Gloria J. McCaskill v. Sci Management Corporation, Sci Illinois Services, Incorporated, Doing Business as Evergreen Cemetery, Sam Smith

McCASKILL, Gloria J. Plaintiff-

Appellant, CORPORATION,

SCI MANAGEMENT Services, Incorporated, Illinois

SCI

doing Evergreen business Ceme

tery, Smith, al., Sam et Defendants-

Appellees.

No. 00-2839. Appeals,

United States Court of

Seventh Circuit.

Argued Jan.

Decided April Sypulski, IL,

Jamie G. argued, Chicago, for Plaintiff-Appellant. Schwartz, Gaur,

Frederick L. Shanthi V. argued, Mendelson, IL, Littler Chicago, for Defendants-Appellees. BAUER, MANION,

Before ROVNER, Judges. Circuit ROVNER, ILANA DIAMOND Circuit Judge.

Gloria McCaskill suit filed federal against Management Corpora- SCI tion, Smith, Evergreen Cemetery, Sam “SCI”) and Patrick Comer (collectively al- leging that she was terminated from her time, howev- that VII, Since proceeding. 42 dent” Title in of at violation position SCI the matter er, resolved Supreme Court alleges the seq. § 2000e et She U.S.C. Corp.-Alabama Tree Financial in violation of in Green contract of her denial 79, 121 S.Ct. Illinois Randolph, of the violation 42 U.S.C. Act, (2000), the em- rejecting Collection Payment and 148 L.Ed.2d Wage At interference oral seq., and tortious distinction. bedded/independent et ILS 115/1 underlying jur- those The facts that the agreed parties with contract. the argument, ap- on to the issues are irrelevant Tree. issue is resolved isdictional allegations involve essentially peal, but however, dissent, raises a The complaints of forwarded that McCaskill jurisdic court’s challenge this to distinct her subordinates from harassment sexual court did tion, that the district arguing alleged the who was supervisor, to her case, must and that we the actually dismiss manager, and harasser, general to the the court to determine in order for remand to owed compensation that was denied she proceeding the to dismiss or as a result. eventually her and terminated certainly We compelling in arbitration. complaint and the moved to dismiss SCI that the district the agree with dissent Federal pursuant to the compel arbitration its intent have clear court should made (“FAA”), § 1 et Act 9 U.S.C. Arbitration case, that dismiss this Arbitration and the Illinois Uniform seq., in fact the case hinges on whether (“IUAA”), seq. et SCI 710 ILCS Act 5/2 case, in howev A this remand dismissed. agree- signed an that asserts McCaskill er, parties agree all pointless because dis- employment all providing that ment the case. district court dismissed that the through binding putes shall resolved compel the court to appellees asked acknowledging the Although arbitration. case, no and dismiss arbitration provision, of the arbitration applicability stayed. the case be requested that party that the arbitration asserts McCaskill have in could not Accordingly, the court because it is not agreement enforceable arbi stay; tended effectively fully and vin- her from prevents tration, only it have dismissed could grounds rights. Title She dicating her VII that the case is agree parties case. The in the arbitra- provision in a this dismissed, seems little and therefore there (1) requires each agreement which tion the intent of in a Where point remand. attorneys’ its own costs party pay clear, case is court to we dismiss outcome and regardless fees Kaplan jurisdiction. See have one- party pay shall mandates each (7th Bros., Inc., Shure paid to be compensation half of Cir.1998) had (appellate other as well one-half arbitrator that case order stated though even minute agree Because we of arbitration. costs where prejudice, without was dismissed provision renders fee a whole evidenced clear record read as in this Title agreement unenforceable case); Spitz v. to end the entire intent action, argu- consider the we need not VII Cir.1999) 443, 447-48 Tepfer, 171 F.3d costs. note that regarding ment We though district jurisdiction even (finding