IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20353

Cons./w No. 18-20592

OTIS GRANT,

Plaintiff - Appellant

v.

HARRIS COUNTY,

Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC Nos. 4:16-CV-3529 

and 4:18-CV-1953

Before OWEN, Chief Judge, and JONES and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

In this consolidated appeal, Appellant Otis Grant challenges various 

rulings made by two district courts. Grant originally filed suit against 

Appellee Harris County (the “County”) following the termination of his 

employment, alleging discrimination, retaliation, and harassment pursuant to 

the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. Grant 

 

* 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

October 30, 2019

Lyle W. Cayce

Clerk

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later filed a separate suit against the County pursuant to Title VII, 42 U.S.C. 

§ 2000e et seq. Both courts granted summary judgment in favor of the County. 

Grant appeals those and other rulings. We AFFIRM both judgments.

BACKGROUND

The Harris County Juvenile Probation Department operates a Juvenile 

Probation Center (the “Center”) that houses approximately 500 children who 

have been remanded to state custody because they pose a threat to themselves 

or others. From 2005 to 2013, the County employed Grant as a Juvenile 

Supervision Officer (“JSO”) in the Center. Grant’s responsibilities as a JSO 

were wide-ranging, but Grant was generally responsible for the supervision 

and security of the children housed at the Center. At times, this required 

Grant to monitor at-risk children and maintain accurate observation logs, 

detailing the exact time he performed a wellness check and what the at-risk 

child was doing at that time. Grant was also required to initial the observation 

log each time he made an entry.

Between 2008 and 2012, Grant’s performance reviews and reports from 

supervisors noted multiple problems with Grant’s supervision of children in 

his care. Then, in October 2012, Grant was suspended for five days after a 

supervisor reported that Grant had not properly completed his observation logs 

and had falsely recorded his observation times. In early 2013, following

another alleged policy violation, Grant was given a “Last Warning Letter,” 

informing Grant that any further violations would result in his termination. 

On November 23, 2013, after Grant again allegedly falsified his observation 

logs and violated the County’s Electronic Devices Policy, the County moved to 

terminate Grant’s employment.

Grant tells a different story. He does not dispute that he received 

negative performance reviews and reports from supervisors. But Grant alleges 

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he was singled out by the County for reporting that his supervisor was 

discriminating against other employees—not Grant—on the basis of their 

national origin. Grant, who has Type 2 Diabetes, also alleges that the County 

retaliated against him by depriving him of accommodations for his diabetes 

and harassed and ultimately terminated him because of his diabetes. Based 

on these allegations, Grant filed a complaint with the Equal Employment 

Opportunity Commission. On February 17, 2016, Grant received a right-tosue letter from the EEOC, authorizing him to sue under both the ADA and 

Title VII.1

On May 23, 2016, Grant filed suit against the County in Texas state 

court, asserting a claim for violations of the ADA. The County removed the 

case to federal court. On January 29, 2018, the County moved for summary 

judgment. Nearly three months later, after extending Grant’s response 

deadline multiple times, the district court granted the County’s motion for 

summary judgment. Grant subsequently filed a motion pursuant to Federal 

Rule of Civil Procedure 59 to amend the district court’s final judgment, which 

the court denied. Afterward, on May 23, 2018, Grant filed another lawsuit 

against the County in state court, asserting a claim for violations of Title VII.

The County removed the case to federal court and moved to dismiss, or in the 

alternative, for summary judgment. The second district court treated the 

County’s motion as one for summary judgment and granted it. Grant timely 

appealed both judgments, as well as other rulings made by the first district 

court. The two appeals were consolidated in this court.

 

1 The right-to-sue letter mistakenly referenced “Title V” instead of “Title VII.”

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DISCUSSION

Grant appeals five rulings: the first district court’s rulings on two pretrial motions related to the district court’s management of this case, the first 

district court’s rulings on the County’s motion for summary judgment and 

Grant’s Rule 59(e) motion, and the second district court’s ruling on the 

County’s motion for summary judgment. The court discusses each in turn.

