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

                                                                            FILED
                                                                         November 6, 2008

                                       No. 08-10212                   Charles R. Fulbruge III
                                                                              Clerk

JAMIE ABRAMS

                                                  Plaintiff-Appellant
v.

AMERICAN AIRLINES INC; HENRY MOORE

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:04-CV-919


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Starting in early 2001, Plaintiff-Appellant Jamie Abrams (“Abrams”), an
employee of Defendant-Appellee American Airlines, Inc. (“American”), began
receiving anonymous harassing phone calls while at work. These calls were
sexual and graphic in nature. Abrams also received harassing notes via an
internal envelope and on her car in the employee parking lot. Other American
employees, all men, also suffered similar harassment. Although the perpetrator
remained a mystery for approximately two years, eventually authorities


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10212

discovered that Tim White (“White”), another American employee, was the
culprit. Abrams sued American and Defendant-Appellee Henry Moore (“Moore”),
American’s Senior Security Representative, for sexual harassment under Title
VII, 42 U.S.C. § 2000e-2, alleging that American created a hostile work
environment by failing to investigate the harassment adequately. The district
court granted summary judgment in favor of American and Moore. Abrams
appeals. We affirm essentially for the same reasons that the district court
provided.
       As the district court noted, a plaintiff must file a charge of discrimination
with the Equal Employment Opportunity Commission within 180 days of the
discriminatory act. 42 U.S.C. § 2000e-5(e)(1). If, as here, the plaintiff instead
files with the corresponding state agency, the limitations period extends to 300
days. Id.; see also Webb v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139
F.3d 532, 537 (5th Cir. 1998). Thus, Abrams has a viable Title VII claim only for
acts that occurred after July 24, 2003, which is 300 days before she filed her
complaint on May 20, 2004.
       Given this rule, Abrams’ claims are time-barred. First, in her motion
opposing summary judgment, she did not point to any harassing phone calls or
letters that she received from White or discriminatory conduct from American
that occurred after July 24, 2003. Only in her motion for reconsideration and on
appeal does she identify four calls that White allegedly made after July 24,
2003.1 But, as American notes, Abrams cannot rely on evidence that she did not
present originally to the district court. See, e.g., Forsyth v. Barr, 19 F.3d 1527,
1537 (5th Cir. 1994) (noting that it is not the duty of this court or the district


       1
          American asserts that White made these calls to his male co-employees, not to
Abrams, undercutting Abrams’ argument that the harassment was based on her sex. Abrams
seems to concede this point in her reply brief, but asserts that “the content of the calls was
intended” for Abrams and that “[t]he fact that the calls were made to a co-employee for delivery
to her is certainly sufficient to establish an employment context.”

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court to “sift through the record in search of evidence to support a party’s
opposition to summary judgment” (internal quotation marks omitted)); see also
Waltman v. Int’l Paper Co., 875 F.2d 468, 473-74 (5th Cir. 1989) (refusing to
consider on appeal evidence first offered with a motion for reconsideration of
summary judgment when the plaintiff provided no explanation on why she did
not present such evidence, which was available at the time of summary
judgment, in her opposition to summary judgment). Accordingly, Abrams cannot
rely on this evidence, and the district court did not err in concluding that
Abrams had failed to present any evidence of a discriminatory act within the
300-day window.
      Second, for the acts that occurred prior to July 24, 2003, Abrams did not
pursue her claims diligently after she learned of them, thus failing to protect her
rights. She attempts to rely on the “continuing violation” theory of a hostile
work environment claim, but the facts do not support that theory.             The
continuing violation theory is an “equitable exception” to the limitations period
that courts have used in “certain exceptional circumstances.” Webb, 139 F.3d at
537. This court has noted that:
      “the core idea [of the continuing violation theory] is that equitable
      considerations may very well require that the filing periods not
      begin to run until facts supportive of a Title VII charge or civil
      rights action are or should be apparent to a reasonably prudent
      person similarly situated. The focus is on what event, in fairness
      and logic, should have alerted the average lay person to act to
      protect his rights.”

Id. at 537 (quoting Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th
Cir. 1985)) (alteration in original). Here, there is no question that Abrams was
aware of the facts that supported her Title VII claim well before July 24, 2003.
For example, in May 2002, Moore notified Abrams that he was closing his
investigation and turning it over to law enforcement authorities. Thus, at that
time, a reasonably prudent person would have known of the facts that would

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support Abrams’ hostile work environment allegations. Accordingly, American
did not commit a discriminatory employment practice that “manifest[ed] itself
over time.” Abrams v. Baylor Coll. of Med., 805 F.2d 528, 532 (5th Cir. 1986).2
Instead, Abrams alleges a series of discrete acts. See id. Therefore, Abrams
cannot rely on the continuing violation theory to support her claims for the acts
that occurred prior to July 24, 2003.
      In sum, Abrams failed to point to any evidence of discrimination after July
24, 2003, that she presented originally to the district court. She cannot raise
new evidence on a motion for reconsideration or on appeal. Abrams also failed
to establish a continuing violation. Therefore, her claim is time-barred under 42
U.S.C. § 2000e-5(e)(1). Accordingly, we AFFIRM the judgment of the district
court in favor of American and Moore.
      AFFIRMED.




      2
          The “Abrams” in this case is not Jaime Abrams, the plaintiff here.

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