              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0848n.06

                                       No. 09-2527

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                 FILED
MELISSA TAYLOR,                                                             Dec 15, 2011
                                                                       LEONARD GREEN, Clerk
       Plaintiff-Appellant,

              v.                                              On Appeal from the United
                                                              States District Court for the
PATRICK R. DONAHOE, Postmaster General of the                 Eastern District of Michigan
United States,                                                at Detroit

       Defendant-Appellee.

                                                        /

Before:       GUY, COOK, and STRANCH, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.          Plaintiff Melissa Taylor appeals from the

dismissal of her claims against Patrick R. Donahoe, Postmaster General of the United States,

arising out of her employment with the United States Postal Service.1 Plaintiff asserted

claims under Title VII (42 U.S.C. § 2000e, et seq.) and/or the Rehabilitation Act (29 U.S.C.

§ 701, et seq.), for discrimination based on race, gender, and disability; failure to provide

reasonable accommodation; and retaliation.       The district court granted, in part, the

defendant’s first motion to dismiss to the extent that plaintiff’s claims were not

administratively exhausted in a timely manner by her initial EEO contact on February 13,



       1
         Patrick Donahoe became Postmaster General during the pendency of this appeal and was
substituted for John E. Potter, the former Postmaster General of the United States.
No. 09-2527                                                                                                  2

2007. Plaintiff filed a more definite statement of her claims at the invitation of the district

court, and defendant again moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6).

The district court granted defendant’s second motion and dismissed the complaint in its

entirety. Plaintiff’s appeal expressly abandons all claims except for retaliation and argues

(1) that she made timely contact with her EEO counselor with respect to her retaliation

claims; and (2) that she alleged a sufficient factual basis for her retaliation claims to survive

the defendant’s motion to dismiss. After review of the record and consideration of the

arguments presented on appeal, we affirm.2

                                                      I.

        Plaintiff, an African-American woman, was hired to work for the United States Postal

Service in January 1998. She alleged in her more definite statement that she began to

experience respiratory problems after she started working with the mail sorting machines in

2003. Plaintiff allegedly had fifteen emergency room visits for acute asthma attacks, and

claimed that her supervisor admittedly knew about her visits to the emergency room on

January 27 and March 11, 2005.

        In early February 2005, believing that her asthma attacks were related to her work

operating mail processing machines, plaintiff made several requests for accommodation. The

notes from her doctor: (1) initially requested transfer to another department to avoid

pollution, dust, temperature changes, or chemical exposure; (2) imposed the restriction that




        2
          Although retaliation was not set forth in a separate count of the complaint, retaliation was asserted
in the factual section of the complaint and was litigated in the district court.
No. 09-2527                                                                                 3

plaintiff avoid pollution, dust, temperature changes, or chemical exposure; and (3) finally

instructed that plaintiff should wear a respiratory mask during working hours. Plaintiff

returned to work briefly with a mask, but had an asthma attack on her last day of work on

March 11, 2005. Plaintiff’s doctor advised her not to return to work without an appropriate

accommodation, and she applied for workers’ compensation. Plaintiff declined the modified

jobs offered to her in April, May, and November 2005, allegedly because they would not

accommodate her limitations.

       After another request for accommodation in October 2005, defendant produced OSHA

air quality test results showing that there was no significant dust in the air in the facility

where plaintiff had worked. A reasonable accommodation “interactive process” meeting was

held with plaintiff on November 29, 2005, and proposed accommodations were discussed.

No resolution was reached, however.

       In June 2006, after another request for transfer had been denied, plaintiff sent

Manager Charlean Bonds a “spec sheet” for a chemical called “MOLYLUBE 108-5C-

CLEAN,” which apparently noted that inhalation of the product may cause irritation of

mucous membranes or respiratory tract. Plaintiff had come to believe, based on her own

investigation, that a chemical used to clean the sorting machines might have triggered her

asthma attacks. According to plaintiff, Bonds responded that the belts were cleaned with

only the nontoxic “Clean-All Purpose Cleaner.” Plaintiff would later discover that Bonds

had been advised that, while not used to clean the belts, MOLYLUBE was being used to

lubricate the drive end components of the mail sorting machines.
No. 09-2527                                                                                             4

        In August 2006, having been on nonpay status for more than a year, plaintiff received

a notice of proposed separation from employment. Plaintiff responded by again requesting

an accommodation, but was notified on September 19, 2006, of her separation effective

October 19, 2006. The union filed a timely grievance of the separation on her behalf, which

was finally denied in May 2007.

