UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20019
Summary Calendar
RICKY FELDER,
Plaintiff - Appellant,
V.
CITY OF BAYTOWN,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas -- Houston Division
H-99-CV-143
August 2, 2000
Before SMITH, PARKER and DENNIS, Circuit Judges:
PER CURIAM:*
Appellant Ricky Felder, a former heavy equipment operator, was
terminated for failing to appear for work following a sick leave
taken pursuant to the Family Medical Leave Act (“FMLA”). Felder
brought suit against his former employer, the City of Baytown,
alleging discrimination on the basis of disability in violation of
*
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this opinion should not be published and is not precedent except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.
Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq. Felder, who suffers from sleep apnea and restless
leg syndrom, was restricted to light-duty work by his physician,
and was therefore, unable to drive or operate hazardous equipment.
The City provided him with light-duty assignments for approximately
one month, at which point, with light-duty projects exhausted, the
City could no longer justify his light-duty assignment as a matter
of business necessity. Felder applied for and received 12 weeks of
leave under the City’s FMLA policy. Following his 12-week leave,
Felder returned to work as an equipment operator.
Six months later, Felder filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) alleging that
the City discriminated against him on the basis of disability by
denying him a light-duty assignment during his 12-week FMLA leave.
Six months after filing his charge of discrimination, Felder
was again restricted to light-duty work by his physician. Since
the City could not justify as a matter of business necessity a
light-duty assignment, Felder again sought and received 12 weeks of
FMLA leave. When his leave expired, Felder failed to appear for
work and was terminated.
Without returning to the EEOC, Felder brought suit against his
former employer. Felder now appeals the district court’s grant of
summary judgment on his ADA claims.
The district court granted summary judgment for two reasons.
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First, Felder’s EEOC charge alleged only that his was discriminated
against when he was denied a light-duty assignment for the duration
of his first 12-week FMLA leave. Although Felder’s lawsuit asserts
claims based on alleged discrimination and unlawful discharge
following his return to work after his first FMLA leave, he never
returned to the EEOC to amend his charge to include these
additional charges of discrimination. Because Felder failed to
exhaust his administrative remedies with respect to these claims,
the district court ruled that Felder could only assert claims for
discrimination stemming from his first FMLA leave.** We AFFIRM the
district court’s determination that the claims not found in his
EEOC charge are barred.***
The district court granted summary judgment on Felder’s
remaining claims, those stemming from his first 12-week leave,
because the summary judgment evidence failed to establish a factual
question as to the existence of any light-duty work for Felder to
**
Appellant appears to have abandoned these claims on appeal
as he fails to even address the district court’s dismissal of these
claims in his single brief to this Court.
***
Appellant also asserts a claim that the City failed to
accommodate Felder’s alleged disability by refusing to purchase a
Continuous Positive Airway Pressure Machine (“CPAP”) to treat his
condition. The City argues that (1) Felder never asked for a CPAP
machine, (2) the City was under no legal obligation to provide a
CPAP machine, and (3) Felder failed to exhaust his administrative
remedies concerning this claim. Because we find that Felder failed
to properly include this claim in his charge of discrimination, and
thus did not exhaust his administrative remedies concerning this
claim, we need not address the City’s first two arguments.
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perform during his FMLA leave. The district court determined
that the summary judgment record demonstrated that there was no
light-duty work available, and thus defendant did not fail
accommodate Felder’s alleged disability by having him take FMLA
leave. We agree with the judgment of the district court, and
therefore, we AFFIRM.
AFFIRMED.
.
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