Rush v. McDonald's Corp., No. 91-2151

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, Chief Judge, RIPPLE, Circuit Judge, and BURNS; RIPPLE
Citation966 F.2d 1104
Parties59 Fair Empl.Prac.Cas. (BNA) 527, 59 Empl. Prac. Dec. P 41,624, 22 Fed.R.Serv.3d 1298 Patricia D. RUSH, Plaintiff-Appellant, v. McDONALD'S CORPORATION, Sharon Funston, and William R. Rose, Defendants-Appellees.
Docket NumberNo. 91-2151
Decision Date29 June 1992

Page 1104

966 F.2d 1104
59 Fair Empl.Prac.Cas. (BNA) 527,
59 Empl. Prac. Dec. P 41,624, 22 Fed.R.Serv.3d 1298
Patricia D. RUSH, Plaintiff-Appellant,
v.
McDONALD'S CORPORATION, Sharon Funston, and William R. Rose,
Defendants-Appellees.
No. 91-2151.
United States Court of Appeals,
Seventh Circuit.
Argued April 8, 1992.
Decided June 29, 1992.

Page 1106

Carolyn C. Coukos (argued), Indianapolis, Ind., for plaintiff-appellant.

Mark W. Ford and Andrew W. Hull (argued), Johnson, Smith, Densborn, Wright & Heath, Indianapolis, Ind., for defendants-appellees.

Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and BURNS, Senior District Judge. *

RIPPLE, Circuit Judge.

Mrs. Patricia Rush, a black woman, was employed by the McDonald's Corporation at its Indianapolis regional office, as a word processing specialist, first part-time, and later full-time, from November 1985, until May 1988, when she was fired. She subsequently brought an action in the United States District Court for the Southern District of Indiana, against McDonald's and two of her supervisors. She alleged violations of Title VII of the Civil Rights Act of 1964, 1 of section 1981 of the Civil Rights Act of 1870, 2 of the Employee Retirement Income and Security Act of 1974 ("ERISA"), 3 and of Indiana common law. The district court granted the defendants' motions to dismiss certain portions of the complaint and for summary judgment as to the remainder of her action. It also imposed sanctions under Rule 11 on Mrs. Rush's attorney. We affirm.

I
BACKGROUND

A. Facts

Mrs. Rush was first hired by McDonald's in November 1985, as a part-time word

Page 1107

processor. Mrs. Rush preferred a full-time position, since part-timers were paid a lower hourly rate and received fewer employee benefits. 4 She expressed that interest to various supervisory personnel on a number of occasions. However, the Indianapolis office did not have a full-time vacancy until the end of 1987. At that time, Mrs. Rush applied for that position, and she was promoted to full-time status effective January 1, 1988. During the period that Mrs. Rush was employed on a part-time basis, she was twice subject to disciplinary action. 5

On Monday, May 2, 1988, Mrs. Rush did not report to work. In an affidavit, Mrs. Rush stated that she had had a scalp problem for several months, and that, on that particular day, it manifested itself as a severe case of dandruff. Not only was she embarrassed by her situation, but she feared that this condition would put her in non-compliance with McDonald's' employee appearance standards. Because Mrs. Rush did not have a telephone at her home, she asked her husband, Arthur Rush, to call the McDonald's office to tell her immediate supervisor, Sharon Funston, of her unavailability. However, because of the personal nature of her condition, she instructed her husband not to give the reason for her absence from work.

The McDonald's regional office had a written attendance policy which required, among other things, that an employee who was unable to report to work should notify the office manager or leave a message at her office. On the other hand, the McDonald's office apparently did not have any written policy which provided for the discharge of employees for unexplained absence. Mrs. Rush acknowledged that she was aware of the attendance policy. She alleges that because she did not have a telephone at her residence, she had permission from Ms. Funston to have her husband call in for her; McDonald's disputes that assertion. At the summary judgment stage, we accept the nonmoving party's (here, Mrs. Rush's) version of the facts.

