               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 01-21318

                         Summary Calendar
                       ____________________


     MICHAEL L. MILLER,


                                    Plaintiff-Appellant,

     v.



     SOUTHWESTERN BELL TELEPHONE COMPANY,

                                    Defendant-Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           No. H-00-1869
_________________________________________________________________
                          October 7, 2002

Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Michael L. Miller appeals from the

district court’s decision granting summary judgment to Defendant-

Appellee Southwestern Bell Telephone Company (“SWBT”) on Miller’s


     *
        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that this opinion should not be published and is not precedent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.
claims for disability discrimination and retaliation under the

Americans with Disabilities Act, 42 U.S.C. § 12101 (1994) (“the

ADA”).   For the reasons set forth below, we AFFIRM the district

court’s grant of summary judgment to SWBT.



                I.   FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff-Appellant Miller is a fifty-three year-old male

who has been employed by SWBT since 1974.    Miller began his

career at SWBT as a cable splicer’s helper and, by 1998, had

advanced within the company ranks to the position of customer

service technician, or “CST.”    Also by 1998, Miller had developed

a condition called spondylolisthesis, which is the displacement

of vertebrae, as well as arthritis in both of his knees.    In

addition to these maladies, Miller suffered from a heart

condition that required surgery in 1994, 1996, and 1998.

     While working at SWBT, Miller received disciplinary action

from his employer on several occasions.    On January 11, 1993,

SWBT suspended Miller for one day, with pay, for shopping at an

Academy Store during a period of time in which he should have

been working.   In May 1997, SWBT gave Miller a written reprimand

for failing to allot the actual amount of time he worked on his

time report.

     The record indicates that Miller’s case of spondylolisthesis

and arthritis of the knees did not impede his ability to perform

in his occupational capacity at SWBT.    After undergoing heart

                                   2
surgery, Miller returned to his CST position in September 1998.

Following his return to work, Miller’s physician provided Dale

Dugas, Miller’s immediate supervisor, a written note indicating

the limitations of Miller’s post-operation work schedule.

According to physician’s orders, Miller was permitted to work

forty hours per week plus ten hours of overtime without physical

restriction, but only under the condition that Miller received

two consecutive days off per week.    When Miller initially

returned to work, Dugas scheduled Miller to work six days

(excluding Sundays), but altered the schedule to allow him to

work no longer than fifty hours with two consecutive days off per

week.   Miller concedes that SWBT fully accommodated the

physician’s proposed work schedule.

     On November 10, 1998, SWBT fired Miller for misrepresenting

his time reports because, according to SWBT, he indicated on his

reports that he performed work that he never performed.    SWBT

eventually replaced Miller with a fifty-six year-old male.

Miller maintains that he did not falsify his time report on

September 21, 1998, but instead designated the time taken for

travel, cleaning, and gassing his vehicle, on his time report.

     On October 21, 1999, Miller filed a charge with the Equal

Employment Opportunity Commission (“EEOC”), claiming that he was

discriminated against on account of his age and disability.

Miller received a right to sue letter from the EEOC on April 20,

2000.   Miller filed the instant action in the United States

                                 3
District Court for the Southern District of Texas on June 5,

2000, alleging, inter alia, (1) that SWBT violated the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.(1994)

(“ADEA”) because age was a motivating factor and made a

difference in the decision to replace Miller with a person that

was younger and less-qualified; (2) that SWBT violated the ADA by

discriminating against and treating Miller in a light less

favorable than its non-disabled workers; (3) that SWBT retaliated

against Miller because he had informed SWBT of his disability and

asserted his rights under the ADA; (4) that SWBT acted

intentionally or with reckless disregard to cause Miller severe

emotional distress; and (5) that Miller violated the Fair Labor

Standards Act, 29 U.S.C. § 201 et seq. (1994) (“FLSA”).

     In response to Miller’s complaint, SWBT moved for summary

judgment on August 31, 2001, arguing (1) that Miller’s ADA and

ADEA claims should be dismissed because he could not establish a

prima facie case of discrimination; (2) that SWBT had provided a

legitimate, non-discriminatory reason for dismissing Miller; and

(3) that Miller could not show that SWBT’s legitimate, non-

discriminatory reason for his dismissal was a pretext for

discrimination.   SWBT also urged summary judgment on Miller’s

infliction of emotional distress claims, asserting that he could

not provide evidence of either severe emotional distress or

intentional or reckless conduct.



