1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0429P (6th C ir.) File Name: 03a04 29p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
V ICKI S TEINER ,

Plaintiff- Appellant

,

v.

W IL LI AM J. H ENDERS ON , Postmaster General, United States Postal Service, Defendant-Appellee. X

- - - -
> , - - - - - N No. 02-3395

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 01-01064—Dan A. Polster, District Judge. Argued: September 16, 2003
Decided and Filed: December 8, 2003

Befor e: SUHRHE INRICH, COL E, and ROG

ERS, Circui

t Judges.

_________________ COUNSEL

ARGUED: Elizabeth A. Raies, TZANG AS, PLA KAS, MANNOS & REC UPER O, Canton, Ohio, for Appellan

t. W i lliam J. Kopp, ASSISTANT UNITED STATE S 2 Steiner v. Henderson No. 02-3395

ATTORNEY, Cleveland, Ohio, fo r Ap pellee. ON BRI EF: Elizabeth A. Raies, TZANG

AS, P LAKA S, MANNOS & RECUPERO, Canton, Ohio, for Appellant. William J. Kopp, ASSISTANT UNI TED STATE S AT TORNEY, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________ SU HRH EINR IC H, Circuit Judge. Plaintiff-Appellant Vicki Steiner

appeals from

the district court’s dismissal of her Title VII claim for failure to exhaust her adm inistrative remedie s. The district court dismissed Steiner’s claim under Fed. R. Civ. P. 12(b)(6) because Steiner had failed to file her gender discriminat ion c laim with an Equal Employment Opportun ity Commission (“EEOC”) officer within forty-five da ys of the alleged discriminatory occurrence, as required by 29 C.F.R. § 1614.105(a)(1). Steiner contends that principles of equitabl e tolling

apply , despite

her fai lure to timely

contact
anEEO coun selor, be cause she activ e ly a nd dilige ntly pursued a resolution to her complaint by f ollowing an established

employ er poli cy concerning discrimination complai nts in the workplace. We affirm the decision of the district c ourt.

I. Steiner is an employee

of the United States Postal Service (“USPS”). For

the past twenty-four

years, she

has worked at the USPS mail p r ocessing plant in Canton, Ohio. In 1997, she received a promotion to t he p osition of Manager of Distribution Operations (“MDO”) for the wee kday day shift. As a MDO, Steiner’s new responsibilities included managing employ ees who process mail in the p lant.

InApril1998, Judson Zernechel arrived at the Canton plant
as the new p lant mana

ger, a nd Steiner ’s su

perv isor. OnNo. 02-3395 Steiner v. Henderson 3

October 4, 2000, Zer

neche l distributed a letter informing Steiner that she w as to be r

eassig ned, eff ective O ctober 7 , to the position of MDO “in training,” and that she would no longer be working the da y sh if

t M on da y th ro ug h F ri da y, but th e m id ni gh t s hi ft Th ur sd ay t hr ou gh Mo nd ay.
Steiner was displeased with her reas s ignment and appare ntly perceived the reassignment as di s crimination based on her gender. According ly, she soughtredress. On October 18, she sent a letter to Frank Neri , the Senior Plant Manager and Zern echel’ s dire ct sup erior , requ estin g a meeting to discuss her reassignment. Th e letter stated that Steiner felt she was “being treated dispa rately.”

Neri responded on October 2 0, and informed Steiner that she should contact Zernechel directly to discuss her

concer ns. Steiner did not contact Zernechel as Ne ri had instructed, but i nst ead contacted Jordan Small, the District Manager and Neri’s direct superior, by

letter on November 8, and

requested
a meeting to discuss the situation. Small resp onded in writing
onNovember 15 a

nd informed Steiner that he had no jurisdiction to handle her complaint and stated that he was referring her letter ba

ck to Neri, the Senior Plant Manager.

Neri responded to the forwarded letter on Dec ember 4, and again informed Steiner that she sho

uld attempt to me et with Zer n echel, her direct supervisor, to discuss the matter. Sp ec if ic al ly, Neri s tated that h e wish ed to “ encou rage [Steiner] a gain to meet with Judson Zernechel so decisions
can be made t

hat best s uit [Steiner] and [her] f

uture suc cess with the [USPS].” Moreover , in this December 4 letter, Neri stated that he was willing to be present at any meeting between Zerneche l and Steiner.