        In January 2007, while the grievance was pending, plaintiff sent another doctor’s note

with another request for accommodation. Less than 45 days later, on February 13, 2007,

plaintiff made contact with an EEO counselor. Although plaintiff indicated at the time that

she had not known that the union grievance was not the same as an EEO charge, her appeal

relies on her inadvertent discovery on February 12, 2007, of evidence that Bonds had known

in June 2006 that MOLYLUBE was used on the sorting machines.3

        Plaintiff’s formal EEO complaint followed, but was dismissed as untimely in April

2007. Plaintiff appealed from that dismissal and received a final agency denial in January

2008. This action was filed within 90 days of that decision. As noted, the district court

dismissed the complaint in part, and then in its entirety. Plaintiff filed a timely motion for

reconsideration, which was denied. This appeal followed.

                                                   II.

        To survive a motion to dismiss, a complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,



        3
        Plaintiff’s more definite statement alleged that plaintiff’s discovery was made on April 12, 2007,
but counsel represents on appeal that this was a typographical error and that the discovery was made on
February 12, 2007. Plaintiff’s counsel referenced both dates during oral argument in the district court.
No. 09-2527                                                                                    5

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged. Twombly, 550 U.S. at 556. While we do not have the benefit of a written opinion

in this case, our review of the district court’s decision is de novo. Zaluski v. United Am.

Healthcare Corp., 527 F.3d 564, 570 (6th Cir. 2008).

A.     Timeliness

       A federal employee who wishes to assert employment discrimination claims must

exhaust her administrative remedies. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832

(1976); McFarland v. Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (Title VII); Smith v.

United States Postal Serv., 742 F.2d 257, 260-62 (6th Cir. 1984) (Rehabilitation Act).

Specifically, plaintiff was required to bring her complaints to the attention of 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). As plaintiff herself alleged, she did not contact an EEO counselor regarding

these claims—including her claim of retaliation—until February 13, 2007. Although

retaliation claims are often excepted from the exhaustion requirement when they arise after

an EEOC charge is filed, retaliation claims based on conduct that preceded the charge must

be included in that charge. Abieta v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th

Cir. 1998).
No. 09-2527                                                                                 6

        Plaintiff contends, without much development, that her retaliation claims were timely

because (1) the 45-day period did not begin to run until she discovered that Bonds knew that

MOLYLUBE was used to lubricate the machines; (2) the 45-day period should be extended

under theories of equitable tolling or equitable estoppel; or (3) the plaintiff’s request for

accommodation within the 45-day period served to exhaust claims with respect to conduct

outside that period under a “continuing violation” theory or hostile work environment claim.

Addressing these in turn, we find that the district court did not err in rejecting plaintiff’s

arguments and dismissing as untimely the retaliation claims arising prior to December 30,

2006.

        Accrual. Plaintiff argues that under a “reasonable suspicion” (rather than “supportive

facts”) standard the 45-day period did not begin to run until her discovery on February 12,

2007, that Bonds had known MOLYLUBE was used to lubricate parts of the mail sorting

machines. Even under that standard, however, the period would begin to accrue once the

complainant reasonably should have suspected discrimination (or retaliation), but before all

of the facts that would support a charge become apparent. See Bertie v. Potter, EEOC DOC

0120102955, 2010 WL 4153345 (EEOC Oct. 14, 2010); 29 C.F.R. § 1614.105(a)(2).

Plaintiff’s alleged inadvertent discovery did not reveal previously unsuspected retaliation,

but was evidence that confirmed plaintiff’s claim that MOLYLUBE was being used;

supported her claim that a substance used on the machines may have triggered her asthma

attacks; and was consistent with her position that management’s several job offers would not

reasonably accommodate her condition. Thus, the discovery of this evidence cannot serve
No. 09-2527                                                                                    7

to delay accrual of the 45-day period for claims of retaliation with respect to the many

requests for accommodation, the failed “interactive process” meeting, or her separation from

employment more than 45-days prior to her initial EEO contact.

