IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20403

JARREL CALDWELL, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2017

Lyle W. Cayce

Clerk

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2

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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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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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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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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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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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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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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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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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 racebased 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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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 

 

25 See Ramsey, 286 F.3d at 268.

26 Bledsoe 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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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 predeprivation 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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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)).

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