298 F.3d 677 (7th Cir. 2002), 00-2839, McCaskill v. SCI Management Corp.

Docket Nº:00-2839.
Citation:298 F.3d 677
Party Name:Gloria J. MCCASKILL, Plaintiff-Appellant, v. SCI MANAGEMENT CORPORATION, SCI Illinois Services Incorporated, doing business as Evergreen Cemetery, Sam Smith, et al., Defendants-Appellees.
Case Date:August 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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298 F.3d 677 (7th Cir. 2002)

Gloria J. MCCASKILL, Plaintiff-Appellant,


SCI MANAGEMENT CORPORATION, SCI Illinois Services Incorporated, doing business as Evergreen Cemetery, Sam Smith, et al., Defendants-Appellees.

No. 00-2839.

United States Court of Appeals, Seventh Circuit

August 5, 2002

Argued Jan. 26, 2001.[*]

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Jamie G. Sypulski (argued), Chicago, IL, for Plaintiff-Appellant.

Frederick L. Schwartz, Shanthi V. Gaur (argued), Littler Mendelson, Chicago, IL, for Defendants-Appellees.

Before: BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Gloria J. McCaskill, an African-American female, was employed at Evergreen Cemetery as a pre-need sales person. (Evergreen's parent company is SCI.) McCaskill's duties included selling funeral goods and services prior to death. She performed these tasks well and was quickly promoted to a management position. After being employed for one year, McCaskill was presented with a document, which included an arbitration provision, and was required to sign it as a condition of continued employment. The arbitration provision stated that disputes between employee and employer would be decided by binding arbitration. Also, among other things, the agreement stated that each party would bear his or her own legal fees and costs.

In 1999, McCaskill complained to management on behalf of several other female employees about the sexual harassment of the female employees by a male supervisor. McCaskill also complained about not receiving certain sales bonuses. Shortly thereafter, McCaskill's employment was terminated. McCaskill filed a complaint with the Equal Employment Opportunity Commission (EEOC) and received a right-to-sue letter. McCaskill then filed suit alleging violations of Title VII, 42 U.S.C. § 1981 and other employment related provisions of state law.

A. Jurisdiction

The first question we confront is whether there was a "final decision" over which we may exercise jurisdiction. Although the parties agree that the district court dismissed the case, we must conduct our own independent inquiry to determine if the order was final. ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000). We pause to note that a district court should always make clear its intent to dismiss a case, particularly where dismissal will render an order appealable. See Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d Cir. 2002).

An appeal may be taken from a "final decision with respect to an arbitration", but not from an interlocutory order staying the action or "compelling arbitration". 9 U.S.C. §§ 16(a)(3), (b)(1), (b)(3). A dismissal without prejudice compelling arbitration is an appealable final decision. Salim Oleochemicals, 278 F.3d at 91; see also Green Tree Financial Corp. Alabama v. Randolph, 531 U.S. 79, 88-89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (holding "that where, as here, the District Court has ordered the parties to proceed to arbitration, and dismissed all the claims before it, that decision is 'final' within the meaning of § 16(a)(3), and therefore appealable.").

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So we are left with the question of whether the "order plainly disposed of the entire case on the merits and left no part of it pending before the court." Green Tree, 531 U.S. at 86, 121 S.Ct. 513.

The defendants moved to dismiss the complaint and compel arbitration. The district court entered an order granting the defendants' motion to compel arbitration, but the order failed to state whether the case was also dismissed.

Since the district court failed to state in the order that the matter was dismissed, we look to the proceedings and rulings to determine if they evidence a clear intent to dismiss the matter. See Kaplan v. Shure Bros., Inc., 153 F.3d 413, 417 (7th Cir. 1998) ("In this case, a review of the district court's orders convinces us that the court's dismissal of Kaplan's action on February 14, 1997 is an appealable order."); Spitz v. Tepfer, 171 F.3d 443, 447-48 (7th Cir. 1999) ("Moreover, the tenor of the summary judgment opinion reflects the trial court's intent to dispose of all the issues in the lawsuit. . . ."); cf. ITOFCA, Inc., 235 F.3d at 365 ("Had MegaTrans done so ['represented to the Court it would not refile its counterclaims'], we could have treated the district court's dismissal of the counterclaims as having been with prejudice, thus winding up the litigation and eliminating the bar to our jurisdiction.").

