                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 30, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk

                               06-20407
                           Summary Calendar



                       HENRY L. HARRISON, JR.,

                                                 Plaintiff-Appellant,

                                Versus

                         ESTES EXPRESS LINES,

                                                 Defendant-Appellee.



             Appeal from the United States District Court
         for the Southern District of Texas, Houston Division



Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Henry L. Harrison (“Harrison”) filed this suit against his

former employer, Estes Express Lines (“Estes”) under Title VII

based on racial discrimination.

     The district court granted summary judgment in favor of

Estes, holding that Harrison had not filed a timely claim with

the Equal Employment Opportunity Commission (“EEOC”).       For the


     *
      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this opinion should not be published and is not precedent except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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following reasons, we AFFIRM the decision of the district court.

                                 I.

     In 2001, Harrison applied for employment with Estes by

completing an application form that required certain criminal

history disclosures.   The application asked applicants to list

all felony convictions which had occurred within 7 years of the

application date.   Harrison had a criminal conviction for cocaine

possession which had occurred more than 10 years prior to the

date of his application.   Because the conviction was beyond the 7

year disclosure period, Harrison did not disclose it.   Estes

hired Harrison on September 1, 2001.

     Harrison’s previous conviction was eventually discovered by

Estes after the company conducted background checks on its

employees in February 2003.   Harrison’s background check revealed

that his 1991 conviction carried a sentence of 12 years.   Because

Harrison’s conviction and prison sentence appeared to conflict

with the employment history on his application, Estes requested

proof of Harrison’s previous employment.   Though the

documentation provided by Harrison verified most of his previous

employment, it also revealed inconsistencies between the actual

dates of Harrison’s former employment and the dates reported on

his application.    Specifically, Harrison’s application indicated

that he was working during a period of time when he was actually




                                  2
incarcerated.

     Shortly after Harrison had provided the employment

verification documentation to Estes, Estes terminated Harrison

effective March 7, 2003.   The reason for the termination is the

subject of some dispute.   Harrison cites evidence in the record

that Estes represented to him and to the state unemployment

agency that he was fired because of the cocaine conviction.

Estes claims that Harrison’s previous conviction was not a factor

and that Harrison was terminated because of the false statements

he made in his application regarding his employment history.

     Harrison asserts that while he and another black employee

were fired for having criminal convictions, Robert Allen, a white

employee with a previous criminal conviction, was permitted to

keep his job despite his own criminal background.   Harrison’s

sworn affidavit states that he learned of Allen’s conviction back

in 2002 when he overheard Allen make statements to co-workers

during lunch that he had been in prison.**

     Three months after Harrison’s termination, on or about June

6, 2003, Harrison and his wife went to the EEOC’s Houston


     **
      While Allen was also subject to a criminal background
check by Estes, that investigation did not reveal Allen’s
previous criminal conviction because the conviction had occurred
outside the time period examined. After discovery in this case
revealed Allen’s previous conviction as well as information that
Allen had provided false information in his job application,
Estes terminated Allen.



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District Office.   Harrison met with an EEOC employee, Wanda

Johnson, to discuss his termination.   Harrison complained to

Johnson that Estes had wrongfully terminated him for failing to

disclose his previous felony conviction despite the fact that the

employment application did not require such a disclosure.   He

claims to have asked Johnson if the EEOC would be able to

determine whether race was a factor in his termination through an

investigation of the backgrounds and races of other employees who

had recently been terminated.   Although Harrison’s affidavit

indicates that he knew of his white co-worker Allen’s conviction

and non-termination during his first visit to the EEOC, he did

not disclose that information to the Johnson or any other EEOC

counselor at that time.

     Johnson explained to Harrison that he would have to provide

the EEOC with some additional information about other Estes

employees before the EEOC could help him file a charge.   Harrison

states that the EEOC did not inform him about the 300-day

limitations period for the filing of a charge of discrimination.

He agreed to return after he had developed more information.

     Harrison also asserts that he filled out a two sided form on

green paper during his visit to the EEOC.   This green sheet,

which Harrison states was either an intake or charge form, is not

part of the record and Harrison’s testimony is the only evidence




                                 4
of the document’s existence.

     Over the course of the next year, Harrison says he attempted

to contact the EEOC office on at least two occasions to get more

details on what he needed to do.       He claims to have made calls

around November of 2003 and February of 2004 and to have left

messages with his name and number.       After seeking legal advice,

Harrison returned to the EEOC office in person on August 23,

2004.   At that time, he filed a discrimination claim and

completed a charge form.   Harrison’s August 23, 2004 charge

alleges that Estes fired Harrison for having a felony conviction

and allowed a white worker with a felony conviction to continue

working.

     Because Harrison’s termination had occurred more than 300

days before he filed his charge (his charge was filed 535 days

afterwards), the EEOC determined that Harrison’s complaint was

not timely and dismissed the charge.       Thereafter, Harrison filed

the present suit.   The district court granted Estes’s motion for

summary judgment on Harrison’s Title VII claims on the basis that

Harrison had failed to file a charge with the EEOC within 300-

days of the alleged discriminatory violation.       Harrison appeals

the district court’s grant of Estes’s motion for summary judgment

on the basis that (1) equitable tolling principles can be applied

to excuse his noncompliance with the 300 day filing period; or




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(2) alternatively, he met the 300 day filing requirement during

his initial meeting with the EEOC and should be allowed to amend

and correct any defects in that complaint.

                                II.

                                A.

     In reviewing the granting of a motion for summary judgment,

an appellate court reviews the district court’s decision de novo,

applying the same standard as the district court.    Price v. Fed.

