Labor & Employment Law Daily Wrap Up, PROCEDURE—8th Cir.: Black employee’s disparate treatment, hostile work environment, and retaliation claims against VA proceed, (Jul 11, 2025)

By Nicholas Kaster, J.D.

The Eighth Circuit, however, affirmed the dismissal of the employee’s constructive discharge claim.

Disparate treatment, hostile work environment, and retaliation claims brought by a former employee against the Secretary of Veterans Affairs should proceed, the U.S. Court of Appeals for the Eighth Circuit has ruled, reversing and remanding the decision of a federal district court. The lower court held that the African-American employee failed to exhaust the claims because he never incorporated allegations from his first administrative complaint in his complaint in the district court. In that complaint, the employee stated no fewer than five times that he was drawing allegations from the first administrative complaint. Thus, the claims were properly presented for the court’s consideration, the Eighth Circuit concluded. However, it affirmed the dismissal of the employee’s constructive discharge claim (Lee v. Collins, No. 24-2028 (8th Cir. July 10, 2025)).

An African-American employee of the Kansas City Veterans Administration Hospital brought disparate treatment, hostile work environment, retaliation, and constructive discharge claims against the Secretary of Veterans Affairs under Title VII. The former employee alleged that the Department of Veterans Affairs had engaged in race discrimination as well as other forms of discrimination. However, a federal district court in Missouri held that the employee failed to exhaust the first three claims and that his work conditions were not intolerable enough to support the last claim. Accordingly, the court granted the Secretary summary judgment. The current appeal ensued.

Administrative complaint. Before he brought this suit, while he still worked at the hospital, the employee filed an administrative complaint with the Department of Veterans Affairs. He asserted that the department discriminated against him because of his race and other protected characteristics, allowed a work environment hostile to African-American employees to persist, and retaliated against him for supporting his wife when she testified in a separate employment discrimination matter. The department treated the filing as both an individual complaint, which it held in abeyance, and a class complaint.

The employee then resigned and filed another administrative complaint. In that complaint, he alleged that he had suffered continued discrimination, harassment, and retaliation, which led to his constructive discharge. On May 17, 2021, the department allowed the constructive discharge claim to proceed, but it dismissed the new allegations of discrimination, harassment, and retaliation and treated them as an amendment to the individual portion of the earlier complaint. Almost eight months later, on January 10, 2022, the department dismissed the remainder of the second complaint outright. Though his prior complaint was still pending, the employee brought his claims in the district court on February 9, 2022.

Disparate treatment, hostile work environment, and retaliation claims. At that point, the employee had exhausted his disparate treatment, hostile work environment, and retaliation claims because he presented them in his first administrative complaint and waited as long as necessary before advancing them in court. When 180 days passed from his filing of an administrative complaint and no final action has yet resolved the matter, an employee of the Department of Veterans Affairs could bring his Title VII claims in a civil action. Thus, the Eighth Circuit stated, even assuming that an amendment to an administrative complaint restarts the 180-day period, the department’s delay in processing the employee’s first administrative complaint entitled him to sue in court. That is because, between the last amendment to that complaint, on May 17, 2021, and the commencement of the employee’s federal action, on February 9, 2022, more than two hundred and fifty days passed without any disposition of that complaint.

The appellate court found that it was irrelevant, for present purposes, that the department held the individual portion of the employee’s complaint in abeyance while processing the class portion. The Secretary did not contend that the pendency of the class portion of the complaint prevented the employee from exhausting his claims. The Secretary argued instead that the employee failed to exhaust his disparate treatment, hostile work environment, and retaliation claims because he never incorporated allegations from his first administrative complaint in his complaint in the district court.

The Eighth Circuit disagreed. Even assuming that the failure to incorporate the allegations would present an exhaustion issue, said the appellate court, “the difficulty is academic because the employee’s complaint in the district court will not bear the Secretary’s interpretation.” In that complaint, the employee stated no fewer than five times that he was drawing allegations from the first administrative complaint. And those allegations took up more pages in the court complaint than allegations drawn from the second administrative complaint, on which the Secretary admitted that the employee relied. Thus, the claims were properly presented for the court’s consideration, the Eight Circuit held.

Constructive discharge claim. Though the Eighth Circuit concluded that the district court erred in dismissing the employee’s disparate treatment, hostile work environment, and retaliation claims on exhaustion grounds, the appellate court saw no error in its dismissal of his constructive discharge claim. In response to the district court’s holding that his working conditions would not compel a reasonable person to resign, the employee did not cite a single piece of countervailing evidence. His references to the bare allegations of his complaint were no substitute. That left the appellate court without enough information to say that the constructive discharge claim should have survived summary judgment, and the court declined to search the record for evidence supporting the employee’s argument to that effect.

Accordingly, the Eighth Circuit affirmed the dismissal of the employee’s constructive discharge claim, reversed the dismissal of his other claims, and remanded for further proceedings.

The case is No. 24-2028.

Judge: Arnold, M.

Attorneys: Rebecca M. Randles (Randles Mata & Brown) for Vernon Lee. Jeffrey P. Ray, U.S. Attorney's Office, for Douglas A. Collins.

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