     Case: 13-51203      Document: 00512868382         Page: 1    Date Filed: 12/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-51203                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        December 12, 2014
GUSTAVO REVELES,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CV-369


Before SMITH, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Gustavo Reveles filed suit in district court alleging that he was fired from
his job as a Supervisory Border Patrol Agent (SBPA) because of discrimination
based on his national origin. The U.S. Department of Homeland Security
(DHS) moved for summary judgment. The district court granted the motion,
and Reveles appeals that decision. For the following reasons, we affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        I
      Reveles is a Hispanic male who began working at U.S. Customs and
Border Protection (CBP) in 1988. In 2006, the Office of Inspector General
investigated Reveles regarding allegations unrelated to the present case and
discovered inappropriate e-mails and videos stored on his government e-mail
address and hard drive. Following this investigation, Reveles was placed on
administrative duty for approximately one year, and in lieu of termination,
Reveles signed a Last Chance Agreement (LCA), which stated Reveles would
not be terminated so long as he successfully completed the terms of the LCA.
One of the conditions in the LCA provided that if Reveles “engage[d] in any
misconduct within twenty-four (24) months . . . [he would be] subject . . . to
immediate removal from federal employment.” Reveles signed the agreement
and later resumed his duties as a SBPA.
      A few months after Reveles signed the LCA, SBPA Rosario Bustillos sent
an e-mail to thirty-nine CBP employees, including Reveles and three of
Reveles’s supervisors, thanking another SBPA, Robert Galvan, for catching an
error in a memo. Galvan responded to all recipients that he could not take all
the credit because another agent had found the error. Reveles responded to all
recipients and called Galvan a “kiss-ass.” Reveles states that he intended to
send the e-mail solely to Galvan, a friend of his.
      Field Operations Supervisor George Martinez, Reveles’s immediate
supervisor, spoke to Reveles regarding the e-mail.         Martinez and Reveles
concluded that Reveles should speak to his third-line supervisor, Patrol Agent
in Charge Jonathan Richards. Reveles prepared a memorandum for Richards
apologizing for the e-mail and explaining the e-mail was meant only as a joke
for Galvan.      After meeting with Richards, Reveles was placed on
administrative status.     About a week later, Chief Patrol Agent Victor


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Manjarrez determined that Reveles’s e-mail constituted misconduct in
violation of the LCA, and thus, Reveles was fired.
       Reveles filed an appeal of his termination with the Merit Systems
Protection Board (MSPB).      The administrative judge dismissed Reveles’s
appeal because he had waived his right to such an appeal in the LCA and also
failed to allege a non-frivolous argument that he was in compliance with the
LCA.
       Reveles then filed a petition for review with the MSPB. Approximately
three months after his termination, while the petition for review was pending,
Reveles learned of an incident involving SBPA Christopher McLerran, a non-
Hispanic, and Richards, Reveles’s former supervisor. In a discussion about
lunch plans, McLerran made sexually and racially explicit comments
regarding white sausage and white bread. It was at this time that Reveles felt
he was discriminated against by Richards because Richards forwarded
Reveles’s e-mail to his superiors but did not take action against McLerran for
his comments. Reveles thus submitted supplemental information regarding
this incident to the MSPB and also met with an Equal Employment
Opportunity (EEO) counselor. The MSPB denied Reveles’s petition for review.
       Reveles filed a formal complaint with DHS alleging discrimination based
on his Hispanic race.     The Equal Employment Opportunity Commission
(EEOC) interpreted his complaint as discrimination based on national origin
and determined that DHS did not discriminate against Reveles.           Reveles
appealed to the EEOC Office of Federal Operations, which affirmed the
EEOC’s decision.
       Reveles then filed a civil suit in federal district court alleging
employment discrimination under Title VII of the Civil Rights Act of 1964
(Title VII). The district court granted summary judgment to the Government


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on the ground that Reveles had failed to properly exhaust administrative
remedies.
                                              II
       We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. 1 “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 2
“A fact is material if it might affect the outcome of the suit under the governing
law, and a dispute is genuine if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” 3
                                             III
       Federal employees seeking relief under Title VII for alleged employment
discrimination must exhaust administrative remedies before bringing such a
case in federal district court. 4 A federal employee who believes he has been
discriminated against on the basis of national origin “must initiate contact
with a[n EEO] Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the
effective date of the action.” 5 “Failure to notify the EEO counselor in timely




