                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAY 16 2000
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JANICE E. HANLEN,

                  Plaintiff-Appellant,

    v.                                                    No. 99-1307
                                                      (D.C. No. 97-N-2086)
    WILLIAM HENDERSON, Postmaster                           (D. Colo.)
    General of the United States of
    America,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff-appellant Janice E. Hanlen appeals the district court’s entry of

summary judgment in favor of defendant-appellee William Henderson, Postmaster

General of the United States of America, on her claims of discriminatory

discipline, retaliation, and sexual harassment, in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17 and the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.


                                  BACKGROUND

      Hanlen is employed by the United States Postal Service (USPS) as

a supervisor in the Broomfield, Colorado, post office. She was forty-eight years

old in 1996, when the allegedly discriminatory incidents occurred. On March 17

of that year, Paul Lavender was appointed interim officer in charge of the

Broomfield post office upon the sudden retirement of the postmaster. At the time,

the Broomfield post office was rated as poor in the performance of customer

services and other functions.

      Prior to Lavender’s arrival, Hanlen had certified the accuracy of

information contained in thirty-nine daily customer service effectiveness reports,

which are used to evaluate postal customer service. Based on information

provided by delivery supervisors, Hanlen consistently certified that the

Broomfield post office met the 8:30 a.m. deadline for distributing all mail to

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customers’ post office boxes. Upon his appointment, Lavender determined that,

in fact, the deadline had seldom been met. He investigated the discrepancy and

learned that Hanlen, under the former postmaster’s improper instructions, made

the arbitrary assumption that the distribution deadline applied only to mail that

had been sorted and delivered to the post office box section by 7:15 a.m. and did

not include mail that was still in the back of the post office. On April 19,

Lavender proposed Hanlen’s removal from the USPS for falsifying the

effectiveness reports. He did not discipline the delivery supervisors who prepared

the reports for Hanlen’s certification. Hanlen appealed the proposed removal

to the manager of post office operations.

      Meanwhile, audits revealed two shortages for which Hanlen, as customer

services supervisor, was considered ultimately responsible. The first, a shortage

in stamp stock in the amount of $3,126.58, was found to be attributable to theft by

an employee. The second, an account shortage in the amount of $242.37, was

attributable to an error made by an employee Hanlen had assigned to the customer

service window, in spite of the employee’s failure to pass the certifying test for

the position.

      On May 18, Lavender removed Hanlen from her position, designated a male

employee to replace her, and reassigned her to a position in the mail processing

operation. As a result of this change, she was assigned a different work schedule


                                         -3-
and denied access to her former office. Hanlen initiated contact with the

USPS Equal Employment Opportunity office (EEO), alleging that the proposed

removal and the reassignment were motivated by discrimination on the basis of

sex and age.

      On May 29, the manager of post office operations issued a letter of decision

on Hanlen’s appeal of the proposed dismissal, reducing the disciplinary action to

a fourteen-day suspension. Although the manager determined that Hanlen’s

certification of the inaccurate effectiveness reports amounted to misconduct, he

found mitigating circumstances in her lengthy and acceptable work history and in

her assertion that she had been following the former postmaster’s instructions on

completion of the effectiveness reports. Hanlen again initiated contact with the

EEO, repeating her earlier charges and also asserting that the suspension

constituted sex discrimination. On June 7, Lavender issued Hanlen a letter of

warning concerning the stock shortage and the assignment of an unqualified

person to serve as window clerk, with the resulting posting error. Subsequently,

he relieved her from the mail processing position and, on July 21, sent her to

another post office for two weeks of developmental training in finance.

      Hanlen resumed her former duties as customer services supervisor in

Broomfield on August 5. On August 19, she learned that her male replacement

had a shortage of $1,600 during his six-month tenure, but did not receive either a


                                         -4-
letter of warning or developmental training. Shortly afterwards, a new postmaster

was appointed and Lavender left the Broomfield post office. On September 24,

Hanlen initiated EEO counseling on a third complaint, in which she repeated her

earlier charges and also asserted that the letter of warning and the developmental

detail assignment constituted discrimination on the basis of sex.

       The EEO denied relief on Hanlen’s first two administrative complaints and

dismissed the third for failure to initiate EEO contact within the applicable time

limit of forty-five days of the date of the allegedly discriminatory action. Hanlen

then filed this lawsuit, contending that she had been discriminated against on the

basis of age and sex and that the later USPS actions were in retaliation for

pursuing EEO complaints. After the district court granted summary judgment

motions filed by the USPS, Hanlen appealed.