A. The First District Court’s Case Management Related 

Rulings

Before entering summary judgment, the first district court denied 

Grant’s motion for sanctions and motion for leave to file a fourth amended 

complaint. Grant contends the district court abused its discretion in denying 

his motions. 

This court reviews a district court’s denial of a motion for sanctions for 

an abuse of discretion. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). A 

district court abuses its discretion if its ruling is based on an “erroneous view 

of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell 

v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2462 (1990). Grant’s 

motion for sanctions was predicated on his allegation that “the County 

destroyed documents relevant to Grant’s claims, especially his harassment 

claims under the ADA.” The documents in question relate to an internal 

harassment complaint Grant filed in December 2011. The County employee 

who originally investigated the complaint submitted a typewritten report that 

was allegedly based on the investigator’s handwritten notes. During discovery,

the County produced the typewritten documents containing the report. 

Because the handwritten notes were destroyed and the typewritten documents

did not contain any self-evident authentication, Grant alleged the typewritten 

documents were false and moved for sanctions against the County.

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During a hearing on the matter, several witnesses testified to the 

authenticity of the County’s records, and the County submitted a forensic 

expert report showing that the typewritten notes were authentic and had been 

created by the investigator around the time of the investigation. In an 

abundance of caution, the district court ordered the County to allow Grant to 

inspect the County’s computer system. The district court instructed the parties 

to schedule the inspection on an accelerated timeline because trial was less 

than six weeks away. But Grant waited three weeks to schedule the inspection 

and ultimately failed to attend. During the delay, the district court denied 

Grant’s motion for sanctions. Grant does not contend that the district court’s 

denial was based on an erroneous view of the law or assessment of the 

evidence. Instead, Grant argues the district court should have allowed Grant 

to conduct the inspection before ruling on the motion for sanctions. But Grant 

was given that opportunity and failed to timely pursue it. In light of the 

evidence establishing that the typewritten documents were authentic and 

Grant’s failure to address the issue diligently, the denial of Grant’s motion for 

sanctions was not an abuse of discretion.

The first district court’s order denying Grant’s motion for leave to file a 

fourth amended complaint is also reviewed for abuse of discretion. City of 

Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010). A party 

seeking leave to amend its pleading at an advanced stage in the proceedings 

must generally seek leave to do so. Fed. R. Civ. P. 15(a)(2). Courts “should 

freely give leave when justice so requires.” Id. A court can deny leave under 

Rule 15 when there is undue delay, bad faith, dilatory motive, repeated failures 

to cure deficiencies, or undue prejudice to the opposing party. Mayeaux v. La. 

Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004).

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Grant argues he should have been granted leave to amend his complaint 

for a fourth time because his motion was timely and did not prejudice the 

County. On February 17, 2016, Grant received his right-to-sue letter for his 

ADA and Title VII claims. On May 23, 2016, he filed suit in the first district 

court only on the ADA claim. Grant later amended his complaint twice to 

expand his ADA allegations but never included the Title VII claim.2 When

Grant’s response to the County’s motion for summary judgment was due, and 

six weeks after the close of discovery, Grant moved for leave to file a fourth 

amended complaint so that he could plead a Title VII claim. Grant seeks to 

justify this delay by arguing that he did not actually receive a right-to-sue 

letter for his Title VII claim until 2018 because the 2016 letter contained a 

typographical error, stating that he had a right to sue under “Title V” instead 

of “Title VII.” Grant demanded that the Justice Department re-issue the 2016 

right-to-sue letter in 2018 without the error and now relies on the reissuance 

as the basis for his argument that his motion for leave was timely.