       Equitable tolling or estoppel. Plaintiff argues that discrete claims of retaliation

occurring outside the 45-day window should be deemed timely on the basis of the same

inadvertent discovery that Bonds knew of the presence of MOLYLUBE in the workplace.

In determining whether equitable tolling is appropriate, we have consistently considered the

following factors: (1) lack of notice of the filing requirement; (2) lack of constructive

knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of

prejudice to the defendant; and (5) plaintiff’s reasonableness in remaining ignorant of the

legal requirement for filing his claim. Dunlap v. United States, 250 F.3d 1001, 1009 (6th Cir.

2001). Plaintiff has not claimed a lack of notice, actual or constructive, of the 45-day

requirement. Nor has plaintiff attempted to show that she exercised diligence in pursuing her

rights or that the defendant would not be prejudiced.

       Acknowledging as much, plaintiff argues that equitable tolling is nonetheless

appropriate because “‘despite all due diligence, [she was] unable to obtain vital information

bearing on the existence of [her] claim.’” Dixon v. Gonzales, 481 F.3d 324, 332 (6th Cir.

2007) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 469 (6th Cir. 2003)). In Dixon and

Seay, the defendant withheld information or provided misleading information that plaintiff

needed to raise suspicion that the defendant’s actions were motivated by discrimination or

retaliation. The period was tolled, “but only until he was ‘aware of the possibility that he had
No. 09-2527                                                                                  8

suffered an adverse employment action because of illegal discrimination.’” Dixon, 481 F.3d

at 333 (citation omitted). Similarly, equitable estoppel is invoked when a defendant takes

steps to prevent the plaintiff from timely filing her claims. Bridgeport Music, Inc. v.

Diamond Time, Ltd., 371 F.3d 883, 891 (6th Cir. 2004). Application of equitable estoppel

is premised on misconduct by the defendant, as well as the plaintiff’s actual and reasonable

reliance on that misconduct. Id.

       In this case, plaintiff rests on her allegation that Bonds denied that MOLYLUBE was

used to clean the belts without disclosing that MOLYLUBE was used as a lubricant on some

parts of the mail sorting machines. Accepting this allegation as true, however, plaintiff does

not suggest how this denial prevented her from suspecting that the alleged failures to

accommodate were motivated by discrimination or retaliation. Unlike in Dixon or Seay, the

information withheld or misrepresented was not vital to the existence of plaintiff’s claim that

she was not offered reasonable accommodation for discriminatory or retaliatory reasons. See

Dixon, 481 F.3d at 331-32 (applying equitable tolling where the defendant withheld the

personnel record that included an unfavorable evaluation that caused plaintiff to suspect

racial discrimination); Seay, 339 F.3d at 468-69 (applying equitable tolling where defendant

misrepresented that a position had not been filled when actually a white employee had taken

over the job responsibilities).     Indeed, plaintiff believed from the first request for

accommodation (and disability retirement) that something in the air at work had triggered her

asthma attacks; maintained that she was repeatedly denied reasonable accommodation; was

dissatisfied with the “interactive process” meeting; and had a grievance filed challenging her
No. 09-2527                                                                                    9

separation from employment.         Nor has plaintiff made a showing that the alleged

misrepresentation in June 2006 about the presence of MOLYLUBE in any way prevented

plaintiff from timely filing her claims of discrimination and retaliation.

         Continuing Violation. Nor may plaintiff circumvent the 45-day period through

reliance on the “continuing violation” theory articulated in Haithcock v. Frank, 958 F.2d 671,

677-78 (6th Cir. 1992). Revisiting the vitality of this theory in light of National Railroad

Passenger Corp. (Amtrak) v. Morgan, 536 U.S. 101, 111-14 (2002), we have held that

“Morgan overturns prior Sixth Circuit law addressing serial violations, i.e., plaintiffs are now

precluded from establishing a continuing violation exception by proof that the alleged acts

of discrimination occurring prior to the limitations period are sufficiently related to those

occurring within the limitations period.” Sharpe v. Cureton, 319 F.3d 259, 268 (6th Cir.

2003).     When an employee alleges discrete acts of discrimination or retaliation, the

continuing violation doctrine may not be invoked to allow recovery for acts occurring outside

the filing period. Id. at 267.