On Tuesday, May 3, the plaintiff again asked her husband to call Ms. Funston, and this time to tell her that Mrs. Rush would be back at work on Thursday. As on the prior day, Ms. Funston again expressed her concern to Mr. Rush as to the reasons for and the duration of his wife's absence, because she felt the need to have Mrs. Rush's work assignments completed. 6 On Wednesday, May 4, Mrs. Rush called the McDonald's office personally; after several missed connections, she finally spoke to Ms. Funston that afternoon, 7 and agreed to come to the office the next day. Mrs. Rush finally reported to work on Thursday, May 5. She met with Ms. Funston and, after a brief discussion, 8 was given a written notice of termination of employment.

Page 1108

B. Proceedings Below

On June 9, 1988, Mrs. Rush filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC"). 9 The complaint was referred to the Indiana Civil Rights Commission; on April 6, 1989, that agency rendered its findings, concluding in part that "Complainant's allegation of a discriminatory practice by Respondent in the area of employment on the basis of race when Complainant was discharged is found to be without merit." On May 23, 1989, the EEOC issued a Notice of Right to Sue to Mrs. Rush.

Mrs. Rush filed her initial complaint with the district court on August 18, 1989. In addition to naming McDonald's as a defendant, she also sued Ms. Funston and the McDonald's regional manager, William Rose. 10 Mrs. Rush alleged that she was the subject of racial discrimination while she was an employee and in her eventual discharge. Her complaint generally asserted a number of theories under both federal and Indiana law.

A variety of motions directed to the pleadings followed. In response to a motion for a more definite statement, the plaintiff moved for leave to file an amended complaint. Her motion was granted, and a second complaint was filed on December 21, 1989. While the initial complaint was rather unspecific, this amended complaint contained five counts, identifying a number of respects in which the defendants' conduct allegedly violated various statutory and common law duties.

Specifically, in Count I, Mrs. Rush asserted five forms of race-based discrimination in violation of Title VII: (a) her discharge; (b) denial of promotion from part-time to full-time status; (c) denial of employee benefits; (d) harassment, including racial comments and disparate treatment; and (e) adoption of a policy of filling the word processor position with minorities and of hiring minorities on a parttime basis more frequently than non-minorities. Count II asserted a claim under section 1981, alleging that the delay in promoting her from a part-time to a full-time position was the product of racial considerations. Count III asserted an ERISA claim, based on the wrongful denial of employee benefits. Count IV alleged a claim of racial discrimination resulting in her wrongful discharge; this claim was based on Indiana public policy, which in turn was assertedly derived from the Indiana Civil Rights Law. 11 Count V asserted a state law claim of intentional infliction of emotional distress, which resulted from Ms. Funston's alleged racial harassment of the plaintiff.

On June 5, 1990, the defendants moved to dismiss portions of the amended complaint. 12 In response, plaintiff made a motion on July 25, 1990, for leave to file a second amended complaint. 13 After the defendants pointed out in their opposing brief that this motion came six weeks after the cut-off date set by the Pre-Trial Scheduling Order for filing such motions, the plaintiff filed a motion on August 23, 1990, to enlarge the time to file a motion for leave to amend the complaint.

The plaintiff's two state law claims were abandoned in mid-1990. Mrs. Rush first made a motion on June 1, 1990, seeking leave to dismiss Count V without prejudice;

Page 1109

the district court granted this motion on June 5, 1990. After the defendants made a motion requesting reconsideration of this order, the court amended the order on June 11, 1990, to provide that this claim was dismissed "with prejudice." Then, on August 28, 1990, counsel for the parties entered into a stipulation for the dismissal of both Counts IV and V. 14

On November 12, 1990, the defendants filed a motion for summary judgment. By an order dated April 12, 1991, the district court, after first noting the untimeliness of plaintiff's motion, nonetheless granted her permission once again to amend the complaint. Considering the action on the merits, the court granted the defendants' motion pursuant to Rule 12(b)(6) as to three of her Title VII claims 15--those asserting denial of benefits, racial harassment, and McDonald's' alleged policy of slotting minorities into parttime positions--and granted summary judgment as to the balance of her claims. Rush v. McDonald's Corp., 760 F.Supp. 1349 (S.D.Ind.1991).

