Steiner v. Henderson

• Decision Date: 08 December 2003
• Docket Number: No. 02-3395.,02-3395.
• Citation: 354 F.3d 432
• Parties: Vicki STEINER, Plaintiff-Appellant, v. William J. HENDERSON, Postmaster General, United States Postal Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

354 F.3d 432

Vicki STEINER, Plaintiff-Appellant, v. William J. HENDERSON, Postmaster General, United States Postal Service, Defendant-Appellee.

No. 02-3395.

United States Court of Appeals, Sixth Circuit.

Argued: September 16, 2003.

Decided and Filed: December 8, 2003.

Elizabeth A. Raies (argued and briefed), Tzangas, Plakas, Mannos & Recupero, Canton, OH, for Plaintiff-Appellant.

William J. Kopp (argued and briefed), Asst. U.S. Attorney, Cleveland, OH, for Defendant-Appellee.

Before: SUHRHEINRICH, COLE, and ROGERS, Circuit Judges.

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 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 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, 96 S.Ct. 1961, 48 L.Ed.2d 402 (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. Henderson, 307 F.3d 402, 406 (6th Cir.2002) (quoting Brown, 425 U.S. at 833, 96 S.Ct. 1961). 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, 96 S.Ct. 1961 (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, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (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 95, 111 S.Ct. 453. 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 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 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,...