       1Tagore v. United States, 735 F.3d 324, 327 (5th Cir. 2013) (citation omitted); see also
Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006) (“We review de novo a district court’s
determination of whether the exhaustion requirement is satisfied.”).
       2   FED. R. CIV. P. 56(a).
       3 Tagore, 735 F.3d at 328 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)) (internal quotation marks omitted).
      Mineta, 448 F.3d at 788; Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992) (citing
       4

Hampton v. IRS, 913 F.2d 180, 182 (5th Cir. 1990)).
       5   29 C.F.R. § 1614.105(a)(1).
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fashion may bar a claim, absent a defense of waiver, estoppel, or equitable
tolling.” 6
       Reveles was terminated on March 11, 2008, and he first contacted an
EEO counselor on July 22, 2008, more than forty-five days after termination.
Reveles states that he learned about the incident involving McLerran
sometime in June 2008 and consequently discovered the potential
discriminatory motivation behind his termination at that time. Thus, Reveles
appears to argue that the forty-five-day limitations period began to run in
June, not March.
       The Fifth Circuit has considered and rejected this argument before in
the context of a separate exhaustion requirement in Title VII. In Merrill v.
Southern Methodist University, Merrill brought suit against her employer
alleging discrimination when she was denied tenure. 7 Title VII requires an
individual to file a complaint with the EEOC within 180 days of the occurrence
of the discriminatory act. 8 Merrill argued that “in determining whether a
particular claim is time-barred, a court should focus on the date the victim first
perceives that a discriminatory motive caused the act, rather than the actual
date of the act itself.” 9 The Fifth Circuit rejected this argument as unsupported
by existing law, which “emphasize[d] that the limitations period starts running
on the date the discriminatory act occurs.” 10
       Similarly, in the context of the forty-five-day period at issue in the
present case, we have stated “it is clearly established that the limitations


       6Pacheco, 966 F.2d at 905 (citing, in part, Henderson v. U.S. Veterans Admin., 790
F.2d 436, 439-40 (5th Cir. 1986)).
       7   806 F.2d 600, 602 (5th Cir. 1986).
       8   Id. at 604 (citing 42 U.S.C. § 2000e-5(e)).
       9   Id. at 605.
       10   Id. (citing Del. State Coll. v. Ricks, 449 U.S. 250, 257-58 (1980)).
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period starts running when the plaintiff knows of the discriminatory act, not
when the plaintiff perceives a discriminatory motive behind the act.” 11 The
only discriminatory act of which Reveles complains is his termination.
“Because          more    than   forty-five    days   passed     between      the   allegedly
discriminatory act and . . . contact with a counselor, [Reveles’s] claim falls
outside the limitations period.” 12
       Reveles argues that his case is different from Chapman v. Homco, Inc.,
a case involving the two-year limitations period under the Age Discrimination
in Employment Act for filing a complaint in federal district court. 13 Chapman
was terminated from employment, and a few weeks later, he discovered that
his termination was potentially based on a discriminatory motive. 14 He filed a
complaint with the EEOC nine months after his termination and filed a
complaint in federal district court two years and two days after the date of his
termination. 15 Chapman argued that the cause of action “accrued at the time
of his discovery rather than at the time of discharge.” 16 This court rejected
that argument based on precedent stating the limitations period begins to run




