* Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT

RULE 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

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No. 05-10638

(Summary Calendar)

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ROSE ANN JUAREZ-KEITH,

Plaintiff–Appellant,

v.

US FOODSERVICE, INC.,

Defendant–Appellee.

Appeal from the United States District Court

for the Northern District of Texas, Dallas

No. 3:02-CV-90

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Appellant Rose Ann Juarez-Keith sued Appellee US

Foodservice, Inc. (“USFS”), alleging discrimination in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e2000e-17 (2006) (“Title VII”), and the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 (2006)

(“ADA”), denial of benefits under the Employment Retirement
2

Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (2006)

(“ERISA”), and breach of contract. USFS moved for summary

judgment, which the district court granted on March 8, 2005. 

Juarez-Keith now appeals.

I. Background & Procedural History

Juarez-Keith was employed by USFS, a food distributor, as a

District Sales Manager in January, 1988. Her duties included

hiring salespeople, driving to customer locations, conducting

sales presentations and training sales representatives. On

November 1, 1999, she was involved in an automobile accident,

resulting in a broken sternum, a damaged vagus nerve, hoarseness,

headaches, chest pains, difficulty in swallowing, periodic

choking on her own saliva and chronic fatigue. She reported the

accident to her manager, Larry Albrecht, the day it happened. 

According to Juarez-Keith, Albrecht informed her she would need

to continue working to receive income and benefits. Allegedly,

this was incorrect because USFS’s Employee Injury Benefit Plan

would have permitted merely formal employment and the receipt of

benefits.

Juarez-Keith continued her employment at USFS for about six

months. With Albrecht’s permission, however, she performed

curtailed duties, mostly from home. In April 2000, she was asked

to terminate her subordinate Jan Walters for leaving a profane

message on another employee’s voicemail. Juarez-Keith refused. 

The next month, Juarez-Keith was asked to assume some of Walters’
3

duties. On May 8, 2000, she requested leave and short-term

disability benefits. Her doctor advised her to discontinue

working and assessed her as “not currently capable of performing

full time work which is primarily seated in nature but does allow

the flexibility to stand when needed and does not require lifting

over 10 [pounds].” In November, after her short-term benefits

expired, Juarez-Keith moved to a long-term benefits plan. She

was terminated on November 5, 2000. She was eventually replaced

and continues to receive long-term benefits, as well as Social

Security benefits.

On March 16, 2001, Juarez-Keith filed a Charge of

Discrimination with the Equal Employment Opportunity Commission

(“EEOC”), alleging discrimination against her on the basis of

gender, nationality and disability. The EEOC issued a right-tosue letter, and litigation ensued. USFS moved for summary

judgment, which the district court granted.

II. Standard of Review

We review a district court’s grant of summary judgment de

novo. Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir.

2004). Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” FED. R. CIV. P.
1 Juarez-Keith identified Albrecht’s alleged comment to her

that she would need to keep working to receive benefits as the

instance of disparate treatment. She claims, without support,

that male employees were not so discouraged from seeking

benefits. The district court allowed for a possible range of

benefit denial dates, from November 1, 1999, the date of the

accident, to May 8, 2000, the date Juarez-Keith took leave with

4

56(C); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). An issue as to a material fact is “genuine” if the

evidence would permit a reasonable jury to return a verdict for

the non-moving party. Roberson v. Alltel Info. Servs., 373 F.3d

647, 651 (5th Cir. 2004)(citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). The evidence must be construed in a

light most favorable to the non-moving party and doubts resolved

in its favor. Id.

III. Discussion

Juarez-Keith raises two issues on appeal. First, she

disputes as erroneous the district court’s grant of summary

judgment on her Title VII disparate treatment claim on statute of

limitations grounds. Second, Juarez-Keith asserts the district

court erred in determining that she could not perform her job

duties. She argues that reversal of this latter ruling will

resuscitate her Title VII and ADA termination claims and Title

VII and ERISA retaliation claims.

A. Statute of Limitations

Identifying May 8, 2000, the day Juarez-Keith took leave, as

the date of the unlawful employment practice1 and March 16, 2001
disability benefits. 

2 This provision establishes a 300-day limitations period

from the unlawful employment practice for aggrieved persons who

initially institute proceedings with a state or local agency. 

Timely filing a charge with the EEOC suffices to place a

plaintiff within the statute of limitations. See also Manning v.

Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003).

3 To support this claim, Juarez-Keith submits documents from

the EEOC documenting her visit and intake interview in January. 

