       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Steiner v. Henderson                         No. 02-3395
    ELECTRONIC CITATION: 2003 FED App. 0429P (6th Cir.)
                File Name: 03a0429p.06                    ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
                                                          Elizabeth A. Raies, TZANGAS, PLAKAS, MANNOS &
                                                          RECUPERO, Canton, Ohio, for Appellant. William J. Kopp,
UNITED STATES COURT OF APPEALS                            ASSISTANT UNITED STATES ATTORNEY, Cleveland,
                                                          Ohio, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                                             _________________

VICKI STEINER,                     X                                              OPINION
          Plaintiff-Appellant,      -                                         _________________
                                    -
                                    -  No. 02-3395          SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant
            v.                      -                     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
WILLIAM J. HENDERSON ,              -
Postmaster General, United                                Fed. R. Civ. P. 12(b)(6) because Steiner had failed to file her
                                    -                     gender discrimination claim with an Equal Employment
States Postal Service,              -                     Opportunity Commission (“EEOC”) officer within forty-five
           Defendant-Appellee. -                          days of the alleged discriminatory occurrence, as required by
                                    -                     29 C.F.R. § 1614.105(a)(1). Steiner contends that principles
                                  N                       of equitable tolling apply, despite her failure to timely contact
       Appeal from the United States District Court       an EEO counselor, because she actively and diligently
        for the Northern District of Ohio at Akron.       pursued a resolution to her complaint by following an
     No. 01-01064—Dan A. Polster, District Judge.         established employer policy concerning discrimination
                                                          complaints in the workplace. We affirm the decision of the
              Argued: September 16, 2003                  district court.

         Decided and Filed: December 8, 2003                                             I.

Before: SUHRHEINRICH, COLE, and ROGERS, Circuit             Steiner is an employee of the United States Postal Service
                   Judges.                                (“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.
                       COUNSEL                            As a MDO, Steiner’s new responsibilities included managing
                                                          employees who process mail in the plant.
ARGUED: Elizabeth A. Raies, TZANGAS, PLAKAS,
MANNOS & RECUPERO, Canton, Ohio, for Appellant.             In April 1998, Judson Zernechel arrived at the Canton plant
William J. Kopp, ASSISTANT UNITED STATES                  as the new plant manager, and Steiner’s supervisor. On

                            1
No. 02-3395                       Steiner v. Henderson      3    4     Steiner v. Henderson                          No. 02-3395

October 4, 2000, Zernechel distributed a letter informing        filed suit in the district court on May 3, 2001. The USPS
Steiner that she was to be reassigned, effective October 7, to   filed a motion to dismiss Steiner’s complaint as untimely, and
the position of MDO “in training,” and that she would no         the district court granted that motion on March 28, 2002,
longer be working the day shift Monday through Friday, but       because Steiner had not filed her complaint with the EEOC
the midnight shift Thursday through Monday.                      within the forty-five day deadline provided by 29 C.F.R. §
                                                                 1614.105(a)(1). Moreover, the district court found that there
  Steiner was displeased with her reassignment and               was no reason to equitably toll the filing deadline under the
apparently perceived the reassignment as discrimination          circumstances. Steiner filed a notice of appeal to this Court
based on her gender. Accordingly, she sought redress. On         on April 10, 2002, and her appeal of the district court’s
October 18, she sent a letter to Frank Neri, the Senior Plant    dismissal is timely before us.
Manager and Zernechel’s direct superior, requesting a
meeting to discuss her reassignment. The letter stated that                                      II.
Steiner felt she was “being treated disparately.”
                                                                   We review de novo a district court’s dismissal of a
  Neri responded on October 20, and informed Steiner that        complaint pursuant to Fed. R. Civ. P. 12(b)(6). Amini v.
she should contact Zernechel directly to discuss her concerns.   Oberlin Coll., 259 F.3d 493, 497 (6th Cir. 2001). We will
Steiner did not contact Zernechel as Neri had instructed, but    dismiss the plaintiff’s claims only if it is clear that the
instead contacted Jordan Small, the District Manager and         plaintiff “can prove no set of facts in support of the claims
Neri’s direct superior, by letter on November 8, and requested   that would entitle him to relief.” Id. (citation omitted).
a meeting to discuss the situation. Small responded in writing
on November 15 and informed Steiner that he had no                 “We review a district court’s decision to grant or deny
jurisdiction to handle her complaint and stated that he was      equitable tolling de novo when the facts are undisputed or the
referring her letter back to Neri, the Senior Plant Manager.     district court rules, as a matter of law, that equitable tolling is
                                                                 not available; in all other circumstances we review for an
   Neri responded to the forwarded letter on December 4, and     abuse of discretion.” Seay v. Tenn. Valley Auth., 339 F.3d
again informed Steiner that she should attempt to meet with      454, 469 (6th Cir. 2003).
Zernechel, her direct supervisor, to discuss the matter.
Specifically, Neri stated that he wished to “encourage                                          III.
[Steiner] again to meet with Judson Zernechel so decisions
can be made that best suit [Steiner] and [her] future success      Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
with the [USPS].” Moreover, in this December 4 letter, Neri      amended by the Equal Employment Opportunity Act of 1972,
stated that he was willing to be present at any meeting          86 Stat. 103, 42 U.S.C. §§ 2000e, et seq., provides the
between Zernechel and Steiner.                                   exclusive judicial remedy for claims of discrimination in
                                                                 federal employment. See Brown v. General Servs. Admin.,
   Steiner again failed to attempt to meet with Zernechel, and   425 U.S. 820, 835 (1976). “In permitting federal employees
contacted the EEOC for pre-complaint counseling on January       to sue under Title VII, Congress conditioned the
9, 2001. She subsequently filed a Title VII complaint with       government’s waiver of sovereign immunity upon a
the USPS EEOC on February 7, 2001. The USPS EEOC                 plaintiff’s satisfaction of ‘rigorous administrative exhaustion
dismissed her complaint as untimely on March 15, 2001. She       requirements and time limitations.’”            McFarland v.
No. 02-3395                         Steiner v. Henderson       5    6       Steiner v. Henderson                               No. 02-3395

Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (quoting               actual notice of the time restraint; (2) whether she had
Brown, 425 U.S. at 833). At issue here is the requirement that      constructive notice of the time restraint; (3) the degree of
a federal employee claiming discrimination must contact an          diligence exerted in pursuing her rights; (4) the degree of
Equal Employment Opportunity (“EEO”) counselor within               prejudice to the defendant; and (5) the reasonableness of
forty-five days of an alleged discriminatory occurrence. 29         plaintiff’s ignorance of the time constraint. EEOC v. Ky.
C.F.R. § 1614.105(a)(1) (2003). Failure to do so is cause for       State Police Dep’t, 80 F.3d 1086, 1094 (6th Cir. 1996);
dismissal of the complaint by the agency, see 29 C.F.R.             Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). These
§ 1614.107(a)(2) (2003), as well as by the district court. See      factors are not exclusive bases for equitable tolling, however,
Brown, 425 U.S. at 832 (noting that § 717(c) allows an              and the decision to allow equitable tolling is made on a case-
aggrieved employee to file a civil action in federal district       by-case basis. Seay, 339 F.3d at 469 (citations omitted).
court, but that the complainant must first seek relief in the
agency that had discriminated against him).                            Steiner attached a copy of the USPS’s “Publication 552,”
                                                                    entitled “Manager’s Guide to Understanding Sexual
  Steiner does not dispute that she failed to contact an EEO        Harassment,” to her memorandum in opposition to the
counselor within forty-five days of the October 7, 2000,            USPS’s motion to dismiss below.1 On page ten of that
reassignment. However, Steiner argues that the forty-five day       publication, the forty-five day filing requirement is clearly
period is subject to principles of equitable tolling. Indeed,       delineated. Steiner has admitted that, as a manager herself,
the forty-five day filing period is not a jurisdictional            she was intimately familiar with these guidelines, and further
prerequisite, and can be tolled where principles of equity          states that she relied on this publication to determine how to
demand it. See Zipes v. Trans World Airlines, Inc., 455 U.S.        proceed with her complaint. By her own admission, Steiner
385, 393 (1982); see also Irwin v. Dep’t of Veterans Affairs,       had actual knowledge of the time limits. Cf. Amini, 259 F.3d
498 U.S. 89, 95 (1990) (extending Zipes to administrative           at 501 (noting that the plaintiff, a lawyer, admitted in his brief
requirements for federal employees); Mitchell v. Chapman,           that he was aware of both the EEOC filing requirements and
343 F.3d 811, 819-20 (6th Cir. 2003); Seay, 339 F.3d at 469.        the applicable limitations period; agreeing with the district
This Court has held that a federal employee’s obligation to         court that equitable tolling was not warranted). Moreover,
consult with an EEO counselor within a set time period as a         Steiner’s correspondence with her superiors indicates that
precondition to suit is subject to equitable tolling, waiver, and   Steiner had hired an attorney as early as October 18, 2000.
estoppel. Mitchell, 343 F.3d at 819-20.                             “Constructive knowledge of a time limit will usually be
                                                                    imputed when the plaintiff retains an attorney within the
  At the same time, the Supreme Court has made clear that           limitations period.” Weigel v. Baptist Hosp., 302 F.3d 367,
tolling in a Title VII context should be allowed “only              376 (6th Cir. 2002); Jackson v. Richards Med. Co., 961 F.2d
sparingly.” Irwin, 498 U.S. at 457. This Court has similarly        575, 579 (6th Cir. 1992). Accordingly, we find little doubt
noted that equitable tolling is “available only in compelling       that Steiner had actual, let alone constructive, notice of the
cases which justify a departure from established procedures.”
Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th
Cir. 1989).                                                             1
                                                                          This publication deals only with sexual harassment claims, and not
  In considering whether equitable tolling should apply, we         discrimination claims. Steiner, ho wever, uses this publication to
generally look at five factors: (1) whether the plaintiff had       dem onstrate that she was aware of the internal operating procedures of the
                                                                    USPS.
No. 02-3395                       Steiner v. Henderson       7    8      Steiner v. Henderson                         No. 02-3395

