Perez: An Undeveloped Tolling Argument Did Not Save a Late Federal EEO Claim

A possible excuse for late federal EEO counseling must be developed with an argument and supporting facts; citing guidance that mentions tolling is not the same thing. In Perez v. Bondi, No. 24-2149 (10th Cir. Jan. 12, 2026), the court affirmed dismissal of a former FBI employee’s discrimination case after he first sought counseling decades after retirement. It declined to address his appellate tolling argument because he had not adequately developed it in the district court.

The operative result concerns this late complaint and the tolling argument preserved in this record. The complete official order and judgment is a nonprecedential Tenth Circuit disposition; federal employees in California must apply controlling Supreme Court and Ninth Circuit law to a developed tolling record.

The complaint linked an old promotion dispute to later retirement payments

Perez participated in successful employment-discrimination litigation against the FBI in the 1980s. A court ordered his promotion, and he retired in 1994. Approximately 26 years later, he contacted the FBI’s EEO office. He alleged continuing discrimination and retaliation during his employment, failure to promote him to the level previously ordered, and resulting reductions in retirement payments. Perez, page 2.

He argued during the administrative process that each retirement payment was a new discriminatory or retaliatory act. The administrative judge dismissed the complaint as untimely, and the EEOC affirmed. Perez then sued the Attorney General in district court. The government moved to dismiss, including on the ground that his initial counseling contact was late, and the district court granted the motion. Perez, pages 2–3.

The appeal reviewed a Rule 12(b)(6) dismissal

The court reviewed the Rule 12(b)(6) dismissal anew. It explained that well-pleaded allegations must be accepted as true and read favorably to the plaintiff, while the complaint must still state a plausible claim. It also rejected reliance on an obsolete pleading formulation that the Supreme Court had displaced. Perez, page 3 and footnote 1.

Those pleading rules did not excuse the timing problem. The court applied 29 C.F.R. section 1614.105(a)(1), which generally requires a federal employee to initiate EEO counseling within 45 days of the allegedly discriminatory matter or, for a personnel action, its effective date. Perez’s first contact occurred long after his employment ended. This federal-sector counseling requirement is different from the charge-filing rules applicable to a private California employer. Perez, pages 3–4.

Why the tolling argument was not decided on its merits

On appeal, Perez argued that equitable tolling should save the complaint. The appellate court examined what he had actually presented below. The district court had found that, apart from citing EEOC guidelines referring to tolling, he had articulated no argument or facts warranting tolling, waiver or estoppel. The Tenth Circuit treated the argument as forfeited because it had been presented only in a perfunctory, undeveloped way. Perez, page 4.

A second preservation problem appeared in footnote 2. Perez did not ask the appellate court to review the forfeited issue under its plain-error framework. The court therefore treated the issue as effectively waived on appeal. The opinion did not weigh a developed factual showing about an obstacle, lack of notice or another asserted excuse and then find that showing insufficient.

That distinction is the case’s practical lesson. A document citing an exception tells the tribunal that an exception exists. It does not identify the relevant dates, show why the person could not act, explain diligence or connect the facts to that exception. If an excuse is necessary, the record must give the first decision-maker something concrete to decide.

What the affirmance left unresolved

The court affirmed the district court’s judgment. Because it found the complaint untimely and the tolling argument unpreserved, it did not reach the government’s additional arguments for affirmance. The opinion does not identify those alternative arguments, so its stated timing and preservation rationale supplies the basis for comparing the result. Perez, pages 4–5.

For another federal employee, separate three questions: What event starts the counseling period, whether a timely EEO contact actually occurred, and what facts support a requested extension if it did not. Our guide to extension evidence develops the third question. The Green resignation analysis concerns the first; its accrual rule is not a substitute for explaining lateness.

Keep the personnel notice, its effective date and receipt evidence, any earlier request for EEO counseling, the asserted obstacle and the submissions already made to the agency and court. Those documents show both the underlying timing issue and whether the claimed excuse has been preserved.