Berry v. Bondi: No Waiver of Federal-Sector Title VII Exhaustion Defense by Mere Acceptance and Investigation of an Untimely EEO Complaint

Introduction

Parties and posture. Former FBI Special Agent William Berry sued the United States Attorney in her official capacity under Title VII of the Civil Rights Act of 1964, alleging race and marital-status discrimination, retaliation, and a hostile work environment arising from his assignment to a unit responding to a Black Lives Matter protest and his later work at the FBI’s Farmington, New Mexico resident agency.

Key issues. The appeal primarily turned on administrative exhaustion: whether Mr. Berry timely initiated EEO contact within the 45-day deadline set by 29 C.F.R. § 1614.105(a)(1), whether he included the relevant “discrete acts” in his EEO complaint, whether reporting misconduct to the FBI’s Inspection Subdivision (“INSD”) could substitute for EEO contact, and whether the Government waived its exhaustion defense by accepting and investigating his EEO complaint. A secondary issue was whether the district court abused its discretion in denying additional discovery under Federal Rule of Civil Procedure 56(d).

Procedural note. The Tenth Circuit denied a petition for panel rehearing and issued a revised decision making non-substantive edits (modifying footnote 10), without changing the outcome.

Summary of the Opinion

The Tenth Circuit largely affirmed summary judgment for the Government on the ground that Mr. Berry failed to exhaust most claims. Because Mr. Berry did not contact an EEO counselor until January 11, 2023, the court held that nearly all alleged discriminatory/retaliatory events occurring before November 27, 2022 were untimely under the 45-day rule, and several later events were not exhausted because they were not included (or amended into) the EEO complaint. The court also affirmed denial of Rule 56(d) discovery as insufficiently specific and largely irrelevant to the exhaustion defense.

The court remanded one narrow question: whether Mr. Berry’s report to an EEO counselor of a January 7, 2023 letter proposing his dismissal could exhaust his discrimination theory predicated on the earlier INSD travel-fraud investigation (a point raised below but not addressed by the district court).

Critically, the court held—consistent with eight sister circuits—that a federal agency does not waive its exhaustion defense merely by accepting and investigating an untimely EEO complaint.

Analysis

Precedents Cited

1) Exhaustion as a mandatory (but non-jurisdictional) claims-processing rule

  • Green v. Brennan and Dossa v. Wynne: confirm Title VII exhaustion is required for federal employees.
  • Fort Bend Cnty. v. Davis and Hickey v. Brennan: exhaustion is “not a jurisdictional prerequisite” but a claims-processing rule that must be enforced when properly raised.
  • Smith v. Cheyenne Ret. Invs. L.P.: frames how courts assess the permissible scope of litigation in relation to the administrative charge.

2) Discrete acts vs. hostile work environment timing

  • Nat'l R.R. Passenger Corp. v. Morgan (as applied in Martinez v. Potter): each discrete incident is its own “unlawful employment practice” requiring exhaustion.
  • Tademy v. Union Pac. Corp. (and unpublished Marquez v. Johnson): for hostile work environment claims, timely reporting of one contributing act can suffice—provided it is part of the same hostile environment.
  • Duncan v. Manager, Dep't of Safety, City & Cnty. of Denv.: used to emphasize that acts of a “different character” do not combine into one hostile work environment for timeliness purposes.
  • Young v. Colo. Dep't of Corr.: referenced for the “severe or pervasive” requirements (though the panel ultimately resolved exhaustion without needing to reach the merits).

3) Rule 56(d) discovery standards

  • Adams v. C3 Pipeline Constr. Inc., FDIC v. Arciero, Gutierrez v. Cobos, and Birch v. Polaris Indus., Inc.: require specificity as to the “probable facts” sought and how discovery will rebut summary judgment.

4) Waiver of untimeliness by agency conduct (survey of other circuits)

  • The panel relied on persuasive authority that waiver may occur when an agency reaches the merits without addressing timeliness or makes an explicit timeliness finding: Ester v. Principi, Bowden v. United States, Rowe v. Sullivan, Ramirez v. Sec'y, U.S. Dep't of Transp., Shea v. Tisch, Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, Boyd v. U.S. Postal Serv., Girard v. Rubin, Bruce v. U.S. Dep't of Just., Horton v. Potter, and Lord v. Holder.
  • But all eight circuits reject waiver based solely on acceptance/investigation; the panel quoted Belgrave v. Pena for the policy rationale (avoiding a rule that discourages agencies from investigating and voluntarily remedying discrimination).

