Horton v. Potter ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Horton v. Potter No. 02-2147
ELECTRONIC CITATION: 2004 FED App. 0154P (6th Cir.)
File Name: 04a0154p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ON BRIEF: Lynn H. Shecter, Brian P. Swanson, ROY,
FOR THE SIXTH CIRCUIT SHECTER & VOCHT, Bloomfield Hills, Michigan, for
_________________ Appellant. Peter A. Caplan, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
JOHN L. HORTON, X
- _________________
Plaintiff-Appellant,
-
OPINION
- No. 02-2147
v. _________________
-
>
, RYAN, Circuit Judge. The plaintiff, John L. Horton,
JOHN E. POTTER , Postmaster - alleges that his former employer, the U.S. Postal Service,
General, - discriminated against him in violation of the Rehabilitation
Defendant-Appellee. - Act of 1973, 29 U.S.C. §§ 701-796 (1999), by failing to
- accommodate his mental disability. The district court granted
N summary judgment in favor of the Postmaster General on the
Appeal from the United States District Court ground that the plaintiff failed to timely invoke his
for the Eastern District of Michigan at Detroit. administrative remedies. We AFFIRM.
No. 00-70744—John Corbett O’Meara, District Judge.
I.
Submitted: January 27, 2004 Horton, a disabled Vietnam veteran, worked as a United
* States Postal Service employee from 1980 to November 1992.
Decided and Filed: April 13, 2004 On November 14, 1991, while Horton was working at the
Royal Oak, Michigan, Post Office, Thomas McIlvaine, a
Before: MARTIN, RYAN, and MOORE, Circuit Judges. military veteran and former Postal Service employee, entered
the building and shot and killed several employees. Two days
later, on November 16, 1991, Horton was transferred to the
first in a series of temporary assignments at other postal
facilities in southeast Michigan. Horton claimed that the
trauma of the shooting, in combination with the temporary
assignments, aggravated his symptoms of post-traumatic
stress disorder. He left work on disability leave in November
*
This decision was originally issued as an “unpublished decision” 1992.
filed on April 13 , 200 4. On M ay 11, 200 4, the court designated the
opinion as one recommend ed for full-text publication.
1
No. 02-2147 Horton v. Potter 3 4 Horton v. Potter No. 02-2147
On May 19, 1993, approximately six months after having II.
last worked for the Postal Service, Horton contacted an equal
employment opportunity (EEO) counselor, alleging acts of This court reviews a district court’s grant of summary
employment discrimination occurring as late as May 6, 1993. judgment de novo. Mahon v. Crowell, 295 F.3d 585, 588 (6th
On May 6, Thomas Newman, the Director of the Royal Oak Cir. 2002). Summary judgment is proper “if the pleadings,
Management Sectional Center, had made a public statement depositions, answers to interrogatories, and admissions on
in apparent reference to both the Royal Oak shooting and a file, together with the affidavits, if any, show that there is no
more recent, unrelated shooting at a post office in Dearborn, genuine issue as to any material fact and that the moving
Michigan. Newman allegedly said: “[M]anagement party is entitled to a judgment as a matter of law.” Fed. R.
obviously didn’t change as fast as I did in Royal Oak.” Civ. P. 56(c). The moving party discharges its burden by
“‘showing’—that is, pointing out to the district court—that
On December 15, 1993, the Postal Service’s EEO there is an absence of evidence to support the nonmoving
department informed Horton that mediation efforts had failed party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
and that he could elect to file a formal administrative EEO (1986). Once the moving party has met its burden of
complaint within 15 days. Horton’s attorney mailed the production, the nonmoving party must “go beyond the
formal complaint on December 23, 1993, but it was never pleadings and by . . . affidavits, or by the ‘depositions,
received. When Horton refiled his formal complaint on answers to interrogatories, and admissions on file,’ designate
April 7, 1994, the Postal Service’s EEO department dismissed ‘specific facts showing that there is a genuine issue for trial.’”
it as untimely under the 15-day formal complaint rule. In a Id. at 324. In reviewing the district court’s grant of summary
subsequent lawsuit, Horton v. Runyon, No. 96-74023 (E.D. judgment, this court draws all justifiable inferences in the
Mich. June 17, 1997) (unpublished), the federal district court light most favorable to the nonmoving party. Matsushita
ordered that the formal complaint be accepted as having been Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
timely filed under the doctrine of equitable tolling. On (1986).
