                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                          ______________________

                               No. 97-20979
                          ______________________


                               STERLING WHITE,

                                                    Plaintiff - Appellant,

                                    VERSUS

                  THE GOODYEAR TIRE AND RUBBER COMPANY,

                                                     Defendant - Appellee.

        ___________________________________________________

            Appeal from the United States District Court
                 for the Southern District of Texas
                    (H-93-CV-4049 & H-94-CV-3508)
        ___________________________________________________

                              September 29, 1999

Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges

DUHÉ, Circuit Judge:1

      Sterling White sued The Goodyear Tire and Rubber Company

(“Goodyear”) for race discrimination under Title VII and disability

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

A prior panel of this Court reversed the district court’s grant of

summary judgment on both claims. On remand, after taking additional

evidence,   the    district    court   granted   summary    judgment   on    the

disability claim because White failed to prove he was qualified, and

therefore did not establish a prima facie case.            The district court



1
  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should not be published and is not precedent except under the limited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.
also granted summary judgment on the race discrimination claim

because White had not exhausted his administrative remedies.             We

affirm as to that claim, and reverse and remand the ADA claim.

FACTS AND PROCEEDINGS

       White worked as a baler helper at Goodyear’s plant in Houston,

Texas. He worked in an unairconditioned building, surrounded by

extremely hot rubber, fumes, and chemicals.       In October 1991, White

experienced a sickle cell crisis and took extensive sick leave.

Goodyear terminated him on August 7, 1992.

       White filed with the Equal Employment Opportunity Commission

(EEOC) a charge of employment discrimination under the ADA. The EEOC

issued White a right to sue letter.      White asserted in a deposition

that he also filed a race discrimination complaint with the EEOC.

       White, acting pro se, sued Goodyear in federal court for race

and disability discrimination.         Eight months later, an attorney

represented White for the first time in federal court.            White then

sued   Goodyear   in   Texas   state   court,   alleging   that    Goodyear

terminated him in retaliation for filing a workers’ compensation

claim.   Goodyear removed the retaliation claim to federal court and

the actions were consolidated.

       Goodyear successfully moved for summary judgment on all claims.

White appealed to this court which vacated the grant of summary

judgment on White’s ADA claim, because White did not have notice

that his ADA claim would be considered for summary judgment.            As a

result, he did not conduct essential discovery or place evidence in

the record to support his claim.
      The first panel also reversed the grant of summary judgment on

White’s Title VII race discrimination claim. The district court had

determined that White failed to exhaust his administrative remedies

which barred him from suing.         The first panel analyzed the summary

judgment record evidence as follows.          Goodyear submitted the EEOC’s

entire file pertaining to White’s ADA charge, Charge Number 330-93-

1854.   Goodyear stated in its brief in support of summary judgment

that it requested and received all the EEOC files pertaining to

White. However, Goodyear’s assertion in its brief was not competent

summary judgment evidence.         The Certification of Documents from the

EEOC stated that the file was a true and accurate copy of the file

pertaining to Charge Number 330-93-1854. However, the Certification

did not preclude the possibility that another EEOC file documenting

White’s race claim existed, but with a different charge number.              In

addition, White stated in his deposition that he filed a Title VII

race discrimination complaint with the EEOC after he filed the ADA

complaint.      The first panel held that Goodyear had not met its

burden of establishing through competent summary judgment evidence

the   absence   of   a   dispute    as   to   whether   White   exhausted   his

administrative remedies.

      On remand, the district court again granted summary judgment

to Goodyear on both the ADA and Title VII race discrimination

claims. Regarding the ADA claim, the district court held that White

failed to establish a prima facie case because he did not prove he

was qualified to work as a baler helper.            Regarding the Title VII


                                         3
claim, the district court held that: (1) White failed to exhaust his

administrative remedies; and (2) he failed to establish disparate

treatment.    White appeals.

STANDARD OF REVIEW

     We review a grant of summary judgment de novo, applying the

same standards used by the district court, reviewing the facts and

drawing inferences in favor of the nonmoving party. See Elliott v.

Lynn, 38 F.3d 188 (5th Cir. 1994). Summary judgment is proper only

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

moving party is entitled to judgment as a matter of law. See    Fed.

R. Civ. P. 56(c);    Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

ADA CLAIM

      The ADA prohibits an employer from discriminating against a

qualified individual with a disability on account of his disability.

See 42 U.S.C.A. § 12112(a) (West 1997).    To establish a prima facie

case of discrimination under the ADA, White must show that: (1) he

has a disability;    (2) he is qualified to work as a baler helper;

and (3) he suffered an adverse employment decision because of his

disability.    See, e.g., Zenor v. El Paso Healthcare System, Ltd.,

176 F.3d 847, 852 (5th Cir. 1999).        A "disability" is:   (A) a

physical or mental impairment that substantially limits one or more

major life activities; (B) a record of such an impairment;     or (C)

being regarded as having such an impairment. See 42 U.S.C.A. §

12102(2).     Whether White has created a genuine issue of material




                                  4
fact concerning each element of his prima facie case turns on his

doctors’ releases.

     To support his claim that he was qualified to work as a baler

helper, White submitted four doctors’ releases permitting him to

return to work.       His June 15 release permitted “White . . . to

return to work, with no restrictions.”2        The June 22 release

permitted White to “[r]eturn to regular duty, no restrictions.” The

June 24 release noted that White “was seen and examined . . . and

is released to return to work.”    White also received a release from

a doctor who had examined him two years earlier and had pronounced

him capable of working as a baler helper despite an abnormally low

platelet count.

