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

                                                 FILED
                                                                             May 8, 2009
                                     No. 08-31132
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

PAULETTA DAVIS WASHINGTON,

                                                   Plaintiff–Appellant,
v.

DEPARTMENT OF HOMELAND SECURITY, Janet Napolitano, Secretary,

                                                   Defendant–Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-3607


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Pauletta Davis Washington appeals the district court’s grant of summary
judgment in favor of the Secretary of the Department of Homeland Security
(Secretary). Washington also appeals the denial of her motion for a protective
order and the district court’s exclusion of certain evidence. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-31132

                                        I
      Washington was a lead screener for the Transportation Security
Administration (TSA) at the New Orleans Armstrong International Airport. Due
to Hurricane Katrina, Washington was forced to evacuate her home and relocate
to Alexandria, Louisiana. Following TSA instructions, Washington reported to
the Alexandria airport on September 12, 2005.         On September 23, 2005,
Washington’s supervisor at the New Orleans airport, Teresa Teague, called
Washington to inform her that, because she had not been at work for an
extended period prior to the hurricane, she would have to obtain a physician’s
note and undergo retraining and recertification before being allowed to return
to work.   Teague also informed Washington that she was facing possible
disciplinary action as a result of walking off of the job on June 1 and 2, 2005.
Washington was never disciplined for these incidents.
      Based on the September 23, 2005 phone call, Washington contacted an
Equal Employment Opportunity (EEO) representative on December 19, 2005,
and later lodged an EEO complaint alleging that she was being harassed. The
TSA issued a final agency decision denying the claim, concluding that
Washington waited too long to contact an EEO counselor and that a single phone
call suggesting potential discipline that never resulted in an adverse action was
not severe or pervasive such that it constituted an actionable claim.
      Washington filed a four-page complaint in federal district court claiming
that she was subjected to a hostile work environment. The district court granted
the Secretary’s motion to dismiss or, alternatively, for summary judgment.
Washington timely appealed.




                                       2
                                          No. 08-31132

                                                II
       Because the district court considered evidence outside of Washington’s
complaint, its decision is properly categorized as a grant of summary judgment.1
We review the district court’s grant of summary judgment de novo.2
       Washington claims that she was subjected to a hostile work environment.
A person who believes that she has been discriminated against based on race,
color, religion, sex, national origin, age, or handicap must consult with an EEO
counselor to attempt to informally resolve the matter “within 45 days of the date
of the matter alleged to be discriminatory.” 3               Failure to contact an EEO
counselor within forty-five days subjects the claims to dismissal,4 “absent a
defense of waiver, estoppel, or equitable tolling.”5
       In Washington’s initial complaint, she attached a letter from Janet D.
White, an EEO Counselor, who explained that Washington initially contacted
an EEO official on December 19, 2005. Because Washington contacted the EEO
official more than forty-five days after the September 23, 2005 phone call and
Washington does not claim that waiver, estoppel, or equitable tolling applies, the
district court correctly concluded that it lacked jurisdiction.
       AFFIRMED.



       1
           See FED . R. CIV . P. 12(d).
       2
           James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008).
       3
           29 C.F.R. § 1614.105(a)(1).
       4
         Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (affirming summary judgment
in favor of the Postal Service where the plaintiff failed to contact an EEO counselor within
forty-five days of the alleged discriminatory conduct).
       5
           Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992).

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