                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 26, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           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.


     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-10891
                                -2-

     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,
                            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.
                             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))).
                             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.