         In an effort to avoid the bar for acts occurring outside the filing period, plaintiff

argued that she alleged retaliation for both discrete acts and for a hostile work environment.

The Supreme Court in Morgan distinguished between discrete acts and hostile work

environment claims, explaining that: “Discrete acts such as termination, failure to promote,

denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and

each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful

employment practice.’” Morgan, 536 U.S. at 114. Discrete acts that fall within the statutory
No. 09-2527                                                                                   10

period do not make those that fall outside the period timely. Id. at 112. In contrast, for

hostile work environment claims, if “an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be considered by a court for the

purposes of determining liability.” Id. at 117. In order to be timely, the EEO contact need

only be made within 45 days of “any act that is part of the hostile work environment.” Id.

at 118.

          Thus, the discrete claims of retaliation alleged to have occurred before December 30,

2006—including the failures to offer reasonable accommodation upon request or through the

interactive process meeting and the separation from employment after more than a year

without pay—were untimely. That leaves any discrete acts of retaliation occurring within

the 45-day period and the allegation of a hostile work environment extending into the 45-day

period.

B.        Retaliation

          Keeping in mind that our review is de novo, we turn to the dismissal of discrete claims

of retaliation under Rule 12(b)(6). To state a prima facie case of retaliation, a plaintiff must

establish (1) that she engaged in protected activity; (2) that the exercise of protected rights

was known to the defendant; (3) that the defendant took adverse action (which includes

actions that would dissuade a reasonable worker from making or supporting a charge of

discrimination); and (4) that there was a causal connection between the protected activity and

such adverse action. Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir.

2009).
No. 09-2527                                                                                         11

       Plaintiff argues on appeal that she engaged in protected activity known to the

defendant through her many requests for accommodation between February 2005 and

February 2007. Without separating the alleged adverse actions occurring before and after

December 30, 2006, plaintiff quotes at length from the averments in her more definite

statement to identify the discrete acts of retaliation (Paras. 18, 21, 34, 42, 45, 46, 50, 51, 54,

62, 65, 66, 69, 77, 80, 81, 91, 92, 105, 148, and 168). The bulk of these allegations,

however, involve repeated requests for accommodation, alleged failures to assist in

identifying irritants in the workplace as part of the interactive process, concealment of the

fact that MOLYLUBE was used on the machines, and her termination from employment.

As is alleged, plaintiff last worked in March 2005, and was separated from employment in

October 2006. When limited to the acts occurring after December 30, 2006, we find that

plaintiff has not alleged facts that would permit the court to infer a causal connection

between the alleged protected activity and either the rejection of renewed requests for

accommodation in January and February 2007 or the denial of her grievance in May 2007.

       With respect to the assertion of a hostile work environment claim, we find that the

district court did not err in finding that plaintiff has failed to state a plausible claim for relief.

First, the alleged wrongs identified by plaintiff represent discrete acts of alleged retaliation

(or discrimination) rather than acts contributing to a hostile work environment. See Clay v.

United Parcel Serv., Inc., 501 F.3d 695, 708 (6th Cir. 2007); Sassé v. United States Dept. of

Labor, 409 F.3d 773, 783 (6th Cir. 2005). Second, while it is less than clear what harassment

plaintiff alleged to have been subjected to apart from the refusal to provide reasonable
No. 09-2527                                                                                  12

accommodation, plaintiff’s averments are insufficient to allege a hostile work environment

claim.    A hostile work environment exists when “the workplace is permeated with

‘discriminatory intimidation, ridicule and insult,’ that is ‘sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). Plaintiff has not

alleged facts from which the court may infer that plaintiff was subjected to the kind of severe

or pervasive harassment that is necessary for a hostile work environment claim at any

time—much less during the 45-day period that preceded her initial contact with the EEO

counselor on February 13, 2007.

         AFFIRMED.
No. 09-2527                                                                                13

       JANE B. STRANCH, Circuit Judge, dissenting. I respectfully dissent from the

majority opinion because I conclude that Taylor stated plausible claims for at least one

discrete act of retaliation and for retaliatory harassment. Fed. R. Civ. P. 12(b)(6); Ashcroft

v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). I believe we are constrained by precedent, including the Supreme Court’s

instruction in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), to reverse and

remand the case for further proceedings on these two claims.

