Date: Feb 25, 2026

Berry v. Bondi: No Waiver of Title VII Exhaustion by Agency Acceptance/Investigation of Untimely EEO Complaints

Introduction

In Berry v. Bondi (10th Cir. Feb. 23, 2026), 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. The district court granted summary judgment to the Government largely on the ground that Mr. Berry failed to exhaust administrative remedies—a prerequisite (though not jurisdictional) to Title VII litigation by federal employees.

The appeal presented three recurring federal-sector Title VII issues: (1) what counts as timely EEO “contact” (the 45-day rule), (2) whether an agency’s acceptance and investigation of an untimely complaint can waive exhaustion defenses, and (3) whether the plaintiff was entitled to additional discovery under Rule 56(d) to oppose summary judgment. The Tenth Circuit affirmed almost entirely, but remanded one narrow exhaustion question for the district court to address in the first instance.

Summary of the Opinion

Rule 56(d) discovery: Affirmed denial. Mr. Berry’s request lacked the required specificity and sought information not material to the Government’s exhaustion defense.
Exhaustion: Held that, because Mr. Berry first contacted an EEO counselor on January 11, 2023, acts occurring before November 27, 2022 were not timely raised under 29 C.F.R. § 1614.105(a)(1), and several discrete acts also were not included in his EEO complaint.
Hostile work environment: Not exhausted. Earlier comments were outside the 45-day window; reporting to INSD did not substitute for EEO contact; and the one timely “non-recognition” event was too different in character to pull earlier allegations into a continuing hostile-environment theory.
Waiver: Announced a clear rule (aligned with other circuits) that an agency does not waive its exhaustion defense merely by accepting and investigating an untimely EEO complaint.
Retaliation merits (the one exhausted act): The “non-recognition” incident was not materially adverse under the retaliation standard and lacked an adequately challenged causation showing.
Remand: Sent back one issue: whether Mr. Berry’s report to the EEO counselor about the January 7, 2023 OPR proposed-dismissal letter exhausted (or timely triggered) his discrimination theory tied to the earlier INSD travel-fraud investigation.

Note: The disposition is an “Order and Judgment,” “not binding precedent” except for law-of-the-case, res judicata, and collateral estoppel, but it is citable for persuasive value.

Analysis

Precedents Cited

1) Exhaustion as mandatory (but non-jurisdictional) procedure

Green v. Brennan and Dossa v. Wynne are cited for the baseline proposition that Title VII claimants, including federal employees, must exhaust administrative remedies before suing.
Fort Bend Cnty. v. Davis and Hickey v. Brennan supply the key modern framing: exhaustion is a claims-processing rule (not jurisdictional), enforceable when properly raised as an affirmative defense. The panel used this framework to reject Mr. Berry’s attempts to relax the 45-day requirement based on “notice to the agency” alone.

2) The “discrete acts” rule and its consequences

Nat'l R.R. Passenger Corp. v. Morgan, as applied in Martinez v. Potter, drives the opinion’s central exhaustion logic: “each discrete incident” must be separately exhausted. The panel relied on this to reject arguments that later events (or generalized EEO contact) automatically sweep in earlier discrete actions like training denials or PRS denial.
Lincoln v. BNSF Ry. Co. reinforces that a plaintiff generally may not sue on claims not included in a timely administrative charge, and, crucially here, that post-charge discrete acts require an additional or amended charge. The panel invoked this to defeat Mr. Berry’s attempt to litigate alleged July 2023 duty removal that he never added to his EEO complaint.
Sanderson v. Wyo. Highway Patrol is used to stress that the “scope of the investigation” test is anchored to the allegations in the charge itself, not to what might be discovered later.

3) Hostile work environment timing and “character” of acts

Tademy v. Union Pac. Corp. and Marquez v. Johnson (unpublished) supply the hostile-environment timing rule: one contributing act must fall within the applicable reporting period.
Duncan v. Manager, Dep't of Safety, City & Cnty. of Denv. is cited for the idea that events “of a different character” cannot be aggregated into a single hostile-environment claim. The panel used this to hold that the January 2023 “non-recognition” incident— even if timely—could not revive earlier, unreported racist comments because it was “qualitatively different.”
Young v. Colo. Dep't of Corr. is cited (in a footnote) to underscore the “severe or pervasive” threshold for hostile work environment, supporting the conclusion that one-off non-recognition does not plausibly establish hostile environment even aside from exhaustion.

4) Reporting to non-EEO channels is not automatically “EEO contact”

Mr. Berry leaned on Johnson v. Glickman (D. Kan.) for a test under which contacting an “official logically connected with the EEO process” might suffice. The panel emphasized it had “never adopted this test” and, on the record, INSD was not logically connected to OEEOA for exhaustion purposes. This portion of the opinion signals skepticism toward substituting internal affairs reporting for the federal-sector EEO counseling requirement.