                                   4
     In its Memorandum and Order of October 22, 2001, the

district court awarded summary judgment in favor of SWBT on all

claims, finding that Miller had not demonstrated a prima facie

case of discrimination or retaliation under either the ADA or the

AEDA, and that he had failed to adduce evidence of extreme and

outrageous conduct supporting the intentional infliction of

emotional distress or FLSA claims.     The district court then

dismissed Miller’s case with prejudice.

     Miller timely appeals the district court’s grant of summary

judgment on his disability discrimination and retaliation claims

under the ADA.1



                       II.   STANDARD OF REVIEW

     We review the district court’s grant of summary judgment to

SWBT de novo, applying the same standards as the district court.

Rivers v. Cent. & S.W. Corp., 186 F.3d 681, 683 (5th Cir. 1999).

Summary judgment is appropriate if no genuine issue of material

fact exists, and the moving party is entitled to judgment as a

matter of law.    See FED. R. CIV. P. 56(c).   A factual dispute is

genuine when a reasonable jury could return a verdict for the


     1
        This court need not address whether plaintiff raised a
genuine issue of material fact regarding his claims for
discrimination under the ADEA, infliction of emotional distress,
and violation of the FLSA. Miller waived review of these issues
by not incorporating them into the Argument of his Brief. See,
e.g., Sherrod v. Am. Airlines, 132 F.3d 1112, 1119 n.5 (5th Cir.
1998) (citing cases and FED. R. APP. P. 28).

                                   5
non-moving party.    Anderson v. Liberty Lobby Inc., 477 U.S. 242,

248 (1986).

     The substantive law dictates which facts are material,

Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999), and an

issue is material if its resolution could affect the outcome of

the action,   Anderson, 477 U.S. at 248.    Moreover, in summary

judgment proceedings, the record is considered in the light most

favorable to the non-moving party.     Dupre v. Charter Behav.

Health Sys. of Lafayette, Inc., 242 F.3d 610, 613 (5th Cir. 2001)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587-66 (1986).    Summary judgment is ultimately

appropriate if the non-movant fails to establish facts supporting

an essential element of his prima facie claim.     Mason v. United

Air Lines, 274 F.3d 314, 316 (5th Cir. 2001) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986)).



     III. MILLER’S ADA CLAIM BASED ON REGARDED DISABILITY

     The ADA prohibits discrimination by private employers

against any qualified individual with a disability.     See, e.g.,

Dupre, 242 F.3d at 613.    When claiming discrimination based on

disability, a plaintiff must establish that: (1) he was disabled;

(2) he was none-the-less qualified to do the job; (3) an adverse

employment action was taken against him; and (4) that he was

replaced by or treated less favorably than non-disabled

employees.    E.g., id.   If a plaintiff can assert a prima facie

                                   6
case for disability discrimination, the burden shifts to the

employer to articulate a legitimate, non-discriminatory reason

for the adverse employment action; should the employer succeed in

doing so, the burden the shifts back to the plaintiff to

establish that the articulated reason was merely a pretext for

discrimination.   McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d

276, 282 (5th Cir. 2000).

     An individual qualifies as disabled under the ADA if he

demonstrates: (1) he has a physical or mental impairment that

substantially limited one or more of his major life activities;

(2) he has a record of such impairment; or (3) he is regarded as

having such an impairment.   E.g., Aldrup v. Caldera, 274 F.3d

282, 286 (5th Cir. 2001); McInnis, 207 F.3d at 279-80.

     When asserting a regarded disability, a plaintiff such as

Miller is required to demonstrate that his employer mistakenly

believed that either (1) he had a physical impairment that

substantially limited one or more major life activities; or (2)

he had an actual, non-limiting impairment that substantially

limits one or more major life activities.   Aldrup, 274 F.3d at

287 (citing Sutton v. United Air Lines, 527 U.S. 471, 489

(1999)).   Under each of these scenarios, an employer must

“entertain some misperception regarding the individual—either

that he has a substantially limiting impairment that he does not

have or the impairment is not so limiting as believed.”      Id.



