No Adverse Employment Action = No Claim for Retaliation

Where employee voluntarily quit her job at a restaurant in anticipation of a transfer to a different location that never came to fruition, she has not suffered an adverse employment action and thus has no claim for retaliation.   Last week, in Andrews v. CBOCS West, Inc., et al., No. 12-3339 (7th Cir. 2014), the Seventh Circuit ruled that Cracker Barrel was entitled to summary judgment where a waitress at Cracker Barrel had elected to quit with the idea that she would transfer to another location, despite her assertion of numerous unsavory facts regarding discriminatory conduct on the part of her supervisor (and a lack of responsiveness to complaints about this conduct from the company).

Andrews was a white woman in her mid-fifties who had worked as a waitress at Cracker Barrel for eight years.  A few years into her employment, she settled a discrimination claim against Cracker Barrel.   Stewart, the associate manager at that time, a black male, warned her that she had better “hope to God I never become GM because if I do, one of the first things I am going to do is fire you,” presumably referring to the amount of money she had cost the company.  Stewart did become general manager three years later and shortly thereafter, said he was going to make his restaurant the first all-black Cracker Barrel and began assigning more tables to black servers than to white servers.  He routinely made comments about Andrews’s age, calling her old woman, old lady, and grandma, and would even impersonate her with a cane.  He also suggested she stop working and take care of her grandchildren.  Andrews asked Stewart to stop without success, attempted to meet with the district manager, and even talked to a corporate employee’s relations specialist who investigated the situation to no avail.

Stewart then began to encourage Andrews to transfer and told her he would drive her himself to the Cracker Barrel seventy miles away every day if she would transfer.    Finally, Andrews told Stewart she would transfer and asked him to begin the process.  She also said she would like to take three weeks of paid vacation to cover the transition and this request was approved.  When Stewart announced Andrews’s last day, he cheered along with other employees.

In fact, Andrews never applied to work at the other location nor contacted anyone regarding a start date.  Andrews asserted that she talked to Stewart about the hours available for her at the other location after she resigned and that she told him that if there were no hours for her there, she would need to return to his location.  Stewart denied this conversation occurred.  Andrews subsequently called the other location, but never spoke with anyone nor put her request for transfer in writing.  Cracker Barrel’s employee system automatically changes an employee’s status to terminated if she or he is absent for three weeks, and that is what happened here.  Andrews then claimed retaliation on the basis of race and age.

The Seventh Circuit upheld the district court’s determination that Andrews’s claim of retaliation failed as she had simply failed to demonstrate that she suffered a materially adverse employment action as required by Title VII.   Andrews elected to leave her job in the hopes of a new job at the new location.  She was only automatically terminated by Cracker Barrel based upon her failure to appear for work for more than three weeks.  The court explained, “In the absence of circumstances suggesting a constructive discharge, an employee who voluntarily resigns cannot be said to have experienced an adverse employment action.”  Andrews, No. 12-3399, p. 9.  Here, Andrews had not invoked the constructive discharge doctrine—and this fact was affirmed by her counsel at oral argument.

As the court explained, the undisputed facts were that Andrews had voluntarily left her job, anticipating a transfer to the other location, however, she never formally applied for this transfer, nor was she offered any shift or start date at the other location, and that she had never returned to work at the original location after her paid vacation expired.  Under these circumstances, she did not suffer an adverse employment action.  Id., p. 15.

This case is interesting because, despite the allegations of discriminatory conduct on the part of the supervisor during Andrews’s employment, because Andrews elected to proceed on the theory that she was terminated and did not pursue a claim of constructive discharge, all of those facts really couldn’t be considered.  Instead, the court had to focus on whether she left on her own accord or was terminated.  Given the facts related to her departure, the court concluded she had decided to leave with the goal of transferring and that simply didn’t support a claim of retaliation.