5) Retaliation “materially adverse” standard, and why Muldrow v. City of St. Louis does not alter it

  • Burlington N. & Santa Fe Ry. Co. v. White supplies the “materially adverse” standard for retaliation; Parker Excavating, Inc. v. Lafarge W., Inc. reiterates that trivial harms are excluded.
  • The panel rejected the argument that Muldrow v. City of St. Louis lowered the retaliation standard, citing Plump v. Gov't Emps. Ins. Co. (citing Culp v. Remington of Montrose Golf Club, LLC) for the proposition that Muldrow did not change retaliation doctrine in the Tenth Circuit.
  • For prima facie retaliation elements, the panel cited Anupama Bekkem v. Wilkie and Hansen v. SkyWest Airlines; for causation/knowledge, Montes v. Vail Clinic, Inc. (quoting Williams v. Rice) and Ward v. Jewell (quoting Williams v. W.D. Sports, N.M., Inc.).
  • Stover v. Martinez was used to show that even more consequential “non-recognition”-type workplace slights may not be materially adverse.

6) Remand practice

  • Singleton v. Wulff and Tabor v. Hilti, Inc.: support remand where the district court did not decide a properly raised issue.

Legal Reasoning

1) The 45-day rule and discrete-act pleading drive the exhaustion outcome

The panel applied the federal-sector requirement that an employee must “initiate contact” with an EEO counselor within 45 days of the alleged discriminatory matter (29 C.F.R. § 1614.105(a)(1)). Because Mr. Berry’s first EEO contact was January 11, 2023, the court treated acts prior to November 27, 2022 as untimely unless some exception applied. For discrimination and retaliation, the court treated alleged denials of training, PRS opportunities, and the travel-with-spouse restriction as “discrete acts” under Nat'l R.R. Passenger Corp. v. Morgan/Martinez v. Potter, each requiring timely EEO contact and inclusion in an EEO complaint.

The panel also reinforced a second, independent exhaustion gate: even if EEO contact is timely, a plaintiff must still include (or amend to include) the relevant discrete incidents in the EEO complaint; otherwise, the claim is unexhausted under Lincoln v. BNSF Ry. Co..

2) Reporting to INSD is not a substitute for EEO contact (on this record)

Mr. Berry argued that his August/September 2021 reports to INSD about “hate speech” should satisfy EEO initiation, relying on the district court test in Johnson v. Glickman. The panel rejected this: it stated it had “never adopted” that test, and in any event the record supported the district court’s finding that INSD and OEEOA are separate offices with distinct processes. The court emphasized an internal policy statement that an employee who wishes to file a formal EEO complaint “must contact an EEO counselor within 45 days.”

3) Hostile work environment: timely “one act” requirement not met

While Tademy v. Union Pac. Corp. allows older acts to be swept into a hostile work environment claim if at least one contributing act is timely, the panel found Mr. Berry did not timely report qualifying harassment within the 45-day window. The one timely/exhausted matter—the January 2023 “non-recognition” incident—was deemed “qualitatively different” and “of a different character” (citing Tademy and Duncan v. Manager, Dep't of Safety, City & Cnty. of Denv.) from the racist comments that were the pleaded basis of the hostile work environment count, so it could not serve as the timely anchor.

4) Equitable tolling rejected due to constructive notice

Applying Olson v. Fed. Mine Safety & Health Rev. Comm'n, the panel held Mr. Berry bore the burden to justify tolling and failed to do so because the record showed repeated No Fear Act training with explicit “45 days” language, online availability of contact info, and a posted EEO poster—facts the panel analogized to constructive notice upheld in Hickey v. Brennan.

5) The opinion’s central doctrinal contribution: no waiver by mere acceptance/investigation

The panel canvassed other circuits and adopted their consensus rule: an agency does not waive the exhaustion/timeliness defense simply by accepting and investigating an EEO complaint. The court reserved (did not decide) whether waiver could arise if an agency explicitly finds timeliness or reaches the merits without addressing timeliness, because neither occurred here. The panel grounded its holding in the policy concern quoted from Belgrave v. Pena: a contrary rule would deter agencies from investigating and correcting discrimination voluntarily.

