IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40458

BRIAN WATERMAN, 

 Plaintiff - Appellant

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.

United States Court of Appeals

Fifth Circuit

FILED

March 22, 2016

Lyle W. Cayce

Clerk

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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 nonrenewal to the MISD Board of Trustees (the “Board”). After being notified of 

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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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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 postdeadline 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 jobapplication-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 threeday 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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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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