                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                    December 22, 2004

                                                        Charles R. Fulbruge III
                                                                Clerk
                             04-10666
                         Summary Calendar


                         SOLOMON TEFFERA,

                                               Plaintiff-Appellant,

                              versus

                 NORTH TEXAS TOLLWAY AUTHORITY,

                                               Defendant-Appellee.


          Appeal from the United States District Court
               for the Northern District of Texas
                        (3:02-CV-1525-K)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Solomon Teffera appeals the summary judgment awarded his

employer, North Texas Toll Authority (NTTA).   Teffera claimed NTTA

violated Title VII of the Civil Rights Act of 1964, as amended, 29

U.S.C. § 621 et seq. (Title VII), the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq. (ADA), and 42 U.S.C. § 1981.

     Teffera worked as a vault handler for NTTA in the toll

collection department.   NTTA promulgated employee policies and

procedures in its employee manual, and Teffera signed for, and



     *
       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this opinion should not be published and is not precedent except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.
received, a copy of it.    The unauthorized leave without pay policy

(the Policy), as published in the employee manual, stated:                   an

employee in the toll department would be dismissed if he violated

the Policy three times in a 12-month period.          Teffera violated the

Policy twice and received two warnings; he was fired upon his third

violation in a year.

     Teffera, a black male of Ethiopian origin, sued NTTA for

racial and national origin discrimination under Title VII, racial

discrimination in the workplace under § 1981, and discrimination in

violation of the ADA.     In granting summary judgment, the district

court held:   Teffera could not establish a prima facie case of

discrimination   under   Title   VII   because   he    did    not    show   his

termination was as a result of his race or national origin; no

adverse   actions   against      Teffera    amounted         to     actionable

discrimination under Title VII; he could not show he was disabled

for ADA purposes, or that NTTA fired him because it regarded him as

disabled; Teffera did not establish that he suffered an adverse

employment action based on a disability; he could not establish a

prima facie case for § 1981 discrimination because those elements

are identical to the prima facie elements of a Title VII claim,

which he did not successfully present; and there was no evidence

NTTA terminated Teffera in retaliation for his seeking reasonable

alternate accommodations.




                                   2
     We review a summary judgment de novo, applying the same

standards as the district court.       Mayo v. Hartford Life Ins. Co.,

354 F.3d 400, 403 (5th Cir. 2004).     Summary judgment is proper when

“there is no genuine issue as to any material fact and ... the

moving party is entitled to a judgment as a matter of law”.       FED.

R. CIV. P. 56(c).    The evidence is viewed in the light most

favorable to the nonmovant.   E.g., Coleman v. Houston Indep. Sch.

Dist., 113 F.3d 528, 533 (5th Cir. 1997).

     Teffera presents four issues:       (1) his deposition testimony

offered by NTTA as summary judgment evidence is insufficient for

that purpose; (2) the district court erroneously found he did not

properly bring his Title VII retaliation claim to the notice of the

Equal Employment Opportunity Commission (EEOC); (3) the district

court improperly dismissed that retaliation claim because NTTA’s

reasons for firing him were mere pretexts for masking retaliation,

and; (4) the district court should not have dismissed his ADA

retaliation claim because he was terminated in retaliation for

requesting a reasonable accommodation.      (Teffera does not contest

the other bases for the summary judgment.        Issues not raised or

argued on appeal are waived.       E.g., United Paperworkers Int'l.

Union, AFL-CIO, CLC v. Champion Int'l. Corp., 908 F.2d 1252 (5th

Cir. 1990).)

     Teffera’s contention that his deposition was defective and

therefore cannot serve as summary judgment evidence is meritless.


                                   3
The NTTA began to depose Teffera in May 2003 and, at the end of the

day, recessed the deposition until that September.          The day before

the deposition was to resume, NTTA informed Teffera’s attorney it

wished not to continue the deposition.            As he did in district

court, Teffera contends this cancellation violated FED. R. CIV. P.

30(c) because it prevented his lawyer from examining him and

clarifying key components of this case. Although other courts have

found the unilateral termination of a deposition by the lawyer of

the party being deposed may violate Rule 30(c), see Johnson v.

Wayne Manor    Apartments,   152   F.R.D.    56   (E.D.   Pa.   1993),   such

termination by the party deposing the witness is within that

party’s discretion and does not render the deposition testimony

defective.    Needless to say, Teffera’s lawyer could have requested

the deposition continue, but did not.

     The rest of Teffera’s issues on appeal concern his retaliation

claims under Title VII and the ADA.           Teffera first claims the

district court erred in finding he did not properly present Title

VII retaliation claims to the EEOC.         “[T]he filing of a charge of

discrimination with the EEOC is a condition precedent to the

bringing of a civil action under Title VII.”          Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).          Although Teffera

checked “retaliation” on the pre-charge EEOC form, he did not do so

on the EEOC charge; there, he referenced only discrimination

because of national origin. The district court correctly dismissed


                                    4
Teffera’s Title VII retaliation claim for not exhausting it with

the EEOC.

     Teffera’s two ADA retaliation claims fail because he presented

no supporting evidence in district court.         Teffera charges NTTA

with falsifying facts supporting the citations they issued him

under the Policy.     He claims there is a genuine issue of material

fact on whether NTTA’s reasons for firing him were mere pretexts

for retaliation for his requesting a transfer to another plaza, to

work under a different supervisor.

     To establish a prima facie case of retaliation, a plaintiff

must prove:   (1) he engaged in an activity protected by the ADA;

(2) he was subjected to an adverse employment action; and (3) a

causal   connection    existed   between   his   participation   in   the

protected activity and the adverse employment action. E.g., Seaman

v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).            Assuming,

arguendo, that merely filing a form requesting accommodation is

protected activity under the ADA, Teffera’s “pretext” charges

nevertheless fail for lack of a causal connection between such

protected activity and his termination.

     The first two citations against Teffera were filed on 25 July

and 29 August 2000, before he submitted a 15 January 2001 letter

requesting a transfer.     The fact that the third citation, which

triggered his termination under the Policy, was issued after his

transfer request does not create a material fact issue on whether


                                    5
NTTA fired him in retaliation for this request.               Each of the

citations against Teffera is supported by the Policy; and, while on

the   whole   they   may   evince   NTTA’s   disinclination   to   exercise

discretion in Teffera’s favor, this does not rise to the level of

retaliation.

                                                              AFFIRMED




                                      6
