Andrews v. Cbocs W., Inc.

• Decision Date: 14 February 2014
• Docket Number: No. 12–3399.,12–3399.
• Citation: 743 F.3d 230
• Parties: Ruth N. ANDREWS, Plaintiff–Appellant, v. CBOCS WEST, INC., and J.J. Stewart, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

743 F.3d 230

Ruth N. ANDREWS, Plaintiff–Appellant,

v.CBOCS WEST, INC., and J.J. Stewart, Defendants–Appellees.

No. 12–3399.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 2013.

Decided Feb. 14, 2014.

Ferne Paula Wolf, Sowers & Wolf, St. Louis, MO, for Plaintiff–Appellant.

John F. Kuenstler, Barnes & Thornburg LLP, Chicago, IL, for Defendants–Appellees.

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.” 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 anticipation of a transfer to a different Cracker Barrel restaurant that never materialized. Without evidence of an adverse employment 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-judgment record, construing the evidence in the light most favorable 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 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 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 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 attempted to complain to the district manager, but the person responsible for scheduling an appointment for Andrews never 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, deviations 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 determined 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.

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.

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 automatically tracks the employment status of the restaurant's employees; if an employee hasn't worked for more than three consecutive 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 discrimination in violation of the ADEA, 29 U.S.C. § 623; and retaliation in violation of Title VII and the ADEA. The district court 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. 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, ...