Ruth Andrews v. CBOCS West, Incorporated , 743 F.3d 230 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3399
RUTH N. ANDREWS,
Plaintiff-Appellant,
v.
CBOCS WEST , INC ., and J.J. STEWART,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-CV-1025-W DS — William D. Stiehl, Judge.
ARGUED APRIL 18, 2013 — DECIDED FEBRUARY 14, 2014
Before BAUER, FLAUM , and SYKES, Circuit Judges.
SYKES , Circuit Judge. Ruth Andrews, a former server at a
Cracker Barrel restaurant in Caseyville, Illinois, alleges that the
restaurant’s manager fired her based on her race and age and
also in retaliation for a past complaint about discrimination.
Andrews, who is white, was in her mid-fifties at the time of the
events in question; her former manager, Tremayne “J.J.”
2 No. 12-3399
Stewart, is black. Andrews brought claims against Cracker
Barrel under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act (“ADEA”), and 42 U.S.C.
§ 1981.1 The district court entered summary judgment for
Cracker Barrel, and Andrews appealed.
We affirm. The undisputed facts show that Andrews wasn’t
fired; she quit her job at the Caseyville restaurant in anticipa-
tion of a transfer to a different Cracker Barrel restaurant that
never materialized. Without evidence of an adverse employ-
ment action, none of her claims can succeed. The district court
properly entered summary judgment for Cracker Barrel.
I. Background
We recount the following facts from the summary-judg-
ment record, construing the evidence in the light most favor-
able to Andrews and drawing reasonable inferences in her
favor. See Coca-Cola Enters., Inc. v. ATS Enters., Inc.,
670 F.3d 771, 774 (7th Cir. 2012). Andrews was a server 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. As that case
neared conclusion, “J.J.” Stewart—then an associate manager
1
Technically, she sued CBOCS West, Inc., which owns and operates Cracker
Barrel restaurants in the region. For simplicity we refer to the defendant as
“Cracker Barrel.” Andrews also sued Stewart, whom she identifies in the
caption as “J.J. Stewart,” but she never served him. The district court
dismissed the claims against Stewart, and Andrews does not challenge that
decision.
No. 12-3399 3
at the restaurant—told Andrews that she had better “hope to
God I never become GM because if I do, one of the first things
I’m going to do is fire you.” This was apparently meant as a
comment about the amount of money that Andrews’s lawsuit
had cost the company.
Stewart was indeed elevated to general manager in 2006.
Soon after, he said 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 made daily comments about Andrews’s age, calling
her “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 com-
plained 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 repeatedly asked Stewart to stop, but he didn’t.
She mentioned the problem to the associate manager, but he
told her that there was nothing he could do. Andrews at-
tempted to complain to the district manager, but the person
responsible for scheduling an appointment for Andrews never
4 No. 12-3399
did so. In July 2007 Andrews complained to a Cracker Barrel
Employee Relations Specialist, who said she’d investigate and
told Andrews to make notes of the goings-on at the Caseyville
restaurant. Andrews was already doing so, keeping copious
daily records of perceived slights from her coworkers, devia-
tions from protocol, and instances in which she believed that
Stewart was harassing her. Andrews submitted her notes to the
specialist in July, September, and October of 2007, but received
no response. She re-sent the notes in November 2007, and this
time the specialist commenced an investigation and deter-
mined that no further action needed to be taken. At the
specialist’s request, however, the district manager visited
Caseyville to discuss some operational concerns raised by
Andrews’s notes.
Meanwhile, the friction between Andrews and Stewart
continued. Stewart began to encourage Andrews to transfer to
a different Cracker Barrel restaurant. On one occasion he asked
Andrews whether there was anything he could do to get her to
transfer. He sarcastically said that he’d help her pack her
things and drive her to the Cracker Barrel in Mt. Vernon,
Illinois—every day if necessary. Mt. Vernon is about 70 miles
from Caseyville.
In November 2007 Andrews told Stewart that she had
“come to agree with” him that she needed to “go ahead and
transfer.” She asked him to initiate the transfer process to the
Mt. Vernon restaurant. He agreed to get on it right away.
Andrews said she’d like to take her three weeks of paid
vacation to cover the transition, commencing on December 22,
2007.
No. 12-3399 5
Stewart approved the vacation request. On December 10,
2007, Andrews told Stewart that she could start at the
Mt. Vernon restaurant on or after January 6, 2008, but the only
shift available was “closing hours on Friday and Saturday.”
Andrews didn’t want those hours and didn’t accept them; she
maintains that Stewart was only teasing her because he knew
she avoided driving at night. Stewart then announced that
Andrews’s last day at the Caseyville restaurant would be
December 21. At this, he and the other employees applauded
and cheered.
