Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—D.S.D.: VA nurse who faced disciplinary actions after seeking COVID-19 vax exemption advances claims, (Aug 26, 2026)

By Todd Harrison, J.D.

One such action grew out of a reminder that the nurse should refrain from speaking negatively about the VA’s COVID vaccination policy.

Denying the VA’s motion for summary judgment against the disparate treatment, hostile work environment, and constructive discharge claims asserted by a nurse who sought a religious exemption to the department’s vaccine mandate, a federal district court in South Dakota found that a supervisor had singled out the nurse for disciplinary treatment, and the alleged infractions committed by the nurse began to be documented shortly after she had engaged in conversations about her exemption request. As to evidence of a hostile work environment, the court noted that a supervisor agreed that the hospital had a “bad” and “toxic” work environment and had lost between 10 and 20 employees due to its COVID protocols. The court did, however, grant summary judgment against the nurse’s retaliation claim (Kepford v. Collins, No. 4:23-CV-04157-KES (D.S.D. Aug. 24, 2026)).

Hired as a nurse at the VA in 2015, the plaintiff in this case took a position as an off-tour nursing coordinator and staffing methodology coordinator in 2021. In this role, her duties were evenly divided between providing patient care and fulfilling administrative duties.

Vaccine mandate. On October 4, 2021, the VA instituted a COVID vaccine mandate, requiring compliance by November 8, 2021, unless an exemption was granted by November 22. Although the employee received the first round of the vaccine, she purportedly experienced a negative reaction and requested a religious exemption to the second round and the booster.

Late filing. Despite submitting her exemption request sometime in October or November of 2021, the nurse’s first-level supervisor did not enter the request into the system until March 18, 2022.

Disciplinary actions. On November 1, 2021, the supervisor emailed the nurse to address concerns about her time management. The following month, other nurses had expressed discomfort about the nurse sharing her personal views on the COVID vaccine. The supervisor issued a “Letter of Expectations” asking the nurse to refrain from discussing her views on the matter. Although not considered a disciplinary action, the nurse contended it functioned as one given it was later referenced as a basis for specific charges in an official admonishment.

One morning in February, the nurse overslept and was 45 minutes late. Her supervisor later met with her to discuss the incident as well as the nurse conducting staffing over the phone on her way to work. The nurse asserted she accounted for this time by taking one hour of administrative leave. On March 11, the nurse informed her supervisor that her time was never entered as leave. Failing to find a record of any such notification, the supervisor entered the nurse as AWOL on March 15. This designation laid the groundwork for an admonishment, a formal disciplinary action.

Exemption inquiry. On April 7, 2022, the nurse met with her supervisor to discuss communication-related issues. During this meeting, the nurse inquired about the status of her exemption request.

Admonishment. At the end of April, the supervisor issued the nurse a proposed admonishment for her unauthorized absence in February, failure to properly request leave, and failure to follow expectations. The admonishment became official on May 24, 2022.

Proposed reprimand. On September 14, 2022, the nurse’s supervisor issued a proposed reprimand based on incidents that began on July 23, including a failure to comply with policy and the presentation of inaccurate data, failure to properly request leave, and failure to follow instructions.

Written counseling. After receiving the nurse’s response to the proposed reprimand on September 29, the nurse’s second-level supervisor issued a written counseling concerning the more than 200 hours of sick time taken by the nurse between May 3 and September 27. The nurse asserted that she had taken more time than usual because she was not sleeping and believed that her supervisor was harassing her.

Resignation. On October 2, the nurse sent a letter to the hospital’s HR chief alleging a hostile work environment and stating that she was being forced to resign. She officially did so the following day and later filed this lawsuit.

Negative views. As part of this litigation, the nurse’s supervisor admitted to having negative views of the nurse, which she shared with the second-level supervisor. In July 2022, she stated that she searched for emails to find evidence of the nurse’s unprofessionalism and forwarded the worst ones to an HR specialist. HR determined that the emails did not give rise to a disciplinary action. The supervisor further stated that the nurse was the only employee she investigated for unprofessional emails, and that she had only formally admonished the nurse and one other employee for arriving late to work or for improperly requesting leave. She also admitted that there were other employees she could have marked as AWOL but opted not to.

Disparate treatment. First, the court addressed the nurse’s claim that she was subjected to disparate treatment based on her religion in violation of Title VII. The court rejected her claim that her supervisor’s negative view of her constituted direct evidence of discrimination as speculative. Thus, the court applied the McDonnell Douglas burden-shifting framework.

Adverse action. The VA challenged only the third element of the nurse’s prima facie case—whether she suffered an adverse employment action. According to the nurse, the letter of expectations, the admonishment, the proposed reprimand, and the written counseling all constituted adverse employment actions. In response, the VA argued that none of those actions caused harm to an identifiable term or condition of employment and the nurse’s position did not change in any way.