Steiner again failed to attempt to

meet with

Zerne chel, and contacted the EEOC for pre-complaint counseling on January 9, 2001. She subsequently filed a Title VI

I co mplaint wit

h the USPS EEO C on February 7, 2001. The USPS EEOC dismissedher

complaint as untimely on March 15, 2001. She 4 Steiner v. Henderson No. 02-3395

filed suit in the district court on May 3, 2001. T he USP S filed a motion to dismiss Steiner’s complaint as untimely, and the district court granted that motion on Mar ch 28, 2002, because Steiner had not filed he r compl aint with the EEOC within the forty-f

ive day dea

dline provided by 29 C.F.R. § 1614.105(a)(1). Moreover, the district court found that there
was no r eason to e quitably toll the fi ling dea

dline unde

r th e circumst ances. St einer filed a notice of appeal to this Court
onApril 10, 2002, and h er appea l of the district court’s dismissal is

timely before us.
II.

We review de novo a district court’s dismissalof a complaint pursuant to Fed. R. Civ. P. 1 2(b)(6 ). Amini v. Oberlin Coll. , 259 F.3d

493, 497 ( 6th

Ci r. 2001). We will dismiss the plain

tiff’s c laims only

if it i s clear that the plaintiff “can prove no set of facts in support of t he claims that would entitle him to relief.” Id. (citation omitted).

“We review a di strict c ourt’s decision to grant or deny equitabl e tolling d

e novo whe

n the facts are undisputed

or the districtcourt ru

les, as a matter of law, that equitabl e tolling

is notavailab le; in all other circumstances we review for a n abuse o f discretion.” Seay v. Tenn. Valley Auth. , 339 F.3d 454, 469 (6th Cir. 2003).

III.
Title VII of the C ivil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employ

ment Opportunity Act of 1972, 86 St at. 103, 42 U.S.C. §§ 2000e, et seq. , provides the
e xc lusive judicial r

emedy for cla ims of discrimination in federal emplo y

ment. See Brown v. General Servs. Admin.
, 425 U.S. 820, 835 (1976). “In permitting federal employ ees to sue under Title VII , Congres s con ditioned the government’s waiver of sovereign immunity upon a plaintiff’s satisfaction

of ‘rigorous administrative exhaustion
re quir ements and time limitations.’” McFarland v.No. 02-3395 Steiner v. Henderson 5

Hend erson , 307 F.3d 4 02, 406 (6 th Cir. 2002 ) (quoti n g Brown , 425 U.S. at 833). At issue here is the requirement that
a federal employ

ee claiming

d iscrimination must contact an Equal Employ

ment Opportunity

(“EEO” ) counse lor within f orty -five days of an a

lleged discriminatory

occurrence. 29 C.F.R. § 1614.105(a)(1) (2003). Failure to do so is cause for dismissal of

th e c om pl ai nt by t he agency
, see 29 C.F.R. § 1614.107(a)(2) (2003), as well as by the district

court. See Brown , 425 U.S. at 832 (not ing t hat § 717(c) allows an aggrieved employee to file a

civil action in federal district court, but that the complainant mu st first seek relief in the agency that had discriminated against him).

Steiner does not dispute tha t she failed to contact an EEO counselor within for

ty- five day

s of the Oc

to ber 7, 2000, reassig nment. However, Steiner argues that the forty-f

ive day period is subjec t to princi

ples of e quitable

tolli ng. Indeed, the forty-five

day filing pe

riod is not a jurisdictional prerequi site, and can

be tolled

where principle s of equit y demand it. See Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982 ); see also Irwin v. Dep’t of V eterans A ffairs
, 498 U.S. 89, 95 (1990 ) (exte ndin g Zipes to administrative requir emen ts for fed

eral emp loy ees); Mitchell v. Chapman
, 343 F.3d 811, 819-20 (6 th Cir. 2003 ); Seay , 339 F.3d at 469. This Court has held that a federa l employ ee’s obl igation

to consult with an EE O counse lor within a set time

period a s a precondition

to su it is subj ect to equit able t olli ng, waiver, and estoppel. Mitchell

, 343 F.3d at 819-20.

