                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                        April 18, 2005
                          FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                         ______________________                            Clerk

                              No. 04-10588
                         ______________________

                            BERNARD W. HENSON

                                                       Plaintiff-Appellant
                                  versus

                      BELL HELICOPTER TEXTRON, INC.

                                                           Defendant-Appellee

            _____________________________________________
             Appeal from the United States District Court
                   for the Northern District of Texas
                            (4:01-CV-1024-Y)
         ___________________________________________________

Before SMITH, DENNIS, and PRADO, Circuit Judges.


PER CURIAM:*

     Plaintiff-Appellant Henson is an African-American male who was

hired by Bell Helicopter (“Bell”) as a firefighter in September,

1993.    During the time that he worked for Bell, Henson was a member

of   the   Security    Police   Fire       Professionals    of    America      and

Amalgamated Local No. 256 (the “union”), and his employment was

governed by a collective bargaining agreement between Bell and the

union.



     *
      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this opinion should not be published and is not precedent except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.

                                       1
     In   1999,    Henson   sought   counseling        from   Bell’s    Employee

Assistance    Program   for    family       problems   he    was   experiencing.

Henson’s immediate supervisor, Chief Larry Smith, agreed to allow

Henson to report late in the months of April and May of 1999 so

Henson could attend counseling sessions because of family problems

he was experiencing.    At the end of that period Chief Smith did not

allow Henson to continue further counseling or attend the full

counseling session, which lasted from 10:00 a.m. to 3:00 p.m.

     On June 8, 1999, Henson took leave under the Family Medical

Leave Act (“FMLA”) to have surgery on his toes, and was released

back to work on July 21, 1999, with restrictions on lifting,

walking, and bending.       Henson requested that Chief Smith provide

him with desk duty for two weeks.            Because one of Henson’s duties

involved inspecting buildings, however, Chief Smith informed Henson

that he could not accommodate his walking restrictions other than

permit Henson to sit down between inspections.

     From the beginning of Henson’s employment at Bell, Chief Smith

counseled    him   regarding    problems        with   his    absenteeism      and

tardiness.    Under Bell’s attendance policy, an employee’s “lost

time” could not exceed 64 hours in any one twelve-month period or

the employee was subject to disciplinary action. Lost time for (1)

holidays,    (2)   vacation,   (3)   bereavement,       (4)    jury    duty,   (5)

disciplinary times off, (6) approved union business, (7) approved

education leave, (8) approved military leave, (9) approved personal



                                        2
leave, (10) Family Medical Leave Act leave, and (11) temporary

layoffs were not included in the 64-hour limit.

     From January 31, 1998 to January 31, 1999, Henson’s lost time

was 65.9 hours after all applicable leaves were excluded, and on

February 1, 1999, Deputy Chief Roy Eaves verbally counseled Henson

about his absenteeism.           Between January 31, 1999 and April 29,

1999,   Henson    was    late,   left   early,      or    was    absent   on   twenty

additional days.        In both October 1999 and December 1999, Henson’s

supervisors further counseled him for his absenteeism.                         As of

January 30, 2000, Henson had been absent 90.6 hours excluding the

sick leave, military leave, and extended Family Medical Leave Act

leave that he had taken in 1999.            On February 9, 2000, Chief Smith

gave Henson a written reprimand for his excessive absenteeism.

From February 9, 2000 to May 23, 2000, Henson was late on thirteen

different days, resulting in an additional 5.4 hours of lost time.

     On top of Henson’s tardiness and absenteeism, from January

2000 to May 2000, Henson apparently frequently left the facility

while on duty.     On at least eleven occasions, Henson was away from

the facility during his shift for between ten minutes and an hour

and a half.

     On May 23, 2000, Bell held a disciplinary hearing and Henson

was discharged for excessive absenteeism and dereliction of duty.

After    Henson     was     discharged       from        duty,    Henson’s     union

representatives negotiated with Bell, and the parties agreed to

change Henson’s penalty from discharge to a suspension without pay.

                                        3
Henson was reinstated on July 17, 2000.             Between July 18, 2000 and

September 19, 2000, Henson was late a total of twelve times.

According to Bell’s records, no other employee that ever worked in

the Fire Department at Bell had absenteeism problems approaching

the magnitude of Henson’s problem.             On September 20, 2000, Bell

held a disciplinary hearing and again terminated Henson for his

absenteeism.

     Henson filed the charge of discrimination at issue here with

the EEOC on January 22, 2001.              The EEOC issued a right to sue

letter, and Henson filed suit against Bell asserting claims of race

discrimination       and   retaliation      under    Title    VII,   disability

discrimination under the Americans with Disabilities Act (“ADA”),

and violation of the FMLA.           The district court granted summary

judgment for Bell Helicopter on all claims, and Henson timely

appeals.    We affirm the district court’s grant of summary judgment

for Bell Helicopter.

                                    ANALYSIS

     This    court    reviews   a   district    court’s      grant   of   summary

judgment de novo, applying the same standards as the district

court.     Evans v. City of Houston, 246 F.3d 344, 347 (5th Cir.

