IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-51203

Summary Calendar

GUSTAVO REVELES, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2014

Lyle W. Cayce

Clerk

 

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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 nonHispanic, 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 

1 Tagore 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).

4 Mineta, 448 F.3d at 788; Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992) (citing 

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 

6 Pacheco, 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 

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

Methodist Univ., 806 F.2d 600 (5th Cir. 1986)).

18 Pacheco 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)).

19 See 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)).

29 See 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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