November 15, 1999, the Postal Service informed Horton that
because mediation efforts had failed and more than 180 days This court typically reviews a district court’s order denying
had passed without final agency action, he could elect to file a motion to reconsider for an abuse of discretion. Sommer v.
suit in federal district court. Davis, 317 F.3d 686, 691 (6th Cir.), cert. denied, 124 S. Ct.
155 (2003). However, when the district court denies a motion
Horton filed a complaint in federal district court, alleging to reconsider an order granting summary judgment, the
that his employer violated the Rehabilitation Act of 1973, standard of review is de novo. Id.
29 U.S.C. §§ 701-796, by failing to accommodate his mental
disability. The district court granted summary judgment in III.
favor of the Postmaster General because Horton had not
timely invoked mandatory administrative remedies. The Summary judgment was proper in this case because, as the
district court denied Horton’s motion to reconsider. Horton district court correctly held, Horton failed to timely exhaust
appeals both the district court’s order granting summary his administrative remedies. When Congress authorized
judgment and its order denying his motion to reconsider the federal employees to sue the federal government for violation
same. of the civil rights laws, it conditioned such authorization on
the “plaintiff’s satisfaction of ‘rigorous administrative
No. 02-2147 Horton v. Potter 5 6 Horton v. Potter No. 02-2147
exhaustion requirements and time limitations.’” McFarland district court an opportunity to consider it, we decline to
v. Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (quoting address it now. See City of Detroit v. Simon, 247 F.3d 619,
Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976)). 630-31 (6th Cir. 2001).
One of these requirements is that the “aggrieved person must
initiate contact with a[n EEO] Counselor within 45 days of Nevertheless, Horton has failed to identify a discriminatory
the date of the matter alleged to be discriminatory or, in the act contributing to a continuing violation that occurred within
case of personnel action, within 45 days of the effective date 45 days of his request for counseling. Horton alleges that
of the action.” 29 C.F.R. § 1614.105(a)(1) (2003). Timely Thomas Newman’s statement of May 6, 1993, contributed to
contact with an EEO counselor is an administrative remedy a hostile work environment, thereby establishing a continuing
that a federal employee must invoke before he may bring a violation that was ongoing within 45 days of his request for
claim of employment discrimination in federal district court. counseling. However, as the district court held, Newman’s
Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991). If an statement that “management [at the Dearborn post office]
employee fails to comply with the 45-day limitation period, obviously didn’t change as fast as I did in Royal Oak,” was at
the agency must dismiss the entire complaint. 29 C.F.R. best a criticism of the management at the Royal Oak post
§ 1614.107(a)(2) (2003). office, not a discriminatory act against Horton.
In his complaint, Horton alleged that the Postal Service Horton has identified neither a discrete discriminatory act
failed to accommodate his mental disability by refusing to nor an act contributing to a continuing violation that occurred
promote him, transfer him, or provide him with adequate within the 45-day period prior to his first contact with the
counseling, all of which are discrete discriminatory acts. See EEO counselor. Therefore, the district court was justified in
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 holding that Horton failed to exhaust his administrative
(2002). In the case of an employee who claims to be the remedies and it properly granted summary judgment in favor
victim of a “discrete discriminatory act,” the limitation period of the Postmaster General.
for bringing such charge begins to run from the date on which
the act occurred. Id. at 113. The latest date on which Horton IV.
could have suffered a discrete act of discrimination was in
November 1992, when he ceased working for the Postal Nor are we persuaded that the Postmaster General waived
Service. See id. any objection to the untimeliness of Horton’s request for
counseling by not raising this defense at the administrative
In his reply brief, Horton urges this court to construe his stage.
request for counseling as having alleged a hostile work
environment and, therefore, having stated a continuing The requirement that a federal employee initiate contact
violation that was ongoing within 45 days of Horton’s initial with an EEO counselor within 45 days of the alleged
contact with the EEO counselor. Even assuming that Horton discrimination is not a jurisdictional prerequisite.
did allege a hostile work environment in his request for McFarland, 307 F.3d at 406. As such, it is subject to waiver,
counseling, he failed to allege it in his complaint or in his estoppel, and equitable tolling. Id. Five of our sister circuits
motion asking the district court to reconsider its order have held that when an agency accepts and investigates a
granting summary judgment. Since Horton raises this issue complaint of discrimination, as the Postal Service did in this
for the first time on appeal and therefore did not give the case, it does not thereby waive a defense that the complaint
No. 02-2147 Horton v. Potter 7 8 Horton v. Potter No. 02-2147
was untimely. See Belgrave v. Pena, 254 F.3d 384, 387 (2d V.