       The majority disposes of the retaliatory harassment claim by concluding as a matter

of law that “the alleged wrongs identified by plaintiff represent discrete acts of alleged

retaliation . . . rather than acts contributing to a hostile work environment,” and by further

concluding that Taylor failed to allege “facts from which the court may infer that plaintiff

was subjected to the kind of severe or pervasive harassment that is necessary for a hostile

work environment claim at any time–much less during the 45-day period that preceded her

initial contact with the EEO counselor on February 13, 2007.” I do not find the admittedly

“lengthy” allegations of the complaint susceptible to these summary conclusions and, in my

view, such may only be reached by applying a standard at variance with the “plausibility”

standard applicable to our Rule 12(b)(6) review.

       To formulate a prima facie case of retaliation, Taylor was required to allege that (1)

she engaged in protected activity; (2) her employer knew about her exercise of protected

rights; (3) the employer thereafter took adverse employment action against her or a

supervisor subjected her to severe or pervasive retaliatory harassment; and (4) there was a
No. 09-2527                                                                                   14

causal connection between Taylor’s protected activity and the adverse employment action

or the retaliatory harassment. See Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792

(6th Cir. 2000). Severe or pervasive retaliatory harassment, like a hostile work environment

claim based on race or sex, “is composed of a series of separate acts that collectively

constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at 117; Morris, 201 F.3d

at 791–92. “It does not matter . . . that some of the component acts of the hostile work

environment fall outside the statutory time period [for exhausting administrative remedies].”

Morgan, 536 U.S. at 117. If one retaliatory act “contributing to the claim occurs within the

filing period, the entire time period of the hostile environment may be considered by a court

for the purposes of determining liability.” Id.

       Discrete actions, “such as termination, failure to promote, denial of transfer, or refusal

to hire,” may constitute retaliatory adverse employment actions that are actionable standing

alone. Id. at 114. But single acts that may collectively comprise a hostile work environment

need not be adverse employment actions that are by themselves actionable. Instead, a hostile

work environment may be comprised of less severe, but pervasive conduct. Actionable

harassment is “not limited to economic or tangible discrimination, and . . . covers more than

terms and conditions in the narrow contractual sense.” Id. at 115–16 (internal quotations and

citations omitted). Indeed, the cases the majority cites recognize the same distinction. See

Clay v. UPS, Inc., 501 F.3d 695, 708 (6th Cir. 2007) (distinguishing the “on-going

harassment” of a hostile work environment claim from a discrete act of discrimination);

Sassé v. U.S. Dep’t of Labor, 409 F.3d 773, 783 (6th Cir. 2005) (noting plaintiff’s suspension
No. 09-2527                                                                                   15

“was a discrete act that cannot properly be characterized as part of a continuing hostile work

environment.”). In deciding whether actionable harassment exists, a court must consider the

totality of the circumstances, including the frequency of the alleged discriminatory conduct,

its severity, whether the conduct is physically threatening or humiliating or a mere offensive

utterance, and whether the conduct unreasonably interferes with the employee’s work

performance. Morgan, 536 U.S. at 116.

       The majority opinion does not examine the totality of the circumstances alleged to

constitute a continuing course of retaliatory harassment, see id. at 117, but instead dissects

Taylor’s claim into “discrete acts of alleged retaliation[.]” Morgan’s teaching that such

claims are comprised of a series of acts that “collectively constitute one ‘unlawful

employment practice,’” id., reveals why such dissection is not appropriate—characterizing

the series of events alleged as only discrete acts deprives Taylor of the theory of retaliatory

harassment, prevents her from engaging in any discovery on her claims, and precludes her

from presenting evidence that might persuade a reasonable jury to find in her favor.

Significantly, such approach defies the instruction that, unlike discrete acts, acts of

harassment are not defined by their severity, but rather by their “cumulative effect.” Id. at

115. As the majority observes, Taylor need only allege sufficient facts which, when accepted

as true, state a claim to relief that is plausible on its face. See Ashcroft, 129 S. Ct. at 1949.