Grant’s argument fails for two reasons. First, it is undermined by his 

admission below that his prior failure to bring his Title VII claim had been 

caused by an “inadvertent oversight of [Grant’s counsel] in not typing the 

Title VII statute in [his prior amended complaints].” Indeed, Grant concedes 

in his briefing to this court that he moved for leave “upon discovery that no 

plea for a Title VII violation had been made in his prior complaints.”

Second, even if the delay was caused by a typographical error in Grant’s 

2016 right-to-sue letter, as the first district court found, Grant’s Title VII claim 

had prescribed at the time Grant sought leave to amend. Once a claimant 

 

2 Grant’s Title VII claim was for retaliation based on his reporting that a supervisor 

was discriminating against Grant’s coworkers. Grant did not allege the County 

discriminated against him personally in violation of Title VII.

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receives a right-to-sue letter, he has ninety days to file a civil action under 

Title VII. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). 

“[T]he complainant is on notice from the date of receipt of the first dismissal 

letter that he has 90 days to file suit on the claims made to the EEOC, unless 

the second right to sue letter is issued pursuant to a reconsideration of the 

merits.” Washington v. City of Gulfport, 351 F. App’x 916, 918 (5th Cir. 2009).3 

It is undisputed that the 2018 right-to-sue letter was issued to correct a 

technical defect, not pursuant to a reconsideration of the merits of Grant’s 

original complaint. Thus, Grant had ninety days from the date he received the 

February 17, 2016 letter (May 17, 2016) to assert his Title VII claims. Grant’s 

attempt to bring his Title VII claims in 2018 was therefore untimely. See 

Santini v. Cleveland Clinic Fl., 232 F.3d 823, 825 (11th Cir. 2000) (“Here, the 

EEOC reissued a Notice merely to correct a technical defect rather than 

pursuant to a reconsideration of the Charge. Because the issuance of the 

second Notice . . . is immaterial, the district court did not err in finding that 

Santini’s federal claims were time-barred.”).

Grant’s contention that his untimely motion for leave did not prejudice 

the County is also belied by his statement—made in his motion for leave to file 

a third amended complaint—that he would not add any “new causes of action 

in the amended complaint” because new claims would cause “prejudice or 

unfair surprise which would require additional discovery.” Considering Grant 

did not seek leave until weeks after the close of discovery, sought to plead a 

claim that had prescribed, and admitted that new causes of action would be 

 

3 See also January v. Tex. Dep’t of Criminal Justice, 760 F. App’x 296, 300 (5th Cir. 

Jan. 23, 2019). Although Washington and January are unpublished opinions and are not 

therefore binding on this court, they are useful evidence of this court’s treatment of this issue.

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prejudicial, the denial of his motion for leave to amend was not an abuse of 

discretion.

B. The First District Court’s Rulings on the County’s Motion 

for Summary Judgment and Grant’s Rule 59(e) Motion

Grant contends the first district court erred in granting summary 

judgment in favor of the County on his ADA claims and denying Grant’s 

subsequent Rule 59(e) motion. Grant failed to respond to the County’s motion 

for summary judgment. Instead, after the district court entered summary 

judgment on Grant’s ADA claims, Grant filed a Rule 59(e) motion, seeking to 

alter or amend the judgment based on newly presented evidence. Grant now 

relies on this evidence on appeal and argues that it creates genuine disputes 

of material fact that should have precluded summary judgment. Because 

Grant’s arguments on appeal are based on evidence provided for the first time 

in his Rule 59(e) motion—evidence that was not considered by the district court 

in granting the County’s motion for summary judgment—the court first 

addresses whether the district court erred in denying Grant’s Rule 59(e) 

motion.

When a district court is presented with new evidence in a Rule 59(e) 

motion to alter or amend, and the court denies the motion, the standard of 

review depends on whether the district court considered the new evidence in 

reaching its decision. Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir. 

