McCaskill v. Sci Management Corp.
Decision Date | 05 August 2002 |
Docket Number | No. 00-2839.,00-2839. |
Citation | 298 F.3d 677 |
Parties | Gloria J. MCCASKILL, Plaintiff-Appellant, v. SCI MANAGEMENT CORPORATION, SCI Illinois Services Incorporated, doing business as Evergreen Cemetery, Sam Smith, et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
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.
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.
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) ( ). 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) (); Spitz v. Tepfer, 171 F.3d 443, 447-48 (7th Cir.1999) (); cf. ITOFCA, Inc., 235 F.3d at 365 ().
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) () . 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) (); Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 708-09 (7th Cir.1999) (). 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) ( ). Therefore, we conclude that a final decision was entered by the district court, and we have jurisdiction to hear the appeal.
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) () ; In re Lefkas Gen. Partners, 153 B.R. 804 (N.D.Ill.1993) ( ). 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.
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 rehearing,1 which would reverse a district court's decision without ever ascertaining whether that decision was correct — through an unprecedented expansion of the doctrine of judicial admissions. In its zeal to circumnavigate...
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