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Employee Who Fails to Return from Vacation Has No Claim of Discriminatory Termination

In Andrews v. CBOCS West, Inc., No. 12-3399 (7th Cir. Feb. 14, 2014), the Seventh Circuit addressed an employer’s practice of automatically terminating an employee who did not return to work after taking paid vacation leave.  The Court affirmed summary judgment for the employer on the employee’s claims of discrimination and retaliation under Title VII and ADEA, reasoning that the claims failed because the employee did not suffer an adverse employment action.  Critically, the Seventh Circuit recognized the difference between being fired and being automatically terminated pursuant to an employer’s legitimate processes.

Ruth Andrews worked as a server at a Cracker Barrel restaurant in Caseyville, Illinois from 1999 through 2007.  For at least the last five years of her employment, she did not get along with her supervisor, J.J. Stewart.

In 2002, Andrews (white) filed a discrimination claim against the company, which settled a year later.  Around the time of the settlement, Stewart (black), then an associate manager at the Caseyville location told Andrews that she should “hope to God I never become GM because if I do, one of the first things I’m going to do is fire you.”

Stewart became general manager of the location in 2006 and allegedly stated that his goal was to make his restaurant the first all-black Cracker Barrel.  Andrews alleged that Stewart regularly made comments about her age.  She claimed, for instance, that Stewart called her “old woman,” “old lady,” “grandma,” and encouraged her to stop working and watch her grandchildren.

Andrews thoroughly documented her interactions with Stewart and provided her notes to a Cracker Barrel employee relations specialist.  The specialist investigated Andrews’ complaints and concluded that no action was necessary other than having a district manager visit the Illinois location to “discuss operational concerns.”

The discord between Andrews and Stewart continued, and Stewart began encouraging Andrews to transfer to a different location.  One nearby location, in Mt. Vernon, Illinois, was seventy miles away.  In November 2007, Andrews accepted that she needed to transfer and asked Stewart to initiate the process transferring her to the Mt. Vernon location.  She did not, however, formally apply for a transfer.

Andrews requested approval to take her three weeks of paid vacation to cover the transition period.  Stewart approved this request.  In early December, however, Andrews learned that the only shift available at the Mt. Vernon location was an evening shift that Andrews did not want.

Around the same time, Stewart informed the staff in Caseyville that Andrews’ last day would be December 21, 2007, to which other employees “applauded and cheered.”  When December 21 came, however, Andrews had not applied to work at the Mt. Vernon location and never communicated with the Mt. Vernon location’s management.  She was never offered a start date at the Mt. Vernon restaurant.

Andrews was terminated on January 11, 2008, when Cracker Barrel’s HR computer system generated a termination letter, which it routinely does for employees who haven’t worked for more than three consecutive weeks. Andrews was eligible for rehire.

Each of Andrews’ claims (race and age discrimination and retaliation) failed, because she could not state a prima facie case – Andrews did not suffer materially adverse employment action.  Instead, Andrews voluntarily quit her job in anticipation of a transfer that did not materialize.

As the Seventh Circuit stated, “an employee who voluntarily resigns cannot be said to have experienced an adverse employment action.”

Importantly, the Court honed in on the following undisputed facts:  (1) Cracker Barrel’s human resources system automatically changes an employee’s status after three weeks without work; (2) Andrews never returned to her old location or requested clarification of her employment status; (3) Andrews was never told that she could not return to work at Cracker Barrel; and (4) Andrews was eligible for rehire.

Thus, the Seventh Circuit concluded, Andrews was not fired, rather she was automatically terminated for failing to show up for work after her three weeks of paid leave.  This termination was an “administrative formality precipitated by her voluntary absence.”

In case you are curious, Stewart was fired on January 11, 2008 (for reasons not explained in the opinion).

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