1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0429P (6th Cir.)

File Name: 03a0429p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

VICKI STEINER,

Plaintiff-Appellant,

v.

WILLIAM J. HENDERSON,

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 

Before: SUHRHEINRICH, COLE, and ROGERS, Circuit

Judges. 

_________________

COUNSEL

ARGUED: Elizabeth A. Raies, TZANGAS, PLAKAS,

MANNOS & RECUPERO, Canton, Ohio, for Appellant.

William J. Kopp, ASSISTANT UNITED STATES

2 Steiner v. Henderson No. 02-3395

ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:

Elizabeth A. Raies, TZANGAS, PLAKAS, MANNOS &

RECUPERO, Canton, Ohio, for Appellant. William J. Kopp,

ASSISTANT UNITED STATES ATTORNEY, Cleveland,

Ohio, for Appellee.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant

Vicki Steiner appeals from the district court’s dismissal of her

Title VII claim for failure to exhaust her administrative

remedies. The district court dismissed Steiner’s claim under

Fed. R. Civ. P. 12(b)(6) because Steiner had failed to file her

gender discrimination claim with an Equal Employment

Opportunity Commission (“EEOC”) officer within forty-five

days of the alleged discriminatory occurrence, as required by

29 C.F.R. § 1614.105(a)(1). Steiner contends that principles

of equitable tolling apply, despite her failure to timely contact

an EEO counselor, because she actively and diligently

pursued a resolution to her complaint by following an

established employer policy concerning discrimination

complaints in the workplace. We affirm the decision of the

district court.

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 processing plant in Canton, Ohio. In 1997,

she received a promotion to the position of Manager of

Distribution Operations (“MDO”) for the weekday day shift.

As a MDO, Steiner’s new responsibilities included managing

employees who process mail in the plant.

In April 1998, Judson Zernechel arrived at the Canton plant

as the new plant manager, and Steiner’s supervisor. On
No. 02-3395 Steiner v. Henderson 3

October 4, 2000, Zernechel distributed a letter informing

Steiner that she was to be reassigned, effective October 7, to

the position of MDO “in training,” and that she would no

longer be working the day shift Monday through Friday, but

the midnight shift Thursday through Monday.

Steiner was displeased with her reassignment and

apparently perceived the reassignment as discrimination

based on her gender. Accordingly, she sought redress. On

October 18, she sent a letter to Frank Neri, the Senior Plant

Manager and Zernechel’s direct superior, requesting a

meeting to discuss her reassignment. The letter stated that

Steiner felt she was “being treated disparately.”

Neri responded on October 20, and informed Steiner that

she should contact Zernechel directly to discuss her concerns.

Steiner did not contact Zernechel as Neri had instructed, but

instead 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 responded in writing

on November 15 and informed Steiner that he had no

jurisdiction to handle her complaint and stated that he was

referring her letter back to Neri, the Senior Plant Manager.

Neri responded to the forwarded letter on December 4, and

again informed Steiner that she should attempt to meet with

Zernechel, her direct supervisor, to discuss the matter.

Specifically, Neri stated that he wished to “encourage

[Steiner] again to meet with Judson Zernechel so decisions

can be made that best suit [Steiner] and [her] future success

with the [USPS].” Moreover, in this December 4 letter, Neri

stated that he was willing to be present at any meeting

between Zernechel and Steiner.

Steiner again failed to attempt to meet with Zernechel, and

contacted the EEOC for pre-complaint counseling on January

9, 2001. She subsequently filed a Title VII complaint with

the USPS EEOC on February 7, 2001. The USPS EEOC

dismissed her 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. The USPS

filed a motion to dismiss Steiner’s complaint as untimely, and

the district court granted that motion on March 28, 2002,

because Steiner had not filed her complaint with the EEOC

within the forty-five day deadline provided by 29 C.F.R. §

1614.105(a)(1). Moreover, the district court found that there

was no reason to equitably toll the filing deadline under the

circumstances. Steiner filed a notice of appeal to this Court

on April 10, 2002, and her appeal of the district court’s

dismissal is timely before us.