challenged initiаlly had summary judgment granting court order this this court to hear ability injunction request, not mention did jurisdic- court lacked arguing SCI injunctive pursue plaintiff where failed compel- court’s order tion over the district summary judgment and “tenor of relief on the distinction ling based intent to trial court’s opinion reflects the “indepen- and an an “embedded” between lawsuit”; dispose all the issues in the at issue explicitly court’s the in- failure address herе provides for the arbitration of a num junction request “is the sort of technical ber of employment-related disputes, in upset defect does not the order’s final- cluding those based on harassment or dis ity, for it implicitly is clear that the court crimination. It excludes types other claim.”). against found Spitz on this claims likely brought SCI, to be by such as disputes related to non-competition or con ITOFCA, The cites Mega- dissent Inc. v. fidentiality agreements, “any and claim Inc., 360, Logistics, Trans 235 F.3d 363 against Company Employee which (7th Cir.2000), proposition for the par- that upon fraud, is based theft or other dishon agree ties cannot to and an ¶ est conduct employee.” Agreement 2. attorney’s assertion at oral argument can- The agreement arbitration further speci appellate jurisdiction. not create The fies as follows: case, however, recognizes repre- that such can sentations indeed determine appellate Each may party legal retain counsel jurisdiction. In that the court was pay shall its own costs attorneys’ deprived of appellate because fees, regardless of the outcome counterclaims had been dismissed “without Each party arbitration. shall one- pay prejudice,” and thus could be refiled at half of compensation paid be time. The court refused ‍​​​​​​​​‌‌​​​‌‌‌‌​​‌​​​​​​​​‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​​‍appellate to find arbitrator(s), as well as one-half of jurisdiction based on parties’ rep- mere any other costs relating to the adminis- existed, that resentation such tration of the arbitration proceeding because it was inconsistent with the law. (e.g. rental, etc.). room reporter, Id. at panel ITOFCA ¶ Agreement, 4. Some сourts have refused stated, however, that it MegaTrans’ asked to enforce agreements which attorneys at they oral if would mandate that pay each half the represent to the court that MegaTrans arbitration, costs of while others have con would not refile the Id. at counterclaims. sidered the cost-shifting provision 365. The court stated that Mega- “[h]ad renders the arbitration proceedings inaс so, Trans done we could have treated the See, cessible for that individual. e.g., district court’s dismissal of the counter- 531 U.S. having claims as prejudice, been with thus 373; L.Ed.2d Brown v. Wheat First Secu winding up litigation and eliminating rities, Inc., (D.C.Cir.2001); 257 F.3d 821 jurisdiction.” the bar to our Id. Because v. Rockwell Sys Semiconductor MegaTrans was unwilling represent, to so Bradford tems, Inc., (4th Cir.2001); 238 F.3d 549 appellate jurisdiction. we lacked Id. Pierce, Rosenberg v. Lynch, Merrill Fen ITOFCA thus establishes rеpre- that the Smith, (1st Cir.1999); ner & 170 F.3d 1 by the parties sentations can im- indeed Markets, Inc., Koveleskie Capital v. SBC pact our appellate juris- determination of (7th Cir.1999); Here, F.3d 361 Shankle v. B dictions. the parties agree that the Colorado, dismissed, Management G Maintenance case is and the supports record Inc., (10th Cir.1999); 163 F.3d 1230 representation. Given that no re- Cole quest stay it, Services, for a Burns was before International Seсurity the court Inc., (D.C.Cir.1997). could not have intended a rather than F.3d 1465 We Accordingly, here, however, dismissal we have need not the issue address jurisdiction and turn to validity because the attorney’s provision fees ren agreement. ders the unenforceable. ensure inadequate rangements were Lane Johnson v. Interstate