forty-five day filing deadline. She was aware of the filing           complaints, and the University agreed that it would not
deadline and failed to follow the Senior Plant Manager’s              use the time it spent in its investigation to prejudice
instructions on how to pursue her claim internally. Therefore,        plaintiff with respect to any statute of limitations. It
the first, second, and fifth factors cut against Steiner’s            appears to us that the University’s express statements,
argument for equitable tolling.                                       and plaintiff’s reliance thereon, could reasonably have
                                                                      led plaintiff to delay in the filing of her charges with the
  Nevertheless, Steiner claims that the forty-five day filing         EEOC.
period should be tolled because she diligently pursued her
claim during that time period. Steiner presents her               605 F.2d at 259. Here, Neri, through his letters, merely
correspondence with both Neri and Small to illustrate that she    encouraged Steiner to first seek redress from Zernechel.
was in pursuit of her claim at all times. However, although       Nowhere in either of Neri’s letters to Steiner did Neri mention
Steiner claims the pursuit of her claim was diligent, she has     the filing deadline. Nor did Neri ever discourage Steiner from
admitted that at no time did she follow Neri’s instructions as    immediately filing her claim with the EEOC. Therefore, we
to how to proceed with her claim. Neri twice instructed           cannot find that Neri, or any other USPS supervisor, tricked
Steiner to contact Zernechel for another meeting, and even        Steiner or did anything untoward in order to prevent her from
offered to appear at such a meeting. Steiner never contacted      seeking EEOC counseling. Steiner was free to seek EEOC
Zernechel. Thus, the third factor also cuts against Steiner.      counseling at any time. Cf. Seay, 338 F.3d at 468-70 (holding
                                                                  that equitable tolling was warranted where the employer
   Steiner further claims that Neri’s and Small’s refusal to      informed the plaintiff that no one had received the job, but
agree to meet with her or to personally address her claim         omitted additional information that another employee had
contributed to her missing the deadline, and constituted          been “rotated” into the position for “developmental
misleading tactics that should likewise toll the deadline         purposes”; stating that “[t]his was the critical information
period. This Court has held that affirmative representations      Plaintiff needed to raise his suspicions about the employer’s
by the employer that misled a Title VII complainant into          possible racially discriminatory motive in rejecting him”).
missing a filing deadline are sufficient to toll the applicable
Title VII period. See, e.g., Leake v. Univ. of Cincinnati, 605       Furthermore, Steiner has not presented any evidence that
F.2d 255, 259 (6th Cir. 1979); see also Irwin, 498 U.S. at 458    either Neri or Small blatantly disregarded USPS policy in an
(noting that the Court has allowed equitable tolling in           effort to improperly delay satisfaction of Steiner’s claim.
situations where the claimant “has been induced or tricked by     Steiner impliedly argues that either Neri, Small, or both, were
his adversary’s misconduct into allowing the filing deadline      required to address her claim. In her affidavit, Steiner relies
to pass”). In Leake, we found it necessary to equitably toll      on the aforementioned Publication 552 as the basis for this
the filing deadline because the defendant employer had            assertion. However, Publication 552 does not make any
specifically requested that the plaintiff not seek EEOC           specific individual responsible for such discrimination
counseling until it had time to investigate the plaintiff’s       complaints, but matter of factly states that each manager,
allegations. There we found:                                      postmaster, and supervisor has the “role [and responsibility]
                                                                  to listen, inquire, and try to resolve a sexual harassment
  It was during the period of voluntary negotiations that         complaint,” and that if the supervisor does not “have the
  plaintiff and the University agreed that she would give         authority to conduct an inquiry, [he] must take it to a
  the University sufficient time to investigate her               manager, postmaster, or supervisor who does.” First, this is
No. 02-3395                         Steiner v. Henderson       9    10    Steiner v. Henderson                         No. 02-3395