2004). If the district court considers the new evidence and still grants 

summary judgment, its decision is reviewed de novo. Id. If the district court 

refuses to consider the materials, “the reviewing court applies the abuse of 

discretion standard.” Id. Likewise, if it is unclear whether the district court 

considered the new evidence, the court reviews the district court’s denial of the 

Rule 59(e) motion for an abuse of discretion. Luig v. N. Bay Enters., Inc., 

817 F.3d 901, 905 (5th Cir. 2016).

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Because there is no indication in the record that the district court 

reviewed the new evidence Grant submitted in his Rule 59(e) motion, the 

district court’s denial is reviewed for an abuse of discretion. Under this 

standard, the district court’s decision “need only be reasonable.” Templet, 

367 F.3d at 477. A Rule 59(e) motion to amend “calls into question the 

correctness of the judgment.” In re Transtexas Gas Corp., 303 F.3d 571, 581 

(5th Cir. 2002). 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.” 

Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).

Grant argues the district court erred in denying his Rule 59(e) motion 

because Grant “did not receive notice that the court would change or even 

reconsider” its prior ruling denying the County’s motion for summary 

judgment. This contention is not supported by the record. Although the 

district court had originally denied the County’s motion for summary 

judgment, the transcript of the district court’s hearing on Grant’s motion for 

sanctions shows the district court clearly indicated it was reconsidering its 

ruling. Accordingly, the district court explicitly and repeatedly directed Grant 

to file a response to the County’s motion for summary judgment by the end of 

the following week. The district court explained that several statements Grant 

made about his alleged disability during his deposition were troubling and

identified which issues Grant should address in his response. 

Grant now appears to claim that he misunderstood the district court’s 

directives and thought that he had already prevailed on the County’s motion. 

But even if there had been a genuine misunderstanding about the district 

court’s directive to file a response, Grant did not make any effort to clarify the 

status of the litigation or the court’s request. Grant filed no response to the 

County’s motion for summary judgment. Further, Grant’s Rule 59(e) motion 

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did not identify a manifest error of law in the district court’s judgment or 

demonstrate that the evidence attached to the motion was newly-discovered. 

The denial of Grant’s Rule 59(e) motion was therefore reasonable and not an 

abuse of discretion.

Turning next to the district court’s grant of summary judgment in favor 

of the County, this court reviews the summary judgment de novo, applying the 

same standard as the district court. Tango Transp. v. Healthcare Fin. Servs. 

LLC, 322 F.3d 888, 890 (5th Cir. 2003). Summary judgment is appropriate if 

no genuine dispute of material fact exists, and the moving party is entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(c).4 

Grant argues the district court erred because there are genuine disputes 

of material fact as to whether the County violated the ADA by 

(1) discriminating against him because of his disability; (2) failing to provide a 

reasonable accommodation for his disability; (3) harassing him because of his 

disability; and (4) retaliating against him for seeking a reasonable 

accommodation.

First, Grant claims he was terminated because of his diabetes. Because 

Grant did not offer any direct evidence of discrimination, the modified 

McDonnell Douglas burden-shifting standard applies. Burrell v. Dr. 

Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir 2007). To 

establish a prima facie case of discrimination under the ADA, a plaintiff must 

show that (1) he has a disability; (2) he was qualified for his position; and 

(3) there was a causal connection between an adverse employment action and 

his disability. Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016). 

 

4 Because Grant failed to respond to the County’s motion for summary judgment, the 

district court was entitled to treat the motion as unopposed. See S.D. Tex. Local R. 7.4. 

(“Failure to respond to a motion will be taken as a representation of no opposition.”).

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If a plaintiff meets this initial burden, the employer can rebut it by articulating 

a legitimate nondiscriminatory reason for the adverse action. Id. If the 

employer provides such a reason, the plaintiff must offer evidence to show that 

the reason was pretext for discrimination. Id.

