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Click here for the full text of this decision FACTS:Plaintiff-appellant Henson was hired by Bell Helicopter as a firefighter in September 1993. During the time that he worked for Bell, Henson was a member of the Security Police Fire Professionals of America and Amalgamated Local No. 256, and his employment was governed by a collective bargaining agreement between Bell and the union. In 1999, Henson sought counseling from Bell’s Employee Assistance Program for family problems he was experiencing. Henson’s immediate supervisor, Chief Larry Smith, agreed to allow Henson to report late in the months of April and May of 1999 so Henson could attend counseling sessions. At the end of that period Chief Smith did not allow Henson to continue further counseling or attend the full counseling session, which lasted from 10:00 a.m. to 3:00 p.m. On June 8, 1999, Henson took leave under the Family Medical Leave Act to have surgery on his toes. He was released back to work on July 21, 1999, with restrictions on lifting, walking and bending. Henson requested that Chief Smith provide him with desk duty for two weeks. Because one of Henson’s duties involved inspecting buildings, however, Chief Smith informed Henson that he could not accommodate his walking restrictions other than permit Henson to sit down between inspections. From the beginning of Henson’s employment at Bell, Chief Smith counseled him regarding problems with his absenteeism and tardiness. Under Bell’s attendance policy, an employee’s “lost time” could not exceed 64 hours in any 12-month period or the employee would be subject to disciplinary action. Lost time for holidays, vacation, bereavement, jury duty, disciplinary times off, approved union business, approved education leave, approved military leave, approved personal leave, Family and Medical Leave Act leave, temporary layoffs were not included in the 64-hour limit. On May 23, 2000, Bell held a disciplinary hearing, and Henson was discharged for excessive absenteeism and dereliction of duty. After Henson was discharged from duty, Henson’s union representatives negotiated with Bell, and the parties agreed to change Henson’s penalty from discharge to a suspension without pay. Henson was reinstated on July 17, 2000. Between July 18, 2000, and Sept. 19, 2000, Henson was late a total of 12 times. According to Bell’s records, no other employee that ever worked in the Fire Department at Bell had absenteeism problems approaching the magnitude of Henson’s problem. On Sept. 20, 2000, Bell held a disciplinary hearing and again terminated Henson for his absenteeism. Henson filed the charge of discrimination at issue here with the EEOC on Jan. 22, 2001. The EEOC issued a right to sue letter. Henson filed suit against Bell asserting claims of race discrimination and retaliation under Title VII, disability discrimination under the Americans with Disabilities Act (ADA), and violation of the FMLA. The district court granted summary judgment for Bell Helicopter on all claims, and Henson timely appeals. HOLDING:Affirmed. Henson argues that, because Bell relied on Henson’s absences beginning in 1999 to make the decision to discharge him in 2000, the district court should have considered Bell’s actions during that period under a continuing-violation theory. But Henson does not allege any actual related or continuing acts of discrimination by Bell. The only incidents he complains of that happened prior to March 29, 2000, are: 1. Chief Smith’s failure to provide accommodations to allow Henson to continue his Employee Assistance Program counseling sessions; 2. Chief Smith’s refusal to excuse Henson from walking duties for two weeks after he had toe surgery in 1999; and 3. Bell’s refusal to grant Henson’s shift transfer requests. Because all of those incidents are discrete acts, they do not qualify under the continuing-violation exception to the ADA’s actionable period restrictions, and the district court properly limited its inquiry to Henson’s allegations of ADA violations that occurred after March 29, 2000. The ADA defines a disability as: 1. a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2. a record of such impairment; or 3. being regarded as having such an impairment. The summary judgment evidence presented shows, however, that: 1. Henson never told Chief Smith that he was suffering from depression or any other mental condition; 2. Henson never requested any type of leave for depression or any other mental condition; and 3. Henson never informed Chief Smith that he was late for work because he suffered from depression. To show that Bell regarded him as disabled within the meaning of the ADA, Henson relies exclusively on the fact that Chief Smith allowed him to attend EAP counseling for two months in 1999. Because an employee’s mere attendance at some form of counseling does not necessarily mean that a “major life activity” of the employee is “substantially limited,” Chief Smith’s allowing scheduling adjustments for Henson to attend counseling during a two-month period does not mean that Smith regarded Bell as having a disability under the ADA. The district court was correct not to recognize Henson as disabled under the third prong and to grant summary judgment for Bell Helicopter on Henson’s ADA claim, the court determines. Henson next claims that Bell violated his rights under the FMLA by: 1. refusing to accommodate Henson’s request in April 1999 to attend an outpatient counseling program; and 2. discharging Henson due to his excessive absences. The district court held that Henson’s claims from 1999 were time barred and that Henson’s absences were not protected leave under the FMLA. The court agrees. OPINION:Per curiam; Smith, Dennis and Prado, JJ.

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