis, 796 F.3d 543, 545 n.6 (5th Cir. 2015) (citing Fed. R. Evid. 103(b)).
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      Waterman next argues that the district court erred in granting MISD’s
motion in limine excluding evidence that Knapton allowed “contraband such
as magic markers in the POD area of the CRC,” because such evidence is
relevant to a pretext inquiry and shows MISD’s failure to discipline other
employees. See Khalfani v. Balfour Beatty Cmtys., L.L.C., 595 F. App’x 363,
367 (5th Cir. 2014) (noting that “differential treatment of similarly-situated
employees can show pretext”). This argument is without merit. First, the
district court required Waterman to show, outside the presence of the jury, how
Knapton’s alleged behavior was similar conduct of a similarly situated
employee. Waterman made no such attempt at trial. Second, Waterman still
fails to explain how he and Knapton were similarly situated employees and
thus has failed to show the relevance of the evidence. See Toronka v. Cont’l
Airlines, Inc., 411 F. App’x 719, 723 (5th Cir. 2011) (“That employees’
situations must be nearly identical means, inter alia, that the misconduct they
engaged in must be nearly identical.”). The district court did not abuse its
discretion in granting this motion in limine.
      Waterman’s next assertion is that the district court committed reversible
error in granting MISD’s motion in limine to exclude evidence that Knapton
used foul language. This contention fails to clear a similar hurdle. In granting
MISD’s motion, the district court stated that Waterman would need to explain
at trial, outside the presence of the jury, how the evidence was relevant.
Because Waterman did not attempt to make this showing at trial, he cannot
show that the grant of the motion in limine prejudiced him. See Hesling, 396
F.3d at 643–44.
      Finally, Waterman challenges the district court’s exclusion of any
hearsay statements about “what others have heard or said about
Knapton . . . unless some exception to the rules can be shown outside the
presence of the jury.” Waterman’s apparent contention is that this evidence
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was admissible to attack Knapton’s character for truthfulness and to show that
she was not actually upset by the CRC students’ sexually offensive comments
in the pod. First, the district court did not abuse its discretion in excluding
hearsay statements that suggest that Knapton was not sensitive to
inappropriate comments.      More importantly, however, Waterman was not
prevented from otherwise introducing proper reputation or opinion testimony
to undermine Knapton’s character for truthfulness. Rather, the district court’s
ruling was premised on the fact that Waterman could not rely on hearsay
statements suggesting sexual predisposition to impeach Knapton’s character.
This exclusion was proper. See Fed. R. Evid. 412.
                                        2.
      We turn next to the challenged evidence regarding Morton. Waterman
contends that he should have been allowed to attack Morton’s credibility
through evidence that she committed three previous policy violations: (1)
failure to list her termination from another school district on her MISD
employment application; (2) appointment of administrative interns without
proper authority; and (3) authorization of the YouTube video produced by
Knapton, allegedly in contravention of district policy.
      Waterman first asserts that he sought to introduce the evidence of past
policy violations to show that Morton’s current investigation of Waterman was
incomplete or otherwise false. However, character evidence is inadmissible to
show that a person acted in accordance with that character on a particular
occasion. See Fed. R. Evid. 404(a)(1). In addition, “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). The district court determined that this
evidence was offered to show that Morton’s past violations showed that she
might have violated policies in dealing with Waterman. Because Waterman
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apparently offered this evidence to show Morton’s propensity to violate policies,
the district court did not abuse its discretion in excluding the evidence under
Rule 404. 3
       Second, to the extent Waterman sought to offer Morton’s past violations
to attack her credibility, the evidence is properly characterized as relevant to
her character for truthfulness. See United States v. Poole, 735 F.3d 269, 278
(5th Cir. 2013) (noting that because party was a witness at trial, “his character
for truthfulness . . . was at issue”).          “Rule 608(b) applies when extrinsic
evidence is offered to impeach a witness, to show the character of the witness
for untruthfulness.” United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007)
(citation and internal quotation marks omitted). This rule “permit[s] inquiry
on cross examination into specific instances of conduct which may bear on a
witness’ credibility in order to impeach the credibility of the witness.” United
States v. Skelton, 514 F.3d 433, 443–44 (5th Cir. 2008) (citation and internal
quotation marks omitted) (alteration in original).               “The district court has
substantial discretion in determining the admissibility of impeachment
evidence under Rule 608(b).” Id. at 444.
