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

                                                 FILED
                                                                            July 16, 2009

                                     No. 08-10822                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RUSSELL MARTIN

                                                   Plaintiff - Appellant
v.

LENNOX INTERNATIONAL INC

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:07-CV-209


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Russell Martin (“Martin”) appeals the district court’s grant of summary
judgment on his various retaliation and discrimination claims against his former
employer, Lennox International Inc. (“Lennox”). For the following reasons, we
affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10822

                        FACTS AND PROCEEDINGS
      Martin was hired by Lennox as an aircraft mechanic in 1994, and began
working as a full-time pilot in 1995. In June 2005, Martin suffered a heart
attack. Under Federal Aviation Administration (“FAA”) regulations, pilots must
be medically certified to operate an aircraft; they periodically submit to physical
examinations to renew their medical certificates. However, medical conditions
such as a heart attack immediately ground a pilot until a six-month recovery
period has elapsed, at which time the pilot may seek re-certification from the
FAA. During the six months following his heart attack, Martin was therefore
grounded, and he received short-term disability benefits from Lennox. The six-
month recovery period ended in December 2005, along with Martin’s short-term
disability leave. Lennox initially allowed Martin to take additional leave while
waiting for his new medical certificate. However, in late January 2006, Martin
informed Lennox that his re-certification process had been delayed and that he
was now unsure as to when he would be able to return to his pilot position.
Lennox terminated Martin’s employment on January 31, 2006.
      In September 2006, Martin filed a charge of age and disability
discrimination against Lennox with the Equal Employment Opportunity
Commission (“EEOC”); he later amended the charge to add allegations of sex
discrimination. In January 2007, Martin initiated the present lawsuit against
Lennox for violation of the Age Discrimination in Employment Act (“ADEA”) and
Section 510 of the Employee Retirement Income Security Act (“ERISA”). Once
he received his right to sue letter from the EEOC, he amended his complaint to
add sex and disability discrimination claims under Title VII and the Americans
with Disabilities Act (“ADA”). The district court granted summary judgment in
favor of Lennox on all claims. Martin appeals the district court’s rulings, with
the exception of its dismissal of his Title VII sex discrimination claims.



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                           STANDARD OF REVIEW
      “This court reviews a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court.” Condrey v. SunTrust
Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary
judgment, “[t]he evidence and inferences from the summary judgment record are
viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.
Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary 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.” Kane v. Nat’l Union
Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (internal quotations omitted); see
also F ED. R. C IV. P. 56(c).   Further, while “failure to state a claim usually
warrants dismissal under Rule 12(b)(6),” it may also serve as a basis for
summary judgment. Whalen v. Carter, 954 F.2d 1087, 1098 (5th Cir. 1992).
      A district court’s refusal to consider untimely filed summary judgment
evidence is reviewed for abuse of discretion. See Bernhardt v. Richardson-
Merrell, Inc., 892 F.2d 440, 443–44 (5th Cir. 1990).
                                  DISCUSSION
      The complaint alleges that Martin was improperly terminated in violation
of the ADA, the ADEA, and ERISA.             To establish a prima facie case of
discrimination under either the ADA or the ADEA, a plaintiff must prove that
he was qualified for the position in question. Holtzclaw v. DSC Commc’ns Corp.,
255 F.3d 254, 258, 260 (5th Cir. 2001). Similarly, qualification for the job is a
prima facie element of a claim that a plaintiff was discharged in retaliation for
exercising an ERISA right or was discriminated against for exercising rights to
which he was entitled under an employee benefit plan. Id. at 260–61. Here, the
district court correctly found that Martin was not qualified to work as a pilot
because he lacked the required FAA certification at the time he was terminated.

