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1 Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
________________________________________
No. 92-8702
(Summary Calendar)
________________________________________
FRANCES V. REDD Plaintiff-Appellant,
versus
FISHER CONTROLS Defendant-Appellee.
_____________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-91-CA-691)
____________________________________________________
(August 29, 1994)
Before DUHE’, WIENER, and STEWART, Circuit Judges.
PER CURIAM:1
Frances V. Redd appeals judgments of the district court
dismissing her complaints alleging gender, race, and age
discrimination against her employer. In two different summary
judgments, the district court found that the complaint was not
timely filed. For the following reasons, we affirm the judgments
of the district court.
FACTS AND PROCEDURAL HISTORY

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Frances V. Redd, a white female in her forties, was employed
by Fisher Controls International Inc. ("Fisher") as a senior
secretary. In late 1987, Redd sought a promotion but it was
denied. She later learned that the position was filled by a
younger woman who, according to Redd, had less experience and less
service at Fisher. On October 6, 1987, Redd filed a grievance with
the company's human resources department.
On October 9, 1987, Redd was terminated from her position as
secretary allegedly because she had included in the grievance a
confidential review of another Fisher employee. After her
termination, Redd made several requests to be rehired for her
former position. In January 1988, she was told that any
application for re-employment made by her would not be viewed
favorably.
In a complaint filed on October 19, 1988 with the state human
rights commission, Redd alleged Fisher discriminated against her by
failing to promote her on the basis of age, and by firing her on
the basis of gender and age. Redd also alleged that Fisher
discriminated against her on the basis of race when it failed to
rehire her and instead hired a younger, black female. The Equal
Employment Opportunity Commission found that the complaint had not
been timely filed and dismissed it.
On September 4, 1991, Redd filed a pro se complaint in federal
district court. In the complaint, she alleged that Fisher had
failed to promote her and that she was fired because of her sex,
age, and/or race. She also alleged that Fisher had failed to
rehire her for the same reasons. Fisher filed a motion for summary

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judgment on Redd's promotion and termination claims, arguing that
the charges had not been filed within 300 days of her termination
as required by Title VII of the Civil Rights Act of 1964 and the
Age Discrimination in Employment Act of 1967. The same day, Fisher
filed a second motion for summary judgment on the failure to rehire
claim, arguing that the failure to rehire claim was really a part
of the discharge claim and thus it was also untimely. Fisher also
filed another summary judgment motion in which it argued that it
would never have hired Redd because she falsified her job
application. The district court granted all three summary
judgments. Redd appeals the judgments of the trial court.
STANDARD OF REVIEW
This court reviews a district court's grant of summary
judgment de novo. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th
Cir. 1992), cert. denied, 113 S.Ct. 82 (1992). Summary judgment is
proper if the pleadings, depositions, answers to interrogatories,
and admissions on file together with the affidavits filed in
support of the motion, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 2552 91 L.Ed.2d 265 (1986). If the
moving party meets the initial burden of showing that there is no
genuine issue, the burden shifts to the non-moving party to produce
evidence or set forth specific facts showing the existence of a
genuine issue for trial. Id. at 322-24; Fed. R. Civ. P. 56(e).
The mere allegation of a factual dispute between the parties will

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2In her brief, Redd also asserts claims of sexual harassment
by Fisher. These claims arose before she was fired. Thus, they
are barred by the same time restrictions that apply to her wrongful
termination claim.
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not defeat an otherwise properly supported motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
DISCUSSION
Redd contends that the district court erred in concluding that
she failed to file her complaint timely. A claimant under Title
VII of the Civil Rights Act of 1964 ("Title VII"), 41 U.S.C. §
2000e, et seq. and the Age Discrimination in Employment Act of 1967
("ADEA") may not take legal action before she has filed an
administrative charge. See Anson v. University of Texas Health
Science Center at Houston, 962 F.2d 539, 540 (5th Cir. 1992);
Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979). In those
states where a person aggrieved has initially instituted
proceedings with a state or local agency, to be filed timely, a
complaint of unlawful employment discrimination under Title VII and
the ADEA must be filed with the Equal Employment Opportunity
Commission ("EEOC") within 300 days after the last act of
discrimination. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2).
Redd was fired from her job with Fisher on October 9, 1987.
She did not file a formal charge with the Austin Human Rights
Commission and the EEOC until October 19, 1988. This gap in time
is more than 300 days after her termination. Therefore, this
complaint was not filed within the prescribed time limits.2 The

