Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.stenson Fears, Jr., Appellant, v. Kurt Manufacturing Company, Appellee, 986 F.2d 502 (8th Cir. 1993)

Kurt Manufacturing Company (Kurt) fired Stenson Fears, Jr., for absenteeism and tardiness. More than 300 days later, Fears filed a race discrimination charge with the state fair employment practices agency and the Equal Employment Opportunity Commission (EEOC). After exhausting his administrative remedies, Fears filed this Title VII action. The district court granted Kurt summary judgment because Fears did not file his discrimination charge with the EEOC within the statutory 300 day time period or present evidence to excuse his late filing. On appeal, Fears contends we should equitably toll the filing period because of his drug addiction.

Fears's action is time-barred. See 42 U.S.C. § 2000e-5(e) (1988); Worthington v. Union Pac. R.R., 948 F.2d 477, 479 (8th Cir. 1991). Because Fears did not present evidence of his drug addiction to the district court, we will not consider his drug related excuse for the first time on appeal. See Smith v. Gould, Inc, 918 F.2d 1361, 1364 (8th Cir. 1990); Shah v. Halliburton Co., 627 F.2d 1055, 1057 n.2 (10th Cir. 1980). In any case, because Fears's drug addiction was not "truly beyond [his] control," we would not equitably toll the filing period. Hill v. John Chezik Imports, 869 F.2d 1122, 1124 & n.2 (8th Cir. 1989).

We affirm the district court's grant of summary judgment.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.