The County no longer disputes that Grant was disabled by reason of his 

diabetes. Grant, however, failed to offer any evidence establishing the other 

elements of his prima facie case. Nor does Grant address the third element on 

appeal—he focuses only on the causal link between his complaint of nationalorigin discrimination and his termination. Further, the County’s 

uncontroverted evidence established that Grant was suspended and ultimately 

terminated after multiple disciplinary incidents, including Grant’s alteration 

of documents, failure to maintain proper observation records, and violations of 

the County’s Electronic Devices Policy. Grant offered no evidence that these 

legitimate reasons were pretextual. Summary judgment was therefore proper 

on this claim.

Second, Grant claims the County failed to provide reasonable 

accommodations for his alleged physical limitations related to his diabetes. To 

prevail on a failure-to-accommodate claim, a plaintiff must show (1) the 

plaintiff is a “qualified individual with a disability”; (2) the disability and its 

consequential limitations were known by the plaintiff’s employer; and (3) the 

employer failed to make reasonable accommodations for such known 

limitations. Feist v. La., Dept. of Justice, 730 F.3d 450, 452 (5th Cir. 2013). 

“[W]here the disability, resulting limitations, and necessary reasonable 

accommodations are not open, obvious, and apparent to the employer, the 

initial burden rests primarily upon the employee . . . to specifically identify the 

disability and resulting limitations, and to suggest the reasonable 

accommodations.” E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 

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(5th Cir. 2009). “Once an employee makes such a request, however, the 

employer is obligated by law to engage in an interactive process: a meaningful 

dialogue with the employee to find the best means of accommodating that 

disability.” Id. (internal quotations omitted). “[A]n employer cannot be found 

to have violated the ADA when responsibility for the breakdown of the 

‘informal interactive process’ is traceable to the employee and not the 

employer.” Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 

2011).

The County’s uncontroverted evidence established that Grant did not 

identify his limitations to his employer, request an accommodation, or engage 

in the interactive process. Grant now argues based on his untimely evidence 

that the County knew of his limitations and should have permanently assigned 

him to work that did not require him to walk or stand for long periods of time. 

Even considering Grant’s evidence, the record establishes that the County 

sought to engage in an interactive process with Grant, but Grant refused to 

cooperate and denied needing accommodations. Indeed, as the district court 

found, Grant testified that, during all relevant time periods, he could walk or 

stand during the majority of his shift without accommodations. Summary 

judgment was therefore proper on this claim.

Third, Grant claims the County harassed him because of his disability. 

To prevail on a disability-based harassment claim, a plaintiff must show that 

(1) he belongs to a protected group; (2) he was subjected to unwelcomed 

harassment; (3) the harassment complained of was based on his disability; 

(4) the harassment complained of affected a term, condition, or privilege of 

employment; and (5) the employer knew or should have known of the 

harassment and failed to take prompt, remedial action. Gowesky v. Singing 

River Hosp. Sys., 321 F.3d 503, 509 (5th Cir. 2003). “[T]he harassment must 

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be sufficiently pervasive or severe to alter the conditions of employment and 

create an abusive working environment.” Credeur v. La. Office of Att’y Gen., 

860 F.3d 785, 796 (5th Cir. 2017).

Grant argues that the County harassed him by: (1) assigning him to 

work on a different floor; (2) criticizing Grant’s work-ethic in an investigation 

report; (3) posting a picture of Grant with his feet elevated on social media; 

(4) “deny[ing] Grant access to the control booth that others were free to use”; 

(5) “threatening to fire him if he did not sign a personnel document”; and 

(6) “waiting to relieve him to the last minute where he almost defecated on his 

clothing.” Despite the fact that Grant offered no evidence supporting these 

allegations in response to the County’s motion for summary judgment, even 

taking them as true, this conduct is “not the type that courts have found to 

constitute harassment, and certainly not harassment that is sufficiently severe 

or pervasive to create a hostile work environment.” Credeur, 860 F.3d at 796. 