Under certain circumstances, we have understood imperfect charges

to be sufficient for tolling purposes under Title VII, see Price

v. Sw. Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982). But

Juarez-Keith’s evidence of her January 18, 2001 intake interview

is presented for the first time on appeal, and we may not

consider it. Louque v. Allstate Ins. Co., 314 F.3d 776, 779 n.1

(5th Cir. 2002). USFS is incorrect, however, that we may not

consider her argument that she filed before March 16. Although

she submitted no documentation to support it, Juarez-Keith did

argue to the district court that she approached the EEOC in

January in her response to USFS’s motion for summary judgment. 

If often ultimately rejecting them as insufficient to survive

summary judgment, we have routinely evaluated allegations based

merely on pleadings. See, e.g., Dupree v. Valero Energy Corp.,

147 F.App’x 398, 400 (5th Cir. 2005); Dorsett v. Louisiana Tech.

Univ., 33 F.App’x 704 (5th Cir. 2002).

4 The entirety of Juarez-Keith’s pleading on this issue is

the following sentence: “[o]n January 18, 2001 [she] filed a

Charge of Discrimination with EEOC against US Foodservice, Inc.” 

5

as the date the EEOC charge was filed, the district court held

Juarez-Keith’s Title VII disparate treatment claim time-barred

under 42 U.S.C. § 2000e-5(e)(1).2 Based on pleadings to the

district court that she conducted an intake interview and filled

out a charge questionnaire in mid-January, 2000, Juarez-Keith

argues that factual issues remain with respect to the date the

charge was filed, and thus whether the claim is properly barred.3

Rule 56 makes clear that her conclusory pleading is insufficient.4
6

In response to a motion for summary judgment, the adverse party

must “set forth specific facts showing there is a genuine issue

for trial.” FED. R. CIV. P. 56(e). They must “go beyond the

pleadings.” Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334,

1338 (5th Cir. 1996)(quoting Celotex, 477 U.S. at 324). JuarezKeith does not go so far. Faced with documentary evidence

affirmatively establishing the fact that Juarez-Keith’s EEOC

charge was filed on March 16, 2001 and nothing but pleading to

contradict it, the district court did not err in determining that

Juarez-Keith’s Title VII claim fell without the limitations

period and granting summary judgment on the issue to USFS.

Juarez-Keith also contends a factual issue exists with

respect to the date the limitations period began to run. She

claims that the denial of benefits continued until November,

2000, when she learned she was in fact able to receive the

benefits. For this argument she cites Messer v. Meno, a case in

which, applying the continuing violations doctrine, we determined

a fact issue existed as to whether the employer systematically

discriminated in promotion on the basis of race and gender. 130

F.3d 130, 135 (5th Cir. 1997). But Juarez-Keith complains of no

systematic discrimination; rather, she attempts to cast an

isolated alleged denial of benefits as ongoing. The continuing

violations doctrine is not applicable to discrete acts of

discrimination such as this. See Frank v. Xerox Corp., 347 F.3d

130, 136 (5th Cir. 2003). We have rejected attempts to cast
5 It is even arguable whether the testimony to which she

points supports her argument. She admits outright that Albrecht

made an “exception” for her, allowing her to do a reduced amount

of work, from home. Moreover, she claims she has “good and bad

days,” implying there were certain days on which she could not

work.

7

benefits denials as ongoing acts. See Berry v. Allstate Ins.

Co., 84 Fed. App’x 442, 443 (5th Cir. 2005)(holding employer’s

decision to deny employee benefits a one time event); Russell v.

Bd. of Tr. of the Firemen, Policemen and Fire Alarm Operators’

Pension Fund of Dallas, 968 F.2d 489, 493 (5th Cir. 1992)

(holding denial of survivor benefits due to remarriage accrued at

date of remarriage and was not continuing violation). USFS’s act

was a discrete one, and Juarez-Keith’s argument fails.

B. Inability to Perform Duties Determination

Juarez-Keith also challenges the district court’s

determination that she was unable to perform her job duties. She

claims she was able, but that USFS increased her duties in May,

2000 to include physical labor; and that this increase was in

fact a pretext for firing her. To support this claim, she points

to her own deposition testimony that she was able to accomplish

the curtailed duties her manager assigned to her following her

November, 1999 auto accident. Juarez-Keith’s belief she could

perform her job duties will not suffice on its own to establish

her capability, especially in light of her doctor’s assessment to

the contrary.5 See Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254,

258-59 (5th Cir. 2001) (rejecting plaintiff’s belief he could
8

perform essential functions of job as sufficient evidence to

create issue of material fact where belief contradicted prior

averments made to obtain Social Security disability benefits). 

Because we reject her argument that the district court erred, we

need not reach the question of which claims a contrary ruling

would resuscitate.

IV. Conclusion

For the reasons above, the judgment of the district court is

AFFIRMED.