       11  Miller v. Potter, 359 F. App’x 535, 536 (5th Cir. 2010) (per curiam) (quoting
Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217 n.2 (5th Cir. 1992)) (internal quotation
marks omitted); accord Austin v. Potter, 358 F. App’x 602, 605 (5th Cir. 2010) (per curiam)
(“In Title VII cases, ‘the limitations period starts running when the plaintiff knows of the
discriminatory act.’” (quoting Christopher, 950 F.2d at 1217 n.2)); see also Chapman v.
Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989) (per curiam) (“When a plaintiff alleges an
unlawful discharge, the statute of limitations begins to run when the plaintiff is notified that
his employment is terminated.”).
       12   Miller, 359 F. App’x at 537.
       13   Chapman, 886 F.2d at 757.
       14   Id.
       15   Id.
       16   Id. at 758.
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at the time of the discriminatory act, in this case, the termination. 17 Reveles
points out that unlike Chapman, he sought immediate EEO counseling after
learning about the potential discriminatory motive. However, the Chapman
court focused only on the fact that Chapman had waited two years and two
days to file in district court, and it was inconsequential to the analysis that
Chapman delayed nine months in filing his complaint with the EEOC. For
that reason, we are not persuaded by Reveles’s argument on this point.
       Because Reveles contacted an EEO counselor more than forty-five days
after he was terminated, his claim is barred “absent a defense of waiver,
estoppel, or equitable tolling.” 18 In his brief, Reveles distinguishes his case
from Pacheco v. Rice, which the district court addressed as an argument on
waiver. Because Reveles did not brief the defenses of equitable tolling and
estoppel, such arguments have been waived. 19
       Reveles argues that his case is different from Pacheco v. Rice because the
EEOC reached the merits of his discrimination claim and did not make a
specific finding on the timeliness of his complaint. 20 In Pacheco, the employer
informed Pacheco that he would be fired following an investigation into
allegations of sexual harassment, and Pacheco resigned the next day. 21 He
learned of an alleged discriminatory motive behind his forced resignation three




        Id. (citing Del. State Coll. v. Ricks, 449 U.S. 250, 257-59 (1980) and Merrill v. S.
       17

Methodist Univ., 806 F.2d 600 (5th Cir. 1986)).
       18Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992) (citing, in part, Henderson v. U.S.
Veterans Admin., 790 F.2d 436, 439-40 (5th Cir. 1986)).
       19See Morris v. Livingston, 739 F.3d 740, 752 (5th Cir. 2014) (“Although we liberally
construe the briefs of pro se appellants, we also require that arguments must be briefed to be
preserved.” (quoting Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)).
       20   966 F.2d 904 (5th Cir. 1992).
       21   Id. at 905.
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years later. 22 Within thirty days of this discovery, Pacheco filed a complaint
with the EEO division of his former employer. 23 At the time, an employee was
required to meet with an EEO counselor within thirty days of the
discriminatory event or personnel action. 24 The EEO division of his employer
and the EEOC both determined that the complaint was time barred. 25 Pacheco
then filed a complaint in federal district court alleging that he was “forced to
resign from his job because of his race” in violation of Title VII, and the district
court dismissed the complaint because of “administrative untimeliness.” 26
This court affirmed, stating “[t]o allow plaintiffs to raise employment
discrimination claims whenever they begin to suspect that their employers had
illicit motives would effectively eviscerate the time limits prescribed for filing
such complaints.” 27
       Reveles is correct that the EEOC reached the merits of his complaint and
did not make a specific finding, in its initial decision or on appeal, regarding
the timeliness of his initial meeting with the EEO counselor. However, waiver
requires a specific finding on the issue of timeliness. 28 As this court has held,
the docketing and acting on a complaint or request for reconsideration does not
alone constitute a waiver of the timeliness objection. 29 Because the EEOC did


       22   Id.
       23   Id.
       24   Id.
       25   Id.
       26   Id.
       27   Id. at 906.
       28 Werner v. Dep’t of Homeland Sec., 441 F. App’x 246, 249 (5th Cir. 2011) (per curiam)
(citing Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992)).
       29See Rowe, 967 F.2d at 191 (“Rowe contends that even if his complaint was untimely,
the EEOC waived the thirty day limit by docketing and acting on his request for
reconsideration. We have held, however, that such agency action does not, in and of itself,
constitute a waiver. In order to waive a timeliness objection, the agency must make a specific
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not make a specific finding that Reveles’s contact with an EEO counselor was
timely, the argument on timeliness was not waived.
                                      *       *        *
       For the reasons above, we AFFIRM the decision of the district court
granting summary judgment to the U.S. Department of Homeland Security.




finding that the claimant's submission was timely.”) (citations omitted); see also Oaxaca v.
Roscoe, 641 F.2d 386, 390 (5th Cir. Unit A Apr. 1981) (“[W]e reject Oaxaca's contention that
the federal agency, by merely accepting and investigating a tardy complaint, automatically
waives its objection to the complainant's failure to comply with the prescribed time delays.”).
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