6) Retaliation claim fails on material adversity and causation

The only exhausted discrete act was the January 2023 “non-recognition” incident. The panel held it was not “materially adverse” under Burlington N. & Santa Fe Ry. Co. v. White because it resembled a workplace slight rather than an action likely to deter protected activity, and Mr. Berry did not show causation—indeed, he did not meaningfully challenge the district court’s causation finding on appeal.

7) Limited remand preserves a potentially viable exhaustion theory

The panel remanded for the district court to address an argument it had not decided: whether the January 7, 2023 proposed-dismissal letter (reported to an EEO counselor) could exhaust a discrimination claim predicated on the earlier INSD investigation into travel-fund misuse. This remand reflects appellate restraint under Singleton v. Wulff and Tabor v. Hilti, Inc..

Impact

  • Waiver doctrine clarified in the Tenth Circuit (persuasively, though nonprecedential). The decision aligns the Tenth Circuit with other circuits: acceptance and investigation alone do not waive the Government’s exhaustion/timeliness defense in federal-sector Title VII cases. Practically, plaintiffs cannot treat an investigation as an implicit concession of timeliness.
  • Reinforces strict discrete-act exhaustion. The opinion underscores that plaintiffs must timely contact an EEO counselor for each discrete act and must include (or amend to include) later discrete acts in the EEO complaint rather than relying on a broad “scope of investigation” theory.
  • Limits alternative reporting channels. Employees who report internally to investigative or misconduct offices (here, INSD) should not assume those reports satisfy EEO initiation requirements absent clear proof the office is “logically connected” to the EEO process and the report manifests intent to begin that process.
  • Discovery strategy. The Rule 56(d) discussion signals that discovery requests aimed at broad policy topics—rather than pinpointing concrete, outcome-changing facts—are unlikely to overcome an exhaustion defense at summary judgment.
  • Open question preserved. The remand leaves room for future development regarding whether a later employment action (e.g., a proposed removal) can “activate” or reframe timeliness/exhaustion for an earlier investigation-based theory, depending on how the district court analyzes the relationship between the events and the pleaded adverse action.

Complex Concepts Simplified

Administrative exhaustion
Before suing under Title VII, a federal employee must follow agency EEO procedures—starting with timely contact with an EEO counselor and then filing a formal EEO complaint. Failure usually bars the claim.
The “45-day” deadline (29 C.F.R. § 1614.105(a)(1))
Federal employees generally must contact an EEO counselor within 45 days of the discriminatory event (or when they learn of it). Missing the deadline can defeat the claim unless equitable tolling applies.
Discrete acts vs. hostile work environment
Discrete acts (e.g., denial of training, discipline, termination proposals) must each be timely exhausted. A hostile work environment is different: older incidents can be included if at least one related harassing act occurred within the reporting window and is part of the same pattern.
Waiver (in this context)
Waiver would mean the Government loses the right to assert untimeliness/exhaustion. This opinion holds that investigating an untimely complaint does not, by itself, waive the defense.
Rule 56(d) discovery
If a party opposing summary judgment needs discovery to respond, it must identify specific likely facts it cannot currently present and explain how discovery will obtain them and defeat summary judgment.
Retaliation “materially adverse” action
For retaliation, the challenged action must be significant enough that it might deter a reasonable employee from complaining about discrimination—mere slights or lack of courtesy usually do not qualify.

Conclusion

Berry v. Bondi is chiefly an exhaustion decision: most of Mr. Berry’s claims failed because he did not timely initiate the EEO process within 45 days for the alleged discrete acts and did not include (or amend to include) several acts in his EEO complaint. The court also rejected attempts to substitute internal INSD reporting for EEO contact and denied equitable tolling due to constructive notice. Its most broadly relevant legal takeaway is its alignment with other circuits: a federal agency does not waive an exhaustion defense merely by accepting and investigating an untimely EEO complaint. The sole remaining live issue—remanded to the district court—concerns whether a January 2023 proposed-dismissal letter could exhaust a discrimination theory tied to an earlier investigation.