           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.