Andrews worked through December 21 at the Caseyville
restaurant and received her vacation pay before leaving. She
claims that Stewart told her the transfer had gone through, but
he denies ever saying that. It’s undisputed that Andrews never
actually applied to work at the Mt. Vernon Cracker Barrel,
never contacted anyone in management at that restaurant, and
was never offered a start date or shift of hours there. Her paid
vacation expired on January 12, 2008. Andrews spoke with
Stewart on January 5 asking about hours at the Mt. Vernon
restaurant. She said that if there were no hours available at
Mt. Vernon, then she would need to be put back on the
schedule at Caseyville. Stewart told her that the general
manager of the Mt. Vernon restaurant would let him know if
there were hours available for her there. He said he’d call her
back if he received any information. That call never came. On
January 11 Stewart was fired by the district manager for
violating Cracker Barrel’s asset-protection policy. Stewart
denies that the January 5 conversation took place.
6 No. 12-3399
Andrews thereafter called the Mt. Vernon restaurant but
never spoke with anyone in management, never left a message,
and never put her transfer request in writing. She never
returned to work at the Caseyville restaurant either. Cracker
Barrel’s computer program for personnel matters automati-
cally tracks the employment status of the restaurant’s employ-
ees; if an employee hasn’t worked for more than three consecu-
tive weeks, the program changes the absent employee’s status
to “terminated.” On January 24, 2008, Andrews received a
check in the mail from Cracker Barrel “representing any
vacation pay due upon separation from Cracker Barrel, in
accordance with state law regarding compensation owed at
termination of employment.” The check was cut on January 22
and had a “week ending date” of January 18, 2008, four weeks
after her last day at Caseyville. The system listed Andrews as
having quit with notice, with a termination date of
December 21, 2007, her last day of work. It also listed her as
eligible to be rehired.
Andrews “assume[d]” that she had been fired and didn’t
contact the Caseyville restaurant, the Mt. Vernon restaurant, or
Cracker Barrel headquarters to inquire about her employment
status. In March 2008 she filed a discrimination charge with the
EEOC alleging that Stewart fired her because of her sex, age,
and race; she also alleged that he had retaliated against her for
her prior Title VII suit. After receiving a right-to-sue letter, she
filed this suit alleging racial discrimination in violation of
Title VII, 42 U.S.C. § 2000e-3, and 42 U.S.C. § 1981; age discrim-
ination in violation of the ADEA, 29 U.S.C. § 623; and retalia-
tion in violation of Title VII and the ADEA. The district court
No. 12-3399 7
granted Cracker Barrel’s motion for summary judgment on all
claims. Andrews appealed.
II. Discussion
Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. FED . R. CIV . P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Coca-Cola
Enters., 670 F.3d at 774. Because Andrews bears the ultimate
burden of persuasion, Cracker Barrel’s summary-judgment
burden “may be discharged by ‘showing’—that is, pointing out
to the district court—that there is an absence of evidence to
support [Andrews’s] case.” Celotex, 477 U.S. at 325. We review
a decision granting summary judgment de novo. Coca-Cola
Enters., 670 F.3d at 774.
“A plaintiff may prove employment discrimination under
the ADEA, Title VII, and § 1981[] using either the ‘direct
method’ or ‘indirect method.’ ” Cerutti v. BASF Corp., 349 F.3d
1055, 1060–61 (7th Cir. 2003) (citing Cianci v. Pettibone Corp.,
152 F.3d 723, 727–28 (7th Cir. 1998)). Under the direct method
of proof, the plaintiff makes her case by pointing to evidence
directly showing that her employer subjected her to an adverse
employment action on an impermissible discriminatory
basis—here, on the basis of race and age. See id. at 1061 (citing
Cianci, 152 F.3d at 727). Under the indirect method of proof, the
plaintiff has the initial burden of establishing
a prima facie case that (1) she is a member of a
protected class, (2) she performed reasonably on
8 No. 12-3399
the job in accord with her employers’ legitimate
expectations, (3) despite her reasonable perfor-
mance, she was subjected to an adverse employ-
ment action, and (4) similarly situated employees
outside of her protected class were treated more
favorably by the employer.
Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006). If
the plaintiff satisfies that burden, then the employer must
articulate a legitimate, nondiscriminatory reason for the
adverse employment action, at which point the burden shifts
back to the plaintiff to submit evidence that the employer’s
explanation is pretextual. Id. Retaliation claims may also
proceed under direct and indirect methods of proof; rather
than proving that she was a member of a protected class, the
plaintiff must prove that she engaged in a statutorily protected
activity. Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 784–85
(7th Cir. 2007).