In Gilmer of civil enforcement sufficiently vigorous 20, 26, 111 S.Ct. Corp., 500 lawyers held to ensure (1991), Court In order rights. L.Ed.2d 26 may persons be willing represent statutes under federal be would long as grievances, for arbitration civil legitimate appropriate her statu vindicate effectively it would litigant Congress determined forum, in the arbitral action tory cause for all lawyers compensate necessary to serve continue will the statute a case. on reasonably expended time purposes. deterrent remedial right n. Id. at 873 Advisors Financial Cigna Williams purposes integral to therefore fees Cir.1999). See to the is central often statute and of the Opportunity Employment Equal also from redress to seek ability persons of — House, Commission Waffle recognition of In Title VII. of violations 754, 761, L.Ed.2d 755 —, pro- attorney’s fees the of importance the arbi impact of construing (narrowly ef- deterrent remedial and to the visions that exis the to hold agreemеnt tration VII, for SCI conceded counsel Title fect of between agreement tence of an the if construe that we EEOC’s at oral affect the does not private remedies). allowing the as not agreement the One of all to right seek fees, attorney’s that then Title VII is by to arbitrator award provided remedies pre to a plaintiff awarded of may be the attorney’s deprives fees agreement 2000e-5(k), § 42 U.S.C. is unenforce- vailing plaintiff, Title VII and under remedies Dunning v. Simmons in we noted able. Airlines, Inc., Cir. in the arbi- provision attorney’s fees ordi party should 1995), prevailing a that just does quite plainly agreement tration special fee absent narily recover party shall that each It mandates that. an award rendering such circumstances regardless of attorney’s fees own pay its Dunning, emphasized unjust. we In at- SCI the arbitration. outcome of to the provision of the importance fees a language with plain that to avoid tempts Title VII: purposes SCI, to According interpretation. novel litigation in VII Attorney’s fees Title ‍​​​​​​​​‌‌​​​‌‌‌‌​​‌​​​​​​​​‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​​‍only what McCas- regulates provision proportion limited a are not not what she paying, for responsible kill is in case damages monetary assessed awarded, possible it is for and thus bemay because, a recognized, has Congress as attorneys’ her fees award arbitrator to “not suit acts rights in civil plaintiff agreement, the arbitration with consistent as a ‘private also himself alone but for pay that her as she award long uses vindicating policy attorney general,’ meaning plain defies the attorneys. That highest Congress considered that no has identified other words. SCI A .... omitted] [citations importance.” that a hold in a court would which context it make would proportionality rule of pay her requiring person provision difficult, for individu- impossible, if not means the actually op- attorney’s fees own rights civil meritorious als with pay required be party posing damages relatively potential small but her, pay her then she must fees This the courts. redress from to obtain obviously attorney. provision own Congress’ inconsistent totally required be party can that neither means Congress enacting in purpose of the other attorney’s fees pay ar- private-sector fee recognized party, directly through either or the straw- case Remanded for further proceedings approach by man advocated SCI. consistent with opinion. fact, the Ninth Circuit reached that MANION, Judge, Circuit dissenting. regarding a

conclusion similar clause in Co., Graham Oil Co. v. Products The court has ARCO concluded the arbi Co., Div. Atlantic 43 F.3d 1244 tration clause is unenforceable because it Richfield (9th Cir.1994). The arbitration preempts rights certain McCaskill un has in part Graham Oil was of a der Title distributor VII. At point some this could be franchisee, agreement with a provided a valid issue on appeal, but not yet. Al each party would though bear own attor- granted district court the SCI’s ney’s fees. Id. at 1247. recog- arbitration, The court motion to compel it neither nized that may agree franchisees to an dismissed nor stayed pending action. arbitral forum for resolving statutory The court acknowledges dis- the parties putes, but they may initially stated that challenged “to forced surrender the statutorily-man- notes that the has been issue resolved dated and benefits that Congress Court’s decision Green intended possess.” them to Id. The court Tree Fin. Corp. Alabama, et al. v. Ran — 79, held the pur- dolph, fees clause 531 U.S. (2000).

