Vicki Steiner v. WILLIAM J. HENDERSON, Postmaster General, United States Postal Service

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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.
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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

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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.

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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
1This publication deals only with sexual harassment claims, and not
discrimination claims. Steiner, ho wever, uses this publication to
dem onstrate 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 case-
by-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

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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

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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. 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.
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”).
As we remarked in Graham-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,

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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.

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