                                      DISCUSSION

       We review a grant of summary judgment de novo and apply the same

standard as applied by the district court.     See Bullington v. United Air Lines,

Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999)         . 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 a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). As required, “we view the factual record and

                                              -5-
inferences therefrom in the light most favorable to the nonmoving party.”

Bullington , 186 F.3d at 1313.

       The district court disposed of Hanlen’s claims in two stages. In its first

ruling, the court determined that Hanlen’s third administrative complaint was

untimely and entered judgment on her claims relating to the letter of warning

and developmental detail. Later, it granted a defense motion for summary

judgment on the merits of Hanlen’s remaining claims. Hanlen challenges both

determinations on appeal.

       Timeliness

       Before filing suit in federal court, there are a number of administrative

steps a federal employee must first complete.    See Jones v. Runyon , 91 F.3d 1398,

1399-1400 (10th Cir. 1996). Under the applicable regulations, an individual who

claims to have been discriminated against must initiate contact with an 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). Courts have likened this period to a statute

of limitations.   See Johnson v. Runyon , 47 F.3d 911, 917 (7th Cir. 1995). If the

matter is not resolved informally, the employee must then file a complaint with

the employer’s EEO agency.       See 29 C.F.R. § 1614.106. After waiting 180 days

for the EEO agency to issue a final decision or within ninety days of receipt of the


                                           -6-
EEO’s agency’s final action, the employee may then seek relief in federal district

court. See id. § 1614.408.

       With regard to her third complaint, Hanlen concedes that she first made

EEO contact sixty-four days after the developmental detail and 109 days after

the letter of warning. She argues, however, that we should disregard the

forty-five day limitation because she did not realize these actions were

discriminatory until August 19, when she discovered that her male replacement

was given more lenient treatment.      See id. § 1614.105(a)(2) (extending the period

“when the individual shows . . . that he or she did not know and reasonably

should not have [ ] known that the discriminatory matter or personnel action

occurred . . . .”).

       In connection with the accrual of a discrimination claim, “‘[w]e may

presume that many facts will come to light after the date of [a disciplinary

action], and indeed one purpose of a charge and a complaint is to initiate the

process of uncovering them.’”       Hulsey v. Kmart, Inc. , 43 F.3d 555, 558 (10th Cir.

1994) (quoting Olson v. Mobil Oil Corp. , 904 F.2d 198, 202-03 (4th Cir. 1990).

A plaintiff is “‘on notice at the moment’” of the personnel action “‘to inquire

whether there was [a] discriminatory motive.’”      Id. (further quotation omitted);

see also id. at 559 (“‘To the extent that notice enters the analysis, it is notice of

the employer’s actions, not the notice of a discriminatory effect or motivation,


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that establishes the commencement of the pertinent filing period.’”) (quoting

Hamilton v. 1st Source Bank , 928 F.2d 86, 88-89 (4th Cir. 1990).

      Hanlen failed to meet the deadlines for initiating EEO counseling on the

letter of warning and the developmental detail. As a consequence, her

discrimination claims arising from these actions are not within the scope of this

action. The district court properly entered judgment on these claims.   1



Merits of remaining claims

      Hanlen’s remaining discrimination claims concern the proposed removal,

suspension, and reassignment, along with the related changes in working

conditions.

      A prima facie case of disparate discipline may be established if the
      plaintiff proves by a preponderance of the evidence that (1) the
      plaintiff is a [member of a protected class], (2) the plaintiff was
      disciplined by the employers, and (3) the employer imposed the
      discipline under circumstances giving rise to an inference of . . .
      discrimination.




1
        Hanlen asserts that we should apply the “reasonable suspicion” standard set
forth in Paredes v. Nagle , No. 81-1374, 1982 WL 319 (D.D.C. Jan. 17, 1982) and
used by the Equal Employment Opportunity Commission to determine the
timeliness of an EEO initial contact. Under that standard, the 45-day time period
begins to run when the complainant has sufficient knowledge of facts and
circumstances to support the reasonable suspicion that prohibited discrimination
has occurred. Id. at *4. Here, the record shows that Hanlen suspected Lavender
of discriminatory animus before she received the letter of warning or the
developmental detail assignment. Even under the     Paredes standard, there is no
justification for an extension of time.

                                           -8-
Jones v. Denver Post Corp. , 203 F.3d 748, 753 (10th Cir. 2000). “One of the

ways this third prong may be met, and the method chosen by [the plaintiff] here,

is by attempting to show that the employer treated similarly situated employees

differently.” Id. “Similarly situated employees are those who deal with the same

supervisor and are subject to the same standards governing performance

evaluation and discipline.”   Aramburu v. Boeing Co. , 112 F.3d 1398, 104 (10th

Cir. 1997) (quotation omitted).