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several attempts Redd made to convince Fisher to rehire her did not
extend the time restrictions. See Delaware State College v. Ricks,
449 U.S. 250, 261, 101 S.Ct. 498, 506 n.15, 66 L.Ed.2d 751 (1980)
(holding that mere attempts to be rehired were not sufficient to
toll the time period to file a complaint); Charlier v. S.C. Johnson
& Son, Inc., 556 F.2d 761, 766 (5th Cir. 1976) (holding that a
failure to reinstate does not constitute a continuing pattern of
discrimination which tolls the time period to file a complaint.)
Redd contends that she filed a complaint in February 1988,
well within the 300-day time restriction. In support of this
contention, she submitted to the court her affidavit and the
affidavits of her husband and son. The affidavit of Redd's husband
and her son do not state that a complaint was filed. Redd's own
affidavit also does not state that a complaint was filed; it only
states that she gave an investigator information about her case.
At best, this evidence submitted by Redd indicates that Redd
might have visited the Austin Human Rights Commission Office. It
does not raise a material issue of fact regarding whether a
complaint was filed. Additionally, Fisher submitted an affidavit
by an EEOC employee which states that a computer record would exist
of any filed complaint and that there was no record that Redd had
filed a complaint before October of 1988. All of this evidence
supports the district court's judgment that Fisher had not filed a
complaint within the 300-day time restriction.
Redd has submitted several documents on appeal that were not
presented to the district court. This evidence includes an intake

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questionnaire dated February 9, 1988. It also includes an
affidavit from Redd's daughter stating that she was present in
February when the complaint was filed. Although this Court reviews
summary judgments de novo, its inquiry is limited to the summary
judgment record before the trial court. The parties cannot add
exhibits, depositions, or affidavits to support their positions on
appeal. Topalian v. Ehrman, 954 F.2d 1125, 1131-32 n.10 (5th Cir.
1992), cert. denied, ___U.S.___, 113 S.Ct. 82 (1992). Thus, we do
not consider this new evidence in our decision.
Redd contends that the district court erred by not conducting
a hearing on her summary judgment motion. Local Rule CV-7(h) for
the Western District of Texas provides that the allowance of an
oral hearing is within the sole discretion of the judge to whom the
motion is assigned. In this case, the issue was the timeliness of
Redd's complaint, which is an issue of law. Any testimony that
would have been heard at a hearing could have been made in
affidavit or deposition form. The district court would have the
same evidence before it with or without a hearing. We find no
abuse of discretion in the district court's decision not to conduct
a hearing.
Redd contends that her attorney mismanaged her case and thus
she was deprived of the effective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2051, 80 L.Ed.2d
674 (1984). The ineffective assistance of counsel standard in
Strickland is applicable only to criminal trials. The
effectiveness of counsel in a civil case should be addressed in a

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malpractice action against the attorney or a complaint before the
disciplinary committee of the bar.
Redd has asserted two arguments for the first time in her
reply brief: (1) Fisher has engaged in a continuing pattern of
discrimination that continually interrupted the time period for
filing a complaint; (2) Fisher is equitably estopped from asserting
that her claim is time barred because she was told that she could
not return to work while the investigation concerning her grievance
was pending--implying that she could return to work after the
grievance. However, it is impermissible to mention an issue for
the first time in a reply brief, because the appellee then has no
opportunity to respond. Knighten v. C.I.R., 702 F.2d 59, 60 (5th
Cir. 1983), cert. denied, 464 U.S. 897, 104 S.Ct. 249, 78 L.Ed.2d
237 (1983). We therefore do not discuss these contentions.
The EEOC, in its amicus brief, contends that Fisher's refusal
to rehire Redd and its hiring of a younger replacement was a
distinct discriminatory act which occurred less than 300 days
before Redd filed her EEOC charge. Redd did not raise this issue
in her original brief. Amicus curiae cannot expand the scope of an
appeal to implicate issues not presented by the parties. See
Resident Council of Allen Parkway Village v. U.S. Dep't of Housing
& Urban Development, 980 F.2d 1043, 1049 (5th Cir. 1993), cert.
denied, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993). Thus, we do not
consider the merits of this argument.
CONCLUSION
Because Redd presented no summary judgment evidence supporting

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3This includes issues raised in the amicus brief filed by the
Equal Employment Advisory Council.
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her contention that she did file an age, gender, and race
discrimination complaint within the applicable 300-day time
limitation, the two judgments of the district court are affirmed.
Affirmance on these grounds pretermits any need for a discussion of
the district court's grant of the third summary judgment.3
AFFIRMED.

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