                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    December 27, 2006
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 06-10533
                             Summary Calendar


Kyle Hamar
                                                Plaintiff-Appellant,

versus

Ashland, Inc.,
Air Products and Chemicals, Inc.
                                                Defendants-Appellees.



             Appeal from the United States District Court
                  For the Northern District of Texas

                               (3:04-CV-1109)

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*

      The district court entered summary judgment against Kyle Hamar

on his ADA claims, dismissing his failure-to-accommodate claim

against Ashland, and dismissing his failure-to-hire claim against

Air Products.     We affirm.

      The district court dismissed Hamar’s failure-to-accommodate

claim, ruling that Hamar had not exhausted his administrative

remedies before the EEOC with respect to that claim.                We agree.

Hamar, represented by counsel, filed the following charge with the

EEOC:


      *
       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should not be published and is not precedent except under the limited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.
      PERSONAL HARM:
         On August 29, 2003 I was discharged
      RESPONDENT’S REASON FOR ADVERSE ACTION:
         No reason given
      DISCRIMINATION STATEMENT:
        I believe that I have been discriminated against in that I
        have been perceived as having a disability in violation of
        the Americans with Disabilities Act of 1990.


He argues that from this charge, which asserts only a disparate

treatment      claim,   an     investigation       into   Ashland’s     failure   to

accommodate his disability could reasonably have been expected to

grow.1        But the scope of Hamar's administrative charge is too

narrow to have exhausted a claim for failure to accommodate.                      The

two      relevant   claims,     failure       to   accommodate2   and    disparate

treatment,3          represent       distinct      categories     of    disability

discrimination under the ADA.           The EEOC could not reasonably have

been expected, when presented with a claim alleging disparate

treatment arising on August 29, 2003, to investigate the entirely

distinct failure-to-accommodate claim arising from January 2003

through June of 2003. The three circuits that have considered this

very same question agree.4


      1
         Sanchez, 431 F.2d at 466; Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.
2006).


      2
         42 U.S.C. 12112(b)(5)(A).
      3
         42 U.S.C. 12112(a).

      4
       MacKenzie v. Denver, 414 F3d 1266, 1274 n.13 (10th Cir. 2005); Jones v.
Sumser Retirement Village, 209 F.3d 851, 854 (6th Cir. 2000); Green v. National
Steel Corp., 197 F.3d 894, 897–98 (7th Cir. 1999); see also Belmear v. Mary Kay

                                          2
      Moreover,    although     Hamar       complained   only     of   wrongful

termination in his EEOC charge, he asserted only failure-to-

accommodate in his federal complaint.            Yet on appeal Hamar argues

that his complaint actually did assert a wrongful-termination

claim, but that the district court’s ruling ignored it.                Ashland

responds that it was never put on notice of such a claim and that

Hamar raises this issue for the first time on appeal.             We hold that

even if such a claim is present, Hamar has submitted no evidence,

and indeed could have submitted no evidence, in support of it.

This is because Ashland discharged everyone, not just Hamar.               See

McCann v. Texas City Refining, Inc., 984 F.2d 667, 674 (5th Cir.

1993) (“[I]t cannot be said that TCR discharged McCann because of

her age; TCR sold the refinery and discharged everyone.”).

      Finally, the district court dismissed Hamar’s failure-to-hire

claim against Air Products, ruling that the company was not a

successor employer to Ashland.           On appeal, Hamar argues that the

district court misunderstood his theory, and he now argues that his

theory   of   liability    rested   on      common-law   agency   principles.5

Charitably construed, his argument is that once the Ashland Mangers

were notified by Air Products that they would keep their jobs, they

became agents of Air Products, and that their efforts to undermine

Hamar’s return to work effected a failure to hire violation.


Inc., 2000 WL 127282 (N.D. Tex. Feb. 3, 2000).

      5
        See, e.g., Smith v. Metropolitan School Dist. Perry Tp., 128 F.3d 1014,
1024 (7th Cir. 1997).

                                        3
Without commenting on viability of such a theory, we affirm the

district court’s dismissal.         The burden of proving an agency

relationship is on the party asserting it,6 and Hamar points to no

evidence which tends to establish this agency relationship.

     Accordingly, the judgment of the district court is

     AFFIRMED.




     6
      Restatement (Third) Of Agency § 1.02, cmt.d (2006).

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