Further, the record reveals that most of these actions were not related to 

Grant’s disability, and to the extent they may have been, the County took 

prompt, remedial action, including terminating the employee that allegedly 

posted Grant’s picture on social media. Summary judgment was therefore 

proper on this claim.

Finally, Grant claims the County retaliated against him by suspending 

and ultimately terminating him for engaging in activity protected by the ADA. 

To establish a prima facie case of retaliation under the ADA, a plaintiff must 

show (1) he participated in an activity protected under the ADA; (2) his

employer took an adverse employment action against him; and (3) a causal 

connection exists between the protected activity and the adverse action. Feist, 

730 F.3d at 454. As with a claim of ADA discrimination, if the plaintiff 

establishes a prima facie case, the burden shifts to the employer to state a 

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legitimate, non-discriminatory reason for the adverse employment action. Id.

If the employer provides such a reason, the plaintiff must offer evidence to 

show that the reason was pretext for retaliation. Id.

It is not clear from Grant’s briefing what ADA-protected activity Grant 

claims he engaged in. Grant alleges he was retaliated against for complaining 

about national origin discrimination against another employee. But Grant’s 

alleged complaint of national origin discrimination is not activity protected by

the ADA. To the extent Grant alleges he was retaliated against for seeking a 

reasonable accommodation, as discussed above, the record establishes that 

Grant did not request an accommodation and denied needing one. Further, 

Grant did not offer evidence to show that the legitimate reasons for Grant’s 

suspension or termination, discussed above, were pretextual. Summary 

judgment was therefore proper on this claim.5

C. The Second District Court’s Ruling on the County’s Motion 

for Summary Judgment

The first district court also granted summary judgment on Grant’s Title 

VII claims, although the first district court had previously denied Grant’s 

motion for leave to amend his complaint to assert the Title VII claims. Grant 

subsequently filed another lawsuit in state court asserting the Title VII claims 

against the County. The County removed the case to federal court and moved 

to dismiss, or in the alternative, for summary judgment on the basis of res 

judicata. The second district court granted the County’s motion, finding that 

res judicata applied based on the first district court’s summary judgment. 

Grant contends the second district court erred in doing so.

 

5 Grant also challenges the first district court’s ruling granting the County’s motion 

to strike several of Grant’s trial witnesses. In light of the court’s holding, we need not address 

this issue.

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Grant argues that res judicata does not apply to his second lawsuit 

because his Title VII claims were not properly before the first district court 

when it granted summary judgment.6 But regardless of whether Grant’s Title 

VII claims were properly before the first district court, as discussed supra

Part.A, the claims had prescribed. Grant does not dispute that the Title VII 

claims asserted in the second district court were the same claims Grant sought 

to bring in the first district court. Grant received his right-to-sue letter on 

those claims in February 2016. Grant did not pursue his Title VII claims—in 

either district court—until 2018. The County raised prescription substantively 

in its motion for summary judgment in the second district court, and, although 

the district court did not grant summary judgment on that ground, this court 

“may affirm a summary judgment on any legally sufficient ground, even if not 

relied upon by the district court.” N.H. Ins. Co. v. Martech USA, Inc., 

993 F.2d 1195, 1200 (5th Cir. 1993). There is no debatable issue that the Title 

VII claims had prescribed. Summary judgment was therefore proper.

For the foregoing reasons, the judgments of the first and second district 

courts are AFFIRMED.

 

6 Grant also argues that the County’s res judicata defense was not properly raised

because “res judicata is an affirmative defense that should not be raised as part of a 12(b)(6) 

motion but should instead be raised at summary judgment.” Grant correctly states that a 

motion for summary judgment—rather than a Rule 12(b)(6) motion to dismiss—is the proper 

vehicle for raising a res judicata defense. See Test Masters Educ. Servs., Inc. v. Singh, 

428 F.3d 559, 570 n.2 (5th Cir. 2005). Recognizing this, the second district court expressly 

treated the County’s motion as one for summary judgment.

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