Express Corp., 283 F.3d 715, 719 (5th Cir. 2002).    Viewing

evidence in the light most favorable to the nonmovant, summary

judgment is proper only when no genuine issue of material fact

exists.   Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d

392, 399 (5th Cir. 2000).   We review the district court’s

determination on the applicability of equitable estoppel de novo.

Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir.

2002).

     Under Title VII, a plaintiff must file a charge of

discrimination within 300 days of the alleged discriminatory act.

42 U.S.C. § 2000e-5(e)(1); Huckabay v. Moore, 142 F.3d 233, 238

(5th Cir. 1998).   The 300-day filing period is subject to

equitable doctrines such as tolling or estoppel.    However, the

Supreme Court has held that such doctrines must be applied

sparingly.   Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,




                                 6
113-14 (2002).

     This court has recognized three possible and non-exclusive

bases for tolling the time period for filing a charge: (1) the

pendency of a suit between the same parties in the wrong forum;

(2) plaintiff’s unawareness of the facts giving rise to the claim

because of the defendant’s intentional concealment of them; and

(3) the EEOC’s misleading the plaintiff about the nature of her

rights.   Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402,

404 (5th Cir. 1995).   Harrison argues that equitable tolling is

appropriate in this case based on the latter two grounds.   The

party who invokes equitable tolling bears the burden of

demonstrating that it applies in his case.   Conaway v. Control

Data Corp., 955 F.2d 358, 362 (5th Cir. 1992).

     Harrison first argues that Estes misled him about the reason

for his termination and failed to disclose the identities of

similarly situated white employees who were not discharged.

     Harrison’s assertions that he did not discover the facts

sufficient to support his claim and that Estes prevented him from

learning such facts is not supported by the summary judgment

evidence.   Harrison stated in his affidavit that he learned that

Robert Allen had a criminal background in 2002 when he heard

Allen talk about his prison time in the break room at work.

Further, the same affidavit indicates that Harrison’s visit to




                                 7
the EEOC office in June 2003 was prompted by his belief that two

black employees were discharged for previous convictions but that

no white employees were discharged despite the fact that at least

one white employee also had a criminal background.      Thus,

Harrison by his own admission had formed a belief regarding

discrimination upon his first visit to the EEOC.      Because

Harrison had learned sufficient facts to support filing his

discrimination claim upon his first visit to the EEOC, the 300-

day filing period began on or about June 9, 2003, at the latest.

See Blumberg v. HCA Management Co., 848 F.2d 642, 645 (5th Cir.

1988) (“The time begins when facts that would support a cause of

action are or should be apparent.”).      As a result, Harrison’s

claim is untimely since it was filed on August 23, 2004, at least

350 days after Harrison learned of those relevant facts.

     Further, although Harrison alleges that Estes concealed its

discriminatory intent by lying about the reason for his

dismissal, any dispute between Harrison and Estes regarding the

motivation for his termination cannot be said to have concealed

the facts relevant to his claim.       See Conaway, 955 F.2d at 363

(where an ADEA claimant knew that three younger sales persons had

been hired despite purported cut-backs in his department which

were used to justify his own termination, claimant knew enough

facts to support filing a claim).




                                   8
     Harrison next argues that the EEOC failed to alert him to

the relevant time limitation or adequately assist him with the

filing of his claim during his initial visit.   Because of these

failures, Harrison argues, equitable tolling is appropriate.

     The EEOC did not affirmatively mislead Harrison by failing

to advise him of the applicable limitations period.    See Conaway,

955 F.2d at 363 (EEOC did not affirmatively mislead ADEA

plaintiff by failing to inform him of 300-day limitations

period).   Further, Harrison does not allege that the EEOC

counselor he encountered during his first visit misled him or

even actively discouraged him from filing a claim.    Nor does he

allege that the counselor erred in her explanation of either the

laws enforced by the EEOC or the requirements for filing a charge

of discrimination.   The record summary judgment evidence belies

Harrison’s argument that the EEOC misled him about the nature of

his rights.   Accordingly, he may not receive equitable tolling of

the limitations period on that basis.   Ramirez, 312 F.3d at 184

(“In order to invoke equitable tolling ... [a plaintiff] must

demonstrate that the EEOC gave him information that was

affirmatively wrong.”).

                                B.

     Finally, Harrison argues that even if equitable tolling is

not appropriate in this case, he gave the EEOC sufficient




                                 9
information during his first visit to initiate a charge by

filling out a two-sided green sheet of paper, which he asserts

was an intake or charge form.   He asserts that his second visit

to the EEOC and the resulting paperwork should be treated as

amendments to this original charge which could serve to cure any

deficiencies.

     EEOC regulations recognize that a charge may be amended to

cure technical defects or omissions and that such amendments will

relate back to the date the charge was first received.   C.F.R. §

1601.12(b)(1991).   However, Harrison’s post-deposition statements

that he filled out a green sheet during his first visit to the

EEOC was not enough evidence to raise an issue of material fact

with regard to whether he filed a curable charge.   The EEOC

confirmed that its Houston office has no record of either a

charge or green sheet filed by Harrison against Estes.   Further,

Harrison’s deposition testimony about what transpired during his

June 2003 visit does not support an inference that he filled out

a charge form at that time.   Specifically, Harrison testified

that he did not emerge from his meeting with the EEOC counselor

with any paperwork, he did not sign any documents requiring an

oath, and he did not believe that the EEOC was conducting an

investigation into his termination after the meeting.    Based on

this evidence, the district court correctly concluded that




                                10
Harrison did not file any type of charge during his initial visit

to the EEOC.

                              III.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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