[00:00:01] Speaker 02:
Next, the last case for this morning is 25-2014, Barry v. Bondy, counsel for a felon.

[00:00:10] Speaker 02:
If you'd make your appearance and proceed, please.

[00:00:18] Speaker 04:
May it please the court?

[00:00:19] Speaker 04:
My name is Matt Crotty.

[00:00:20] Speaker 04:
I represent Will Barry.

[00:00:21] Speaker 04:
I'm going to start by addressing the concept of exhausting administrative remedies, and then I will go into

[00:00:28] Speaker 04:
the district courts dismiss on how it erred in dismissing the retaliation, discrimination, and then hostile work environment claims.

[00:00:38] Speaker 04:
As it relates to the purpose of exhausting administrative remedies, under Title VII of the Civil Rights Act, an aggrieved, once they learn of their, you know, a discrete act against them, in the federal sector they have to contact an EEO counselor or somebody

[00:00:56] Speaker 04:
logically connected to the EEO branch, if that doesn't resolve, then at the agency level, they file an agency level complaint of discrimination.

[00:01:07] Speaker 04:
Once that discrimination complaint at the agency level is filed, then the agency investigates the claim.

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In this case, a complaint of discrimination was filed at the agency level and the agency conducted a very thorough investigation.

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A supervisory special agent from the FBI interviewed and got statements from over 17 witnesses and then compiled a 328 page report of investigation that related to allegations that occurred beginning in 2020 and all the way up through 2023.

[00:01:45] Speaker 04:
That is the purpose of exhausting administrative remedies to allow the agency to investigate and then possibly resolve the matter.

[00:01:53] Speaker 04:
The purpose of exhaustion is not, and there's case law that we cite in our reply brief, to set up a case for judicial review and also charges at the administrative level that are to be liberally construed.

[00:02:07] Speaker 04:
So with that concept in mind, and then also with the

[00:02:11] Speaker 04:
you know, the fact that on summary judgment, reasonable inferences need to be made in favor of a nonmoving party.

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I'm going to move into the district court's dismissal of the discrimination and retaliation claims.

[00:02:23] Speaker 02:
And to your exhaustion point, though, at the time that Mr. Berry first spoke to the EEO counselor, the EEO counselor noted that his claims appeared to be time-barred.

[00:02:34] Speaker 02:
and that he had no explanation for why he did not respond within 45 days as he was required to do.

[00:02:44] Speaker 02:
Exhaustion, it exists for a reason.

[00:02:46] Speaker 02:
I mean, you're supposed to raise these claims in a timely manner.

[00:02:50] Speaker 02:
He did not.

[00:02:51] Speaker 02:
So whether the FBI did an exhaustive investigation or not or did a comprehensive investigation doesn't go to the initial question of whether he did what he was supposed to do under the regulations of the agency, right?

[00:03:06] Speaker 04:
If we take a step back, though, and look at the, granted it's a district court decision, but it provides a good framework to look and address this exhaustion question that I think the court's getting at.

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And that would be the Johnson v. Clickman case out of the District of Kansas.

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And that sets out a three-factor test to determine whether, in this case, Mr. Berry timely contacted somebody associated with the EEO

[00:03:33] Speaker 04:
program to begin the process of exhaustion would occur.

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And in this instance, and I'm going to quote here, the EEO is held that in order to sufficiently initiate contact, the employee must contact an agency official logically connected with the EEO process, even if the official is not an EEO counselor, a factor number one that I'll get into quickly.

[00:03:58] Speaker 04:
And then factor two is to demonstrate an intent to begin the EEO process, and then factor three, to allege that an incident in question is based on discrimination.

[00:04:07] Speaker 04:
So let me look at, let me address factor one, which was before the district court and again, on summary judgment with reasonable inferences in the nonmoving party, here's what

[00:04:17] Speaker 04:
Here are two policies that was before the district court and that I'd like to highlight.

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The first is the FBI harassment policy 1038D, and that's on volume two, page 161.

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Specifically, it's paragraph 5.3, harassment based on race.