At the same time, the Supreme Court has made clear that tolling in a T it le V II context sho uld be all owed “on

ly sparingly .” Irwin , 498 U.S. at 457. Th is Court ha s similarly noted that equitable tolling is “ava ilab le only in compelling
cases which justify a depa rture from established procedures.” Puckett v. Tennessee Eastman Co. , 889 F.2d 1481, 1488 (6th Cir. 1989).

Inconsidering whether equitable tolling should apply , we gener ally look at fiv e facto rs: (1) whether the plaintiff had 6 Steiner v. Henderson No. 02-3395

1 Th is publication deals only wi th sex ual harassment clai ms, and not disc rimi nati on claims. S te i ner, ho weve r, uses this p ublica tion to dem onstra te that

she was aware of the int ernal operating procedures of the USPS. actual notice of

the time r

estraint ; (2) whe ther she had
co nstructive notice of the time restraint; (3) the degree o f dili gence exerted in pursuing her rights; (4) the deg ree o f prejudice to the defendant; and ( 5) the reasonableness of plaintiff’s ignorance of the time constraint. EE OC v . Ky. State Police Dep’ t , 80 F. 3d 1086, 1094 (6th Cir. 1996); Andrews v. Orr , 851 F.2d

146, 151 ( 6th Cir. 198 8). Thes e factors are not

exclusive bases for equitable tolling, however, and the decision to allow equitable tolling is made on a caseby-case basis. Seay , 339 F.3d at 469 (citations omitted).

Steiner attached a copy

of the USPS’s “Publication 552,” entitled “Manager’s Guide to Understan ding Sexual Harassment,” to her memorandum in opposition to the USPS’s motion to dismiss below. 1 On pag e ten of that publication, the forty-f

ive day filing

requ ireme nt is clea

rly delineated. Steiner h as admi tted that, as a manager herself, she was intimately familiar with these g uidelines, and further states that she relied on

this publication to determine how to proceed with her c omplaint. By her own admission, Steiner had actual knowledge of

the time limits. Cf. Amini , 259 F.3d at 501 (noting that the plaintiff, a lawye r, admitted in his brief that he was aware of both the EEOC filing require ments and the applica

ble limitat

ions peri od; agr

eeing w ith the dist

r ic t court that equitable tolling was not warranted). Moreove r, Steiner’s cor

resp ondence with her superiors indicates that S teiner had hired an attorney

as early as October 18 , 2000

. “Constructive knowledge of a time limit will usually be imputed when the plaintiff retains an attorn ey within the limitations period.” Weigel v. Baptist Hosp. , 302 F.3d 367, 376 (6th Cir. 2002) ; Jackson v. Richards Med. Co. , 961 F.2d 575, 579 (6th Cir . 19 92). Accordingly , we find little doubt that Steiner had actual, let alone constructive, n oti ce of theNo. 02-3395 Steiner v. Henderson 7

forty-five day fi ling dea dline. She was aware of the filing deadline and failed to follow th e Senior Plant Manager’s instructions on how to pursue her cla iminternally. There fore, the first, s econ d, and fifth factors cut against Steiner’s argument for equitable tolling.

Nevertheless, Steiner claims that the fort y -five day

filing period should be tolled becaus e she diligently pur sued her claim during that time period. Steine r pre sents her correspondencewith both Neri and Small to illustrate that she
was in pursuit o f her cl aim at all times. How ever, a

lth oug h St einer claims the pursuit of her claim was diligent, she ha s admitted that at no time did she follow Neri’s instructions as to how to proce ed with he r claim. N eri twic e instructe d Steiner to cont act Zernechel for a nother meeting, and even offered to appear at such a meeting. Steiner never contac ted Zernechel. Thus, the third factor a lso cuts against Steiner.

