United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 04-10588
______________________
BERNARD W. HENSON
Plaintiff-Appellant
versus
BELL HELICOPTER TEXTRON, INC.
Defendant-Appellee
_____________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:01-CV-1024-Y)
___________________________________________________
Before SMITH, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Henson is an African-American male who was
hired by Bell Helicopter (“Bell”) as a firefighter in September,
1993. During the time that he worked for Bell, Henson was a member
of the Security Police Fire Professionals of America and
Amalgamated Local No. 256 (the “union”), and his employment was
governed by a collective bargaining agreement between Bell and the
union.
*
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this opinion should not be published and is not precedent except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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In 1999, Henson sought counseling from Bell’s Employee
Assistance Program for family problems he was experiencing.
Henson’s immediate supervisor, Chief Larry Smith, agreed to allow
Henson to report late in the months of April and May of 1999 so
Henson could attend counseling sessions because of family problems
he was experiencing. At the end of that period Chief Smith did not
allow Henson to continue further counseling or attend the full
counseling session, which lasted from 10:00 a.m. to 3:00 p.m.
On June 8, 1999, Henson took leave under the Family Medical
Leave Act (“FMLA”) to have surgery on his toes, and was released
back to work on July 21, 1999, with restrictions on lifting,
walking, and bending. Henson requested that Chief Smith provide
him with desk duty for two weeks. Because one of Henson’s duties
involved inspecting buildings, however, Chief Smith informed Henson
that he could not accommodate his walking restrictions other than
permit Henson to sit down between inspections.
From the beginning of Henson’s employment at Bell, Chief Smith
counseled him regarding problems with his absenteeism and
tardiness. Under Bell’s attendance policy, an employee’s “lost
time” could not exceed 64 hours in any one twelve-month period or
the employee was subject to disciplinary action. Lost time for (1)
holidays, (2) vacation, (3) bereavement, (4) jury duty, (5)
disciplinary times off, (6) approved union business, (7) approved
education leave, (8) approved military leave, (9) approved personal
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leave, (10) Family Medical Leave Act leave, and (11) temporary
layoffs were not included in the 64-hour limit.
From January 31, 1998 to January 31, 1999, Henson’s lost time
was 65.9 hours after all applicable leaves were excluded, and on
February 1, 1999, Deputy Chief Roy Eaves verbally counseled Henson
about his absenteeism. Between January 31, 1999 and April 29,
1999, Henson was late, left early, or was absent on twenty
additional days. In both October 1999 and December 1999, Henson’s
supervisors further counseled him for his absenteeism. As of
January 30, 2000, Henson had been absent 90.6 hours excluding the
sick leave, military leave, and extended Family Medical Leave Act
leave that he had taken in 1999. On February 9, 2000, Chief Smith
gave Henson a written reprimand for his excessive absenteeism.
From February 9, 2000 to May 23, 2000, Henson was late on thirteen
different days, resulting in an additional 5.4 hours of lost time.
On top of Henson’s tardiness and absenteeism, from January
2000 to May 2000, Henson apparently frequently left the facility
while on duty. On at least eleven occasions, Henson was away from
the facility during his shift for between ten minutes and an hour
and a half.
On May 23, 2000, Bell held a disciplinary hearing and Henson
was discharged for excessive absenteeism and dereliction of duty.
After Henson was discharged from duty, Henson’s union
representatives negotiated with Bell, and the parties agreed to
change Henson’s penalty from discharge to a suspension without pay.
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Henson was reinstated on July 17, 2000. Between July 18, 2000 and
September 19, 2000, Henson was late a total of twelve times.
According to Bell’s records, no other employee that ever worked in
the Fire Department at Bell had absenteeism problems approaching
the magnitude of Henson’s problem. On September 20, 2000, Bell
held a disciplinary hearing and again terminated Henson for his
absenteeism.
Henson filed the charge of discrimination at issue here with
the EEOC on January 22, 2001. The EEOC issued a right to sue
letter, and Henson filed suit against Bell asserting claims of race
discrimination and retaliation under Title VII, disability
discrimination under the Americans with Disabilities Act (“ADA”),
and violation of the FMLA. The district court granted summary
judgment for Bell Helicopter on all claims, and Henson timely
appeals. We affirm the district court’s grant of summary judgment
for Bell Helicopter.
ANALYSIS
This court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. Evans v. City of Houston, 246 F.3d 344, 347 (5th Cir.
