* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 16 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JANICE E. HANLEN,

Plaintiff-Appellant,

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

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Janice E. Hanlen appeals the di strict court’s entry of summary judgment in favor of defendant-appellee Wil liam Henderson, Postmaster General of the United States of America, on her cla ims 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 Serv ice (USPS) as a supervisor in the Broomfield, Colorado, post offi ce. She was forty-eight years old in 1996, when the allegedly discriminatory inci dents occurred. On March 17 of that year, Paul Lavender was appointed interim o fficer in charge of the Broomfield post office upon the sudden retirement o f 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 customerservice effectiveness reports, which are used to evaluate postal customer service. Based on information provided by delivery supervisors, Hanlen consistent ly certified that the Broomfield post office met the 8:30 a.m. deadline f or distributing all mail to-3-

customers’ post office boxes. Upon his appointment , Lavender determined that, in fact, the deadline had seldom been met. He inve stigated the discrepancy and learned that Hanlen, under the former postmaster’s improper instructions, made the arbitrary assumption that the distribution dead line applied only to mail that had been sorted and delivered to the post office bo x 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 fo r falsifying the effectiveness reports. He did not discipline the d elivery supervisors who prepared the reports for Hanlen’s certification. Hanlen app ealed 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 resp onsible. The first, a shortage in stamp stock in the amount of $3,126.58, was foun d to be attributable to theft by an employee. The second, an account shortage in th e 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 positio n, designated a male employee to replace her, and reassigned her to a po sition in the mail processing operation. As a result of this change, she was ass igned a different work schedule-4-

and denied access to her former office. Hanlen in itiated contact with the USPS Equal Employment Opportunity office (EEO), all eging that the proposed removal and the reassignment were motivated by disc rimination on the basis of sex and age. On May 29, the manager of post office operations is sued a letter of decision on Hanlen’s appeal of the proposed dismissal, reduc ing the disciplinary action to a fourteen-day suspension. Although the manager de termined that Hanlen’s certification of the inaccurate effectiveness reports amounted to misconduct, he found mitigating circumstances in her lengthy and a cceptable work history and in her assertion that she had been following the forme r postmaster’s instructions on completion of the effectiveness reports. Hanlen ag ain initiated contact with the EEO, repeating her earlier charges and also asserti ng that the suspension constituted sex discrimination. On June 7, Lavende r issued Hanlen a letter of warning concerning the stock shortage and the assig nment 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 servic es 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 tenur e, but did not receive either a-5-

letter of warning or developmental training. Short ly afterwards, a new postmaster was appointed and Lavender left the Broomfield postoffice. On September 24, Hanlen initiated EEO counseling on a third complaint, in which she repeated her earlier charges and also asserted that the letter o f warning and the developmental detail assignment constituted discrimination on the basis of sex. The EEO denied relief on Hanlen’s first two adminis trative complaints and dismissed the third for failure to initiate EEO con tact within the applicable time limit of forty-five days of the date of the alleged ly discriminatory action. Hanlen then filed this lawsuit, contending that she had be en discriminated against on the basis of age and sex and that the later USPS action s 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 interrogator ies, and admissions on file, together with the affidavits, if any, show that the re 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 vie w the factual record and-6-

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 ad ministrative complaint was untimely and entered judgment on her claims relatin g to the letter of warning and developmental detail. Later, it granted a defe nse 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 nu mber 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 r egulations, an individual who claims to have been discriminated against must init iate contact with an EEO counselor “within 45 days of the date of the matteralleged 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 mus t 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 wit hin ninety days of receipt of the-7-

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 w e should disregard the forty-five day limitation because she did not reali ze these actions were discriminatory until August 19, when she discoveredthat 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 m atter 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 th e date of [a disciplinary action], and indeed one purpose of a charge and a c omplaint 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 p ersonnel 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 ana lysis, it is notice of the employer’s actions, not the notice of a discrim inatory effect or motivation,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 Commissionto determine the timeliness of an EEO initial contact. Under that s tandard, 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 suspect ed Lavender of discriminatory animus before she received the le tter of warning or the developmental detail assignment. Even under the Paredes standard, there is no justification for an extension of time. -8- 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 ar e 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 th e proposed removal, suspension, and reassignment, along with the relate d changes in working conditions. A prima facie case of disparate discipline may be e stablished if the plaintiff proves by a preponderance of the evidence that (1) the plaintiff is a [member of a protected class], (2) t he plaintiff was disciplined by the employers, and (3) the employer imposed the discipline under circumstances giving rise to an in ference of . . . discrimination.2 In discriminatory discipline cases, “‘[a]n inferenc e of discrimination may

be raised by evidence that a plaintiff was . . . tr eated less favorably than similarly situated employees who are not in the plaintiff's p rotected class.’” Hardy v. S.F. Phosphates Ltd. , 185 F.3d 1076, 1082 (10th Cir. 1999) (quoting Pri ce v. S-B Power Tool , 75 F.3d 362, 365 (8th Cir. 1996)). In cases app lying the burdenshifting scheme set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792, (continued...) -9- 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 ch osen 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 go verning 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 in accurate reports, but that the delivery supervisors who supplied the information w ere not disciplined. We conclude, as did the district court, that Hanlen an d the delivery supervisors were not similarly situated. Although Lavender supervis ed all these individuals, only Hanlen was responsible for certification and, as a result, was subject to different standards. Hanlen did not show disparate treatmentof other, similarly-situated employees and thus failed to establish a prima faci e case of discriminatory discipline. 22 (...continued)

802-04 (1973), a showing that similarly-situated parties received different treatment can also satisfy the third element of a p laintiff’s prima facie case. See Jones , 203 F.3d at 753. However, this is not the only way a plaintiff may r aise 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 ca se to suit instance in which plaintiff was the only management-level employee in volved in an after-hours incident, so that he could not show disparate disci pline of similarly-situated employees). The basic requirement is that “there m ust be a logical connection between each element of the prima facie case and th e 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 s he had no similarly-situated coemployees 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 nondiscriminat ory 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 is sue as part of prima facie case, but discussing it under p retext); 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 issu e as part of a pretext analysis, the result in the present case would be the same. -10- Hanlen also alleged that the USPS retaliated agains t her for pursuing her3 Hanlen’s administrative complaints did not include allegations of

retaliation. An employer’s act committed in retali ation 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- EEO claims. 3 With regard to the retaliation claims, the distri ct court assumed that Hanlen had established the applicable prima facie c ase: “(1) that she was engaged in opposition to . . . discrimination; (2) that she was subjected to an adverse employment action; and (3) a causal connect ion 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 acti ons and that Hanlen had failed to show a genuine dispute of material fact as to wh ether 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 e vidence of pretext. Rather, she argues that if the district court had n ot erroneously dismissed her time-barred claims, she would have shown pretext bycomparing her treatment with that of her replacement. There are two logica l 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 o f those claims limited her ability to introduce evidence relevant to her remai ning claims. Because Hanlen-12-

does not challenge the district court’s determinati on that she failed to proffer evidence of pretext, we will not disturb its ruling

. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge