Hamar v. Ashland Inc, et al

*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should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 27, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10533
Summary Calendar
Kyle Hamar
Plaintiff-Appellant,
versus
Ashland, Inc.,
Air Products and Chemicals, Inc.
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(3:04-CV-1109)
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
The district court entered summary judgment against Kyle Hamar
on his ADA claims, dismissing his failure-to-accommodate claim
against Ashland, and dismissing his failure-to-hire claim against
Air Products. We affirm.
The district court dismissed Hamar’s failure-to-accommodate
claim, ruling that Hamar had not exhausted his administrative
remedies before the EEOC with respect to that claim. We agree.
Hamar, represented by counsel, filed the following charge with the
EEOC:

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1Sanchez, 431 F.2d at 466; Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.
2006).
242 U.S.C. 12112(b)(5)(A).
342 U.S.C. 12112(a).
4MacKenzie v. Denver, 414 F3d 1266, 1274 n.13 (10th Cir. 2005); Jones v.
Sumser Retirement Village, 209 F.3d 851, 854 (6th Cir. 2000); Green v. National
Steel Corp., 197 F.3d 894, 897–98 (7th Cir. 1999); see also Belmear v. Mary Kay
2
PERSONAL HARM:
On August 29, 2003 I was discharged
RESPONDENT’S REASON FOR ADVERSE ACTION:
No reason given
DISCRIMINATION STATEMENT:
I believe that I have been discriminated against in that I
have been perceived as having a disability in violation of
the Americans with Disabilities Act of 1990.
He argues that from this charge, which asserts only a disparate
treatment claim, an investigation into Ashland’s failure to
accommodate his disability could reasonably have been expected to
grow.1 But the scope of Hamar's administrative charge is too
narrow to have exhausted a claim for failure to accommodate. The
two relevant claims, failure to accommodate2 and disparate
treatment,3 represent distinct categories of disability
discrimination under the ADA. The EEOC could not reasonably have
been expected, when presented with a claim alleging disparate
treatment arising on August 29, 2003, to investigate the entirely
distinct failure-to-accommodate claim arising from January 2003
through June of 2003. The three circuits that have considered this
very same question agree.4

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Inc., 2000 WL 127282 (N.D. Tex. Feb. 3, 2000).
5See, e.g., Smith v. Metropolitan School Dist. Perry Tp., 128 F.3d 1014,
1024 (7th Cir. 1997).
3
Moreover, although Hamar complained only of wrongful
termination in his EEOC charge, he asserted only failure-to-
accommodate in his federal complaint. Yet on appeal Hamar argues
that his complaint actually did assert a wrongful-termination
claim, but that the district court’s ruling ignored it. Ashland
responds that it was never put on notice of such a claim and that
Hamar raises this issue for the first time on appeal. We hold that
even if such a claim is present, Hamar has submitted no evidence,
and indeed could have submitted no evidence, in support of it.
This is because Ashland discharged everyone, not just Hamar. See
McCann v. Texas City Refining, Inc., 984 F.2d 667, 674 (5th Cir.
1993) (“[I]t cannot be said that TCR discharged McCann because of
her age; TCR sold the refinery and discharged everyone.”).
Finally, the district court dismissed Hamar’s failure-to-hire
claim against Air Products, ruling that the company was not a
successor employer to Ashland. On appeal, Hamar argues that the
district court misunderstood his theory, and he now argues that his
theory of liability rested on common-law agency principles.5
Charitably construed, his argument is that once the Ashland Mangers
were notified by Air Products that they would keep their jobs, they
became agents of Air Products, and that their efforts to undermine
Hamar’s return to work effected a failure to hire violation.

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6Restatement (Third) Of Agency § 1.02, cmt.d (2006).
4
Without commenting on viability of such a theory, we affirm the
district court’s dismissal. The burden of proving an agency
relationship is on the party asserting it,6 and Hamar points to no
evidence which tends to establish this agency relationship.
Accordingly, the judgment of the district court is
AFFIRMED.

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