John L. Horton v. JOHN E. POTTER, Postmaster General

*This decision was originally issued as an “unpublished decision”
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
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0154P (6th Cir.)
File Name: 04a0154p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN L. HORTON,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster
General,
Defendant-Appellee.
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No. 02-2147
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-70744—John Corbett O’Meara, District Judge.
Submitted: January 27, 2004
Decided and Filed: April 13, 2004*
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
2 Horton v. Potter No. 02-2147
_________________
COUNSEL
ON BRIEF: Lynn H. Shecter, Brian P. Swanson, ROY,
SHECTER & VOCHT, Bloomfield Hills, Michigan, for
Appellant. Peter A. Caplan, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RYAN, Circuit Judge. The plaintiff, John L. Horton,
alleges that his former employer, the U.S. Postal Service,
discriminated against him in violation of the Rehabilitation
Act of 1973, 29 U.S.C. §§ 701-796 (1999), by failing to
accommodate his mental disability. The district court granted
summary judgment in favor of the Postmaster General on the
ground that the plaintiff failed to timely invoke his
administrative remedies. We AFFIRM.
I.
Horton, a disabled Vietnam veteran, worked as a United
States Postal Service employee from 1980 to November 1992.
On November 14, 1991, while Horton was working at the
Royal Oak, Michigan, Post Office, Thomas McIlvaine, a
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
1992.

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No. 02-2147 Horton v. Potter 3
On May 19, 1993, approximately six months after having
last worked for the Postal Service, Horton contacted an equal
employment opportunity (EEO) counselor, alleging acts of
employment discrimination occurring as late as May 6, 1993.
On May 6, Thomas Newman, the Director of the Royal Oak
Management Sectional Center, had made a public statement
in apparent reference to both the Royal Oak shooting and a
more recent, unrelated shooting at a post office in Dearborn,
Michigan. Newman allegedly said: “[M]anagement
obviously didn’t change as fast as I did in Royal Oak.”
On December 15, 1993, the Postal Service’s EEO
department informed Horton that mediation efforts had failed
and that he could elect to file a formal administrative EEO
complaint within 15 days. Horton’s attorney mailed the
formal complaint on December 23, 1993, but it was never
received. When Horton refiled his formal complaint on
April 7, 1994, the Postal Service’s EEO department dismissed
it as untimely under the 15-day formal complaint rule. In a
subsequent lawsuit, Horton v. Runyon, No. 96-74023 (E.D.
Mich. June 17, 1997) (unpublished), the federal district court
ordered that the formal complaint be accepted as having been
timely filed under the doctrine of equitable tolling. On
November 15, 1999, the Postal Service informed Horton that
because mediation efforts had failed and more than 180 days
had passed without final agency action, he could elect to file
suit in federal district court.
Horton filed a complaint in federal district court, alleging
that his employer violated the Rehabilitation Act of 1973,
29 U.S.C. §§ 701-796, by failing to accommodate his mental
disability. The district court granted summary judgment in
favor of the Postmaster General because Horton had not
timely invoked mandatory administrative remedies. The
district court denied Horton’s motion to reconsider. Horton
appeals both the district court’s order granting summary
judgment and its order denying his motion to reconsider the
same.
4 Horton v. Potter No. 02-2147
II.
This court reviews a district court’s grant of summary
judgment de novo. Mahon v. Crowell, 295 F.3d 585, 588 (6th
Cir. 2002). Summary judgment is proper “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 a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). The moving party discharges its burden by
“‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the moving party has met its burden of
production, the nonmoving party must “go beyond the
pleadings and by . . . affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’”
Id. at 324. In reviewing the district court’s grant of summary
judgment, this court draws all justifiable inferences in the
light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
This court typically reviews a district court’s order denying
a motion to reconsider for an abuse of discretion. Sommer v.
Davis, 317 F.3d 686, 691 (6th Cir.), cert. denied, 124 S. Ct.
155 (2003). However, when the district court denies a motion
to reconsider an order granting summary judgment, the
standard of review is de novo. Id.
III.
Summary judgment was proper in this case because, as the
district court correctly held, Horton failed to timely exhaust
his administrative remedies. When Congress authorized
federal employees to sue the federal government for violation
of the civil rights laws, it conditioned such authorization on
the “plaintiff’s satisfaction of ‘rigorous administrative