     Goodyear counters that White could not perform the essential

functions of a baler helper. In support, it points out that White’s

doctors noted that White must avoid fumes, chemicals, and excessive

heat.       White himself acknowledged that chemicals and fumes were

unavoidable in the finishing room where he worked.   Goodyear showed

that the doctors’ releases were restricted, later modified, or

provided by doctors unfamiliar with White’s sickle cell crisis.

This conflicting evidence creates a genuine issue of material fact

concerning White’s qualifications.

        2
       White acknowledges that this doctor later modified his
release. The modified release permitted White to return to work
with a plan for monitoring his platelet count and recommended that
Goodyear “make reasonable accommodations to provide [White] with an
environment without heat and preferably without fumes and
chemicals.”


                                   5
     White asserts he was not disabled, citing to his various

doctors’ releases.    However, White contends Goodyear regarded his

sickle cell anemia as an impairment that substantially limited his

major life   activity of work, and thereby regarded him as disabled.

Transcripts of conversations with Goodyear’s nurse and personnel

director indicate that Goodyear would not permit White to return to

work even with a full release from his doctors, because Goodyear

perceived White’s sickle cell anemia to substantially limit his

ability to work and considered that his condition disabled him from

working at any job in any part of any chemical plant.      Goodyear

asserts that White is not disabled because he can perform a wide

range of jobs other than baler helper.    Further, Goodyear asserts

that it does not regard White as disabled.   The evidence creates a

genuine issue of material fact concerning whether White is disabled

and whether Goodyear regards White as disabled. This same evidence

creates a genuine issue of material fact concerning why Goodyear

fired White.3     Because White created a genuine issue of material

fact concerning all of these elements of his prima facie case, we

reverse and remand.

TITLE VII

     3
       A baler helper’s essential functions include performing the
following tasks in the plant’s unairconditioned, fume and chemical
filled finishing room: (1) removing 80 pound bales of synthetic
rubber from a conveyor belt; (2) packaging the bales of rubber; (3)
constructing heavy cardboard containers; (4) cleaning heavy metal
boxes; and (5) pushing or pulling boxes containing bales of rubber.


                                  6
     To sue under Title VII, a plaintiff must first file a charge

with the EEOC within 180 days of the discriminatory event and

initiate the suit within 180 days of receiving a right to sue letter

from the EEOC.    See U.S.C.A. § 2000e-5 (e)(1) (West 1997)

     The district court originally held that White did not file a

race discrimination charge with the EEOC and therefore did not

exhaust his administrative remedies.       The first panel reversed and

remanded.   After admitting additional evidence, the district court

again granted summary judgment to Goodyear because White did not

exhaust his administrative remedies.         Under the law of the case

doctrine, this panel will not reexamine whether White exhausted his

administrative remedies unless: (1) the evidence submitted on remand

for summary judgment purposes is substantially different from the

evidence    previously   reviewed   by   this   court;   (2)   controlling

authority has changed with regard to exhaustion of remedies; or (3)

the first panel’s decision was clearly erroneous and would work a

manifest injustice. See United States v. O’Keefe, 169 F.3d 281, 283

(5th Cir. 1999).    Both parties focus their arguments only on the

effect of the additional evidence submitted on remand.

     By the time of remand, the EEOC had in the ordinary course of

business destroyed the file for Charge Number 330-93-1854 and other

files from the same time period.         However, Goodyear submitted an

EEOC affidavit stating that: the EEOC did not issue White a right

to sue notice for race discrimination; the charge data system that

logs critical data on all charges showed no race charge filed by


                                    7
White against Goodyear; and the EEOC did not investigate any race

discrimination charges by White against Goodyear.4

      White authenticated and submitted as evidence various documents

that appear to be copies of documents that the EEOC once had in its

possession but that do not appear in Goodyear’s copy of the file for

Charge       Number     330-93-1854.       White’s   documents   include:    (1)   a

questionnaire dated April 9, 1992, in which White stated that he had

been discriminated against on the basis of “Race, Illness, That must

be investigated;” (2) an EEOC intake questionnaire dated April 13,

1992, with the “race” box checked; (3) an EEOC affidavit dated July

26,   1992,       in    which   White    characterized   Goodyear’s    actions     as

disparate treatment ”between me myself being Black and the way

Whites are treated;” and (4) an EEOC letter dated October 20, 1992

referring to White’s affidavit and noting that White’s complaint

would not be incorporated into a “class investigation.”

      The additional evidence submitted on remand establishes that

White       did   not    exhaust   his    administrative   remedies.     Goodyear

presented an EEOC affidavit noting that the EEOC’s charge data

system which logs critical data on all charges showed no race

discrimination charge filed by White against Goodyear.                      White’s

evidence also supports that he did not file a race discrimination

claim.       The October 20 EEOC letter makes clear that White had not

filed a discrimination charge before the date of the letter.                     The

        4
      White emphasizes that the affidavit does not describe the
nature or accuracy of the data system.


                                            8
letter specifically refers to the July 26 affidavit and informs

White that he should bring the affidavit with him if he plans to

file a discrimination charge.   The EEOC intake questionnaire, the

April 9, 1992 questionnaire, and the EEOC affidavit all predate the

EEOC letter, and therefore did not equate with filing a charge with

the EEOC. Since White did not satisfy a precondition to suing under

Title VII, we affirm the grant of summary judgment to Goodyear based

on White’s failure to exhaust his administrative remedies.

     AFFIRMED IN PART and REVERSED and REMANDED IN PART.




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