[00:04:39] Speaker 04:
And paragraph 5.3.2 says, if the employee is afraid of or uncomfortable with confronting the alleged offending party, and this is Mr. Berry back in August, September 2021, the employee, Mr. Berry, the employee is encouraged to report the incident in writing or verbally.

[00:05:00] Speaker 04:
He reported it in writing to a higher level supervisor.

[00:05:03] Speaker 04:
He didn't do that.

[00:05:06] Speaker 04:
here's the important part, to the inspection division, and then this is the key phrase that I can't emphasize enough, to protect all legal rights and to put the FBI on notice in order to address this behavior.

[00:05:20] Speaker 04:
So all legal rights, the employees' all legal rights include rights under Title VII to pursue and vindicate his Title VII rights that were being violated.

[00:05:32] Speaker 04:
So you have, that's FBI policy.

[00:05:34] Speaker 02:
There is no mystery who the EEO counselor was.

[00:05:37] Speaker 02:
And when he was confronted with the time bar, he offered no explanation as to why he didn't do it.

[00:05:43] Speaker 02:
Right then and there, he could have said that I was concerned and I did X, Y, and Z. He didn't do that.

[00:05:48] Speaker 02:
And why is it not the case?

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I mean, this structure that he reported under was an internal and fairer structure.

[00:05:54] Speaker 02:
I mean, those two things are different.

[00:05:57] Speaker 02:
I mean, I don't even have to know a lot about the FBI to know those two things are different, aren't they?

[00:06:03] Speaker 04:
Well, that's what the district court said, but I would say that... Well, counsel, let me follow up on that.

[00:06:09] Speaker 03:
If it's not, as Judge Holmes said, when he sent the emails in August of 2021 and September of 2021, that was after the investigation had started and he'd received notification of the WebTA fraud investigation, which was in March of 2021, right?

[00:06:27] Speaker 03:
He already knew that at that time.

[00:06:29] Speaker 03:
He was aware, yes.

[00:06:30] Speaker 03:
And in the emails, did he say anything about

[00:06:32] Speaker 03:
his belief that he was being investigated because of some discrimination?

[00:06:37] Speaker 03:
Or did he just say, hey, my supervisor is saying some derogatory things that is not appropriate?

[00:06:44] Speaker 04:
No, he did not say that in the emails.

[00:06:46] Speaker 03:
And to I think the point your honor is getting at is that... But that's where you want us to believe that the claim was preserved and exhausted, right?

[00:06:54] Speaker 03:
In the emails.

[00:06:56] Speaker 04:
The hostile work environment claim was preserved and exhausted in those two emails of September and October.

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The discrimination retaliation claims were preserved on January 11, 2023, when Mr. Berry went to the EEO counselor, the EEO counselor herself, and laid out what had happened from 2020 all the way up through 2023.

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The main point that Mr. Berry made when he went to the EEO counselor on around January 11th, 2023, related to that now he knew, Mr. Berry knew that he was being recommended for termination from the FBI due to this alleged house-hunting violation.

[00:07:42] Speaker 04:
So he knew that, and he also knew, Mr. Berry also knew that at the time, that there, that Mr. Hall and then his replacements, Mr. Fancher, had treated two white similarly situated people differently.

[00:07:55] Speaker 04:
So under

[00:07:56] Speaker 04:
Title VII and the case law right there before the EEO counselor, Mr. Perry, brought forth facts that he was in a protected class, he was being treated subject to an adverse employment action, the potential termination, and then he brought any alleged comparative evidence of other people being treated better than him.

[00:08:18] Speaker 02:
You said the hostile work environment claim was preserved by those emails.

[00:08:25] Speaker 02:
Well, in his EEO complaint itself, there's this box to check for harassment other than sex.

[00:08:31] Speaker 02:
He didn't check that box.

[00:08:33] Speaker 02:
What do I make of that?

[00:08:36] Speaker 04:
I believe there's case law that says that one doesn't look at the actual boxes checked, but they look at the charge, the agency charge.

[00:08:43] Speaker 02:
Well, I read the charge, too, and I didn't see any suggestion of, well, he didn't use those words, nor did he suggest necessarily that he was being harassed.

[00:08:52] Speaker 04:
I would disagree.

[00:08:53] Speaker 04:
If you look in the two emails, the September and August emails, he does mention hostile work environment.