5) Rule 56(d) specificity and discretion

The denial of discovery is structured around established Tenth Circuit standards: Adams v. C3 Pipeline Constr. Inc., FDIC v. Arciero, Gutierrez v. Cobos, and Birch v. Polaris Indus., Inc. collectively require a robust, specific showing of what facts are missing, why they are unavailable, and how they would rebut summary judgment. The panel relied on these to hold the district court acted well within its discretion.

6) Equitable tolling and notice

Zipes v. Trans World Airlines, Inc. is cited for the proposition that Title VII time limits are subject to equitable doctrines (tolling, waiver, estoppel) because they are not jurisdictional.
Olson v. Fed. Mine Safety & Health Rev. Comm'n is used for the burden allocation: the plaintiff bears the burden to justify equitable tolling.
Hickey v. Brennan is again important for “constructive notice” via posters and workplace notices; the panel analogized to visible EEO posters, plus repeated “No Fear Act” trainings, to reject tolling.

7) Waiver: alignment with eight circuits

The court surveyed other circuits’ approaches to waiver in the federal-sector EEO context, citing: 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, Lord v. Holder (unpublished), and Belgrave v. Pena.
Distilling those authorities, the panel adopted (for the Tenth Circuit, at least as persuasive law in an Order and Judgment) the rule that mere acceptance and investigation of an untimely EEO complaint does not waive an exhaustion/timeliness defense. It reserved the harder question—waiver where the agency decides the merits without addressing timeliness or makes a specific timeliness finding— because neither occurred.

8) Retaliation standards (and Muldrow’s limits)

For retaliation elements, the opinion relies on Anupama Bekkem v. Wilkie and Hansen v. SkyWest Airlines (protected opposition), and Burlington N. & Santa Fe Ry. Co. v. White plus Parker Excavating, Inc. v. Lafarge W., Inc. (material adversity).
On causation knowledge and inference, the panel cites Montes v. Vail Clinic, Inc., Williams v. Rice, Ward v. Jewell, and Williams v. W.D. Sports, N.M., Inc.
Importantly, the court addressed (and rejected) an attempted importation of Muldrow v. City of St. Louis into retaliation doctrine, relying on Plump v. Gov't Emps. Ins. Co. (citing Culp v. Remington of Montrose Golf Club, LLC) to confirm that Muldrow did not alter the retaliation “materially adverse” standard from Burlington.
Stover v. Martinez is used by analogy to show that even more consequential non-recognition-like decisions may fail the materially adverse threshold.

Legal Reasoning

1) Exhaustion: a strict, act-by-act gatekeeping function

The court’s exhaustion reasoning is formal and rule-driven. Because federal employees must “initiate contact” with an EEO counselor within 45 days (29 C.F.R. § 1614.105(a)(1)), and because discrete acts are individually actionable “unlawful employment practices” under Nat'l R.R. Passenger Corp. v. Morgan and Martinez v. Potter, most of Mr. Berry’s asserted adverse actions were barred: they occurred long before the 45-day window preceding January 11, 2023.

The court also treated exhaustion as two-dimensional: timeliness is necessary, but so is issue presentation. Independent of the 45-day failure, the court noted Mr. Berry omitted several discrete acts from his EEO complaint, which is a separate exhaustion defect under Lincoln v. BNSF Ry. Co..

2) Hostile work environment: the continuing-violation concept has boundaries

Hostile work environment claims can, in principle, reach back to older conduct if at least one contributing act is timely (Tademy v. Union Pac. Corp.). But the court held Mr. Berry did not have a timely “qualifying” act: the earlier racist comments were too old, and the January 2023 non-recognition event was not the sort of harassment alleged in the complaint (“comments”) and was “qualitatively different” under Duncan v. Manager, Dep't of Safety, City & Cnty. of Denv.. That reasoning reflects a key doctrinal constraint: the timely act must be part of the same hostile pattern, not merely an unpleasant workplace event.

3) Reporting to INSD does not satisfy EEO counselor contact

Mr. Berry’s attempt to treat internal reporting to INSD as exhaustion failed both doctrinally and factually. Doctrinally, the Tenth Circuit refused to adopt the Johnson v. Glickman approach. Factually, the record showed INSD and OEEOA were separate offices with distinct processes, and FBI policy explicitly distinguished harassment reporting from the formal EEO complaint process requiring counselor contact within 45 days.

4) Equitable tolling: notice defeated the claim

Tolling requires “justifiable circumstances” (Olson v. Fed. Mine Safety & Health Rev. Comm'n). The court found constructive (and practical) notice from repeated No Fear Act trainings stating the 45-day rule, readily available OEEOA contact information, and EEO posters—paralleling Hickey v. Brennan. The takeaway is that where an employer can show structured training and workplace postings, equitable tolling is unlikely.