Andrews’s case fails at the threshold. An element common
to all of her claims, and to both methods of proof, is that she
must have suffered a materially adverse employment action.2
See id. at 779 (holding that plaintiffs asserting employment-
discrimination claims must show that they suffered a materi-
ally adverse employment action regardless of whether they
2
Title VII retaliation claims can be premised upon any materially adverse
action taken against the employee, regardless of whether it affects the
employee’s terms or conditions of employment. See Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006). But all of Andrews’s claims are
premised on her contention that she was fired, which if true obviously
qualifies as an adverse employment action.
No. 12-3399 9
proceed under the direct or indirect method of proof). Termi-
nation of employment is obviously “ ‘a significant change in
employment status’ ” and thus a materially adverse employ-
ment action. Lewis v. City of Chicago, 496 F.3d 645, 653 (7th Cir.
2007) (quoting Bell v. EPA, 232 F.3d 546, 555 (7th Cir. 2000)).
Cracker Barrel submits, however, that Andrews wasn’t fired,
but in fact voluntarily left her job at the Caseyville restaurant.
She may have done so in anticipation of a new job at the
Mt. Vernon restaurant, but the automatic “termination” of her
employment was attributable to her failure to show up for
work for more than three weeks.
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.3 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).
Andrews has not invoked the constructive-discharge doctrine.
Her counsel confirmed at oral argument that this omission was
intentional. Andrews contends that Stewart fired her, not that
3
“Under the constructive discharge doctrine, an em ployee’s reasonable
decision to resign because of unendurable working conditions is assimi-
lated to a formal discharge for remedial purposes.” Penn. State Police v.
Suders, 542 U.S. 129, 141 (2004) (citing 1 B. L IN DEM A N N & P. G RO SSM A N ,
E M PLO YM EN T D ISC RIM IN ATIO N L AW 838–39 (3d ed. 1996)). The relevant
inquiry is whether the employee’s working conditions became so intolera-
ble that a reasonable person in the employee’s position would have felt
compelled to resign. See id.10 No. 12-3399
she was constructively discharged. We thus have no occasion
to consider how the constructive-discharge doctrine might
apply to Andrews’s case.
Accordingly, to overcome Cracker Barrel’s motion for
summary judgment, Andrews needed to show that there was
a genuine dispute of fact about whether she voluntarily
terminated her employment or was fired. If Andrews left
Cracker Barrel on her own accord, then she did not suffer an
adverse employment action and summary judgment was
proper on all claims.
Our review of the record reveals that Andrews affirma-
tively admitted the following facts:
• She wanted to transfer to the Mt. Vernon Cracker Barrel
and asked Stewart to initiate the transfer process, but
she never formally applied for a transfer or applied to
work at the Mt. Vernon restaurant.
• Stewart told her that the only hours available at
Mt.Vernon were the Friday and Saturday closing shifts.
She told him that she did not want those hours.
• She was never offered a shift or a start date at
Mt.Vernon. She never spoke with anyone in manage-
ment at the Mt. Vernon restaurant or left a message for
someone to call her back.
• Her last day of work at the Caseyville Cracker Barrel
was December 21, 2007, and by December 10 everyone
at Caseyville knew that she would be leaving the
restaurant at the end of her shift that day.
No. 12-3399 11
• She asked Stewart for three weeks of paid vacation to
cover her “transition” to Mt. Vernon. Stewart approved
the request.
• She began her three weeks of paid vacation on Decem-
ber 22, the day after her last day of work at the
Caseyville Cracker Barrel.
• After her January 5, 2008 conversation with Stewart, she
never again contacted anyone at the Caseyville restau-
rant.
In addition to the foregoing admitted facts, Andrews has
not submitted any evidence to contradict the following facts:
• The Cracker Barrel computer system automatically
changes the employment status of employees who do
not show up for work for a period of three weeks,
listing them as “terminated.”
• After December 21, 2007, she never returned to work at
the Caseyville Cracker Barrel and never asked for
clarification of her employment status.
• No one ever told her that she could not return to work
at Cracker Barrel.
• The Cracker Barrel computer system listed her as
having quit but eligible for rehire.
• Stewart was fired by Cracker Barrel on January 11, 2008,
and didn’t have access to his work computer that day.
There are a few disputed facts:
12 No. 12-3399
• Andrews claims that Stewart told her before she left
Caseyville that her transfer had been approved. Stewart
denies saying this.
• Andrews claims that she spoke with Stewart on January
5, 2008, to check on the transfer. Stewart denies that this
conversation took place.
• Andrews claims that Stewart told her that he would
take care of getting her a shift at the Mt. Vernon restau-
rant. Stewart denies this, saying that after Andrews
rejected the closing hours on Fridays and Saturdays, he
turned the process over to her.
