UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 97-20979
______________________
STERLING WHITE,
Plaintiff - Appellant,
VERSUS
THE GOODYEAR TIRE AND RUBBER COMPANY,
Defendant - Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-93-CV-4049 & H-94-CV-3508)
___________________________________________________
September 29, 1999
Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges
DUHÉ, Circuit Judge:1
Sterling White sued The Goodyear Tire and Rubber Company
(“Goodyear”) for race discrimination under Title VII and disability
discrimination under the Americans with Disabilities Act (“ADA”).
A prior panel of this Court reversed the district court’s grant of
summary judgment on both claims. On remand, after taking additional
evidence, the district court granted summary judgment on the
disability claim because White failed to prove he was qualified, and
therefore did not establish a prima facie case. The district court
1
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should not be published and is not precedent except under the limited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.
also granted summary judgment on the race discrimination claim
because White had not exhausted his administrative remedies. We
affirm as to that claim, and reverse and remand the ADA claim.
FACTS AND PROCEEDINGS
White worked as a baler helper at Goodyear’s plant in Houston,
Texas. He worked in an unairconditioned building, surrounded by
extremely hot rubber, fumes, and chemicals. In October 1991, White
experienced a sickle cell crisis and took extensive sick leave.
Goodyear terminated him on August 7, 1992.
White filed with the Equal Employment Opportunity Commission
(EEOC) a charge of employment discrimination under the ADA. The EEOC
issued White a right to sue letter. White asserted in a deposition
that he also filed a race discrimination complaint with the EEOC.
White, acting pro se, sued Goodyear in federal court for race
and disability discrimination. Eight months later, an attorney
represented White for the first time in federal court. White then
sued Goodyear in Texas state court, alleging that Goodyear
terminated him in retaliation for filing a workers’ compensation
claim. Goodyear removed the retaliation claim to federal court and
the actions were consolidated.
Goodyear successfully moved for summary judgment on all claims.
White appealed to this court which vacated the grant of summary
judgment on White’s ADA claim, because White did not have notice
that his ADA claim would be considered for summary judgment. As a
result, he did not conduct essential discovery or place evidence in
the record to support his claim.
The first panel also reversed the grant of summary judgment on
White’s Title VII race discrimination claim. The district court had
determined that White failed to exhaust his administrative remedies
which barred him from suing. The first panel analyzed the summary
judgment record evidence as follows. Goodyear submitted the EEOC’s
entire file pertaining to White’s ADA charge, Charge Number 330-93-
1854. Goodyear stated in its brief in support of summary judgment
that it requested and received all the EEOC files pertaining to
White. However, Goodyear’s assertion in its brief was not competent
summary judgment evidence. The Certification of Documents from the
EEOC stated that the file was a true and accurate copy of the file
pertaining to Charge Number 330-93-1854. However, the Certification
did not preclude the possibility that another EEOC file documenting
White’s race claim existed, but with a different charge number. In
addition, White stated in his deposition that he filed a Title VII
race discrimination complaint with the EEOC after he filed the ADA
complaint. The first panel held that Goodyear had not met its
burden of establishing through competent summary judgment evidence
the absence of a dispute as to whether White exhausted his
administrative remedies.
On remand, the district court again granted summary judgment
to Goodyear on both the ADA and Title VII race discrimination
claims. Regarding the ADA claim, the district court held that White
failed to establish a prima facie case because he did not prove he
was qualified to work as a baler helper. Regarding the Title VII
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claim, the district court held that: (1) White failed to exhaust his
administrative remedies; and (2) he failed to establish disparate
treatment. White appeals.
STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the
same standards used by the district court, reviewing the facts and
drawing inferences in favor of the nonmoving party. See Elliott v.
Lynn, 38 F.3d 188 (5th Cir. 1994). Summary judgment is proper only
when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
ADA CLAIM
The ADA prohibits an employer from discriminating against a
qualified individual with a disability on account of his disability.
See 42 U.S.C.A. § 12112(a) (West 1997). To establish a prima facie
case of discrimination under the ADA, White must show that: (1) he
has a disability; (2) he is qualified to work as a baler helper;
and (3) he suffered an adverse employment decision because of his
disability. See, e.g., Zenor v. El Paso Healthcare System, Ltd.,
176 F.3d 847, 852 (5th Cir. 1999). A "disability" is: (A) a
physical or mental impairment that substantially limits one or more
major life activities; (B) a record of such an impairment; or (C)
being regarded as having such an impairment. See 42 U.S.C.A. §
12102(2). Whether White has created a genuine issue of material
4
fact concerning each element of his prima facie case turns on his
doctors’ releases.
To support his claim that he was qualified to work as a baler
helper, White submitted four doctors’ releases permitting him to
return to work. His June 15 release permitted “White . . . to
return to work, with no restrictions.”2 The June 22 release
permitted White to “[r]eturn to regular duty, no restrictions.” The
June 24 release noted that White “was seen and examined . . . and
is released to return to work.” White also received a release from
a doctor who had examined him two years earlier and had pronounced
him capable of working as a baler helper despite an abnormally low
platelet count.