5) Waiver: acceptance/investigation is not enough

The opinion’s most clearly “new” articulation for the Tenth Circuit is its holding—expressly aligned with eight circuits—that an agency does not waive exhaustion merely by accepting and investigating untimely claims. The court adopted the policy rationale from Belgrave v. Pena: treating investigation as waiver would discourage agencies from voluntarily investigating and remedying discrimination.

6) Retaliation: the exhausted act still failed on the merits

Even though the January 2023 “non-recognition” incident was timely presented, the court held it was not “materially adverse” under Burlington N. & Santa Fe Ry. Co. v. White—i.e., it was closer to a “trivial harm” than a deterrent to protected activity. The panel also noted an unchallenged causation defect: Mr. Berry did not adequately explain on appeal how the non-recognition was connected to his asserted protected activities.

7) The narrow remand: exhaustion-by-notice of consequences

The court remanded one question the district court did not address: whether Mr. Berry’s report to the EEO counselor of the January 7, 2023 proposed-dismissal letter could be treated as exhausting (or timely triggering) a discrimination claim tied to the earlier INSD investigation. Citing Singleton v. Wulff and Tabor v. Hilti, Inc., the panel followed the appellate norm of remanding issues not passed upon below. Practically, this remand tees up a difficult “when did the claim accrue / when was the employee on notice” question, but only as to that specific theory.

Impact

Federal-sector Title VII practice in the Tenth Circuit: The decision reinforces that plaintiffs must treat exhaustion as an exacting, act-specific requirement: timely counselor contact, inclusion in the EEO complaint, and amendments for later discrete acts.
Waiver doctrine clarified: The court’s express alignment with other circuits on “no waiver by investigation alone” will likely be cited frequently in federal-sector cases where agencies investigate but later assert untimeliness in litigation.
Internal reporting is not a substitute: Employees who report to internal affairs or similar offices (here, INSD) should not assume they have initiated the EEO process; this opinion underscores the importance of contacting the EEO counselor channel specifically.
Post-Muldrow boundary-setting: By emphasizing that Muldrow v. City of St. Louis does not change retaliation doctrine, the opinion may blunt attempts to lower the adversity threshold in retaliation cases.
Remand issue may shape future accrual arguments: If the district court (on remand) accepts the “OPR letter revealed consequences” theory, it could become a roadmap for plaintiffs to argue timeliness based on later, more concrete employment consequences of earlier investigations. If rejected, it will further entrench early-notice accrual for investigation-based claims.

Complex Concepts Simplified

Administrative exhaustion: Before suing under Title VII, a federal employee must use the agency’s EEO process first—starting with contacting an EEO counselor—so the agency has a chance to address the problem.
The “45-day rule” (29 C.F.R. § 1614.105(a)(1)): A federal employee generally must contact an EEO counselor within 45 days of the allegedly discriminatory event (or learning of it). Missing that deadline usually bars the claim unless an equitable doctrine applies.
Discrete act vs. hostile work environment: Discrete acts are one-off employment decisions (e.g., denying training, denying an assignment, suspending an employee). Each must be separately and timely exhausted. A hostile work environment is a pattern of harassing conduct; older events can be considered if at least one related act is timely and part of the same pattern.
Claims-processing rule (not jurisdictional): The court has power to hear the case, but the defendant can still win if it properly invokes the exhaustion defense. Courts must enforce it when properly raised.
Equitable tolling: A narrow safety valve that can excuse a missed deadline when the plaintiff shows justified reasons—typically something that prevented timely filing despite diligence.
Waiver (in this context): The idea that the agency might give up its right to argue untimeliness. This opinion holds that merely accepting and investigating an untimely complaint is not enough to constitute waiver.
Rule 56(d) discovery: A mechanism to request more discovery before summary judgment. The request must be specific about what facts are missing, why they are unavailable, and how they would change the outcome.
Materially adverse action (retaliation): In retaliation cases, the action must be serious enough that it could deter a reasonable worker from complaining about discrimination—not just a slight, snub, or minor annoyance.

Conclusion

Berry v. Bondi is primarily an exhaustion decision, but it carries an important doctrinal clarification: the Tenth Circuit (consistent with other circuits) held that a federal agency does not waive Title VII exhaustion/timeliness defenses simply by accepting and investigating an untimely EEO complaint. The opinion also reinforces strict compliance with the federal-sector 45-day EEO counselor contact requirement, rejects the notion that internal-affairs reporting substitutes for EEO contact, and confirms that Muldrow does not lower the retaliation adversity threshold.

The lone open door is the remanded issue—whether the January 7, 2023 proposed-dismissal letter can supply a timely exhaustion hook for a discrimination theory tied to the earlier INSD investigation—an issue that may meaningfully affect how “notice” and “consequences” arguments are framed in future federal-sector cases.