                                 7
     On appeal, Miller insists that his employer regarded him as

suffering a physical impairment that substantially limited a

major life activity.2   Hence, the key inquiry is whether SWBT

mistakenly perceived that Miller had an impairment that

substantially limited his major life activity of “working.”3     The

Supreme Court recently reemphasized that when working is the

major life activity under consideration, the statutory phrase

“substantially limits” requires a plaintiff to allege that he was

unable to work in a broad range or class of jobs, rather than one

specific job.   Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, - - -, 122 S. Ct. 681, 692 (2002) (quoting Sutton, 527 U.S.

at 491).   Combining the relevant analytical criteria yields the



following standard, which is directly applicable to the instant

case: To demonstrate that SWBT regarded him as disabled, Miller

must produce evidence that SWBT mistakenly believed that he had


     2
        Miller does not argue that SWBT had the mistaken
perception that he had a substantial, non-limiting impairment.
     3
        The Supreme Court has defined major life activity as
those activities that are “of central importance to daily life.”
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, - - -,
122 S. Ct. 681, 691 (2002). Examples of major life activities
include speaking, breathing, learning, and working. E.g.,
Aldrup, 274 F.3d at 286. Throughout this litigation, Miller has
asserted only that his major life activity of working has been
implicated. Had Miller asserted another major life activity, the
analysis on substantial limitation would be drastically
different. Williams, 122 S. Ct. at 693. (“Sutton did not suggest
that a class-based analysis should be applied to any major life
activity other than working.”).

                                 8
an impairment that made him unable to work in a broad class or

range of jobs, as opposed to one specific job.

     In granting summary judgment to SWBT, the district court

determined that Miller had not met the requirements for being

regarded as having a disability.       The trial court found that

Miller had not offered sufficient evidence to raise any inference

that SWBT believed that Miller’s impairments would substantially

limit him in the major life activity of working.       This precluded

Miller from successfully asserting his prima facie case for

disability discrimination.   The court also concluded that even

had Miller established a prima facie case, he still would not

have been able to advance a viable claim that SWBT’s legitimate,

non-discriminatory reason was a mere pretext for discrimination.

We find it unnecessary to discuss whether SWBT’s proffered reason

was nondiscriminatory because it is quite clear that Miller did

not fulfill his initial burden of meeting his prima facie case

for disability discrimination.

     Miller asserts that he can fulfill his summary judgment

burden by demonstrating that SWBT did regard him as being

disabled prior to his termination.4      He offers the following

     4
        In his Brief, Miller asserts that he can “clearly meet
at least two” of the factors, i.e., that he had a substantially
limiting physical impairment (actually disabled) and that he was
regarded as such, that would qualify him as disabled. However,
he offers no real support for this contention. The district
court recognized that Miller did not contend that he was actually
disabled, but only that SWBT regarded him as disabled, and
therefore did not rule on the actual disability. Further, on

                                   9
arguments for consideration: that it was only after he returned

from six-week disability leave that SWBT began the process of

dismissing him; that he was substantially limited because he was

restricted as to the duration he could work under the physician’s

orders, and his work schedule was thus cut from eighty-four hours

per week to fifty; and that three weeks afer his return from

disability leave, upon his request for rest and medication, he

was suspended and then fired.

     On the other hand, SWBT contends that the summary judgment

evidence established that SWBT did not regard Miller as having an

impairment that substantially limited a major life activity.

SWBT also asserts that an employer should not be held liable

under the ADA for “regarding” an individual with having a

disability where the employer merely relies upon restrictions

placed upon the employee by the employer.   It argues further that

Miller was allowed to work as a fully functioning CST without any

restrictions beyond those prescribed by his doctor.

     Viewing any factual disputes in the light most favorable to

the nonmoving party, we will assume that all of Miller’s



appeal, Miller states that he “may have had no impairment at all
but Defendant treated him as having a substantial limiting
impairment.” Given this statement, it appears that Miller is not
taking his claim of actual disability very seriously; but in the
unlikely circumstance that he were, this argument cannot be
asserted for the first time on appeal since Miller’s initial
argument on the issue was insufficient for the district court to
rule on it. See, e.g., Brown v. Ames, 201 F.3d 654, 663 (5th
Cir. 2000).