Viewing the evidence in the light most favorable to the nurse, a reasonable jury could conclude that the challenged documentation was not merely a series of isolated employment records, explained the court. Although the letter of expectations was not itself a formal disciplinary action, the supervisor later partly relied on it to support the issuance of the admonishment, multiple of which could lead to suspension or discharge. Based on this, the nurse alleged that each incident caused harm by subjecting her to progressively more severe disciplinary action and placing her at greater risk of future discipline.

From this evidence, continued the court, a reasonable jury could infer that the challenged documentation functioned as part of the nurse’s progressive disciplinary process rather than a series of isolated personnel records, thus increasing the nurse’s exposure to more severe discipline. This, explained the court, was enough to show that the VA’s actions caused “some harm” to an identifiable term or condition of employment, and the nurse had established her prima facie case.

Nondiscriminatory reasons. Shifting the burden to the VA to show it articulated legitimate, nondiscriminatory reasons for the challenged actions, the court determined that it had, pointing to the nurse’s alleged attendance deficiencies and misconduct.

Pretext. To show these proffered reasons were pretextual, the nurse pointed to several inconsistencies in the record and incomplete accounts of the events surrounding the challenged actions, specifically pointing to evidence of the supervisor’s admitted negative personal views of her, among other things. This was enough for a reasonable jury to conclude that the VA’s stated reasons were unworthy of credence, said the court.

Temporal proximity. A jury could also infer that the challenged actions took place shortly after the nurse’s conversations regarding her religious exemption request, observed the court. In late 2021, she submitted an exemption request. By the end of that year, she received a letter of expectations. Then, after following up on the status of her request on April 7, she was issued a proposed admonishment a few weeks later. Based on the above, the court found that the VA was not entitled to summary judgment on the disparate treatment claim.

Hostile work environment. Turning to the nurse’s claim for a hostile work environment, the court determined that she presented sufficient evidence from which a reasonable jury could conclude that she subjectively believed the alleged harassment affected her working environment and the terms and conditions of her employment. Under the totality of the circumstances, the frequency of the disciplinary actions taken against the nurse and the apparent negative effects such actions had on her state of mind indicated genuine dispute of material fact existed as to whether the alleged harassment affected a term, condition, or privilege of her employment, said the court.

There was also sufficient, objective evidence that established a genuine dispute of material fact about whether the work environment was hostile, observed the court, including comments by the nurse’s second-level supervisor wherein she admitted and agreed that the hospital had a “bad” and “toxic” work environment in 2021 and 2022, and that the VA had lost between 10 and 20 employees during this period due to its COVID protocols. Because a reasonable jury could find the nurse established each element of this claim, the VA’s motion for summary judgment was denied.

Constructive discharge. Next, the court considered the nurse’s claim for constructive discharge. The same evidence supporting her hostile work environment claim also created a genuine dispute of material fact as to whether the nurse’s working conditions were objectively intolerable and whether the VA intended for, or could have reasonably foreseen, her resignation, explained the court.

In addition to the evidence set forth in her hostile work environment claim, the nurse also contended that the VA does not want sleep-deprived nurses working its floors, but when she took her allotted 200-plus hours of sick time, she was subjected to written counseling. According to the nurse, if she could not use her “sick leave to take care of herself, she had no option but to resign,” and a reasonable person would have found her working conditions so intolerable as to feel compelled to resign.

Further, continued the court, a reasonable jury could also conclude that the VA should have reasonably foreseen the nurse’s resignation and that the nurse had provided the VA with ample opportunity to remedy the underlying issue. The second-level supervisor was aware the nurse believed her supervisor was harassing her and that several employees had resigned because of the hospital’s COVID protocols. “From this evidence, a reasonable jury could infer that employees who voiced substantial concerns about the VA's COVID-19 protocols were at an increased risk of resigning,” said the court. Accordingly, summary judgment was denied as to this claim.

Retaliation. Finally, the court addressed the nurse’s claim for retaliation. The employee contended that she engaged in statutorily protected activity by submitting a religious exemption request and appealing the proposed admonishment, which she argued was initiated in retaliation for pursuing the exemption. The court disagreed, finding this did not rise to the level of statutorily protected conduct, and granted the VA’s motion for summary judgment against this claim.

The case is No. 4:23-CV-04157-KES.

Judge: Schreier, K.

Attorneys: Alex M. Hagen (Cadwell Sanford Deibert & Garry) for Pamela Kepford. Yvette K. Lafrentz, U.S. Attorney's Office, for Douglas A. Collins.

Cases: ReligiousDiscrimination Discrimination Discharge PublicEmployees Retaliation Covid19 AgencyNews SouthDakotaNews