                                                                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opinion should not be published and is not precedent except under the limited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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