                                10
allegations are true.   However, even in the light most favorable

to him, Miller’s contentions fall short of raising a genuine

issue of fact.   Initially, Miller fails to adduce evidence to

support a claim that SWBT believed that he was unable to

participate in a broad range of jobs.   He does not even appear to

introduce evidence that SWBT believed that he was unable to

participate in one specific job, as he was allowed to continue

working as a CST subsequent to his return from disability leave.

Moreover, Miller’s supervisor Dugas testified that it was his

understanding that Miller had difficulty with his knees if he

squatted for too long and his back hurt if he sat for long

periods of time.   Miller does not dispute the additional

testimony in which Dugas indicated that these kinds of complaints

were not unusual from members on his crew, and therefore he did

not perceive these physical ailments as significantly limiting.

     The fact that Miller was terminated weeks after his return

and that he was suspended after his request for rest and

medication does not sufficiently establish that SWBT believed

that he was unable to work a broad range of jobs.   While his

termination may (merely in a circumstantial sense) indicate that

SWBT believed that he was unable to be employed as a CST, this

does not sufficiently raise a genuine issue as to whether SWBT

believed that Miller was unable to work in a range of

occupational positions.   See Dupre, 242 F.3d at 616 (denying

plaintiff’s regarded disability claim even though defendant fired

                                11
plaintiff because “an employer does not necessarily regard an

employee as having a substantially limiting impairment simply

because it believes the employee is incapable of performing a

particular job”).

       Miller’s assertion that he suffered a substantial limitation

on his ability to work because instead of laboring for his usual

eighty-four hour week, he had to work fifty, is equally

problematic.    When evaluating the traditional forty-hour work

week, courts have determined that the inability to work overtime

is not a substantial limitation on the ability to work under the

ADA.    E.g., Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598-99

(6th Cir. 2002) (citing cases); see also Brennan v. Nat’l Tel.

Directory Corp., 850 F. Supp. 331, 343 (E.D. Pa. 1994) (“The

inability to work overtime hardly makes a plaintiff

handicapped.”).    In addition, this argument does not address the

critical issue of whether Miller’s supervisors regarded him as

being unable to work a broad range of jobs.    Indeed, the

uncontroverted evidence indicates that Miller’s supervisor

believed that he could and would, despite his physician’s

directions, exceed his allotted work time.

       Further, SWBT cannot be considered to have regarded Miller

as being disabled simply because of its receipt of the note from

Miller’s physician.    Significantly, Miller forgets that the

standard for regarded disability hinges on the mistaken belief of

impairment.    “[I]f the employer’s belief [about the employee’s

                                 12
condition] corresponds to the employee’s or his physician’s

description of his limitations, the employer cannot be viewed as

improperly regarding him as disabled.”   Eber v. Harris County

Hosp. Dist., 130 F. Supp. 2d 847, 863 (S.D. Tex. 2001).   Even

assuming arguendo that this evidence satisfactorily raises the

issue of SWBT’s belief of his impairment, Miller’s introduction

of the doctor’s note is ultimately counterproductive to his cause

because it suggests that SWBT was correct, i.e., not mistaken, to

assume some sort of impairment.

     Because Miller has not demonstrated that SWBT regarded his

physical condition to substantially limit his ability to perform

the major life activity of working during his tenure at SWBT, a

reasonable jury could not find that he was qualifiedly disabled.

Miller’s failure to introduce facts supporting this essential

element of his prima facie claim of disability discrimination

indicates that the trial court acted properly in granting summary

judgment to SWBT on Miller’s claim of disability discrimination.



            IV.   MILLER’S CLAIMS BASED ON RETALIATION

     Miller also asserts that he suffered unlawful retaliation

for participating in an act protected by the ADA.   On this claim,

we find it important to delve into issues that are more

procedural in nature than those discussed by the district court.