Steiner further claims that Neri’s and Small’s ref u sal to agreeto meet with her or to personal ly addr ess her c laim contributed

to her miss i ng t he deadline, and constituted misleading tactic s that should likewise toll the deadline pe riod

. This Court has held that affirmative representations by the employer that misled a Title VI I complai nant into missing a filing deadline are suffi cient to to ll the app licable Title VII period. See, e.g. , Leake v . Univ. of Cincinnati , 605 F.2d 255, 259 ( 6th Cir. 197 9); see also Irwin , 498 U.S. at 458 (noting that the C ou rt has all owed equ itable tol ling in situations where the claimant “has been induced or tricked by his adversary ’s misconduct into allowing the fil ing deadline to pas s”) . In Le ake
, we found it neces sary

to equita bly toll the fil ing d eadline because the defendant e mployer had specific ally

request ed that th e plaintiff not seek EEOC counseling until it had time to investigate the p laintiff’s allegations. There we found:

It was during the period of voluntar y ne gotiations that plainti ff an d the University ag

reed that she would give the Universi

ty s u f ficient time to investigate her 8 Steiner v. Henderson No. 02-3395

complain ts, and the University a

greed that it wou ld not
use the time it spent in its inve stig ation to prejudice plaintiff with resp ect to an

y st atute of limitati on s. It appears to us t

h at the Uni

versity ’s expres s stateme nts, and plaintiff’s reliance thereon, could reasona bly have led plaintiff to delay in the

filing of her

charges with the EEOC.

605 F.2d at 2 59. Here, N eri, thro ugh his le

tters, me rely encouraged

Steiner to first seek redres s from Ze rneche l. Nowhere in either of Neri’s letters to Steiner did Neri mention the filing deadline. Nor did Neri ever discoura ge Steiner from immediate ly f

iling he r claim with the EEOC. Therefore, we cannot find that Neri, or any

other USPS supervisor, tricked Steiner or did anything

untoward in order to prevent her from seekingEEOC counseling. Steiner was free to seek EEOC counseling at any time. Cf. Seay
, 338 F.3d at 468-70 (holding that equ it able tolling was warranted where the employer informed the plaintiff tha t no one had received the job, but omittedadditiona

l informa tion that a

noth er e mployee had been “rotated” into the position for “developmental purposes”; stating

that “[t]his was th e critical information Plaintiff needed to raise his suspicions about the employ er’s possible racially discriminatory motive in rejecting him”). Furthermore, Steiner has no t presented any evidence that either Neri or Small

blatantly disreg arded USPS policy in an effort to imprope

rly dela y sa ti sfaction of Steine

r’s clai m. Steiner impliedly argue s that either Neri, Small, or both, were required to address her claim. In he r affida vit, Steiner relies
onthe aforementioned Publication 552 as the basis for this assertion. H owev er, Publication 552 does not make any specific individua

l respons i bl e for such discrimination comp laints, but matter of factly states that each manager
, postmaster, and supervisor has the “role [and re sp on si bi li ty] to listen, inquire, and try to resolve a sexual harassment complaint,” and that if the supervisor doe s not “have the authority to co nduc t an in

quiry , [he] mu st take it to a manager, postmaste

r, or supe rvisor who does.”

First, this isNo. 02-3395 Steiner v. Henderson 9

exactly what Small

and Neri did in referring

her to Z ernechel. This vague l anguage does not necessarily render every USPS manager or supe r visor responsible for addressing any employee’s

claim. Second, even if Pub lication 552 does make every

supervis or responsib le , it applie s only to harassment

claims, notdiscrimination claims. The fact that both harassment and discr imin ation cla ims potenti ally

fall under Titl e VI I and are both subject to the f orty-five da

y filing deadline does not necessarily mean that each claim is likewise gover ned by the same internal grieva

nce proc edures. Inany eve

nt, we find no evidence that eithe r Ner i or Small did anything a t all to mislead Steiner or to prevent her from timely filing h er claim

with the EE OC.

Fi na ll y, assuming

la ckof prejudice to the defendant employer had been shown, Steiner would still not be entitled to equitable relief. The Sup reme C ourt has held that the absence of preju

dice to the defendant employ er “is not an independent

bas is forinvoking the doctrine and sanctioning deviations from established procedures.” Baldwin Coun ty We lcome Ctr. v. Bro wn , 466 U.S. 147, 152 (1984) (per curiam) ; Amini , 259 F.3d at 501.