II.

We review de novo a district court’s dismissal of a

complaint pursuant to Fed. R. Civ. P. 12(b)(6). Amini v.

Oberlin Coll., 259 F.3d 493, 497 (6th Cir. 2001). We will

dismiss the plaintiff’s claims only if it is clear that the

plaintiff “can prove no set of facts in support of the claims

that would entitle him to relief.” Id. (citation omitted). 

“We review a district court’s decision to grant or deny

equitable tolling de novo when the facts are undisputed or the

district court rules, as a matter of law, that equitable tolling is

not available; in all other circumstances we review for an

abuse of discretion.” Seay v. Tenn. Valley Auth., 339 F.3d

454, 469 (6th Cir. 2003). 

III.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as

amended by the Equal Employment Opportunity Act of 1972,

86 Stat. 103, 42 U.S.C. §§ 2000e, et seq., provides the

exclusive judicial remedy for claims of discrimination in

federal employment. See Brown v. General Servs. Admin.,

425 U.S. 820, 835 (1976). “In permitting federal employees

to sue under Title VII, Congress conditioned the

government’s waiver of sovereign immunity upon a

plaintiff’s satisfaction of ‘rigorous administrative exhaustion

requirements and time limitations.’” McFarland v.
No. 02-3395 Steiner v. Henderson 5

Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (quoting

Brown, 425 U.S. at 833). At issue here is the requirement that

a federal employee claiming discrimination must contact an

Equal Employment Opportunity (“EEO”) counselor within

forty-five days of an alleged discriminatory occurrence. 29

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

dismissal of the complaint by the 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 (noting that § 717(c) allows an

aggrieved employee to file a civil action in federal district

court, but that the complainant must first seek relief in the

agency that had discriminated against him). 

Steiner does not dispute that she failed to contact an EEO

counselor within forty-five days of the October 7, 2000,

reassignment. However, Steiner argues that the forty-five day

period is subject to principles of equitable tolling. Indeed,

the forty-five day filing period is not a jurisdictional

prerequisite, and can be tolled where principles of equity

demand it. See Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 393 (1982); see also Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89, 95 (1990) (extending Zipes to administrative

requirements for federal employees); Mitchell v. Chapman,

343 F.3d 811, 819-20 (6th Cir. 2003); Seay, 339 F.3d at 469.

This Court has held that a federal employee’s obligation to

consult with an EEO counselor within a set time period as a

precondition to suit is subject to equitable tolling, waiver, and

estoppel. Mitchell, 343 F.3d at 819-20. 

At the same time, the Supreme Court has made clear that

tolling in a Title VII context should be allowed “only

sparingly.” Irwin, 498 U.S. at 457. This Court has similarly

noted that equitable tolling is “available only in compelling

cases which justify a departure from established procedures.”

Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th

Cir. 1989). 

In considering whether equitable tolling should apply, we

generally look at five factors: (1) whether the plaintiff had

6 Steiner v. Henderson No. 02-3395

1

This publication deals only with sexual harassment claims, and not

discrimination claims. Steiner, however, uses this publication to

demonstrate that she was aware of the internal operating procedures of the

USPS.

actual notice of the time restraint; (2) whether she had

constructive notice of the time restraint; (3) the degree of

diligence exerted in pursuing her rights; (4) the degree of

prejudice to the defendant; and (5) the reasonableness of

plaintiff’s ignorance of the time constraint. EEOC v. Ky.