SWBT has asserted both at the trial level and on appeal that

Miller failed to exhaust his administrative remedies as to his

                                  13
claim for retaliation.   Throughout the course of this litigation,

Miller, for reasons unknown to this court, has completely

disregarded this line of argument.   Miller’s failure to

articulate some modicum of rebuttal argument on this point proves

injurious to his cause, as the failure to exhaust administrative

remedies serves as an independent basis to affirm summary

judgment.   See Randel v. United States Dep’t of Navy, 157 F.3d

392, 395 (5th Cir. 1998) (stating that a plaintiff asserting

racial discrimination must exhaust his administrative remedies on

the claim before seeking review in federal court).

     The trial court did not rule on this issue, instead opting

to evaluate the substantive requirements of Miller’s retaliation

claims, concluding eventually that he failed to raise a genuine

issue of material fact on one element of his prima facie case.

Since we conclude that the district court lacked jurisdiction to

consider Miller’s retaliation claim on the merits, we need not

address the merits.

     The jurisdictional problem here relates to the fact that in

the charge Miller filed with the EEOC, he did not check the box

corresponding with “retaliation,” but did so for “age” and

“disability.”   From a procedural standpoint, SWBT argues, Miller

only properly raised allegations of intentional discrimination

under the ADA and the ADEA.   Citing a number of cases, SWBT

asserts that because the alleged retaliation in the instant case

occurred before Miller filed the initial EEOC charge, Miller

                                14
should have exhausted his administrative remedies on that claim

prior to filing.

     Given this argument, directly at issue is whether Miller’s

failure to fill in the appropriate box for retaliation, when he

already marked the box for disability and age discrimination,

compels the conclusion that he failed to exhaust his

administrative remedies before filing a lawsuit under the ADA.      A

review of this case using the same standards as the lower court

produces the same exact outcome, but on a dissimilar basis:

Summary judgment is appropriate because Miller failed to exhaust

his administrative remedies on his claim for retaliation.

     There are several reasons why we believe this the correct

outcome in this matter.   First, the federal anti-discrimination

statutes, most notably, Title VII have consistently required

claimants to fill in the appropriate corresponding boxes when

filing their claim for unlawful employment action.     See, e.g.,

Price v. Harrah’s Md. Heights Operating Co., 117 F. Supp. 2d 919,

921-22 (E.D. Mo. 2000) (granting summary judgment on failure to

exhaust administrative remedies grounds for employer because

plaintiff did not check the box for retaliation and did not

specifically allege retaliation in the text of the charge);

McCray v. DPC Indus., Inc., 942 F. Supp. 288, 294 (E.D. Tex.

1996) (informing that when asserting a claim for discrimination

under Title VII, it is necessary for the appropriate box be



                                15
checked in the EEOC claim).5      By simply checking the box

corresponding to the alleged basis for unlawful employment

action, a plaintiff sufficiently exhausts his administrative

remedies prior to a Title VII lawsuit.       See, e.g., id.

       Second, the same procedural requirements for Title VII have

been interpreted to apply to EEOC charges filed under the ADA as

well.       This court has also held that the ADA incorporates by

reference the administrative procedural requisites found in Title

VII,       Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir.

1996), and that adherence to these prerequisites is necessary

prior to commencing an ADA action in federal court against an

employer, id.       Although this court has not addressed the issue of

whether an ADA case cab be dismissed for failure to fill in the

appropriate box, other courts encountering this issue support the

granting of summary judgment.       See, e.g., Talbot v. U.S.

Foodservice, Inc., 191 F. Supp. 2d 637, 640 (D. Md. 2002) (“Where

a litigant has neither checked the box for discrimination, nor

mentioned disability discrimination or the ADA anywhere in his

       5
        It is well-established that summary judgment may be
granted against a non-movant solely on the basis of failure to
exhaust administrative remedies. E.g., Inst. for Tech. Dev. v.
Brown, 63 F.3d 445, 447 (5th Cir. 1995). The Supreme Court has
held that a plaintiff may not bring claims in a lawsuit that were
not included in the filed EEOC charge. Alexander v. Gardner-
Denver Co., 415 U.S. 36, 47 (1974). This requirement serves to
enhance the administrative enforcement process by ensuring that
the EEOC can conduct a full investigation while also providing
the employer with advanced notice of the claim and an opportunity
to resolve the dispute. See Harper v. Godfrey Co., 45 F.3d 143,
148 (7th Cir. 1995).

