William Berry, a former FBI Special Agent, sued the FBI and the Attorney General under Title VII, alleging discrimination based on race and marital status, retaliation for kneeling at a Black Lives Matter protest, and a hostile work environment. Berry alleged that supervisors made racist comments, denied him training and travel opportunities, and subjected him to a false fraud investigation that led to his suspension and eventual resignation. The district court granted summary judgment to the Government, ruling that Berry failed to exhaust his administrative remedies because he did not contact an EEO counselor within the required 45-day window for most of the alleged incidents. The district court also denied Berry's motion for additional discovery, finding he failed to show that further investigation would yield facts necessary to prove his claims.
The Tenth Circuit reviewed the case de novo, focusing first on the denial of the Rule 56(d) motion for discovery. The court held that the district court did not abuse its discretion because Berry failed to specify the probable facts he sought, why they were unavailable, or how they would rebut the Government's exhaustion defense. The court emphasized that Berry had already submitted extensive evidence and conceded that his response created issues of fact, yet he could not identify specific evidence needed to prove he timely reported the acts. On the merits of exhaustion, the court reiterated that federal employees must initiate contact with an EEO counselor within 45 days of the alleged discriminatory act. Berry contacted a counselor in January 2023, meaning any acts occurring before November 2022 were unexhausted. The court rejected Berry's argument that reporting the conduct to the FBI's Inspection Subdivision (INSD) satisfied the requirement, noting that INSD and the EEO office are separate departments with distinct processes. The court also found that Berry's failure to exhaust could not be excused by equitable tolling, as he had constructive notice of the deadline through training and posters, nor by waiver, as the Government's investigation of untimely claims did not constitute a waiver of the defense. Regarding the one act that was timely reported—SA Fancher's non-recognition of Berry's accomplishments—the court held it was not a materially adverse action sufficient to support a retaliation claim, as it did not dissuade a reasonable worker from making a charge of discrimination.
The decision reinforces the strict 45-day reporting deadline for federal employees filing Title VII claims, clarifying that internal investigations by non-EEO offices do not satisfy exhaustion requirements. While the dismissal of most claims stands, the remand on the specific issue of the January 2023 dismissal letter leaves open the possibility that Berry may pursue a discrimination claim related to the travel fraud investigation if the district court finds that the letter provided notice of the discriminatory consequences of the earlier investigation. The ruling also signals that courts will strictly enforce discovery denial standards under Rule 56(d) when plaintiffs fail to articulate specific evidentiary needs.
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