ported to forfeit statutorily-mandated the L.Ed.2d 373 Reasoning that the right to recover attorney’s fees provided district court “could only have dismissed case,” under the Petroleum the Marketing Practices it juris concludes that we have (PMPA). Act Id. It diction further noted that the to review a district court’s decision right to attorney’s fees important was to that dismisses a cаse after ordering the the effectuation of the policies, PMPA’s to arbitrate. It then proceeds to specifically purpose the address deterring a the merits of this case. After franchiser from improperly carefully contesting reviewing the district court’s claims, meritorious accordingly opinion, it is clear and held to me that the district that the clause court case, contravened the PMPA. Id. did not dismiss this аnd there 1248. at The court fore then held that the its order is anot final decision under clause, attorney’s fees well I, § as two other Tree and 28 Green U.S.C. clauses, contravening therefore, not respectfully were severable dissent. from the as a Longstanding policy strongly federal fa-

whole—a claim not even in raised this case Tree, arbitration. vors 531 U.S. at and therefore not before us here. 91, 121 S.Ct. 513 (citing Moses H. Cone Oil,

Similar to Graham the clause here v. Hosp. Mercury Mem’l Corp., Constr. purports to forfeit statutory 1, 24, McCaskill’s 460 U.S. 74 L.Ed.2d S.Ct. right fees, (1983)). to attorney’s a remedy that we 765 Section the Federal already have recognized (“FAA”) is essential ful- Arbitration Act governs appellate the fill remedial and deterrent functions of review of arbitration It provides, orders. Title VII. Because the provision prevents part, in relevant appeal may аn from effectively her vindicating her ‍​​​​​​​​‌‌​​​‌‌‌‌​​‌​​​​​​​​‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​​‍from “a taken final with respect decision in the arbitral forum by preemptively 16(a)(3). de- § an arbitration ....” 9 U.S.C. her nying addition, remedies authorized Title appeal may In an not be taken VII, the arbitration agreement is unen- interlocutory from an order “compelling forceable. The 16(b)(3). district court’s order § com- arbitration ....” 9 U.S.C. pelling REVERSED, arbitration is and the FAA does not define term “final deci- did nоt But the district court ante at 625. Court In Green