2001). Summary judgment is appropriate if no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law. See FED. R. CIV. P. 56.
Henson’s complaint alleges causes of action under Title VII,
the ADA, and the FMLA, and his notice of appeal also refers to all
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three claims. Henson’s brief on appeal, however, abandons his
claim of race discrimination and retaliation under Title VII.
Although the brief mentions Title VII, Henson does not make any
argument that the district court erred in its disposition of his
Title VII claim or even mention any alleged instances of racial
discrimination. He argues only that there are material issues of
fact relating to his ADA and FMLA claims. Accordingly, we address
only Henson’s ADA and FMLA claims. Webb v. Investacorp Inc., 89
F.3d 252, 257 n. 2 (5th Cir. 1996).
I. ADA Claim
The district court held that Henson’s allegations that Bell
discriminated against him in violation of the ADA, arising from
alleged acts that occurred prior to March 29, 2000, were time
barred. Disposing of the allegations arising from later acts, the
court held that Henson was not a qualified individual with a
disability protected under the ADA. We agree.
A.
The ADA incorporates by reference the two-step administrative
and judicial enforcement scheme of Title VII of the 1964 Civil
Rights Act. See 42 U.S.C. § 12117(a). Thus, before a plaintiff
may file a civil action under Title VII or the ADA, he must exhaust
administrative remedies, which include filing a charge of
discrimination with the EEOC within 300 days after the alleged
violations occurred and filing suit within 90 days after receiving
a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(b),
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(e), (f); 42 U.S.C. § 12117. Because Henson had not demonstrated
an equitable basis for modifying this requirement, the district
court did not consider Henson’s claims that occurred before March
29, 2000, which is 300 days prior to January 22, 2001, the date on
which Henson filed a charge of discrimination with the EEOC. On
appeal, Henson argues that the district court erred by not
considering his argument that the alleged discriminatory acts
involved a “continuing violation.”
Under the continuing violation doctrine, a plaintiff is
relieved of establishing that all of the alleged discriminatory
conduct occurred within the actionable period if the plaintiff can
show a series of related acts, one or more of which falls within
the limitations period. Felton v. Polles, 315 F.3d 470, 487 (5th
Cir. 2002). The Supreme Court has clarified, however, that
discrete discriminatory acts are not actionable if time barred,
even when they are related to acts complained of in timely filed
charges. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002).
Henson argues that because Bell relied on Henson’s absences
beginning in 1999 to make the decision to discharge him in 2000,
the district court should have considered Bell’s actions during
that period under a continuing violation theory. But Henson does
not allege any actual related or continuing acts of discrimination
by Bell. The only incidents he complains of that happened prior to
March 29, 2000, are: (1) Chief Smith’s failure to provide
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accommodations to allow Henson to continue his Employee Assistance
Program (“EAP”) counseling sessions, (2) Chief Smith’s refusal to
excuse Henson from walking duties for two weeks after he had toe
surgery in 1999, and (3) Bell’s refusal to grant Henson’s shift
transfer requests. Because all of those incidents are discrete
acts, they do not qualify under the continuing violation exception
to the ADA’s actionable period restrictions and the district court
properly limited its inquiry to Henson’s allegations of ADA
violations that occurred after March 29, 2000.
B.
Henson next argues that Bell violated the ADA when it fired
him because of his depression, which he claims is a protected
disability under the ADA. The ADA provides that “[n]o covered
entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions and privileges of employment.” 42 U.S.C.
§ 12112(a). A “qualified individual with a disability” is “an
individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 1211(8).
The ADA defines a disability as: (A) a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such impairment; or
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(C) being regarded as having such an impairment. 42 U.S.C. §
12102(2). “Major life activities means functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.” Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995)(quoting 29 C.F.R. §
1630.2(I)). The factors to be considered in determining whether an
impairment substantially limits a major life activity include: (1)
the nature and severity of the impairment; (2) its duration or
expected duration; and (3) its permanent or expected permanent
long-term impact. 29 C.F.R. § 1630.2(j)(2)(i)-(iii).
The district court found that Henson was not a “qualified
individual with a disability” under the ADA. Although Henson
argues that the district court erred when it found that he was not
disabled under the first prong (having a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual), he makes no argument of how his
depression was actually an “impairment that substantially limits”
the “major life activities” of working and learning, and therefore
relies on the second and third “record of impairment” and “regarded
as impaired” prongs.
