           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 15, 2009

                                     No. 08-11050                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MD JORDAN YEE

                                                   Plaintiff - Appellant
v.

MD HAROLD K BALDWIN-PRICE, Medical Director, FMC Bureau of
Prisons; ERIC H HOLDER, JR , U S ATTORNEY GENERAL

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                       for the Northern District of Texas
                              USDC No. 4:08-CV-53


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dr. Jordan Yee filed this employment discrimination case against the
Clinical Director of the Bureau of Prisons’s Federal Medical Center Carswell
(“FMC Carswell”) and the United States Attorney General.                         He alleged
discrimination due to his race, his national origin, and his disability. Relief was
sought under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-11050

of 1973.     The district court granted summary judgment in favor of the
defendants. We AFFIRM.
       Yee was employed as a psychiatrist at FMC Carswell at all times relevant
to this case. Yee asserts that he was discriminated against on account of his
race and national origin (Chinese) when (1) he was sent a letter of reprimand in
October 1997 citing him for inattention to duty and explaining that any future
misconduct would lead to disciplinary action, and (2) the FMC Carswell policy
requiring psychiatrists to keep their doors open when not meeting with patients
or discussing confidential information was enforced against him but not against
one of his white colleagues. Yee further maintains that he was discriminated
against on account of his disability (chronic hepatitis) when he was denied part-
time work as a reasonable accommodation.1
       In granting summary judgment in favor of the defendants, the district
court found that Yee failed timely to exhaust his administrative remedies with
respect to his claims because he did not consult with a employment
discrimination counselor within forty-five days of the alleged acts. The court
further concluded that Yee failed to establish a prima facie case of
discrimination based on race or national origin. That was because there was no
evidence that the alleged discriminatory acts constituted an adverse employment
action or that a similarly situated employee outside of the protected class was
treated more favorably. Finally, the court decided that Yee had not set forth a
prima facie case of disability discrimination because there was no evidence that
Yee had requested and been denied a reasonable accommodation.


       1
         Yee also alleged the following discriminatory acts before the district court: (1) an
August 1997 incident in which Yee was caught reclined in his office with his door closed and
was required to report to the associate warden’s office; (2) the charging of six hours of sick
leave for time he was at work during the August 1997 incident; (3) the failure to provide
immediate sick leave as a disability accommodation after the August 1997 incident; and (4)
a racially hostile work environment. However, he has expressly abandoned these claims in
his reply brief to this court.

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      We review a district court’s summary judgment ruling de novo, applying
the same standard as the district court. EEOC v. Agro Distribution, LLC, 555
F.3d 462, 469 (5th Cir. 2009).       Summary judgment is proper when the
“pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “On review of
a grant of summary judgment, all facts and inferences must be construed in the
light most favorable to the non-movant.” Agro Distribution, 555 F.3d at 462
(citation omitted).
      As an initial matter, Yee objects to a number of alleged procedural errors
by the district court that he submits support reversal in this case. First, he
contends that the defendants filed a motion to strike the documents that
supported his response to the summary judgment motion without complying
with a local rule. The local rule required a moving party to confer with opposing
counsel before filing a motion to determine whether the motion is opposed. A
certificate was to be submitted that stated the results of the conference. Yee
argues that the reason for the defendants’ failure to include the required
certificate was to make the district court assume that Yee did not oppose the
motion to strike. Yee further suggests that the district court overlooked the
missing certificate and did not consider the documents in support of his response
to the motion for summary judgment.
      However, the district court did not ignore the documents submitted in
support of Yee’s summary judgment response. Rather, the court stated that it
would not rule on the motion to strike and would instead give the documents in
Yee’s response “only such weight as they deserve.” We resolve the issue on the
basis that Yee did not present it to the district court. Because “arguments not
raised before the district court are waived and cannot be raised for the first time



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on appeal,” we decline to address the issue. See LeMaire v. La. Dep’t of Transp.
& Dev., 480 F.3d 383, 387 (5th Cir. 2007).
      Yee next argues that the defendants’ reply brief in support of their
summary judgment motion was five days late. Further, no leave of court or an
extension of time was granted. Yee contends that the district court improperly
ruled on the summary judgment motion without striking this untimely reply.
Additionally, Yee argues that although the district court entered an order
compelling the defendants to respond to a number of discovery requests, the
district court improperly granted summary judgment before the deadline it gave
the defendants for providing such discovery.         Thus, he did not have an
opportunity to review and rely on the discovery materials as a part of his
response to the summary judgment motion. Again, these arguments were not
raised before the district court and have been waived on appeal. Id. We note,
though, that motions deadlines such as these are not rigid, and the district court
has broad discretion to control its own docket and extend filing deadlines.
Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218 (5th Cir. 1998);
Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1997).
      Shifting to the merits of the summary judgment ruling, the district court
found that Yee failed to exhaust his administrative remedies regarding his
discrimination complaints. Exhaustion of available remedies is required “before
a federal employee may bring an employment-discrimination suit in federal
court . . . .” Hampton v. IRS, 913 F.2d 180, 182 (5th Cir. 1990). As an initial step
in the exhaustion process, the employee must “initiate contact with [an EEO]
Counselor within 45 days of the date of the matter alleged to be discriminatory
. . . .” 29 C.F.R. § 1614.105(a)(1). “Failure to notify the EEO counselor in [a]
timely fashion may bar” the employee’s claim. Pacheco v. Rice, 966 F.2d 904, 905
(5th Cir. 1992). Yee did not timely consult with an EEO counselor, and the court