Inessence , Steiner

seeks eq uitable tolling because she was proactive in seeking concilia tion, and d

id not passively let the time slip away. Her effort s are at odds with the will of Congre s s, however. “In Title VI I, Congress set up an elabora te administrative procedure, implemented through the EEOC, that is des igned to assist in the inves tigation

of claims of racial d iscrimina tion in the workplace and to work towards the resolution of

theseclaims through conciliation rather than litigation.” Patterson v. McLean Credit Union , 491 U.S. 164, 180-81 (1989) (citing 42 U.S .C. § 2000e-5 (b)); see also Morgan v. Washington Mfg. Co. , 660 F.2d 710, 711 (6th Cir. 1 981) (stating

that the p

urpose of Title VI I’s a dminist rativ e sche me is “to encourage reconc iliation and arbitration of employee grievances prior

to litigation”). It is only

after th ese procedures have been exhausted and the plaintiff has received 10 Steiner v. Henderson No. 02-3395

a “right-to-sue” letter, that she may pursue a claim in federal court. Patterson, 491 U.S. at 181. “Voluntary

compliance is Title VII ’s preferred method for promoting the goa

l of nondis criminat

ion; it also is the reason for th e EEO C’s existence.” St. John v. Employment Dev. Dep’t. , 642 F.2d 273, 275 (9th Cir. 198 1 ). See gen erally Alexander

v. Gardner-Denver Co. , 415 U.S. 3 6 , 44 (1974) (stating that “[c]ooperation and vol untar y compliance were selected” by Congre ss as the preferred means of assuring equality of employment opportunities by eliminating discrimination, and “[ t]o this end, Congress created the [EEOC ]” and esta

blished a procedu re by which th e EEOC and coopera ting loc al age

ncies wo uld have a

n opportun

ity t o settledisputes through conference and conciliation before the aggrieved party was a

llowed to file a lawsuit). Steiner’s efforts contravene the congressional decision that the role of conciliator

belongs to a third

party with expertise , the EEOC

. As s uch, her

efforts do not prov

ide a suita

ble basis upo n whichto grant equitable relief. Cf. Pucke tt , 889 F.2d at 1488 (holding that equi

table toll ing was not warranted where the plaintiff merel y r equested withdrawal of her EEOC charg es butdid not request a right-to-sue letter; stating that “[s]uch a decisionflouts the statutory require ment of a receipt of a right-to-sue letter, and am ounts t o a position of arrogance regarding the statutory

requirement as mere surplusage” ).

As we remarked in Gr

aham-Hu mphreys

v. Memp his B rook

s Muse u m of Art , 2 09 F. 3d 55 2 ( 6t h C ir . 2 00 0) , “ [t ]yp ic al ly, equitabl e tolling a

pplies onl y when a litigant’s failure to meet
a legall y- mandate d deadline un avoidably arose from circumstances beyond that litigant’s c ontrol.” Id. at 560-61 (and ca ses ther

ein); see also Brown v. Crow e , 963 F.2d 895, 899-900 (6th Cir. 1992) (hol ding that equitable tolling applied where the legal mistake which caused the plaintiff not to meet the statutory time requirements wa s made by a state agency and through no fault of

plaintiff ). The c ircumsta

nces of t his
casecertain

ly d o not fit wi

thin that mo del. As the

Supreme Court observed in Baldwin,No. 02-3395 Steiner v. Henderson 11

[ p]rocedural require

ments esta

blished by

Congre ss f

o r gaining acces s to the federal courts are not to be disregarded

by courts out of a va gue sy mpathy for particular liti gants. As we stated in Mohasco Corp. v. Silver , 447 U.S. 807, 826 . . . (1980), “[i]n the long run, experience teaches that

strict adherence to the procedural requi remen ts specifie d by the leg islature

is the bes t guarantee of evenha

nded administration of the law.”

Brown , 466 U.S. at 152. Accord ingly, we hold that the districtcourt

did not er r in dismissing

this action for fa

ilure to meet the forty-f

i ve day filing

period. In other words, the districtcourt did n ot err in ho ldin g a s a matter of law that equitable tolling was not warranted on the facts of this case.

III.

For the foregoing reasons, we AFFIRM the j udgme nt of the distri ct court

.