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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 18-20353                            FILED
                                 Cons./w No. 18-20592                 October 30, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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-to-
sue 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 pre-
trial 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


       2Grant’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




       3See 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 national-
origin     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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