[00:09:02] Speaker 04:
So he might not have said the word harass, but he says hostile work environment and in a

[00:09:08] Speaker 04:
fairly synonymous.

[00:09:10] Speaker 04:
But more to the point, though, as it relates to the discrimination or retaliation claims as of January 11, 2023, then Mr. Berry timely, once he knew that he was subject to, once he learned of the effect of this investigation that began back in March of 2021.

[00:09:30] Speaker 04:
And then, Your Honor, really quick, Mr. Berry, in his agency charge, he's saying that the ultimate

[00:09:38] Speaker 04:
The motive for being subject to the investigation was Mr. Berry having took a knee during when he was activated in response to George Floyd protests.

[00:09:49] Speaker 04:
So that was the motive that originally led Mr. Hall through Ms.

[00:09:54] Speaker 04:
Montgomery, he alleges, to make this house hunting trip referral.

[00:09:58] Speaker 04:
It wasn't because I get your point about the timing that he made the complaint after he became aware of the

[00:10:04] Speaker 04:
the investigation, but it's his complaint and he says it towards the end of his EEOC charge that it was Mr. Hall and then Fancher retaliating against him for having taken the knee earlier, a fact that both of them were aware of, had expressed discontent about.

[00:10:23] Speaker 02:
What I'm struggling with, though, however, is there are a lot of allegations of conduct that arguably is quite offensive.

[00:10:32] Speaker 02:
He knew about these things.

[00:10:33] Speaker 02:
I mean, he knew about these things in 2021.

[00:10:35] Speaker 02:
I mean, why in the world did it take him to the time he went to the EEO counselor if he's claiming that somehow or other there's been some racial discrimination against him?

[00:10:46] Speaker 02:
He knew about this stuff then.

[00:10:48] Speaker 02:
I mean, what light went on beyond the fact that he was being investigated

[00:10:53] Speaker 02:
that would have caused him to go to the counselor then that didn't exist prior to that point.

[00:11:01] Speaker 04:
As it relates to... The knee was in 2020.

[00:11:05] Speaker 04:
The knee was in 2020.

[00:11:08] Speaker 04:
The domino effects of that began or continued in August, September 21, and then

[00:11:14] Speaker 04:
I believe it's in Mr. Barry's declaration that he, as he made these two complaints to the IPU, which is under the INSD, he was told that, hey, if you keep making these complaints, it's just going to start the process all over again.

[00:11:28] Speaker 04:
So that's why he stopped.

[00:11:29] Speaker 04:
So that's the answer to the first question.

[00:11:31] Speaker 04:
The second part is he hired an attorney once he knew that he was getting, not investigated, but subject to possible termination.

[00:11:43] Speaker 03:
an attorney who... Right, he had an attorney with him at the time he filed this complaint of discrimination, right?

[00:11:50] Speaker 04:
Yes, after contacting the EEO Council in January of 2023.

[00:11:53] Speaker 03:
So the question I have then is, I understand you're trying to tie this all together and get this sequence of events to argue that he exhausted and properly timely exhausted his complaints.

[00:12:08] Speaker 03:
But in the complaint, it says,

[00:12:12] Speaker 03:
These are the words.

[00:12:13] Speaker 03:
It says, to be clear, comma, Bill, and it's Bill Hall, but it says, Bill retaliated against me for opposing race discrimination, taking a knee at the BLM protest.

[00:12:24] Speaker 03:
But this is in 2023, right?

[00:12:29] Speaker 03:
And he says, on account of my race, but then he says that retaliation and the discrimination was by causing the WebTA housing hunting trip fraud allegation to be investigated.

[00:12:40] Speaker 03:
And he knew about that.

[00:12:42] Speaker 03:
In March of 2021.

[00:12:44] Speaker 04:
Right.

[00:12:45] Speaker 04:
But an investigation is not.

[00:12:47] Speaker 04:
He did, your honor.

[00:12:47] Speaker 03:
But that's what he says.

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That's his complaint.

[00:12:49] Speaker 04:
Yes.

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Not that I was recommended for termination later, but that I was investigated.

