Simotas v. Kelsey-Seybold , 211 F. App'x 273 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 06-20049
Summary Calendar
_______________________
ALEXANDRA SIMOTAS, M.D.,
Plaintiff-Appellant,
versus
KELSEY-SEYBOLD,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas
No. 4:04-CV-3549
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Dr. Alexandra Simotas appeals the district court’s grant
of summary judgment on her ADA claim against her former employer.
As the claim is time-barred, the district court’s ruling is
AFFIRMED.
I. BACKGROUND
Simotas previously was employed as a physician by Kelsey-
Seybold Medical Group, P.A. (“Kelsey-Seybold”) in Houston, Texas.
On September 10, 2002, after Simotas had been on leave for several
*
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opinion should not be published and is not precedent except under the limited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.
months, Kelsey-Seybold sent a letter informing her that her leave
had expired as she was “terminated effective today...without notice
and with thirty (30) days [sic] pay.” Simotas received the letter
on September 12, 2002. Also on September 12, Kelsey-Seybold
notified Simotas’s attorneys of the discharge.
On August 8, 2003, 332 days after her termination,
Simotas submitted a charge of discrimination to the Equal
Employment Opportunity Commission (“EEOC”). The EEOC dismissed the
charge as untimely and issued a notice of right to sue. Simotas
filed this lawsuit, asserting a violation of the Americans with
Disabilities Act (“ADA”) in the Southern District of Texas. The
district court granted Kelsey-Seybold’s motion for summary judgment
on November 30, 2005. Simotas filed a motion for reconsideration,
which the district court denied. This appeal followed.
II. DISCUSSION
A. Summary Judgment
We review a district court’s grant of summary judgment de
novo, applying the same standards as the trial court. MacLachlan
v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003). A court
should grant summary judgment when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). Facts are
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material only if they “might affect the outcome of the suit under
the governing law....Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).
The ADA incorporates the enforcement procedures of Title
VII of the Civil Rights Act of 1964, set forth in 42 U.S.C.
§ 2000e-5. See 42 U.S.C. § 12117. Before pursuing a claim, a
plaintiff must file a timely charge of discrimination with the
EEOC. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.
1996)(per curiam). In a “deferral state” such as Texas, the charge
must be filed within 300 days. 42 U.S.C. § 2000e-5(e)(1); Tyler v.
Union Oil Co. of Cal., 304 F.3d 379, 384 (5th Cir. 2002).
The discriminatory act of which Simotas complains is the
termination of employment. Simotas admitted receiving the letter
informing her of the termination on September 12, 2002, and her
counsel received notice that same day. Simotas did not file her
EEOC charge until August 8, 2003, well over 300 days later.
The fact that she received thirty days’ pay with her
termination does not extend the filing period. The relevant date
for determining the beginning date for the limitations period is
the day the employee learns that the challenged decision has been
made, not when she feels the effects of that decision. See Chardon
v. Fernandez, 454 U.S. 6, 8, 102 S. Ct. 28, 29 (1981)(per
curiam)(statute of limitations began to run when plaintiffs learned
of the decision to terminate, not when their appointments ended);
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Del. State Coll. v. Ricks, 449 U.S. 250, 257-59, 101 S. Ct. 498,
504 (1980) (limitations period began to run when plaintiff was
notified of the denial of tenure, not on the date his employment
ended); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th
Cir. 1991)(“filing period begins when the employee receives notice
of discharge.”). Even if the payment extended her employment,
“[m]ere continuity of employment, without more, is insufficient to
prolong the life of a cause of action for employment
discrimination.” Ricks, 449 U.S. at 257, 101 S. Ct. at 504.1
For the first time on appeal, Simotas argues that the
limitations period should be equitably modified. Arguments not
made before the district court are waived and will not be
considered on appeal. Jethroe v. Omnova Solutions, Inc., 412 F.3d
598, 601 (5th Cir. 2005). Moreover, Simotas can point to no
recognized basis for equitable modification, nor can she put forth
evidence to justify a modification. As Simotas has the burden of
proving any grounds for equitable modification, her claim must
fail. See Rhodes, 927 F.2d at 879.
B. Attorneys’ Fees
Kelsey-Seybold moves for attorneys’ fees under either
Federal Rule of Appellate Procedure 38 or 42 U.S.C. § 2000(e)-5(k),
1
Simotas also contends, and Appellee agrees, that the court mistakenly
held her motion for reconsideration to be untimely. Even if true, this error was
harmless, as Simotas failed to explain why her affidavit was not filed in
conjunction with initial consideration of summary judgment, and the affidavit
even if considered, does not dispute that her attorneys were informed on
September 12 of her termination. See In re Cueva, 371 F.3d 232,234 (5th Cir.
2004).
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which is incorporated into the ADA by 42 U.S.C. § 12117. While
Simotas presents a fundamentally incorrect understanding of the
law, we decline to say that her claims were “frivolous,
unreasonable, or without foundation.” Christiansburg Garment Co.
v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978).
Additionally, a portion of the appeal sprang from the district
court’s error in calculating the applicable time limitation
regarding the motion for reconsideration. Although we affirm the
judgment of the district court, the appeal was not entirely
frivolous.
III. CONCLUSION
The district court properly dismissed Simotas’s
employment discrimination action as time barred.
Its judgment is AFFIRMED.
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