       The district court did not abuse its discretion in refusing to permit
questioning about Morton’s appointment of interns or her allowance of
Knapton to produce the YouTube video. “Rule 608(b) authorizes inquiry only
into instances of misconduct that are clearly probative of truthfulness or
untruthfulness, such as perjury, fraud, swindling, forgery, bribery, and



       3 To some extent, Waterman suggests that Morton’s past violations show retaliatory
motive. Rule 404(b) applies when extrinsic evidence is offered “as relevant to an issue in the
case,” such as motive. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (citation
omitted). This court applies a two-prong test for the admissibility of extrinsic evidence under
Rule 404(b), first asking whether the evidence is relevant for a non-character purpose and
then determining whether its probative value is substantially outweighed by its prejudicial
effect. Id. Waterman fails to explain how any of Morton’s past violations of district policy
are relevant to her motive for firing him for reporting unrelated misconduct.
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embezzlement.” United States v. Heard, 709 F.3d 413, 433 (5th Cir. 2013)
(citation and internal quotation marks omitted). In Heard, we held that the
witness’s prior conduct was “nothing like perjury, fraud, swindling, forgery,
bribery, or embezzlement” and thus was “not clearly probative of truthfulness
or untruthfulness.” Id. The complained-of conduct here—appointing interns
without authority or allowing Knapton to produce the video—is not “clearly
probative” of Morton’s truthfulness or untruthfulness; any such questioning
was not permitted under Rule 608. See id.
      Waterman finally argues that the district court erred in not allowing him
to question Morton about her failure to disclose her prior termination on her
MISD employment application. See E.E.O.C. v. Bobrich Enters., No. 08-10162,
2009 WL 577728, at *3–4 (5th Cir. Mar. 6, 2009) (suggesting that job-
application-misrepresentation evidence is proper impeachment testimony
under Rule 608 but finding no abuse of discretion in its exclusion under Rule
403). Even if this exclusion was error, it did not have “a substantial effect on
the outcome of the trial.” Verizon Commc’ns, 761 F.3d at 430. This was not a
case decided on sparse evidence. Instead, the trial record is replete with
evidence; much of it suggests that Waterman behaved inappropriately and
made some of his coworkers feel uncomfortable and file complaints. We are
unconvinced that Waterman’s inability to ask Morton about her employment
application substantially affected the trial.
      Waterman’s evidentiary challenges do not merit a new trial.
                                       B.
      Finally, we address Waterman’s contention that the district judge’s
conduct deprived him of a fair trial. Reviewing the record as a whole, we
discern no prejudicial error.
      “In a trial by jury in a federal court, the judge is not a mere moderator,
but is the governor of the trial for the purpose of assuring its proper
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conduct . . . .” United States v. Jefferson, 258 F.3d 405, 411–12 (5th Cir. 2001)
(citation and internal quotation marks omitted). The district judge “has the
right and the duty to comment on the evidence to ensure a fair trial” and must
“act when necessary to ensure that the trial is properly conducted and not
subject to delay.” Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 425 (5th
Cir. 1990) (citations and internal quotation marks omitted). “The trial judge
must, of course, exercise these powers in a reasonable manner by maintaining
his objectivity and neutrality.” Id. The trial judge’s conduct “is measured
against a standard of fairness and impartiality.” Id. (citation and internal
quotation marks omitted).
      “In reviewing a claim that the trial court appeared partial, this court
must determine whether the judge’s behavior was so prejudicial that it denied
the [complaining party] a fair, as opposed to a perfect, trial.” Rodriguez v.
Riddell Sports, Inc., 242 F.3d 567, 579 (5th Cir. 2001) (citation and internal
quotation marks omitted). “Our review of the trial court’s actions must be
based on the entire trial record.” Id. (citation and quotation marks omitted).
“A trial judge’s comments or questions are placed in the proper context by
viewing the ‘totality of the circumstances, considering factors such as the
context of the remark, the person to whom it is directed, and the presence of
curative instructions.’” Id. (quoting United States v. Saenz, 134 F.3d 697, 702
(5th Cir. 1998)). “The totality of the circumstances must show that the trial
judge’s intervention was quantitatively and qualitatively substantial.” Id.
(quoting Saenz, 134 F.3d at 702).
      Waterman did not object at trial, so our review is for plain error. See
United States v. Lankford, 196 F.3d 563, 572 (5th Cir. 1999) (noting that where
“no objections were raised at trial, we review challenges to judicial conduct for
plain error”); see also Helmerich & Payne, 892 F.2d at 425–26 (applying plain
error review to judicial-bias challenge).
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                                        1.