The “record of such impairment” prong applies where an
individual “has a history of, or has been misclassified as having,
a mental or physical impairment that substantially limits one or
more major life activities.” Burch v. Coca-Cola Co., 119 F.3d 305,
321 (5th Cir. 1997) (quoting 29 C.F.R. § 1630.2(k)). Again,
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however, Henson does not point to any “substantial limit” that his
depression places on his ability to do work and points to no record
establishing a history of depression.
Henson’s argument thus relies on the third prong of the
definition of disability under the ADA, that is, that Bell
“regarded” Henson as disabled. Under the ADA, to be “regarded as”
disabled by his employer, a plaintiff must:
(1) have a physical or mental impairment that does not
substantially limit major life activities, but be treated
as such by an employer; (2) have a physical or mental
impairment that substantially limits one or more major
life activities, but only because of the attitudes of
others towards the impairment; or (3) have no impairment
at all but be treated by an employer as having a
substantially limiting impairment.
McInnis v. Alamo Comm. College Dist., 207 F.3d 276, 281 (5th Cir.
2000). The summary judgment evidence presented shows, however,
that: (1) Henson never told Chief Smith that he was suffering from
depression or any other mental condition, (2) Henson never
requested any type of leave for depression or any other mental
condition, and (3) Henson never informed Chief Smith that he was
late for work because he suffered from depression. To show that
Bell regarded him as disabled within the meaning of the ADA, Henson
relies exclusively on the fact that Chief Smith allowed him to
attend EAP counseling for two months in 1999. Because an
employee’s mere attendance at some form of counseling does not
necessarily mean that a “major life activity” of the employee is
“substantially limited,” Chief Smith’s allowing scheduling
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adjustments for Henson to attend counseling during a two-month
period does not mean that Smith regarded Bell as having a
disability under the ADA. The district court was correct not to
recognize Henson as disabled under the third prong and to grant
summary judgment for Bell Helicopter on Henson’s ADA claim.
II. FMLA Claim
Henson next claims that Bell violated his rights under the
FMLA by: (1) refusing to accommodate Henson’s request in April 1999
to attend an outpatient counseling program, and (2) discharging
Henson due to his excessive absences. The district court held that
Henson’s claims from 1999 were time barred and that Henson’s
absences were not protected leave under the FMLA. We agree.
(A)
The statute of limitations for FMLA claims is three years for
willful violations, 29 U.S.C. § 2617(c)(2), and two years for all
other violations. 29 U.S.C. § 2617(c)(1). To establish a willful
violation of the FMLA, a plaintiff must show that his employer
“either knew or showed reckless disregard for the matter of whether
its conduct was prohibited by statute.” Hillstrom v. Best Western
TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003)(citing McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988)). Henson argues that
his claim from 1999 is not time barred because he presented
evidence of Chief Smith’s willful violation of the FMLA through the
history of problems between himself and Chief Smith and Smith’s
“strict enforcement of Bell’s absence policy” against Henson. To
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make his argument, Henson relies on evidence that: (1) Chief Smith
consistently counseled Henson regarding his problems with Bell’s
attendance policy; and eventually discharged Henson on the basis of
his violation of that policy, and (2) Chief Smith was unable to
make non-walking accommodations for Henson after his toe surgery
because there were no positions that did not involve walking.
Neither of those point establish a reckless disregard for whether
strict enforcement of Bell’s absence policy was a violation of the
FMLA. Thus, because Henson filed his complaint against Bell in
November 2001, Henson’s claim that in April 1999 Bell failed to
grant him leave under the FMLA so he could attend counseling
sessions is not timely filed.
(B)
Henson also argues that Bell violated the FMLA by discharging
him due to his excessive absences. For leave to be protected under
the FMLA, an employee who requests leave due to a “serious health
condition” must provide his employer with at least 30 days notice
before the date of leave is to begin, or if the leave is required
to begin in less than 30 days, to provide such notice as is
practicable. 29 U.S.C. § 2612(e)(2)(B). Here, throughout the
period that Henson alleges his tardiness and absence from work was
due to his depression, Henson never gave Bell any notice of when he
would miss work and Henson admits that he was absent for a variety
of reasons. Chief Smith apparently was aware only that Henson
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explained his absences as being the result of traffic or personal
business, and had not been told about any “serious health
condition.” Because Henson gave his employer absolutely no notice
of his absences from work, they are not protected under the FMLA.
CONCLUSION
The district court properly granted summary judgment for Bell
on all claims.
AFFIRMED.
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