2001).     Summary judgment is appropriate if no genuine issue of

material fact exists and the moving party is entitled to judgment

as a matter of law.        See FED. R. CIV. P. 56.

     Henson’s complaint alleges causes of action under Title VII,

the ADA, and the FMLA, and his notice of appeal also refers to all

                                       4
three claims.     Henson’s brief on appeal, however, abandons his

claim of race discrimination and retaliation under Title VII.

Although the brief mentions Title VII, Henson does not make any

argument that the district court erred in its disposition of his

Title VII claim or even mention any alleged instances of racial

discrimination.   He argues only that there are material issues of

fact relating to his ADA and FMLA claims.         Accordingly, we address

only Henson’s ADA and FMLA claims.        Webb v. Investacorp Inc., 89

F.3d 252, 257 n. 2 (5th Cir. 1996).

                              I. ADA Claim

     The district court held that Henson’s allegations that Bell

discriminated against him in violation of the ADA, arising from

alleged acts that occurred prior to March 29, 2000, were time

barred.   Disposing of the allegations arising from later acts, the

court held that Henson was not a qualified individual with a

disability protected under the ADA.       We agree.

                                   A.

     The ADA incorporates by reference the two-step administrative

and judicial enforcement scheme of Title VII of the 1964 Civil

Rights Act.   See 42 U.S.C. § 12117(a).       Thus, before a plaintiff

may file a civil action under Title VII or the ADA, he must exhaust

administrative    remedies,   which     include    filing   a   charge   of

discrimination with the EEOC within 300 days after the alleged

violations occurred and filing suit within 90 days after receiving

a right-to-sue letter from the EEOC.       See 42 U.S.C. § 2000e-5(b),

                                   5
(e), (f); 42 U.S.C. § 12117.              Because Henson had not demonstrated

an equitable basis for modifying this requirement, the district

court did not consider Henson’s claims that occurred before March

29, 2000, which is 300 days prior to January 22, 2001, the date on

which Henson filed a charge of discrimination with the EEOC.                          On

appeal,    Henson     argues      that    the     district   court      erred   by   not

considering his argument that the alleged discriminatory acts

involved a “continuing violation.”

     Under     the    continuing        violation       doctrine,   a   plaintiff     is

relieved of establishing that all of the alleged discriminatory

conduct occurred within the actionable period if the plaintiff can

show a series of related acts, one or more of which falls within

the limitations period.           Felton v. Polles, 315 F.3d 470, 487 (5th

Cir. 2002).          The    Supreme      Court    has   clarified,      however,     that

discrete discriminatory acts are not actionable if time barred,

even when they are related to acts complained of in timely filed

charges.      Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002).

     Henson argues that because Bell relied on Henson’s absences

beginning in 1999 to make the decision to discharge him in 2000,

the district court should have considered Bell’s actions during

that period under a continuing violation theory.                     But Henson does

not allege any actual related or continuing acts of discrimination

by Bell.   The only incidents he complains of that happened prior to

March   29,    2000,       are:   (1)     Chief    Smith’s    failure     to    provide

                                            6
accommodations to allow Henson to continue his Employee Assistance

Program (“EAP”) counseling sessions, (2) Chief Smith’s refusal to

excuse Henson from walking duties for two weeks after he had toe

surgery in 1999, and (3) Bell’s refusal to grant Henson’s shift

transfer requests.       Because all of those incidents are discrete

acts, they do not qualify under the continuing violation exception

to the ADA’s actionable period restrictions and the district court

properly   limited   its    inquiry   to   Henson’s   allegations   of    ADA

violations that occurred after March 29, 2000.

                                      B.

      Henson next argues that Bell violated the ADA when it fired

him because of his depression, which he claims is a protected

disability under the ADA.        The ADA provides that “[n]o covered

entity shall discriminate against a qualified individual with a

disability because of the disability of such individual in regard

to   job   application     procedures,     the   hiring,   advancement,    or

discharge of employees, employee compensation, job training, and

other terms, conditions and privileges of employment.”           42 U.S.C.

§ 12112(a).    A “qualified individual with a disability” is “an

individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.”         42 U.S.C. § 1211(8).

      The ADA defines a disability as: (A) a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual; (B) a record of such impairment; or

                                      7
(C) being regarded as having such an impairment.                42 U.S.C. §

12102(2).    “Major life activities means functions such as caring

for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.”              Dutcher v. Ingalls

Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995)(quoting 29 C.F.R. §

1630.2(I)). The factors to be considered in determining whether an

impairment substantially limits a major life activity include: (1)

the nature and severity of the impairment; (2) its duration or

expected duration; and (3) its permanent or expected permanent

long-term impact.     29 C.F.R. § 1630.2(j)(2)(i)-(iii).

     The district court found that Henson was not a “qualified

individual with a disability” under the ADA.                Although Henson

argues that the district court erred when it found that he was not

disabled under    the      first   prong   (having   a   physical   or   mental

impairment that substantially limits one or more of the major life

activities of such individual), he makes no argument of how his

depression was actually an “impairment that substantially limits”

the “major life activities” of working and learning, and therefore

relies on the second and third “record of impairment” and “regarded

as impaired” prongs.