[00:12:55] Speaker 04:
But there's a, and we cite it on page seven, our reply brief, the Lincoln V. M. A. K. E. T. A. Case.

[00:13:01] Speaker 04:
which says that being told that you're under investigation, that is not an adverse action.

[00:13:06] Speaker 04:
It is not a discrete act.

[00:13:07] Speaker 03:
That didn't, so as a matter of tensor to law, he was not obligated at the time to... So if all that happened was he was just investigated for this, and that was based upon, as you say, racially motivated, that wouldn't be an adverse action?

[00:13:21] Speaker 03:
Even if it turned out in his favor?

[00:13:23] Speaker 03:
The fact that he had to go through an investigation, that's not an adverse action?

[00:13:27] Speaker 04:
Under the caseload I'm looking at, I believe...

[00:13:30] Speaker 04:
For these purposes, no.

[00:13:32] Speaker 04:
But when he learned that the FBI, years later, apparently the process takes some time, but when he learned that the FBI was then going to fire him, he had the facts which he conveyed to the agency that I am being treated differently.

[00:13:47] Speaker 04:
I was subject to investigation.

[00:13:49] Speaker 04:
Now I'm looking at being fired for this reason.

[00:13:52] Speaker 04:
There are similarly situated non-African-American agents that have been treated

[00:13:57] Speaker 04:
battered by the same alleged adverse action?

[00:14:00] Speaker 01:
Counsel, didn't the letter, didn't the letter, the letter didn't fire it, did it?

[00:14:04] Speaker 01:
No, the letter did not, but the letter said it.

[00:14:06] Speaker 01:
The letter said there was a proposal and then it set forth various procedures he could invoke.

[00:14:13] Speaker 01:
Is that, why is, if you're saying the previous investigation wasn't an adverse action, why is this an adverse action when there's been no termination?

[00:14:22] Speaker 01:
It's just a continuation of something that you seem to be saying isn't an adverse action.

[00:14:28] Speaker 04:
Because now we're looking at a material change in one's job position.

[00:14:35] Speaker 01:
As I understand it, Mr. Perry, no... It doesn't say he's being fired.

[00:14:40] Speaker 01:
There's a proposal.

[00:14:41] Speaker 01:
The letter proposes his dismissal.

[00:14:43] Speaker 04:
But with the proposal then, as Judge Hyles was getting at, that's when he had the... Well, I'm trying to find in your complaint where... I mean, the letter is mentioned only once.

[00:14:58] Speaker 01:
in the complaint.

[00:14:59] Speaker 01:
And is there any discussion of it being an adverse action in the complaint?

[00:15:04] Speaker 04:
There is.

[00:15:05] Speaker 04:
Towards, I believe, paragraph 80 or thereabouts, that's when it's alleged that Mr. Berry is informed that he is being subject to termination.

[00:15:16] Speaker 04:
And when you're subject to termination, you're not working anymore.

[00:15:19] Speaker 04:
You're on administrative leave as you begin to combat that process.

[00:15:26] Speaker 01:
Unlike just under investigation, where Mr. Berry was... Aren't you also arguing that this, what's referred to in the briefing, is the non-recognition event?

[00:15:36] Speaker 01:
How is that an adverse action?

[00:15:40] Speaker 02:
So under hostile?

[00:15:41] Speaker 01:
That they say that they didn't have him help with the new

[00:15:50] Speaker 01:
the new folks and instead use someone less experienced than him.

[00:15:55] Speaker 01:
I mean, maybe that was a slight thing, but why is that an adverse employment action?

[00:16:01] Speaker 04:
I'm going to split some technical hairs here.

[00:16:03] Speaker 04:
So an adverse employment action, which is a discrete act under the Martinez versus Potter case, that's a demotion failure to promote a non-transfer, to use those tense examples.

[00:16:17] Speaker 04:
I'll point to the Russell versus Driscoll case of this circuit of this year, where it says a hostile environment claim asserts that a serious... Well, I was thinking of it not in hostile terms, hostile work environment, but you rely on it for retaliation.

[00:16:34] Speaker 01:
And there you need an adverse employment action.

[00:16:36] Speaker 01:
So how is it an adverse employment action?