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found that the defendants did not do anything that would bar them from
asserting failure to exhaust as an affirmative defense.
      The exhaustion requirement is not jurisdictional, however, and is subject
to the traditional equitable defenses of waiver, estoppel, and equitable tolling.
Id. at 906. If informal counseling is not timely sought, “the plaintiff has the
burden of demonstrating a factual basis to toll the period.” Blumberg v. HCA
Mgmt. Co., 848 F.2d 642, 644 (5th Cir. 1988).
      Yee asserts that the district court erred in concluding that he did not
timely consult with an EEO counselor regarding an October 14, 1997 letter of
reprimand. Yee contends that he did not receive the letter until sometime after
Christmas Day 1997. After receiving the letter, he gave his union president,
Torii Dawdy, a request for informal EEO counseling and asked Dawdy to put the
letter in EEO counselor John Hartford’s mailbox. Yee further maintains that
Hartford was on extended leave when the request was placed in his box and that
upon his return to work, he forwarded the request for processing on February 26,
1998. Yee submits that the defendants should not be able to rely on failure to
exhaust as an affirmative defense because their actions prevented him from
complying with the forty-five-day requirement.
      Yee’s arguments are claims of equitable estoppel or equitable tolling as a
basis for excusing his failure timely to contact an EEO counselor after receiving
the letter of reprimand. However, Yee has not offered any competent summary
judgment evidence to support the application of such doctrines in this case. As
support for his contention that he did not receive the letter dated October 14
until sometime after Christmas, Yee relies on a photocopy of an envelope
addressed to him from FMC Carswell.         It contains someone’s handwritten
notation that it was mailed on October 14, 1997. We assume that the defendants
provided this photocopy to Yee in discovery. Yee theorizes that because no
postage was on the envelope when it was copied, it must have been mailed

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without any. Yee then speculates that the letter would have been returned to
FMC Carswell and mailed again with postage. Those steps would have caused
delays. Yee also relies on a copy of his discrimination complaint, which states
that he first contacted John Hartford by letter on February 26, 1998, as support
for his theory that his request for counseling was placed in Hartford’s mailbox
while Hartford was on extended leave and was received when Hartford returned
to work around February 26, 1998.
        There is not any usable evidence in the theories woven from the copy of a
postage-free envelope and the complaint that Yee filed. Yee had to present facts
to support tolling the period for informal EEO counseling or to excuse his failure
to exhaust his administrative remedies in timely fashion. See Blumberg, 848
F.2d at 644. Summary judgment may be granted when “the nonmoving party
rests   merely    upon   conclusory   allegations, improbable     inferences, and
unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (phrase quoted in Hockman v. Westward Commc’ns,
LLC, 407 F.3d 317, 332 (5th Cir. 2004)). Yee has rested only upon that here.
        Yee next contends that the district court erred in finding that he failed to
establish a prima facie case of disparate treatment. Yee asserts that the policy
requiring psychiatrists to keep their doors open when not meeting with patients
or discussing confidential information was enforced against him but not against
one of his white colleagues, Dr. Lucking. To make a prima facie case that he
suffered discrimination due to his race or national origin, Yee had to show that
he was “(1) a member of a protected class; (2) qualified for the position held; (3)
subject to an adverse employment action; and (4) treated differently from others
similarly situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.
2005). The district court concluded that Yee had established neither the third
nor the fourth element of a prima facie case. Yee argues that the October 14,
1997 reprimand letter satisfies the adverse employment action requirement

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because it was later used as a basis to deny him part-time employment.
However, as discussed above, Yee did not exhaust his administrative remedies
regarding the letter.     Therefore, it may not be used as a basis for his
discrimination claim. Accordingly, Yee has failed to establish a prima facie case
of discrimination based on disparate treatment.
      Finally, Yee maintains that the district court erred in concluding that he
failed to establish a prima facie case of discrimination arising from a disability.
Yee contends that such discrimination occurred when he was denied part-time
employment as a reasonable accommodation for limitations created by his
disability. The defendants argue, however, that an accommodation of part-time
work was not properly before the court. Rather, the only issue relating to a
disability was whether discrimination occurred when Yee was denied immediate
sick leave as an accommodation during the August 1997 incident.
      Yee disagrees and argues that the part-time work issue was raised in his
original complaint. We find no such claim. The district court had previously
denied Yee’s motion to amend his pleadings to include a part-time
accommodation claim. Although Yee may have attempted to add such a claim
through an amendment to his complaint, the district court denied Yee leave to
amend. Yee has not argued that the district court erred in denying that motion.
Even were such an argument before us, it would be relevant that Yee apparently
did not exhaust his administrative remedies with respect to the claim. If that
is so, amendment would have been futile. Leave to amend properly may be
denied on the basis of futility. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d
559, 576 n.8 (5th Cir. 2005).
      Finding no error, we AFFIRM the district court’s grant of summary
judgment in favor of the defendants.




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