      We begin here with Waterman’s challenge to what he describes as the
district judge’s “arbitrary dismissal” of witnesses, which he contends merits a
new trial.    In particular, Waterman points to two instances involving
coworkers he called as witnesses: (1) the district court’s decision not to allow
redirect examination of Karen Strickland, and (2) the dismissal of Tammy
Reiter after the attorneys returned from a recess one minute late. With regard
to preventing redirect examination of Strickland, the district judge has
“reasonable control over the mode and order of examining witnesses and
presenting evidence.” Fed. R. Evid. 611(a). The district judge’s disallowance
of redirect examination was in his discretion, and regardless, Waterman does
not explain how he was prejudiced by the ruling. See United States v. Martinez,
151 F.3d 384, 390 (5th Cir. 1998) (“In order to show an abuse of discretion
related to the limitations placed on cross-examination, a defendant must show
that those limitations were clearly prejudicial.”).
      In reviewing this record, we similarly conclude that the dismissal of
Reiter does not rise to the level of reversible error. Reiter had already testified
that she did not feel that Waterman sexually harassed her and that she had
not been interviewed by Morton or Davis. But, over the course of the three-
day trial, the jury heard extensive evidence about the relevant incident and its
effect on at least two other teachers. The jury did not need to base its verdict
on whether all three teachers felt harassed. Moreover, Waterman made no
offer of proof at trial—and fails to explain now—as to what further testimony
he wished to elicit from Reiter.
                                        2.
      We finally address the comments by the district judge that Waterman
asserts prejudiced him in front of the jury and deprived him of a fair trial.


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      Waterman points out that the district judge, at the final pretrial hearing,
stated: “I’m not as old as you are but I did grow up in the days of trial by
ambush . . . .” Next, Waterman posits that the ethnicity of his associate “may
have prompted” the district judge to tell the jury about how the judge had been
“raised in a country that did not have jury trials.” Finally, Waterman asserts
that the district court improperly accused him of “trying to poison the jury” and
“staring” at him. None of these claimed “errors” justify reversal. The district
judge’s trial by ambush comment was made at a pretrial conference and thus
could not have prejudiced Waterman before the jury. As to the district judge’s
comment about having grown up in a country without juries, only Waterman’s
speculation suggests anything objectionable. We refuse to infer any prejudice
based on such speculation. The district judge’s other challenged comments
(e.g., “poisoning the jury”), when viewed in the context of the trial record, do
not rise to the level of reversible error.     By the time of the challenged
statements, the district judge had already warned Waterman’s counsel several
times against injecting excluded evidence into the jury’s mind or had otherwise
explained what type of questioning was impermissible.              As we have
emphasized before, “[f]ederal judges have wide discretion with respect to the
tone and tempo of proceedings before them; they are not mere moderators or
hosts at a symposium.” United States v. Adkins, 741 F.2d 744, 747 (5th Cir.
1984) (citation and internal quotation marks omitted). The district court acted
within its discretion to exercise control over the proceedings.
      Waterman’s final challenge is that the district court improperly
commented on the evidence at trial.         Knapton complained that, in the
underlying events in the pod, students asked her if she liked “blow jobs.”
Waterman contends that the district court erred by remarking that the “blow
job comment” was not at issue. This argument misstates the proceedings. In
the challenged exchange, Waterman’s counsel asked the witness: “Did you ask
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                                    No. 15-40458
her, ‘Well, what did you do when [the student] told you that?’ Did you ask her
that?”   The district judge then asked if the evidence established that the
student made the comment as opposed to the comment being shouted across
the room. We are satisfied that the district court’s comment fell within its wide
discretion to “elicit facts not yet adduced or clarify those previously presented.”
Rodriguez, 242 F.3d at 579; see also Helmerich & Payne, 892 F.2d at 425
(noting the district judge’s “right and . . . duty to comment on the evidence to
ensure a fair trial”).
       Regardless, any potential prejudice from the district court’s statements
or comments was sufficiently alleviated by the numerous curative instructions.
In Helmerich & Payne, we held, in the context of a judicial-bias claim, that
“[a]ny potential prejudice . . . was adequately cured by the trial court’s
instructions to the jury both at the beginning and at the end of the trial to
ignore his comments and to be the sole judge of the facts.” 892 F.2d at 426.
Here, the district judge reminded the jury throughout the trial (not just at the
beginning and end) that they were the sole judges of the facts and should not
draw any conclusions about the case from his statements. Though limiting
instructions do not always cure prejudice, the instructions here were sufficient.
See United States v. Williams, 809 F.2d 1072, 1088–89 (5th Cir. 1987)
(recognizing the importance of “clear and repeated instructions” in evaluating
a claim that a trial was biased).
       In sum, our thorough review of the record fails to reveal the type of
systematic bias that would satisfy our rigorous plain-error standard.           See
Rodriguez, 242 F.3d at 579–80. We conclude that Waterman was not deprived
of a fair trial.
                                                                      AFFIRMED.




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