[00:16:39] Speaker 04:
So under Burlington Northern Santa Fe versus White, which is a US Supreme Court case that the defense cites, that says a couple of points.

[00:16:51] Speaker 04:
One, context matters.

[00:16:52] Speaker 04:
And I'll get to the context quickly.

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Two, for retaliation, the adverse action is something that would dissuade a reasonable person from pursuing a charge of discrimination.

[00:17:04] Speaker 04:
And the Burlington case gives an example of an adverse action of not being, and I think this is on page 69 of that opinion, it gives an example of not being invited to lunch.

[00:17:15] Speaker 04:
So context matters, and here's why that context is important in this case.

[00:17:21] Speaker 04:
You have, in this instance, Kalin Fancher.

[00:17:25] Speaker 04:
And Mr. Fancher, this was all before the agency when it did its investigation,

[00:17:30] Speaker 04:
Mr. Fancher was enraged that Mr. Berry took a knee.

[00:17:34] Speaker 04:
That's volume one, page 176.

[00:17:36] Speaker 04:
Mr. Fancher was alleged to have said that Mr. Berry should have been kicked out of the FBI because of that.

[00:17:42] Speaker 04:
That's volume one, 100 paragraph 29.

[00:17:46] Speaker 04:
It was investigated or alleged in the EEO complaint that Mr. Hall discussed in 2021 with Mr. Fancher, having learned of Mr. Berry's

[00:17:59] Speaker 04:
emails to the OPR calling him a coward.

[00:18:02] Speaker 04:
And you had Mr. Fancher refusing to act upon being told by Mr. Berry that he was being discriminated against, even though FBI policy required it.

[00:18:12] Speaker 04:
So that's Mr. Fancher.

[00:18:15] Speaker 04:
And then the context is this.

[00:18:17] Speaker 04:
You have, so Mr. Hall's gone, Mr. Fancher's there, he's the heir apparent, and so Mr. Barry already knows that the Hall replacement does not like him for those reasons.

[00:18:30] Speaker 04:
And again, summary judgment, reasonable inferences.

[00:18:35] Speaker 04:
You have the non-recognition that has really three, I'll say, acts that would dissuade a reasonable person

[00:18:43] Speaker 04:
from pursuing a charge of discrimination.

[00:18:45] Speaker 04:
First off, it's essentially stifling career advancement.

[00:18:49] Speaker 04:
It's the first step in, you know, Mr. Fancher, he's not gonna go right to termination.

[00:18:55] Speaker 04:
Instead, he's gonna build the record.

[00:18:56] Speaker 04:
You start by building the record by not really relaying the facts.

[00:19:01] Speaker 04:
And the fact was, at that time, Mr. Barry had the highest arrest records despite all of the things that he was dealing with as a result of his leadership.

[00:19:10] Speaker 04:
Two, so you have the stifling of career advancement

[00:19:13] Speaker 04:
The other part of this non-recognition is that it weakens your reputation among peers.

[00:19:20] Speaker 04:
He's the, again, the highest arrest records.

[00:19:21] Speaker 04:
You have these new peers coming in, but he's not referred to them.

[00:19:24] Speaker 04:
So what do those peers think?

[00:19:26] Speaker 04:
And then you have the effects on Mr. Barry and his confidence as a law enforcement officer.

[00:19:33] Speaker 04:
I mean, why am I continuing to do this if I

[00:19:37] Speaker 04:
You know, don't get the recognition, and more importantly, it's okay.

[00:19:42] Speaker 04:
So I know that I have the highest reps records.

[00:19:44] Speaker 04:
I'm not being recognized.

[00:19:46] Speaker 04:
What's next?

[00:19:47] Speaker 04:
When's the other shoe going to fall?

[00:19:49] Speaker 04:
So does that answer your question, Your Honor?

[00:19:52] Speaker 01:
Thank you, Counsel.

[00:19:54] Speaker 03:
Counsel, I don't think this is in your materials, but I just want to clear this up.

[00:19:58] Speaker 03:
There doesn't seem to be an allegation that

[00:20:04] Speaker 03:
There was retaliation from taking the knee by his transfer to New Mexico.

[00:20:07] Speaker 03:
Is that right?