                                    16
charge of discrimination, the EEOC cannot reasonably have been

expected to have investigated disability discrimination.”); cases

cited infra.   Hence, the “box filling” requirement cited by SWBT

appears to arise in the ADA context as well as the Title VII

context.

      Third, one of our sister circuits has indicated that in the

ADA context, a plaintiff’s failure to fill in the appropriate box

in the filed charge, coupled with the inability to describe the

general nature of the claim in the narrative section of the

charge, forms a sufficient basis for summary judgment.      The

Seventh Circuit decided that when a plaintiff fails to mark the

appropriate box for “retaliation” but continues to seek relief

for disability discrimination and retaliation, the plaintiff has

nevertheless failed to exhaust his administrative remedies as to

the retaliation claim.     Cable v. Ivy Tech State College, 200 F.3d

467, 477 (7th Cir. 1999).6    The Cable court observed that the

body of the plaintiff’s EEOC charge did not even “hint at

retaliation, much less develop [a] factual basis for the claim.”

Id.   Even when viewed in the light most favorable to the

plaintiff, the statement of discrimination did not implicate the

behavior that plaintiff asserted to be the basis of his

retaliation claim.   Id.   The Seventh Circuit deemed the


      6
        In his EEOC charge, Cable checked the “Other” box only,
but did not write in the narrative portion of the claim that he
was discriminated against on the basis of his disability.

                                  17
plaintiff’s narrative to have given insufficient indication to

the EEOC or the employer that he was also seeking redress for

unlawful retaliation.       Id.

       In affirming summary judgment on plaintiff’s retaliation

claim, the Cable court found that there was no indication from

the EEOC charge boxes, narrative, or supplemental material that

the plaintiff sought redress for the retaliation claim, or even,

for the matter, that the alleged retaliation “was like or

reasonably related to” his statutory rights stemming from the

ADA.       Id.; see also Thompson v. KN Energy, Inc., 177 F. Supp. 2d

1238, 1254-55 (D. Kan. 2001) (granting summary judgment against

plaintiff for failing to exhaust administrative remedies under

the ADA when marked boxes for “sex” and “disability” but not

“retaliation”).      The similarity between Cable and the instant

case is marked, particularly with the absence of narrative or

other supplemental EEOC materials indicating that Miller was

seeking redress for unlawful retaliation.       The information, or

lack thereof,7 included on Miller’s filed EEOC charge creates a

       7
             The entirety of Miller’s narrative reads as follows:

             I.     On or about November 10, 1998, I was discharged
                    from the position of Customer Services Technician.
                    Respondent is public telephone system.

             II.    On or about November 10, 1998, Ernie Carey,
                    Division Manager, Installation and Repair,
                    informed me that I was discharged for allegedly
                    falsifying a time report and a form called 6218,
                    trouble ticket.


                                    18
strong presumption in favor of a finding of failure to exhaust

administrative remedies.

     Further compounding the difficulty for Miller is the timing

of the alleged retaliation and his filing of the complaint.

Miller would be able to file a supplemental or additional charge

if the retaliation claim, in the parlance of this court, “grow[s]

out” of his claims for disability.    Gupta v. E. Tex. State Univ.,

654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981).   SWBT is correct

to emphasize that the alleged adverse employment action prompting

Miller’s claim for retaliation occurred prior to the filing of

his discrimination charge.   Since the alleged retaliation

occurred prior to his filing of the complaint, Miller was well

aware of the conduct and actions that would give rise to his

claim of retaliation under the ADA.   Given these factual

circumstances, Miller’s retaliation cause of action would not

fall under the Gupta exception; thus he is precluded from filing

a new EEOC charge based on disability. See id.

     Despite the trial court’s disregard of this issue, SWBT

persisted in its failure to exhaust administrative remedies

argument.   This court concludes that because Miller did not check



        III.    I believe that I was discriminated against because
                of my age, 48, in violation of the Age
                Discrimination in Employment Act of 1967.

Worth noting is that there was no continuation sheet for this
narrative filed, nor a supplemental document of any kind in the
trial record.

                                19
the check the correct box on the EEOC complaint form or otherwise

disclose his retaliation claim and thereby exhaust its

administrative remedies, he is procedurally precluded from

asserting a retaliation claim under the ADA.



                         V.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                20
