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Best Wrongful Termination Lawyer Response: What Is An Adverse Action? Can I Bring An Age Discrimination Claim If I Fail To Come Back From Vacation? How Do I Find A Wrongful Termination Attorney?

Employment, Lawyer, attorney, Ohio, Cleveland, employer, employee, best, Brian Spitz, top, discriminated, fired, How do I, What should I do, my boss, race, national origin, gender, disability, religious, religion, age, discrimination, sex, old, wrongful termination, adverse action, retaliation, transfer Usually for any employment discrimination or retaliation claim, one of the required tenants of the prima facie case (the elements the plaintiff must demonstrate to bring a claim) is a showing that the employer committed an adverse employment action against the employee. Usually, this “adverse employment action” comes in the form of a termination or some other conduct that financially impacts the employee such as a demotion, reduction in hours, or some other similar action. So what about when an employee leaves for vacation expecting a transfer from the company that never materializes thus culminating in the employee’s employment terminating? Is that an “adverse employment action”?

In Andrews v. CBOCS West, Inc., the Seventh Circuit said No. In Andrews, the Cracker Barrel employee had brought several complaints against her supervisor based on his alleged age-discriminatory comments against her. The relationship between Andrews and her supervisor deteriorated to the point where she explored the possibility of transferring to a different location, but never formally applied for a transfer. Andrews did, however, ask her supervisor to initiate the transfer process. At the same time, Andrews requested approval from the company to take three weeks of paid vacation to cover the transition period for her transfer.

Cleveland 066While on vacation, Andrews learned that the new location that she was to transfer into only had an evening shift that she was not interested in. Around this same time, Andrews’ former location had already announced to the rest of the employees that Andrews would be leaving that location. Despite the fact that Andrews was considered transferred out of her old location, she never got a start date from the new Mt. Vernon location and never communicated with the new location. As a result, while Andrews was in this “limbo” between Cracker Barrel locations, the company, as part of its normal business practice, processed a termination letter for Andrews because she had missed work for three consecutive weeks and was not on the schedule.

So because the company issued a termination letter to Andrews, that means she was terminated, and thus suffered an adverse employment action, right? Not according to the Court. Rather, the Court held that Andrews was not terminated, but instead, voluntarily quit her job in anticipation of a transfer that never came to fruition. The Court specifically stated, “an employee who voluntarily resigns cannot be said to have experienced an adverse employment action.”

Thus, in the end, even though Cracker Barrel did “terminate” Andrews by issuing her a termination letter, the termination was simply an “administrative formality precipitated by her voluntary absence.” The Court reasoned that Andrews rejected the shift offered and did not follow up about getting back on the schedule at her original location. So the Court, probably rightly in this situation, saw the termination letter as simply an administrative follow up to an employee that resigned from one position, and never showed up for another. Thus, no wrongful termination or adverse action.

If you have been fired, discriminated against based on your race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I …”, “What should I do …,” “My boss discriminated against me because …” or “I was fired for …”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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