Summary Calendar CATHY BAXTER v. Minnesota Mining and Manufacturing Company

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 26, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10891
Summary Calendar
CATHY BAXTER
Plaintiff - Appellant
v.
MINNESOTA MINING AND MANUFACTURING COMPANY
Defendant - Appellee
--------------------
Appeal from the United States District Court
for the Northern District of Texas
No. 6:02-CV-49-C
--------------------
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Cathy Baxter appeals from the district
court’s grant of Defendant-Appellee Minnesota Mining and
Manufacturing Company’s (3M’s) motion for summary judgment. The
district court found that Baxter’s claims were barred as a matter
of law because she neither filed a timely charge of
discrimination with the Equal Employment Opportunity Commission
(EEOC) nor justified adequately her request for equitable tolling
of the filing period. For the following reasons, we AFFIRM.

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No. 03-10891
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Baxter contends that 3M unlawfully terminated her employment
on March 8, 2001, because her supervisors incorrectly regarded
her as disabled and unable to perform her job duties. Believing
that she had been subjected to discrimination under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (2000),
Baxter immediately sought recourse from the EEOC. She claims
that EEOC staff initially told her that she did not appear
disabled and suggested that she file a charge on the basis of sex
discrimination, which she did. After receiving advice from an
attorney, Baxter filed an intake questionnaire with the Texas
Commission on Human Rights (TCHR) on November 27, 2001, in which
she alleged that she had been terminated by 3M because her
supervisors improperly regarded her as disabled. Much later, on
January 8, 2002––306 days after her termination––Baxter filed a
second complaint with the EEOC, which also alleged disability
discrimination.
After the EEOC processed her charges, Baxter brought an ADA
claim for disability discrimination against 3M in federal
district court. 3M moved for summary judgment, claiming that
Baxter failed to file her disability-discrimination charge with
the EEOC within the applicable 300-day limitations period. See
42 U.S.C. § 12117 (2000); Ramirez v. City of San Antonio, 312
F.3d 178, 181 (5th Cir. 2002) (“Under the ADA, a plaintiff must
file a charge of discrimination within 300 days of the alleged
discriminatory act.”). In her opposition to summary judgment,

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No. 03-10891
-3-
Baxter presented two arguments in favor of equitably tolling the
limitations period. First, Baxter claimed that equitable tolling
was appropriate because she was initially misled by the EEOC into
believing that she did not have a valid disability-discrimination
complaint. Second, Baxter asserted that the TCHR unreasonably
failed to forward her intake questionnaire to the EEOC before the
300-day limitations period had expired. The district court
rejected Baxter’s tolling request, however, after noting that
Baxter had received advice from her attorney regarding both the
300-day limitations period for filing EEOC charges and the
possibility that she had a valid disability discrimination claim
on November 2, 2001––fully two months before the limitations
period expired.
Baxter does not reassert either of her equitable tolling
arguments on appeal. Instead, she contends that the district
court erred when it found that her EEOC charge was untimely.
According to Baxter, her EEOC charge of January 8, 2002, should
relate back to November 17, 2001––the date on which she filled
out the TCHR’s intake questionnaire. Baxter notes that the EEOC
and the TCHR have entered into a worksharing agreement, under
which the EEOC has designated the TCHR as its agent for purposes
of receiving charges of employment discrimination. Thus, Baxter
argues that the district court should have held that the TCHR
questionnaire was dually filed with both the TCHR and the EEOC on
November 17, 2001.

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No. 03-10891
-4-
But because Baxter did not present this argument to the
district court in the first instance, “we will not address it on
appeal.” See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.
1994). In her opposition to summary judgment, Baxter failed to
cite any cases to the district court that might reasonably be
construed as holding either that the TCHR has the authority to
accept employment discrimination charges on the EEOC’s behalf or
that charges filed with the TCHR are automatically deemed to be
filed with the EEOC. In addition, Baxter did not apprise the
district court of the EEOC-TCHR worksharing agreement, on which
her timeliness claim depends. Baxter’s only related position
before the district court––that the TCHR unreasonably delayed
notifying the EEOC of her discrimination complaint––was presented
as an argument in favor of equitable tolling and not as basis
upon which the court could find that her EEOC charge was timely
filed. We therefore conclude that Baxter waived this issue by
failing to raise it below. See Provident Life & Accident Ins.
Co. v. Goel, 274 F.3d 984, 990 n.11 (5th Cir. 2001) (“As a
general rule, arguments and evidence not presented in the
district court in connection with a summary judgment motion are
waived on appeal and the appellate court will be unable to
consider these materials in its review of the district court’s
decision.” (quoting 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE
¶ 56.41[3][c] (3d ed. 1997))).

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No. 03-10891
-5-
Because we affirm the district court’s conclusion that
Baxter did not file a timely EEOC charge, we need not discuss her
other arguments on appeal. Accordingly, we AFFIRM the judgment
of the district court.

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