Miller v. Southwestern Bell ( 2002 )

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that this opinion should not be published and is not precedent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 at287 (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