       Taylor met the Rule 12(b)(6) threshold. She alleged that she engaged in protected

activity when she made her requests for a reasonable accommodation based on her asthmatic

condition. See Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004)
No. 09-2527                                                                               16

(requesting a reasonable accommodation is protected activity). She alleged that she began

requesting a reasonable accommodation in February 2005 and she continued to make such

requests until February 20, 2007. These requests were either refused or ignored by her

supervisors. Taylor contacted the EEO counselor on February 13, 2007. In the forty-five

days prior to that EEO contact, Taylor requested a reasonable accommodation on January 24,

2007, but like her other requests, it, too, was ignored. The employer waited until May 2,

2007, to inform Taylor definitively that it would do nothing more to respond to her requests

for a reasonable accommodation. Because Taylor has alleged that her employer denied or

ignored requests for reasonable accommodation before, during and after the 45-day

administrative filing period, I have no difficulty concluding that Taylor’s retaliatory

harassment claim was timely under Morgan.

       Taylor also met the Ashcroft/Iqbal standard in alleging the severity or pervasiveness

of the harassment directed to her by supervisors in retaliation for making the requests for a

reasonable accommodation. She alleged that managers refused to cooperate with her to

locate the cause of her breathing difficulties, failed to investigate diligently any

environmental irritants, disingenuously offered her positions that did not accommodate her

medical problem, and did not engage in a timely, good faith “interactive process” to reach

a reasonable accommodation or place her in a work environment more appropriate to her

medical condition, despite numerous notes from medical doctors documenting the need for

such a transfer. Taylor further alleged that managers consistently maintained the only

chemicals used to clean the machines in Taylor’s work area were non-toxic; yet, by late June
No. 09-2527                                                                                  17

2006, manager Charlean Bonds knew that a toxic chemical Taylor claimed exacerbated, if

not caused, her asthma was, in fact, used to lubricate the machines in Taylor’s work area.

Bonds hid her knowledge of the use of this chemical until Taylor inadvertently learned of it

in February 12, 2007, prompting her to contact the EEO counselor the next day. Taylor also

alleged that, rather than cooperate with her, the Postal Service terminated the employment

she had held for seven years.         These and other facts alleged, taken in their totality and

viewed in their cumulative effect, as we are required to do, are sufficient to state a plausible

claim that Taylor was subjected to pervasive retaliatory harassment that was causally

connected to her requests to accommodate her medical condition. Taylor should be permitted

to litigate that claim.

       Turning to discrete acts of retaliation, Morgan makes clear that any timely acts alleged

must have occurred within the 45 days prior to February 13, 2007, when Taylor contacted the

EEO counselor, absent proper application of an equitable tolling doctrine to some untimely

event. Morgan, 536 U.S. at 114, 122. Taylor alleges Bonds’s knowledge of the use of a

toxic chemical in the work environment in June 2006 and her failure to disclose that

information promptly to Taylor constituted retaliation for Taylor’s requests for

accommodation.       In accordance with Taylor’s equitable tolling argument, I find this

sufficient to state a timely claim.

       The majority states that, even accepting as true Taylor’s allegation that Bonds falsely

denied the use of the chemical, “plaintiff does not suggest how this denial prevented her from

suspecting that the alleged failures to accommodate were motivated by discrimination or
No. 09-2527                                                                                   18

retaliation.” To the contrary, Taylor was unaware of Bonds’s knowledge until February 12,

2007, when Taylor read an email confirming that Bonds knew the toxic chemical of which

Taylor complained was used to lubricate the machines in Taylor’s work area. It was only by

reviewing this email that Taylor learned about Bonds’s knowledge and therefore suspected

that her supervisors’ conduct was “driven by a desire to retaliate against [her]” for her

accommodation requests, which ultimately led to her employment termination. See Dixon

v. Gonzales, 481 F.3d 324, 332–33 (6th Cir. 2007). Taylor did not wait until she was certain

that retaliation played a role in her managers’ decisions before seeking EEO counseling, “but

only until [she] was ‘aware of the possibility that [she] had suffered an adverse employment

action” because of illegal retaliation. Id. at 333. Once Taylor realized the possibility that she

had been a victim of illegal conduct by her employer, she immediately contacted the EEO

counselor the very next day. Therefore, under Dixon, she demonstrated entitlement to

equitable tolling.

       Because I believe governing precedent establishes that Taylor has stated a plausible

claim for relief, I respectfully dissent.
