Discrimination Charge Did Not Cover Retaliation and Constructive Discharge Claims

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A plaintiff's harassment and discrimination claims were time-barred, and the plaintiff failed to exhaust his administrative remedies for his retaliation and constructive discharge claims, the 8th U.S. Circuit Court of Appeals recently ruled.

The plaintiff worked as a security officer at the Center for Behavioral Medicine (CBM) for about 21 years before he resigned in December 2019. On Aug. 9, 2018, the plaintiff filed a grievance with CBM's HR department about his supervisor's alleged harassment. HR had an investigator look into the plaintiff's grievance and found his complaints unsubstantiated.

On July 24, 2019, the plaintiff filed charges with the Missouri Commission on Human Rights (MCHR) and the EEOC. The description attached to the charge listed specific incidents of harassment only until Aug. 10, 2018. Although the charge indicated that the discrimination was continuing, and listed Oct. 16, 2018, as the latest date of discrimination, the description stated that HR found the plaintiff's internal grievance filed on that date to be unsubstantiated.

After the plaintiff resigned, he filed a lawsuit alleging a racially hostile work environment, disparate treatment based on race, retaliation and constructive discharge in violation of the Missouri Human Rights Act and Title VII.

In the lawsuit, the plaintiff testified that his supervisor was the only person who discriminated against him, and that he did nothing that the plaintiff considered retaliatory, discriminatory or harassing after the plaintiff filed his grievance with HR on August 9, 2018. After filing the grievance, the plaintiff actively avoided the supervisor by leaving work by the back door.

The plaintiff also testified to three incidents he considered retaliation by HR, all of which happened in mid-to-late 2019: 1) a letter he received, falsely stating that he requested leave without pay; 2) a written or verbal communication about something the plaintiff could not specifically recall; and 3) not allowing the plaintiff to come to work for two weeks while he recovered from finger surgery when his doctor said he could work on light duty.

CBM moved for summary judgment, arguing that the discrimination and harassment claims were time-barred, and the plaintiff did not include the other claims in his EEOC charge. The district court granted the motion, and the plaintiff appealed to the 8th Circuit.

On appeal, the plaintiff argued that his harassment and discrimination claims were not time-barred. Under Title VII, an employee who first files with a state or local agency (like the MCHR) must file a charge with the EEOC within 300 days of the alleged act in deferral states. The deadline is within 180 days of the alleged act in nondeferral states; the plaintiff wasn't in a nondeferral state—one without an anti-discrimination law—which is relatively rare. Because the plaintiff filed his charge with both the MCHR and the EEOC on July 24, 2019, to be timely, his Title VII claims must have arisen after Sept. 27, 2018.

The plaintiff testified that his supervisor was the only person who discriminated against him and that his supervisor did nothing retaliatory, discriminatory or harassing after his Aug. 9, 2018, grievance to HR. Yet the plaintiff argued that CBM did nothing to remedy the harassment after that date. The 8th Circuit found that such allegations alone were insufficient to show racial discrimination or harassment after Sept. 27, 2018, so as to render the claims timely.

Regarding the retaliation and constructive discharge claims, the 8th Circuit determined that the administrative exhaustion requirement may be satisfied if the claims grew out of the EEOC claims, or were like them or reasonably related to their substance. However, prior 8th Circuit case law established that retaliation claims are not reasonably related to underlying discrimination claims.

With regard to constructive discharge, the plaintiff did not resign from CBM until approximately five months after he filed his EEOC charge. Because a constructive discharge could not have been reasonably expected to result from the plaintiff's initial EEOC charge, the 8th Circuit found that the plaintiff had not exhausted his constructive discharge claim.

As a result, the 8th Circuit upheld the dismissal of the plaintiff's claims at summary judgment.

Slayden v. Center for Behavioral Medicine, 8th Cir., No. 21-3009 (Nov. 17, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.