[00:20:09] Speaker 03:
That's correct.

[00:20:09] Speaker 03:
You don't allege that.

[00:20:10] Speaker 04:
Yeah, that's not retaliation, yes.

[00:20:14] Speaker 04:
All right.

[00:20:14] Speaker 04:
Any other questions?

[00:20:16] Speaker 04:
No.

[00:20:16] Speaker 04:
Thank you, Your Honor.

[00:20:44] Speaker 00:
Good morning, and may it please the court, counsel.

[00:20:47] Speaker 00:
Paige Messick on behalf of the attorney general.

[00:20:50] Speaker 02:
Ms.

[00:20:50] Speaker 02:
Messick, do you accept that the non-recognition of workplace accomplishment was an exhausted claim?

[00:20:58] Speaker 00:
The non-recognition of workplace accomplishment was exhausted.

[00:21:02] Speaker 00:
He did mention it in the EEO complaint.

[00:21:06] Speaker 00:
That was what the district court called his sole timely and exhausted accusation.

[00:21:14] Speaker 00:
As Judge Matheson just alluded to, it does not constitute an adverse employment action under the case law.

[00:21:22] Speaker 02:
Was that a theory that was advanced by the government below, or was that a theory that the district court used to deny the claim?

[00:21:31] Speaker 00:
Both, I believe that the government advanced that theory very briefly in some of the later pleadings, and it may have even been in footnotes.

[00:21:40] Speaker 00:
The district court then did say this is not enough for retaliation or hostile work environment claim, and Barry has never suggested- What document are you talking about?

[00:21:50] Speaker 02:
I'm not aware that that, it appeared to me that the district court used that itself.

[00:22:09] Speaker 00:
I don't have it before me right now, but I can try to find that in the record if it's important to the court.

[00:22:16] Speaker 02:
I don't want to take your time to do that right now.

[00:22:18] Speaker 02:
Why don't you talk about, to the extent that the adverse action or not is on the table here, what do you make of the argument that you just heard from opposing counsel as to the nature of why that would chill a reasonable person?

[00:22:35] Speaker 00:
If I may just first note that even if the district court did come up with this itself, Barry has never objected to that on appeal.

[00:22:44] Speaker 00:
But as to whether this can be an adverse action that's sufficient to sustain a retaliation claim or if it's standing alone a hostile work environment,

[00:22:52] Speaker 00:
No, it's not.

[00:22:53] Speaker 00:
And I would point to this court's decision in Stover in which an employee did not receive a performance award and was not assigned a special project that he thought that he was best suited for, or it may have been she, I'm not entirely sure.

[00:23:10] Speaker 00:
In any case, the court in Stover said that's not enough for retaliation claim.

[00:23:16] Speaker 00:
Mr. Berry's argument here that it is enough to be not invited to lunch, this is the first time that I've heard him raise any kind of argument like that.

[00:23:26] Speaker 00:
He didn't engage with Burlington Northern at all in his reply brief.

[00:23:31] Speaker 00:
But I think that under Stover, it's quite clear that this kind of petty slight, which this is at most a petty slight, is not enough to sustain either of these types of actions.

[00:23:42] Speaker 00:
Also the court case in Morris said that

[00:23:46] Speaker 00:
sort of sporadic comments demeaning an employee's quality of work are not enough to sustain a retaliation kind of claim.

[00:23:57] Speaker 00:
So this is his sole timely and exhaustive complaint, and he cannot meet the standards to show, to establish either of those claims.

[00:24:11] Speaker 01:
Isn't he also trying to sweep in

[00:24:15] Speaker 01:
statements, alleged hostile work environment statements by hitching it to the timely non-recognition claim.

[00:24:29] Speaker 00:
Indeed, he is trying to do that.

[00:24:32] Speaker 00:
So first, we don't believe that the non-recognition is alleged in the hostile work environment claim.

[00:24:37] Speaker 00:
So if you're looking at his amended complaint, there's nothing in there that would give you the idea that non-recognition was part of his hostile work environment claim.

[00:24:48] Speaker 00:
But even if you say, OK, let's say that it's there.

