Tuesday, February 25, 2014

7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized

The Court of Appeals for the Seventh Circuit affirmed summary judgment against a former Cracker Barrel employee's claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and 42 U.S.C. § 1981, finding that there was no adverse employment action when the employee quit her job in anticipation of a transfer to a different Cracker Barrel restaurant that never materialized.

The employee, a server named Ruth Andrews, served at a Cracker Barrel restaurant in Caseyville, Illinois, from 1999 until December 21, 2007. In 2002 she filed a discrimination claim against Cracker Barrel, which was settled in 2003.  The manager Andrews later alleged was discriminating against her, Tremayne “J.J.” Stewart, in response to the settlement amount, stated that Andrews better hope he never becomes the general manager because "one of the first things I'm going to do is fire you."  

Stewart was later promoted to GM in 2006 and again made a bonehead statement in stating that he was going to make the Caseyville restaurant the first all-black Cracker Barrel. He assigned more tables to black servers than to white servers. In Andrews’s view Stewart hired a disproportionately high percentage of black people when compared to the demographics of the local population.  Stewart then routinely made inappropriate statements about Andrews' age calling her things like  “old woman,” “old lady,” and “grandma.” He sometimes would grab a cane and impersonate an elderly woman when approaching Andrews. On a few occasions, Andrews complained that Stewart was unfairly reassigning large tables of male customers from older servers to younger ones; Stewart responded, “those guys don’t want to look at an old woman like you.” Once a customer left a tip for the “little old lady,” and Stewart gave it to Andrews, reasoning that she was “the only little old lady here.” For a period of time, Stewart also encouraged Andrews to stop working and instead watch her grandchildren.

Andrews apparently did all she could to complain in an effort to make this behavior and these comments stop but her complaints fell upon proverbial deaf ears and the problems never stopped.  Then, as is to be expected, relations between Andrews and Stewart worsened and Stewart encouraged Andrews to transfer to a different Cracker Barrel location but the nearest location was some 70 miles away.  

While it appeared that Andrews would transfer after requesting it, the facts showed Andrews and Stewart never took the formal steps necessary to make it complete despite the fact it was even announced that Andrews was transferring.  Andrews then never worked at either Cracker Barrel location again after taking paid vacation after she thought she was slated to transfer and begin work at the new location, but the company's internal system considered it a quit and sent her her last remaining pay after she went AWOL for more than 3 weeks.  Andrews had assumed she had been fired and then commenced her charge with the EEOC alleging sex, age and race discrimination.  

The 7th Circuit, in upholding summary judgment against Andrews' claims, held that she failed at the very threshold by not showing that she  "suffered a materially adverse employment action."  Having not plead or claimed a constructive discharge (this was admittedly done so intentionally by her counsel), the Court held that:  "The legal premise of Cracker Barrel’s argument is mani- festly sound: In the absence of circumstances suggesting a constructive discharge, an employee who voluntarily resigns cannot be said to have experienced an adverse employment action.   Cf. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir. 2003) (noting that “a plaintiff cannot state an adverse employment action if he voluntarily resigned” unless the circumstances rise to the level of a constructive discharge)."

The Court did note some "inconsistencies" with respect to Cracker Barrel's record of Andrews' employment status while she was on vacation before she thought she was transferring but found these inconsistencies "immaterial" for purposes of summary judgment as they deemed it clear from the undisputed facts that she did in fact quit her job.

The lesson to be learned:  stay in contact with your employer!  Be clear on your employment status and be 100% clear on your transfer by finding out if it was approved and when you start.  Certainly do not stay out of contact with your employer for weeks and then "assume" you have been terminated as most employers have policies regarding voluntary separations and the laws seem clear that an employee terminates their own employment when they simple stop showing up and stay out of contact.

The case is Andrews v CBOCS West, Inc, (7thCir, February 14, 2014, Sykes, D).  

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