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Accordingly, we agree with the district court that Martin has failed to make out
a prima facie case that his termination violated the ADA, the ADEA, or ERISA.
      Martin argues that, even if he was not qualified as a pilot, he was
nevertheless qualified to work as an aircraft mechanic because he had been a
full-time mechanic for Lennox prior to becoming a pilot and such a position does
not require medical certification from the FAA. According to Martin, an aircraft
mechanic position at Lennox became available in the Spring of 2005 and he
offered to take that position after his heart attack, but Lennox chose to hire
another mechanic, Wayne Carter (“Carter”), in August 2005. To the extent that
Martin’s claim is based on alleged violations of the ADA and the ADEA, we agree
with the district court that it is time-barred. “Under the ADA, a plaintiff must
file a charge of discrimination within 300 days of the alleged discriminatory act.”
Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002); see also 42
U.S.C. § 12117 (incorporating 42 U.S.C. § 2000e-5(e)). The same 300-day time
limit from the date of the “alleged unlawful practice” also applies to an ADEA
claim. 29 U.S.C. § 626(d)(1); see also Adams v. DaimlerChrysler Servs. NA LLC,
252 F. App’x 681, 683 (5th Cir. 2007) (unpublished). Martin’s EEOC charge was
untimely with respect to this claim because it was filed in September 2006, more
than 300 days after Martin was allegedly refused the mechanic position and
Carter was hired.
      Martin also contends that his supervisor improperly refused to send him
to his semi-annual flight training classes during his leave of absence after
Martin requested that the training be scheduled. For a plaintiff to establish a
prima facie case of discrimination under either the ADA or the ADEA, he must
establish that he suffered an “adverse employment action.” Dupre v. Charter
Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 613 (5th Cir. 2001)
(“adverse employment action” is a prima facie element of an ADA discrimination
claim); Cheatham v. Allstate Ins. Co., 465 F.3d 578, 583 n.4 (5th Cir. 2006)

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(“adverse employment action” is a prima facie element of an ADEA
discrimination claim).   The record contains no evidence that denial of the
training by Lennox “would ‘tend to’ result in a change of [Martin’s] employment
status, benefits or responsibilities” and thus could constitute an “adverse
employment action.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 407
(5th Cir. 1999). Indeed, Martin was not qualified to fly at the time of the
training. Lennox’s refusal to allow him to attend the training therefore could not
have affected his employment situation, and the district court properly granted
summary judgment on this issue.
      Martin’s claim that Lennox’s failure to hire him as a mechanic and to
allow him to participate in the semi-annual training violated ERISA is equally
unavailing. It is well-established that a discrimination claim under ERISA
requires proof of the employer’s “specific intent to discriminate.” Matassarin v.
Lynch, 174 F.3d 549, 569 (5th Cir. 1999). Martin has produced no evidence that
Lennox’s refusal to allow him to work as a mechanic and to train him during his
leave of absence had any connection to the exercise of his ERISA rights.
Accordingly, summary judgment on this claim was appropriate.
      We also agree with the district court’s dismissal of Martin’s failure to
rehire claim.   The district court properly concluded that Martin had not
exhausted his administrative remedies with respect to that claim because it was
not raised in his EEOC charge. See, e.g., Grice v. FMC Techs. Inc., 216 F. App’x
401, 406–07 (5th Cir. 2007) (unpublished).         Further, Martin’s complaint
contained no allegations that would put Lennox on notice of the existence of a
failure to rehire claim. Therefore, dismissal was also warranted on the basis of
Federal Rule of Civil Procedure 8, which requires that a plaintiff’s pleadings
“‘give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.’” Gen. Elec. Capital Corp. v. Posey, 415 F.3d 391, 396 (5th
Cir. 2005) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)).

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      Finally, Martin appeals the district court’s denial of his motion for leave
to file a second supplemental response to Lennox’s motion for summary
judgment. This second supplemental response sought to add a new affidavit to
the summary judgment evidence. The district court refused to allow the new
evidence, having already granted Martin two extensions to file his initial
response. We have previously stated that “the summary judgment procedure
[would become] uncontrolled[] if a court could not enforce some limits on the
timely submission of appropriate evidence.” Bernhardt, 892 F.2d at 444. We
find no abuse of discretion in the district court’s refusal to allow Martin to
submit an additional untimely filing.
                               CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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