Goodyear counters that White could not perform the essential
functions of a baler helper. In support, it points out that White’s
doctors noted that White must avoid fumes, chemicals, and excessive
heat. White himself acknowledged that chemicals and fumes were
unavoidable in the finishing room where he worked. Goodyear showed
that the doctors’ releases were restricted, later modified, or
provided by doctors unfamiliar with White’s sickle cell crisis.
This conflicting evidence creates a genuine issue of material fact
concerning White’s qualifications.
2
White acknowledges that this doctor later modified his
release. The modified release permitted White to return to work
with a plan for monitoring his platelet count and recommended that
Goodyear “make reasonable accommodations to provide [White] with an
environment without heat and preferably without fumes and
chemicals.”
5
White asserts he was not disabled, citing to his various
doctors’ releases. However, White contends Goodyear regarded his
sickle cell anemia as an impairment that substantially limited his
major life activity of work, and thereby regarded him as disabled.
Transcripts of conversations with Goodyear’s nurse and personnel
director indicate that Goodyear would not permit White to return to
work even with a full release from his doctors, because Goodyear
perceived White’s sickle cell anemia to substantially limit his
ability to work and considered that his condition disabled him from
working at any job in any part of any chemical plant. Goodyear
asserts that White is not disabled because he can perform a wide
range of jobs other than baler helper. Further, Goodyear asserts
that it does not regard White as disabled. The evidence creates a
genuine issue of material fact concerning whether White is disabled
and whether Goodyear regards White as disabled. This same evidence
creates a genuine issue of material fact concerning why Goodyear
fired White.3 Because White created a genuine issue of material
fact concerning all of these elements of his prima facie case, we
reverse and remand.
TITLE VII
3
A baler helper’s essential functions include performing the
following tasks in the plant’s unairconditioned, fume and chemical
filled finishing room: (1) removing 80 pound bales of synthetic
rubber from a conveyor belt; (2) packaging the bales of rubber; (3)
constructing heavy cardboard containers; (4) cleaning heavy metal
boxes; and (5) pushing or pulling boxes containing bales of rubber.
6
To sue under Title VII, a plaintiff must first file a charge
with the EEOC within 180 days of the discriminatory event and
initiate the suit within 180 days of receiving a right to sue letter
from the EEOC. See U.S.C.A. § 2000e-5 (e)(1) (West 1997)
The district court originally held that White did not file a
race discrimination charge with the EEOC and therefore did not
exhaust his administrative remedies. The first panel reversed and
remanded. After admitting additional evidence, the district court
again granted summary judgment to Goodyear because White did not
exhaust his administrative remedies. Under the law of the case
doctrine, this panel will not reexamine whether White exhausted his
administrative remedies unless: (1) the evidence submitted on remand
for summary judgment purposes is substantially different from the
evidence previously reviewed by this court; (2) controlling
authority has changed with regard to exhaustion of remedies; or (3)
the first panel’s decision was clearly erroneous and would work a
manifest injustice. See United States v. O’Keefe, 169 F.3d 281, 283
(5th Cir. 1999). Both parties focus their arguments only on the
effect of the additional evidence submitted on remand.
By the time of remand, the EEOC had in the ordinary course of
business destroyed the file for Charge Number 330-93-1854 and other
files from the same time period. However, Goodyear submitted an
EEOC affidavit stating that: the EEOC did not issue White a right
to sue notice for race discrimination; the charge data system that
logs critical data on all charges showed no race charge filed by
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White against Goodyear; and the EEOC did not investigate any race
discrimination charges by White against Goodyear.4
White authenticated and submitted as evidence various documents
that appear to be copies of documents that the EEOC once had in its
possession but that do not appear in Goodyear’s copy of the file for
Charge Number 330-93-1854. White’s documents include: (1) a
questionnaire dated April 9, 1992, in which White stated that he had
been discriminated against on the basis of “Race, Illness, That must
be investigated;” (2) an EEOC intake questionnaire dated April 13,
1992, with the “race” box checked; (3) an EEOC affidavit dated July
26, 1992, in which White characterized Goodyear’s actions as
disparate treatment ”between me myself being Black and the way
Whites are treated;” and (4) an EEOC letter dated October 20, 1992
referring to White’s affidavit and noting that White’s complaint
would not be incorporated into a “class investigation.”
The additional evidence submitted on remand establishes that
White did not exhaust his administrative remedies. Goodyear
presented an EEOC affidavit noting that the EEOC’s charge data
system which logs critical data on all charges showed no race
discrimination charge filed by White against Goodyear. White’s
evidence also supports that he did not file a race discrimination
claim. The October 20 EEOC letter makes clear that White had not
filed a discrimination charge before the date of the letter. The
4
White emphasizes that the affidavit does not describe the
nature or accuracy of the data system.
8
letter specifically refers to the July 26 affidavit and informs
White that he should bring the affidavit with him if he plans to
file a discrimination charge. The EEOC intake questionnaire, the
April 9, 1992 questionnaire, and the EEOC affidavit all predate the
EEOC letter, and therefore did not equate with filing a charge with
the EEOC. Since White did not satisfy a precondition to suing under
Title VII, we affirm the grant of summary judgment to Goodyear based
on White’s failure to exhaust his administrative remedies.
AFFIRMED IN PART and REVERSED and REMANDED IN PART.
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