IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40561

CARLOS MANDUJANO, 

 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The opinion in this matter filed on July 10, 2019 is hereby withdrawn 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.

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2019

Lyle W. Cayce

Clerk

 Case: 18-40561 Document: 00515105069 Page: 1 Date Filed: 09/04/2019
No. 18-40561

2

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.

 Case: 18-40561 Document: 00515105069 Page: 2 Date Filed: 09/04/2019
No. 18-40561

3

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 

 Case: 18-40561 Document: 00515105069 Page: 3 Date Filed: 09/04/2019
No. 18-40561

4

[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 

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

5

(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 

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

6

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 

 Case: 18-40561 Document: 00515105069 Page: 6 Date Filed: 09/04/2019
No. 18-40561

7

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. 

 Case: 18-40561 Document: 00515105069 Page: 7 Date Filed: 09/04/2019
No. 18-40561

8

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 

 Case: 18-40561 Document: 00515105069 Page: 8 Date Filed: 09/04/2019
No. 18-40561

9

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.

 Case: 18-40561 Document: 00515105069 Page: 9 Date Filed: 09/04/2019