State Police Dep’t, 80 F.3d 1086, 1094 (6th Cir. 1996);

Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). These

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 Understanding Sexual

Harassment,” to her memorandum in opposition to the

USPS’s motion to dismiss below.1 On page ten of that

publication, the forty-five day filing requirement is clearly

delineated. Steiner has admitted that, as a manager herself,

she was intimately familiar with these guidelines, and further

states that she relied on this publication to determine how to

proceed with her complaint. By her own admission, Steiner

had actual knowledge of the time limits. Cf. Amini, 259 F.3d

at 501 (noting that the plaintiff, a lawyer, admitted in his brief

that he was aware of both the EEOC filing requirements and

the applicable limitations period; agreeing with the district

court that equitable tolling was not warranted). Moreover,

Steiner’s correspondence with her superiors indicates that

Steiner 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 attorney 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. 1992). Accordingly, we find little doubt

that Steiner had actual, let alone constructive, notice of the
No. 02-3395 Steiner v. Henderson 7

forty-five day filing deadline. She was aware of the filing

deadline and failed to follow the Senior Plant Manager’s

instructions on how to pursue her claim internally. Therefore,

the first, second, and fifth factors cut against Steiner’s

argument for equitable tolling. 

Nevertheless, Steiner claims that the forty-five day filing

period should be tolled because she diligently pursued her

claim during that time period. Steiner presents her

correspondence with both Neri and Small to illustrate that she

was in pursuit of her claim at all times. However, although

Steiner claims the pursuit of her claim was diligent, she has

admitted that at no time did she follow Neri’s instructions as

to how to proceed with her claim. Neri twice instructed

Steiner to contact Zernechel for another meeting, and even

offered to appear at such a meeting. Steiner never contacted

Zernechel. Thus, the third factor also cuts against Steiner.

Steiner further claims that Neri’s and Small’s refusal to

agree to meet with her or to personally address her claim

contributed to her missing the deadline, and constituted

misleading tactics that should likewise toll the deadline

period. This Court has held that affirmative representations

by the employer that misled a Title VII complainant into

missing a filing deadline are sufficient to toll the applicable

Title VII period. See, e.g., Leake v. Univ. of Cincinnati, 605

F.2d 255, 259 (6th Cir. 1979); see also Irwin, 498 U.S. at 458

(noting that the Court has allowed equitable tolling in

situations where the claimant “has been induced or tricked by

his adversary’s misconduct into allowing the filing deadline

to pass”). In Leake, we found it necessary to equitably toll

the filing deadline because the defendant employer had

specifically requested that the plaintiff not seek EEOC

counseling until it had time to investigate the plaintiff’s

allegations. There we found:

It was during the period of voluntary negotiations that

plaintiff and the University agreed that she would give

the University sufficient time to investigate her

8 Steiner v. Henderson No. 02-3395

complaints, and the University agreed that it would not

use the time it spent in its investigation to prejudice

plaintiff with respect to any statute of limitations. It

appears to us that the University’s express statements,

and plaintiff’s reliance thereon, could reasonably have

led plaintiff to delay in the filing of her charges with the

EEOC.

605 F.2d at 259. Here, Neri, through his letters, merely

encouraged Steiner to first seek redress from Zernechel.

Nowhere in either of Neri’s letters to Steiner did Neri mention

the filing deadline. Nor did Neri ever discourage Steiner from

immediately filing her 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

seeking EEOC counseling. Steiner was free to seek EEOC

counseling at any time. Cf. Seay, 338 F.3d at 468-70 (holding

that equitable tolling was warranted where the employer

informed the plaintiff that no one had received the job, but

omitted additional information that another employee had

been “rotated” into the position for “developmental

purposes”; stating that “[t]his was the critical information

Plaintiff needed to raise his suspicions about the employer’s

possible racially discriminatory motive in rejecting him”).

Furthermore, Steiner has not presented any evidence that

either Neri or Small blatantly disregarded USPS policy in an

effort to improperly delay satisfaction of Steiner’s claim.

Steiner impliedly argues that either Neri, Small, or both, were

required to address her claim. In her affidavit, Steiner relies

on the aforementioned Publication 552 as the basis for this

assertion. However, Publication 552 does not make any

specific individual responsible for such discrimination

complaints, but matter of factly states that each manager,

postmaster, and supervisor has the “role [and responsibility]

to listen, inquire, and try to resolve a sexual harassment

complaint,” and that if the supervisor does not “have the

authority to conduct an inquiry, [he] must take it to a

manager, postmaster, or supervisor who does.” First, this is
No. 02-3395 Steiner v. Henderson 9

exactly what Small and Neri did in referring her to Zernechel.