Cir. 2001); Ester v. Principi, 250 F.3d 1068, 1072 n.1 (7th
Cir. 2001); Bowden v. United States, 106 F.3d 433, 438 (D.C. Finally, there is no evidence to support Horton’s claim that
Cir. 1997); Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. the Postmaster General waived the untimeliness defense by
1992); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. not raising it as an affirmative defense in the previous lawsuit,
1985). Rather, waiver occurs when the agency decides the Horton v. Runyon, No. 96-74023.
complaint on the merits without addressing the untimeliness
defense. Ester, 250 F.3d at 1071-72; Bowden, 106 F.3d at A response to a pleading must set forth any matter
438. constituting an affirmative defense. Fed. R. Civ. P. 8(c).
Failure to plead an affirmative defense in the first responsive
When Horton had his initial interview with the EEO pleading to a complaint generally results in a waiver of that
counselor on May 19, 1993, he completed a form entitled defense. Haskell v. Washington Twp., 864 F.2d 1266, 1273
“EEO Request for Counseling” in which he alleged (6th Cir. 1988). With respect to the affirmative defense that
discriminatory acts occurring less than two weeks before on a plaintiff’s claim is barred by the statute of limitations, “[i]t
May 6, 1993. On the face of his request for counseling, is of no importance that a party and/or his counsel were
therefore, it was not apparent that Horton had failed to initiate unaware of a possible statute of limitations defense.” Id.
contact with the EEO counselor within the 45-day time period
mandated by 29 C.F.R. § 1614.105(a)(1). It was not until In his motion for summary judgment in the district court,
discovery had taken place at the district court level that the the Postmaster General “‘show[ed]’ . . . that there [was] an
Postal Service became aware that no discriminatory act absence of evidence to support” Horton’s claim that the
occurred on May 6, 1993, and that Horton’s complaint was, Postmaster General waived the untimeliness defense in the
therefore, untimely. The procedural posture of the case, as first lawsuit. See Celotex, 477 U.S. at 325. The burden then
recounted by the district court, gave the Postal Service no shifted to Horton to “go beyond the pleadings and by . . .
earlier opportunity, at the administrative level, to adjudicate affidavits, or by the ‘depositions, answers to interrogatories,
Horton’s claim on the merits and discover the basis for the and admissions on file,’ designate ‘specific facts showing that
untimeliness defense. there is a genuine issue for trial.’” Id. at 324.
Horton, in effect, urges this court to hold that upon Based on the record, it is unclear whether the Postmaster
receiving and investigating his complaint of discrimination, General waived the untimeliness defense in Horton’s first
but before considering it on its merits, the Postal Service lawsuit, Horton v. Runyon, No. 96-74023. While the district
waived all affirmative defenses in the subsequent lawsuit. court in this case held that the Postmaster General did not
Besides conflicting with the reasoning of our sister circuits, waive the untimeliness defense at the administrative level, its
such a holding would remove any incentive for government opinion is silent on the issue of any waiver that may have
agencies to investigate and remedy instances of occurred in the first lawsuit. None of the pleadings from that
discrimination. We hold that the Postal Service did not waive lawsuit appears in the joint appendix and the parties dispute
the defense of an untimely request for counseling merely by whether a waiver of the defense actually occurred at that time.
receiving and investigating Horton’s complaint of Accordingly, with respect to the issue of waiver of the
discrimination. untimeliness defense in the first lawsuit, Horton has failed to
No. 02-2147 Horton v. Potter 9
designate specific facts showing that there is a genuine issue
for trial. See Celotex, 477 U.S. at 324.
VI.
Horton has failed to show that there is a genuine issue of
material fact as to whether he timely contacted an EEO
counselor. Nor has he demonstrated a valid basis for finding
that the Postmaster General waived this defense.
Accordingly, we AFFIRM the district court’s orders granting
summary judgment and denying Horton’s motion to
reconsider.