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No. 02-2147 Horton v. Potter 5
exhaustion requirements and time limitations.’” McFarland
v. Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (quoting
Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976)).
One of these requirements is that the “aggrieved person must
initiate contact with a[n EEO] Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date
of the action.” 29 C.F.R. § 1614.105(a)(1) (2003). Timely
contact with an EEO counselor is an administrative remedy
that a federal employee must invoke before he may bring a
claim of employment discrimination in federal district court.
Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991). If an
employee fails to comply with the 45-day limitation period,
the agency must dismiss the entire complaint. 29 C.F.R.
§ 1614.107(a)(2) (2003).
In his complaint, Horton alleged that the Postal Service
failed to accommodate his mental disability by refusing to
promote him, transfer him, or provide him with adequate
counseling, all of which are discrete discriminatory acts. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114
(2002). In the case of an employee who claims to be the
victim of a “discrete discriminatory act,” the limitation period
for bringing such charge begins to run from the date on which
the act occurred. Id. at 113. The latest date on which Horton
could have suffered a discrete act of discrimination was in
November 1992, when he ceased working for the Postal
Service. See id.
In his reply brief, Horton urges this court to construe his
request for counseling as having alleged a hostile work
environment and, therefore, having stated a continuing
violation that was ongoing within 45 days of Horton’s initial
contact with the EEO counselor. Even assuming that Horton
did allege a hostile work environment in his request for
counseling, he failed to allege it in his complaint or in his
motion asking the district court to reconsider its order
granting summary judgment. Since Horton raises this issue
for the first time on appeal and therefore did not give the
6 Horton v. Potter No. 02-2147
district court an opportunity to consider it, we decline to
address it now. See City of Detroit v. Simon, 247 F.3d 619,
630-31 (6th Cir. 2001).
Nevertheless, Horton has failed to identify a discriminatory
act contributing to a continuing violation that occurred within
45 days of his request for counseling. Horton alleges that
Thomas Newman’s statement of May 6, 1993, contributed to
a hostile work environment, thereby establishing a continuing
violation that was ongoing within 45 days of his request for
counseling. However, as the district court held, Newman’s
statement that “management [at the Dearborn post office]
obviously didn’t change as fast as I did in Royal Oak,” was at
best a criticism of the management at the Royal Oak post
office, not a discriminatory act against Horton.
Horton has identified neither a discrete discriminatory act
nor an act contributing to a continuing violation that occurred
within the 45-day period prior to his first contact with the
EEO counselor. Therefore, the district court was justified in
holding that Horton failed to exhaust his administrative
remedies and it properly granted summary judgment in favor
of the Postmaster General.
IV.
Nor are we persuaded that the Postmaster General waived
any objection to the untimeliness of Horton’s request for
counseling by not raising this defense at the administrative
stage.
The requirement that a federal employee initiate contact
with an EEO counselor within 45 days of the alleged
discrimination is not a jurisdictional prerequisite.
McFarland, 307 F.3d at 406. As such, it is subject to waiver,
estoppel, and equitable tolling. Id. Five of our sister circuits
have held that when an agency accepts and investigates a
complaint of discrimination, as the Postal Service did in this
case, it does not thereby waive a defense that the complaint

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No. 02-2147 Horton v. Potter 7
was untimely. See Belgrave v. Pena, 254 F.3d 384, 387 (2d
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.
Cir. 1997); Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir.
1992); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir.
1985). Rather, waiver occurs when the agency decides the
complaint on the merits without addressing the untimeliness
defense. Ester, 250 F.3d at 1071-72; Bowden, 106 F.3d at
438.
When Horton had his initial interview with the EEO
counselor on May 19, 1993, he completed a form entitled
“EEO Request for Counseling” in which he alleged
discriminatory acts occurring less than two weeks before on
May 6, 1993. On the face of his request for counseling,
therefore, it was not apparent that Horton had failed to initiate
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
discovery had taken place at the district court level that the
Postal Service became aware that no discriminatory act
occurred on May 6, 1993, and that Horton’s complaint was,
therefore, untimely. The procedural posture of the case, as
recounted by the district court, gave the Postal Service no
earlier opportunity, at the administrative level, to adjudicate
Horton’s claim on the merits and discover the basis for the
untimeliness defense.
Horton, in effect, urges this court to hold that upon
receiving and investigating his complaint of discrimination,
but before considering it on its merits, the Postal Service
waived all affirmative defenses in the subsequent lawsuit.
Besides conflicting with the reasoning of our sister circuits,
such a holding would remove any incentive for government
agencies to investigate and remedy instances of
discrimination. We hold that the Postal Service did not waive
the defense of an untimely request for counseling merely by
receiving and investigating Horton’s complaint of
discrimination.
8 Horton v. Potter No. 02-2147
V.
Finally, there is no evidence to support Horton’s claim that
the Postmaster General waived the untimeliness defense by
not raising it as an affirmative defense in the previous lawsuit,
Horton v. Runyon, No. 96-74023.
A response to a pleading must set forth any matter
constituting an affirmative defense. Fed. R. Civ. P. 8(c).
Failure to plead an affirmative defense in the first responsive
pleading to a complaint generally results in a waiver of that
defense. Haskell v. Washington Twp., 864 F.2d 1266, 1273
(6th Cir. 1988). With respect to the affirmative defense that
a plaintiff’s claim is barred by the statute of limitations, “[i]t
is of no importance that a party and/or his counsel were
unaware of a possible statute of limitations defense.” Id.
In his motion for summary judgment in the district court,
the Postmaster General “‘show[ed]’ . . . that there [was] an
absence of evidence to support” Horton’s claim that the
Postmaster General waived the untimeliness defense in the
first lawsuit. See Celotex, 477 U.S. at 325. The burden then
shifted to Horton to “go beyond the pleadings and by . . .
affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that
there is a genuine issue for trial.’” Id. at 324.
Based on the record, it is unclear whether the Postmaster
General waived the untimeliness defense in Horton’s first
lawsuit, Horton v. Runyon, No. 96-74023. While the district
court in this case held that the Postmaster General did not
waive the untimeliness defense at the administrative level, its
opinion is silent on the issue of any waiver that may have
occurred in the first lawsuit. None of the pleadings from that
lawsuit appears in the joint appendix and the parties dispute
whether a waiver of the defense actually occurred at that time.
Accordingly, with respect to the issue of waiver of the
untimeliness defense in the first lawsuit, Horton has failed to

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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.

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