The defendants had filed two separate motions for sanctions, pursuant to Rule 11 and Rule 16(f). 16 Finding that Mrs. Rush's complaint contained frivolous claims, the court concluded that the imposition of some sanctions under Rule 11 was required. Although the court determined that the imposition of attorney fees was excessive, it concluded that both monetary and nonmonetary sanctions were appropriate. The court therefore ordered a reprimand of Mrs. Rush's attorney and the award of costs against her and in favor of the defendant. 17 Mrs. Rush filed a timely notice of appeal, challenging the dismissal of certain of her claims and the entry of summary judgment with respect to the rest. 18 Mrs. Rush's attorney appeals the entry of sanctions under Rule 11.

II
ANALYSIS

A. Standard of Review

This case comes to us on appeal from a trial court's entry of summary judgment. By now, it is standard learning that summary judgment should be entered when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir.1990). Furthermore, once the moving party has...

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  • Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, Case No. 10–C–560.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 28, 2012
    ...federal court without first filing a timely complaint with the Equal Employment Opportunity Commission (EEOC). Rush v. McDonald's Corp., 966 F.2d 1104, 1111 (7th Cir.1992). Contrary to the defendants assertion, however, the filing of a timely charge of discrimination with the EEOC is a stat......
  • Miller v. Vesta, Inc., No. 94-C-1270.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • November 22, 1996
    ...class, who had similar work and attendance records but were not terminated. Hughes, 583 F.Supp. at 70; see also Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir.1992). Moreover, such a comparison must "demonstrate more than occasional leniency toward other employees who had engaged in......
  • Brackin v. Int'l Paper, Civil Action No. CV-10-03444-CLS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • October 9, 2012
    ...v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989), superseded by statute on other grounds as stated in Rush v. McDonald's Corp., 966 F.2d 1104 (7th Cir. 1992). . . . see also Fisher v. Ciba Specialty Chemicals Corp., Civil Action No. 03-0566-WS-B, 2007 U.S. Dist. LEXIS 76174, 2007 WL 299......
  • Shay v. RWC Consulting Grp., Corp., No. CIV 13-0140 JB/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 30, 2014
    ...party intended the agency to investigate thePage 28allegations." Welsh v. City of Shawnee, 182 F.3d at *5. See Rush v. McDonald's Corp., 966 F.2d 1104, 1110-11 (7th Cir. 1992)(noting the plaintiff's EEOC affidavit contained "explicit reference" to discrimination alleged in the complaint); B......
  • Request a trial to view additional results
470 cases
  • Miller v. Vesta, Inc., No. 94-C-1270.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • November 22, 1996
    ...class, who had similar work and attendance records but were not terminated. Hughes, 583 F.Supp. at 70; see also Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir.1992). Moreover, such a comparison must "demonstrate more than occasional leniency toward other employees who had engaged in......
  • Brackin v. Int'l Paper, Civil Action No. CV-10-03444-CLS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • October 9, 2012
    ...v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989), superseded by statute on other grounds as stated in Rush v. McDonald's Corp., 966 F.2d 1104 (7th Cir. 1992). . . . see also Fisher v. Ciba Specialty Chemicals Corp., Civil Action No. 03-0566-WS-B, 2007 U.S. Dist. LEXIS 76174, 2007 WL 299......
  • Shay v. RWC Consulting Grp., Corp., No. CIV 13-0140 JB/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 30, 2014
    ...party intended the agency to investigate thePage 28allegations." Welsh v. City of Shawnee, 182 F.3d at *5. See Rush v. McDonald's Corp., 966 F.2d 1104, 1110-11 (7th Cir. 1992)(noting the plaintiff's EEOC affidavit contained "explicit reference" to discrimination alleged in the complaint); B......
  • Martin v. Kroger Co., No. Civ.A. H-98-2120.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 15, 1999
    ...to the discharge decision making process." Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir.1996); see Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir.1992). Such remarks, even when made by the supervisor who discharged the plaintiff cannot defeat summary judgment unless they are ......
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