Construing these few disputed facts in Andrews’s favor, as
we must at this stage, does not fill a fundamental gap in her
case. Her own admissions and the uncontested facts establish
that she was not fired. True, her employment was automati-
cally “terminated” when she failed to show up for work after
her three-week paid vacation. But that was an administrative
formality precipitated by her voluntary absence. Andrews
wasn’t forced to leave her job at Cracker Barrel (recall that she
is not alleging a constructive discharge), nor was she prevented
from returning after her vacation. In the absence of evidence
that Andrews was involuntarily relieved of a job that she’d
expressed a desire to keep, the administrative termina-
tion—triggered automatically by her extended absence from
the workplace—cannot be considered a materially adverse
employment action.
To shore up her theory that she was fired, Andrews directs
our attention to certain entries on her “employment status”
report at Cracker Barrel. On December 29, 2007—eight days
No. 12-3399 13
after she last worked at the Caseyville restaurant—Andrews’s
employment status was changed to “PENDING TERMINA-
TION” effective as of December 21, her last day at Caseyville.
Stewart’s name appears in the “Description” field as follows:
“JAY JAY STEWA00111.” Andrews maintains that these record
entries demonstrate that there is a genuine dispute of fact on
her claim that Stewart fired her.
But nothing about this status-change report suggests that
Andrews was fired. If anything, it suggests that she quit. In the
“Comments” section, the status-change report expressly says
that Andrews “QUIT WITH NOTICE,” and the numeric coding
on the document appears to correspond with the termination
code for “Quit with notice (2 weeks) [Code 76].”4 As we have
noted, a separate entry on Andrews’s status-change report
confirms that she was eligible to be rehired by Cracker Barrel
later. The computerized “termination” entry, which was
recorded on January 11, 2008, and lists her termination date as
December 21, 2007, is consistent with the coding in her status-
change report. It is undisputed that Stewart himself was fired
4
Andrews quibbles with som e of these dates, arguing that if she was
terminated on December 21, 2007— her actual last day of work at the
Caseyville restaurant— then giving notice to Stewart on December 10 could
not have been two weeks’ notice. But the status-change report wasn’t
entered until December 29, 2007, and the final entry of “termination” didn’t
occur until January 11, 2008. The fact that Andrews received a check for
accrued vacation time on January 24, 2008, with a “week-ending date” of
January 18 and a “check date” of January 22, reinforces the idea that
Andrews’s termination wasn’t formalized until the system administratively
terminated her employment on January 11, listing her last day of work as
her termination date.
14 No. 12-3399
on January 11 and didn’t have access to his company computer
that day. It is also undisputed that if an employee fails to
report for work for more than three weeks, the Cracker Barrel
computer system automatically initiates an administrative
“termination.” Andrews’s claim that Stewart fired her is
supported by nothing more than her speculation.
Finally, Andrews complains that Cracker Barrel’s record of
the circumstances surrounding her termination is inconsistent
because it lists Andrews as having quit with two weeks’ notice,
but it also lists her employment status as terminated adminis-
tratively when she did not show up for work for more than
three weeks. No doubt there are unexplained inconsistencies
here. It’s not clear why the December status-change report
listed Andrews’s employment status as “PENDING TERMI-
NATION” given that she was at that time in the middle of an
approved vacation. It’s also unclear whether the computerized
personnel record system covers employees at all Cracker Barrel
restaurants or whether it covers only Caseyville employees.
But these unanswered questions are immaterial. Even if
Andrews is correct that Cracker Barrel’s personnel records are
inconsistent, it does not follow that she was fired. There is no
evidence supporting her claim that Stewart fired her. The
inconsistency in the computerized personnel record is ulti-
mately irrelevant.
This is not a case in which the record is “replete with
credibility questions and competing versions of the facts,” such
that the question of whether Andrews quit or was fired
“should be sorted out by the trier of fact.” Paz v. Wauconda
Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 665 (7th Cir. 2006).
No. 12-3399 15
Quite the contrary, we agree with the district court that there
is no evidence to support a claim that Andrews suffered an
adverse employment action. The undisputed facts establish
that she voluntarily left her job at the Cracker Barrel in
Caseyville, apparently anticipating a transfer to the Mt. Vernon
restaurant. But she never formally applied for a transfer and
was not offered a shift or a start date at the other restaurant.
And she concedes that she never returned to work at the
Caseyville restaurant after her paid vacation expired.
Because Andrews did not suffer an adverse employment
action, all of her claims necessarily fail, and the district court
properly entered summary judgment for Cracker Barrel.
AFFIRMED .