[00:24:54] Speaker 00:
he can only make this timely by hitching it to the non-recognition if the non-recognition is of the same, is sufficiently related to the other acts that are alleged to constitute the hostile work environment to be part of the same kind of environment.

[00:25:12] Speaker 00:
And this is the Morgan case.

[00:25:13] Speaker 00:
And under the Morgan analysis, he looks to factors like the nature of the acts, the perpetrator, and when they occur.

[00:25:24] Speaker 00:
The other acts that he has alleged that constitute the hostile work environment are all overt racist comments.

[00:25:32] Speaker 00:
The allegations are that Bill Hall said, no, there should be no interracial marriage.

[00:25:37] Speaker 00:
People who knelt at these protests should be killed.

[00:25:42] Speaker 00:
He's going to be a problem because he's interracial.

[00:25:45] Speaker 00:
These are the kind of comments that are the bulk of the hostile work environment claim.

[00:25:50] Speaker 00:
And then you compare that to the allegation

[00:25:54] Speaker 00:
that Fanter told a new agent to go ask questions of two other people, not even instead of Berry.

[00:26:00] Speaker 00:
This comment had nothing, nothing, did not even allude to Berry.

[00:26:05] Speaker 00:
But when you take this non-recognition, you compare it to those other racist comments, you see that there is one thing that is not like the others here.

[00:26:13] Speaker 00:
And just as in this court's case in Tadimi,

[00:26:17] Speaker 00:
These are just qualitatively different kinds of acts.

[00:26:22] Speaker 00:
In Tadeemi, for instance, it was not enough that there was racist graffiti, racist epithets, a noose around a clock.

[00:26:30] Speaker 00:
That was not enough to pull in another race-related incident of physical intimidation, even though they all shared that common thread.

[00:26:37] Speaker 00:
There has to be something stronger to link them there.

[00:26:40] Speaker 03:
Counsel, with regard to exhaustion, Mr. Berry, at least on this appeal, is alleging

[00:26:46] Speaker 03:
And he's alleging this was not addressed by the district court.

[00:26:49] Speaker 03:
He's alleging that he timely exhausted a claim that he was retaliated against in his complaint by the proposed dismissal.

[00:26:59] Speaker 03:
And he says the judge didn't address that.

[00:27:02] Speaker 03:
So he says he got the dismissal letter or the proposed dismissal letter in January of 2023.

[00:27:08] Speaker 03:
He did submit his complaint within the time if that's considered.

[00:27:13] Speaker 03:
What's your response to that?

[00:27:16] Speaker 00:
Her response to that is that allegation is not in the amended complaint.

[00:27:20] Speaker 00:
It is not one of the discrete acts of retaliation or discrimination that he lists in his amended complaint.

[00:27:27] Speaker 00:
So we would agree that if the alleged proposed termination

[00:27:33] Speaker 00:
If his amended complaint alleged that, then yes, that would be something that was exhausted.

[00:27:39] Speaker 00:
It was in his EEO complaint.

[00:27:40] Speaker 00:
But in this instance, his problem is that he did not carry this allegation from his EEO complaint forward to his amended complaint.

[00:27:50] Speaker 00:
He lists specific actions as his discrete acts of adverse employment actions, and he doesn't include that.

[00:27:59] Speaker 00:
the government, the Bureau pointed that out below, and he essentially ignored that point.

[00:28:07] Speaker 00:
On appeal, we pointed out again when he says, hey, the district court ignored this, and we pointed out that's because it wasn't in the amended complaint.

[00:28:15] Speaker 00:
And he finally in reply brings up liberal pleading standards as if to say, you should read my amended complaint to encompass the proposed termination, even though

[00:28:26] Speaker 00:
He specifically listed out things that were not the proposed termination.

[00:28:30] Speaker 00:
But even under liberal pleading standards, even under notice pleading, we still need to have notice of what these claims are.

[00:28:39] Speaker 00:
The identity of his adverse employment actions is a crucial piece of his claim, and it shouldn't be a moving target.

[00:28:47] Speaker 00:
It's not something that he can change up in his briefing.

[00:28:53] Speaker 00:
I also wanted to touch while we're on the discrimination retaliation claims on the idea of notice to Barry, with Barry's idea being that if he didn't have notice of the 45 day requirement, then he didn't have to follow it.