There are a number of facts which, when taken together, demonstrate that the district court did, in fact, dismiss the matter without prejudice. First, there is the fact that the district court granted SCI's motion which actually requested the court to compel arbitration and dismiss the case. Second, SCI never requested a stay, and while the district court could have granted a stay, it did not explicitly do so. Cf. Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 n. 6 (11th Cir. 2001) ("Although the district court did not specify whether the dismissal was with or without prejudice, the arbitration order clearly disposed of the entire case on the merits and left no part of it pending before the court. Moreover, the district court could have, but did not, stay the case pending arbitration."). Third, McCaskill agrees the court dismissed the case. See JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776-77 (7th Cir. 1999) ("But when we raised this point at argument, the plaintiffs lawyer quickly agreed that we could treat the dismissal of the two claims as having been with prejudice, thus winding up the litigation and eliminating the bar to our jurisdiction."); Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 708-09 (7th Cir. 1999) ("The parties having thus removed the ambiguity in the district court's judgment, that judgment is appealable."). Finally, the district court, quoting another court, ended the opinion with the comment that McCaskill could appeal "subsequent" determinations by the arbitrator. The quotation regarding subsequent appeals clearly shows the court felt judicial review was inappropriate at this time, but the court was noting that McCaskill could seek subsequent judicial review because it was implicitly dismissing the case without prejudice.

When considered as a whole, the "tenor" of the proceedings show that the district court regarded the case dismissed because there was nothing left to decide. Cf. CPR (USA) Inc. v. Spray, 187 F.3d 245, 253 (2d Cir. 1999) (holding that "if the district court, having ordered the parties to arbitrate, has no independent substantive issue left before it—only issues relating to the validity of the arbitrator's award—then the order compelling arbitration is, effectively, a final order and an immediate appeal will be proper."). Therefore, we conclude that a final decision was entered by the district

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court, and we have jurisdiction to hear the appeal.

B. Arbitration

Although a whole host of claims were alleged in the complaint and subject to dispute, the proceedings have narrowed the issues down to one, the attorney's fees clause in the arbitration agreement.1 The provision at issue specifies: "Each party may retain legal counsel and shall pay its own costs and attorneys' fees, regardless of the outcome of the arbitration." The plain terms of the phrase clearly prohibit recovery of attorney's fees regardless of the result or the type of action filed. McCaskill's substantive objection to the provision is that it limits her ability to effectively vindicate her rights under Title VII. At oral argument, SCI conceded that the agreement is unenforceable if construed to limit McCaskill's ability to recover attorney's fees (provided she prevails) under Title VII. The agreement clearly bars the plaintiff's ability to recover any attorney's fees, and because SCI conceded the agreement is therefore unenforceable, we need not proceed any further into an examination of whether Title VII's fee-shifting provisions override an arbitration agreement. See First Ins. Funding Corp. v. Federal Ins. Co., 284 F.3d 799, 806 (7th Cir. 2002); Burgin v. Broglin, 900 F.2d 990, 994 n. 3 (7th Cir. 1990). The verbal admission by SCI's counsel at oral argument is a binding judicial admission, the same as any other formal concession made during the course of proceedings. See Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997); Keller v. United States, 58 F.3d 1194, 1198 n. 8 (7th Cir. 1995) ("Judicial admissions are formal concessions in the pleadings, or stipulations by a party or its counsel, that are binding upon the party making them. They may not be controverted at trial or on appeal."); In re Lefkas Gen. Partners, 153 B.R. 804 (N.D.Ill.1993) (noting that judicial admissions are "any 'deliberate, clear and unequivocal' statement, either written or oral, made in the course of judicial proceedings."). The agreement prohibits the recovery of attorney's fees in any situation, thus, based on SCI's concession, we find that the arbitration clause is unenforceable. The district court's order compelling arbitration is therefore Reversed and Remanded for further proceedings consistent with this opinion.

ILANA DIAMOND ROVNER, Circuit Judge, concurring in the judgment.

Without any majority, the court today reverses and remands the district court's order compelling arbitration. I would reverse and remand for the reasons stated in McCaskill v. SCI Management Corp., 285 F.3d 623 (7th Cir. 2002), reh. granted and op. vacated by McCaskill v. SCI Management Corp., 294 F.3d 879 (7th Cir. 2002), in which Judge Bauer originally joined, and I reproduce some of that opinion below. I cannot join in Judge Bauer's separate opinion on this...

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