     The    “record   of    such   impairment”   prong    applies   where   an

individual “has a history of, or has been misclassified as having,

a mental or physical impairment that substantially limits one or

more major life activities.” Burch v. Coca-Cola Co., 119 F.3d 305,

321 (5th Cir. 1997) (quoting 29 C.F.R. § 1630.2(k)).                     Again,

                                       8
however, Henson does not point to any “substantial limit” that his

depression places on his ability to do work and points to no record

establishing a history of depression.

     Henson’s argument thus relies on the third prong of the

definition     of   disability    under     the   ADA,    that    is,    that    Bell

“regarded” Henson as disabled.         Under the ADA, to be “regarded as”

disabled by his employer, a plaintiff must:

     (1) have a physical or mental impairment that does not
     substantially limit major life activities, but be treated
     as such by an employer; (2) have a physical or mental
     impairment that substantially limits one or more major
     life activities, but only because of the attitudes of
     others towards the impairment; or (3) have no impairment
     at all but be treated by an employer as having a
     substantially limiting impairment.

McInnis v. Alamo Comm. College Dist., 207 F.3d 276, 281 (5th Cir.

2000).   The summary judgment evidence presented shows, however,

that: (1) Henson never told Chief Smith that he was suffering from

depression     or   any   other    mental    condition,     (2)    Henson       never

requested any type of leave for depression or any other mental

condition, and (3) Henson never informed Chief Smith that he was

late for work because he suffered from depression.                   To show that

Bell regarded him as disabled within the meaning of the ADA, Henson

relies exclusively on the fact that Chief Smith allowed him to

attend   EAP   counseling    for    two     months   in    1999.        Because    an

employee’s mere attendance at some form of counseling does not

necessarily mean that a “major life activity” of the employee is

“substantially      limited,”      Chief     Smith’s      allowing      scheduling


                                       9
adjustments for Henson to attend counseling during a two-month

period   does   not   mean   that   Smith   regarded   Bell    as   having    a

disability under the ADA.       The district court was correct not to

recognize Henson as disabled under the third prong and to grant

summary judgment for Bell Helicopter on Henson’s ADA claim.

                              II. FMLA Claim

     Henson next claims that Bell violated his rights under the

FMLA by: (1) refusing to accommodate Henson’s request in April 1999

to attend an outpatient counseling program, and (2) discharging

Henson due to his excessive absences.       The district court held that

Henson’s claims from 1999 were time barred and that Henson’s

absences were not protected leave under the FMLA.             We agree.

                                     (A)

     The statute of limitations for FMLA claims is three years for

willful violations, 29 U.S.C. § 2617(c)(2), and two years for all

other violations.     29 U.S.C. § 2617(c)(1).     To establish a willful

violation of the FMLA, a plaintiff must show that his employer

“either knew or showed reckless disregard for the matter of whether

its conduct was prohibited by statute.”        Hillstrom v. Best Western

TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003)(citing McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 133 (1988)).          Henson argues that

his claim from 1999 is not time barred because he presented

evidence of Chief Smith’s willful violation of the FMLA through the

history of problems between himself and Chief Smith and Smith’s

“strict enforcement of Bell’s absence policy” against Henson.                To

                                     10
make his argument, Henson relies on evidence that: (1) Chief Smith

consistently counseled Henson regarding his problems with Bell’s

attendance policy; and eventually discharged Henson on the basis of

his violation of that policy, and (2) Chief Smith was unable to

make non-walking accommodations for Henson after his toe surgery

because there were no positions that did not involve walking.

Neither of those point establish a reckless disregard for whether

strict enforcement of Bell’s absence policy was a violation of the

FMLA.   Thus, because Henson filed his complaint against Bell in

November 2001, Henson’s claim that in April 1999 Bell failed to

grant him leave under the FMLA so he could attend counseling

sessions is not timely filed.

                                (B)

     Henson also argues that Bell violated the FMLA by discharging

him due to his excessive absences.    For leave to be protected under

the FMLA, an employee who requests leave due to a “serious health

condition” must provide his employer with at least 30 days notice

before the date of leave is to begin, or if the leave is required

to begin in less than 30 days, to provide such notice as is

practicable.   29 U.S.C. § 2612(e)(2)(B).      Here, throughout the

period that Henson alleges his tardiness and absence from work was

due to his depression, Henson never gave Bell any notice of when he

would miss work and Henson admits that he was absent for a variety

of reasons.    Chief Smith apparently was aware only that Henson



                                11
explained his absences as being the result of traffic or personal

business,   and   had   not   been   told   about   any   “serious   health

condition.”   Because Henson gave his employer absolutely no notice

of his absences from work, they are not protected under the FMLA.

                                CONCLUSION

     The district court properly granted summary judgment for Bell

on all claims.

AFFIRMED.




                                     12