[00:29:09] Speaker 00:
But he is raising this argument in the wrong forum.

[00:29:13] Speaker 00:
If you think you don't have notice of the 45-day requirement, you can ask the administrative agency for an extension.

[00:29:21] Speaker 00:
And one of the grounds that you can ask for an extension on is that you didn't have notice and you were not otherwise aware.

[00:29:30] Speaker 00:
But he never asked the agency for an extension.

[00:29:34] Speaker 00:
And he's never argued below or on appeal that the agency abused its discretion in not sui sponte, offering him an extension for his untimeliness.

[00:29:44] Speaker 02:
What about that regulation that he just cited?

[00:29:47] Speaker 02:
What did we do with that?

[00:29:48] Speaker 02:
The one where supposedly the FBI had a regulation that allowed him, if he faced racial discrimination and was concerned about raising it with his immediate supervisor, he could raise it with somebody else.

[00:30:00] Speaker 02:
Why didn't that allow him to exhaust his racial discrimination claims?

[00:30:06] Speaker 00:
So Mr. Berry is selectively citing to one page of that harassment policy.

[00:30:10] Speaker 00:
But if you flip forward, I think about two pages, you will see that it says that someone who is attempting to raise a claim that they have been the victim of this type of environment must take that to the EEO counselor within 45 days.

[00:30:30] Speaker 00:
He wants to point to one piece of the harassment policy without reading even the entirety of the same section in which this 45-day requirement is clearly stated as it was clearly stated in the No Fear Act training that he received three or four times before he made it to an EEO counselor.

[00:30:49] Speaker 02:
Nice segue.

[00:30:49] Speaker 02:
I was just going to ask you on the No Fear Act, is the question of whether it's sufficiently clear, is that a question of law or is that a question of fact?

[00:30:59] Speaker 00:
I don't think that whether the No Fear Act slides are sufficiently clear is really at issue at all as a question of law or fact, because this is basically another argument that he should have taken to the agency, to the OEOA, asking for an extension.

[00:31:17] Speaker 00:
Basically, I didn't know that it was a 45-day requirement because your training was bad.

[00:31:22] Speaker 00:
But he didn't do that.

[00:31:24] Speaker 00:
And he hasn't asked for it.

[00:31:26] Speaker 00:
He's never asked for anybody, the district court or this court, to review the agency's lack of suicide action here.

[00:31:39] Speaker 00:
I also wanted to

[00:31:42] Speaker 00:
discussed this Glickman case that he relied on in his reply brief for the first time on appeal and then an oral argument here.

[00:31:50] Speaker 00:
That's a 2001 district court case from the District of Kansas that says essentially the EEOC employs a close enough rule under which it considers that 45-day standard to be met if the employee contacts agency officials.

[00:32:06] Speaker 00:
An agency official who is logically connected with the EEO process

[00:32:10] Speaker 00:
demonstrates an intent to begin the process, the EEO process, that is, and then alleges some sort of discrimination.

[00:32:17] Speaker 00:
But the 10th Circuit has never adopted this standard.

[00:32:21] Speaker 00:
10th Circuit precedent, such as in Hickey, says that you must contact an EEO counselor unless you do something close enough.

[00:32:29] Speaker 00:
And the court should not adopt that standard here because the 45-day regulation at 1614.105 isn't ambiguous.

[00:32:39] Speaker 00:
There's no reason to look to what the EEOC has employed here.

[00:32:45] Speaker 00:
That regulation doesn't include anything like a close enough, logically connected type of provision.

[00:32:52] Speaker 00:
And even if you did apply the Glickman standard, Barry can't meet it anyway for the reasons that the district court explained.

[00:33:04] Speaker 00:
If the court has any further questions, I would be happy to address them.

[00:33:09] Speaker 00:
If not, I will see the rest of my time.

[00:33:10] Speaker 00:
Thank you.

[00:33:14] Speaker 02:
I think, counsel, you've used all your time.

[00:33:18] Speaker 02:
So case is submitted, and the court will be in recess until 9 a.m.

[00:33:21] Speaker 02:
tomorrow.