This vague language does not necessarily render every USPS

manager or supervisor responsible for addressing any

employee’s claim. Second, even if Publication 552 does

make every supervisor responsible, it applies only to

harassment claims, not discrimination claims. The fact that

both harassment and discrimination claims potentially fall

under Title VII and are both subject to the forty-five day

filing deadline does not necessarily mean that each claim is

likewise governed by the same internal grievance procedures.

In any event, we find no evidence that either Neri or Small

did anything at all to mislead Steiner or to prevent her from

timely filing her claim with the EEOC.

Finally, assuming lack of prejudice to the defendant

employer had been shown, Steiner would still not be entitled

to equitable relief. The Supreme Court has held that the

absence of prejudice to the defendant employer “is not an

independent basis for invoking the doctrine and sanctioning

deviations from established procedures.” Baldwin County

Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per

curiam); Amini, 259 F.3d at 501. 

In essence, Steiner seeks equitable tolling because she was

proactive in seeking conciliation, and did not passively let the

time slip away. Her efforts are at odds with the will of

Congress, however. “In Title VII, Congress set up an

elaborate administrative procedure, implemented through the

EEOC, that is designed to assist in the investigation of claims

of racial discrimination in the workplace and to work towards

the resolution of these claims through conciliation rather than

litigation.” Patterson v. McLeanCredit 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.

1981) (stating that the purpose of Title VII’s administrative

scheme is “to encourage reconciliation and arbitration of

employee grievances prior to litigation”). It is only after these

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 goal of nondiscrimination; it also is the reason

for the EEOC’s existence.” St. John v. Employment Dev.

Dep’t., 642 F.2d 273, 275 (9th Cir. 1981). See generally

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)

(stating that “[c]ooperation and voluntary compliance were

selected” by Congress as the preferred means of assuring

equality of employment opportunities by eliminating

discrimination, and “[t]o this end, Congress created the

[EEOC]” and established a procedure by which the EEOC

and cooperating local agencies would have an opportunity to

settle disputes through conference and conciliation before the

aggrieved party was allowed 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 such, her efforts do not provide a suitable basis upon

which to grant equitable relief. Cf. Puckett, 889 F.2d at 1488

(holding that equitable tolling was not warranted where the

plaintiff merely requested withdrawal of her EEOC charges

but did not request a right-to-sue letter; stating that “[s]uch a

decision flouts the statutory requirement of a receipt of a

right-to-sue letter, and amounts to a position of arrogance

regarding the statutory requirement as mere surplusage”). 

Aswe remarkedinGraham-Humphreys v. Memphis Brooks

Museum of Art, 209 F.3d 552 (6th Cir. 2000), “[t]ypically,

equitable tolling applies only when a litigant’s failure to meet

a legally-mandated deadline unavoidably arose from

circumstances beyond that litigant’s control.” Id. at 560-61

(and cases therein); see also Brown v. Crowe, 963 F.2d 895,

899-900 (6th Cir. 1992)(holding that equitable tolling applied

where the legal mistake which caused the plaintiff not to meet

the statutory time requirements was made by a state agency

and through no fault of plaintiff). The circumstances of this

case certainly do not fit within that model. As the Supreme

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

[p]rocedural requirements established by Congress for

gaining access to the federal courts are not to be

disregarded by courts out of a vague sympathy for

particular litigants. 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

requirements specified by the legislature is the best

guarantee of evenhanded administration of the law.” 

Brown, 466 U.S. at 152. Accordingly, we hold that the

district court did not err in dismissing this action for failure to

meet the forty-five day filing period. In other words, the

district court did not err in holding as a matter of law that

equitable tolling was not warranted on the facts of this case.

III.

For the foregoing reasons, we AFFIRM the judgment of

the district court.