exactly what Small and Neri did in referring her to Zernechel.      a “right-to-sue” letter, that she may pursue a claim in federal
This vague language does not necessarily render every USPS          court. Patterson, 491 U.S. at 181.
manager or supervisor responsible for addressing any
employee’s claim. Second, even if Publication 552 does                 “Voluntary compliance is Title VII’s preferred method for
make every supervisor responsible, it applies only to               promoting the goal of nondiscrimination; it also is the reason
harassment claims, not discrimination claims. The fact that         for the EEOC’s existence.” St. John v. Employment Dev.
both harassment and discrimination claims potentially fall          Dep’t., 642 F.2d 273, 275 (9th Cir. 1981). See generally
under Title VII and are both subject to the forty-five day          Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)
filing deadline does not necessarily mean that each claim is        (stating that “[c]ooperation and voluntary compliance were
likewise governed by the same internal grievance procedures.        selected” by Congress as the preferred means of assuring
In any event, we find no evidence that either Neri or Small         equality of employment opportunities by eliminating
did anything at all to mislead Steiner or to prevent her from       discrimination, and “[t]o this end, Congress created the
timely filing her claim with the EEOC.                              [EEOC]” and established a procedure by which the EEOC
                                                                    and cooperating local agencies would have an opportunity to
  Finally, assuming lack of prejudice to the defendant              settle disputes through conference and conciliation before the
employer had been shown, Steiner would still not be entitled        aggrieved party was allowed to file a lawsuit). Steiner’s
to equitable relief. The Supreme Court has held that the            efforts contravene the congressional decision that the role of
absence of prejudice to the defendant employer “is not an           conciliator belongs to a third party with expertise, the EEOC.
independent basis for invoking the doctrine and sanctioning         As such, her efforts do not provide a suitable basis upon
deviations from established procedures.” Baldwin County             which to grant equitable relief. Cf. Puckett, 889 F.2d at 1488
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per                (holding that equitable tolling was not warranted where the
curiam); Amini, 259 F.3d at 501.                                    plaintiff merely requested withdrawal of her EEOC charges
                                                                    but did not request a right-to-sue letter; stating that “[s]uch a
   In essence, Steiner seeks equitable tolling because she was      decision flouts the statutory requirement of a receipt of a
proactive in seeking conciliation, and did not passively let the    right-to-sue letter, and amounts to a position of arrogance
time slip away. Her efforts are at odds with the will of            regarding the statutory requirement as mere surplusage”).
Congress, however. “In Title VII, Congress set up an
elaborate administrative procedure, implemented through the            As we remarked in Graham-Humphreys v. Memphis Brooks
EEOC, that is designed to assist in the investigation of claims     Museum of Art, 209 F.3d 552 (6th Cir. 2000), “[t]ypically,
of racial discrimination in the workplace and to work towards       equitable tolling applies only when a litigant’s failure to meet
the resolution of these claims through conciliation rather than     a legally-mandated deadline unavoidably arose from
litigation.” Patterson v. McLean Credit Union, 491 U.S. 164,        circumstances beyond that litigant’s control.” Id. at 560-61
180-81 (1989) (citing 42 U.S.C. § 2000e-5(b)); see also             (and cases therein); see also Brown v. Crowe, 963 F.2d 895,
Morgan v. Washington Mfg. Co., 660 F.2d 710, 711 (6th Cir.          899-900 (6th Cir. 1992) (holding that equitable tolling applied
1981) (stating that the purpose of Title VII’s administrative       where the legal mistake which caused the plaintiff not to meet
scheme is “to encourage reconciliation and arbitration of           the statutory time requirements was made by a state agency
employee grievances prior to litigation”). It is only after these   and through no fault of plaintiff). The circumstances of this
procedures have been exhausted and the plaintiff has received       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.