       Hanlen argues that she established her prima facie case with a showing that

she was disciplined for her certification of the inaccurate reports, but that the

delivery supervisors who supplied the information were not disciplined. We

conclude, as did the district court, that Hanlen and the delivery supervisors were

not similarly situated. Although Lavender supervised all these individuals, only

Hanlen was responsible for certification and, as a result, was subject to different

standards. Hanlen did not show disparate treatment of other, similarly-situated

employees and thus failed to establish a prima facie case of discriminatory

discipline.   2




2
       In discriminatory discipline cases, “‘[a]n inference of discrimination may
be raised by evidence that a plaintiff was . . . treated less favorably than similarly
situated employees who are not in the plaintiff's protected class.’” Hardy v. S.F.
Phosphates Ltd., 185 F.3d 1076, 1082 (10th Cir. 1999) (quoting Price v. S-B
Power Tool, 75 F.3d 362, 365 (8th Cir. 1996)). In cases applying the burden-
shifting scheme set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
                                                                         (continued...)

                                          -9-
      Hanlen also alleged that the USPS retaliated against her for pursuing her




2
 (...continued)
802-04 (1973), a showing that similarly-situated parties received different
treatment can also satisfy the third element of a plaintiff’s prima facie case. See
Jones, 203 F.3d at 753.

       However, this is not the only way a plaintiff may raise the requisite
inference of discrimination. The McDonnell Douglas test is a flexible one. See
Greene v. Safeway Stores, Inc., 98 F.3d 554, 560 (10th Cir. 1996). The prima
facie case may be “adapted to the particular type of adverse employment decision
in question.” Id.; see also Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241,
1247-48 (6th Cir. 1995) (tailoring a prima facie case to suit instance in which
plaintiff was the only management-level employee involved in an after-hours
incident, so that he could not show disparate discipline of similarly-situated
employees). The basic requirement is that “there must be a logical connection
between each element of the prima facie case and the inference of
discrimination.” Perry v. Woodward, 199 F.3d 1126, 1136 (10th Cir. 1999),
petition for cert. filed (U .S. Mar. 16, 2000) (No. 99-1527).

      Here, relying on the McDonnell Douglas scheme, Hanlen sought to
demonstrate a prima facie case with a showing that similarly-situated employees
were treated differently. She did not argue that she had no similarly-situated co-
employees and that the McDonnell Douglas burden-shifting scheme should
thereby be adapted to accommodate her facts. As a consequence, we need not
address that question.

       In any event, disparate discipline of similarly-situated employees is
relevant to a later stage of the McDonnell Douglas analysis: the employee’s
showing that the employer’s facially nondiscriminatory reason for the contested
action is pretextual. See Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir.
1995); see also Aramburu, 112 F.3d at 1403-05 (noting similarly-situated issue as
part of prima facie case, but discussing it under pretext); Morgan v. Hilti, 108
F.3d 1319, 1324 (10th Cir. 1997) (addressing similarly-situated issue as relevant
to a showing of pretext). If we addressed the issue as part of a pretext analysis,
the result in the present case would be the same.

                                        -10-
EEO claims.   3
                  With regard to the retaliation claims, the district court assumed that

Hanlen had established the applicable prima facie case: “(1) that she was

engaged in opposition to . . . discrimination; (2) that she was subjected to an

adverse employment action; and (3) a causal connection existed between the

adverse employment action and her protected activity.”       Heno v. Sprint/United

Management Co. , Nos. 98-1085, 98-1093, 98-1154, 2000 WL 342232, at *8-*9

(10th Cir. Apr. 3, 2000). It concluded, however, that the USPS had proffered a

facially nondiscriminatory explanation for its actions and that Hanlen had failed

to show a genuine dispute of material fact as to whether the proffered reason is

pretextual. See Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997).

      On appeal, Hanlen does not claim to have provided evidence of pretext.

Rather, she argues that if the district court had not erroneously dismissed her

time-barred claims, she would have shown pretext by comparing her treatment

with that of her replacement. There are two logical flaws in this argument. First,

as stated above, the district court did not err in dismissing the time-barred claims.

Second, Hanlen does not explain how the dismissal of those claims limited her

ability to introduce evidence relevant to her remaining claims. Because Hanlen


3
       Hanlen’s administrative complaints did not include allegations of
retaliation. An employer’s act committed in retaliation for filing an
administrative discrimination complaint, however, “is reasonably related to that
complaint, obviating the need for a second . . . complaint.” Jones , 203 F.3d at
755 (quotations and citations omitted).

                                           -11-
does not challenge the district court’s determination that she failed to proffer

evidence of pretext, we will not disturb its ruling.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge




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