sion.” Nevertheless, the court the case. to its dismiss according phrase interpreted re- appellees i.e., concludes that because well-established, meaning, a deci plain compel arbi- the district court quested mer litigation on the “ends sion which because tration and dismiss for the court nothing more and leaves case be party requested neither judgment.” 531 U.S. to do but execute (citations omitted). could not have stayed, “the [district] 86, 121 S.Ct. 513 at stay; intended to compel order addressing a district court’s arbitration, only have dismissed it could the case dismissing ling arbitration The district court Id. Not so. held the case." Supreme Court prejudice, stay. 9 U.S.C. could have ordered clearly a “final decision” that such an order is Yet, appears court’s conclusion pursuant immediately appealable thus that, noted, however, notwithstanding the absence suggest FAA. Id. The Court opin- in the district court’s any language court enters a instead that if a district final, to dismiss the indicating an dismissal, ion intention that order is not of a court, we, suit, reviewing should as the the FAA. Id. at decision under appealable intent to dismiss infer the district court’s See Salim Oleo n. 121 S.Ct. 513.1 litigant requested because a solely 278 F.3d 90 Shropshire, chemicals M/V Cir.2002) (order the Su- (2d such an action be taken. Given compelling arbitration (and heightened) recent preme Court’s dismissing prejudice without issues, FAA); it is in- sensitivity jurisdictional decision under appealable Treacher’s, finality of a appropriate to assume Arthur Corp. ATAC (6th Cir.2002) (order decision when there is no staying district court See, e.g., Steel Co. v. doing basis for so. ap- proceedings pending Env’t, 94, 83, FAA); 523 a Better Interactive Citizens under pealable for 1003, 210 Tech., 140 Swiss Air L.Ed.2d Flight Inc. v. Swissair “ (9th jurisdiction Co., Ltd., (holding that ‘[without 249 F.3d 1177 Cir. Transp. 2001) (order any at all in cause. proceed court cannot arbitration and compelling law, to declare the prejudice appeal- power Jurisdiction is dismissing case without exist, only func- FAA); when it ceases to Employers Ins. and able under the Inc., is that of an- remaining tion to the court Bright Specialties, Metal Wausau (order (11th Cir.2001) dismissing nouncing com the fact 251 F.3d 1316 ”) (citation omitted). cause.’ dismissing thе case pelling arbitration FAA). under the appealable deemed Furthermore, ‍​​​​​​​​‌‌​​​‌‌‌‌​​‌​​​​​​​​‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​​‍Kaplan neither v. Shure (7th Inc., Cir.1998), Bros., Here, the court’s as- 153 F.3d notwithstanding (7th Tepfer, 171 F.3d 443 contrary, Spitz the district court nor sumption to the Cir.1999), court’s decision to supports the case. The actually did not dismiss jurisdiction in this These in this case assume case. court maintains that a remand agree entirely distinguishable cases are from the parties bеcause all “pointless is appeal. Kaplan on In case.” See situation before us the district court dismissed the proceeding was resolving questions finality, we whereas one in an embedded have appeal an is from an "embed- Napleton asked whether interlocutory. See v. General Motors (those involving request for arbitration ded” (7th Cir.1998). Corp., 138 F.3d relief) (a request "independent” and other or Court, hоwever, rejected solely) proceeding. Pre- to order arbitration Tree, in Green 531 U.S. at distinction viously, in an an order S.Ct. 513. independent proceeding appealable, Spitz, the district opinions courts’ pro- they would not refile their claims (thereby vided some inferring basis for dismissals in effecting a voluntary preju- dismissal with dice). cases. See Kaplan, those 153 F.3d at 417 That decision forego pro- (no amendment to сomplaint possible); ceedings is entirely within their control (counterclaim Spitz, 171 F.3d at (an 447-48 and discretion agreement the ITOFCA dismissed, final). case, other issues make). In this litigants refused to Of course an nothing there is in the district opin- court’s before this court not to refile ion that would allow us to infer that the would be irrevocable once relied upon in court intended to dismiss the case. SCI the appellate opinion. A litigаnt’s repre- filed a compel motion to arbitration and to sentations irrelevant, however, are when dismiss the case. The district court’s or- an court is seeking to determine der, however, merely compelled arbitra- district court dismissed a law- address, tion. The order suit, does not an action that is within solely whatsoever, manner request SCI’s for a control and discretion of that court. dismissal of the case. While it true that Without a dismissal of underlying attorney SCI’s stated at oral argument case, the district court’s order compelling that the district opinion court’s effectively arbitration remains interlocutory order dismissed the it is well settled that 16(b)(3) under Section of the FAA. Under parties cannot agree nor Tree, we Green are not permitted to exer- can an attorney’s assertion at oral argu- cise over this until case aрpellate jurisdiction. ment create See district court enters a dismissal. Of ITOFCA, MegaTrans Inc. v. Logistics, course, noted, as previously the district Cir.2000). also a stay under Section Rather, we have consistently held that “[i]t FAA, 3 of the in which case we would not is our threshold independent obli- have since it would ap- not be gation to make that determination even pealable. 16(b)(1); U.S.C. [when] both agreeably [consider 531 U.S. at 87 n. 121 S.Ct. 513.2In any order аn] to be final and appealable.” case, it is incumbent upon district courts to ITOFCA, (citations 235 F.3d at 363 omit- fully address and clearly dispose of a mo- ted). tion filed litigant for parties’

Finally, the interpretation court’s benefit, of our to conserve judicial its own re- decision is incomplete. ITOFCA As we sources and to aid this court on review. indicated in that litigants impact can Oleochemicals, Salim See F.3d 278 at 93 this court’s determination of jur- (urging “district courts in these circum- by isdiction representing the court that stances to be as clear possible as about pause 2. I to take note of an issue left unre tration a Dispute Timing can Control the Tree, solved the Supreme Court in Green Appeal, an 48-Aug. Fed. Law. i.e., whether a that, court may district (noting dismiss a during oral of Green Tree, Tree, under case at FAA all. Green justices some questioned whether U.S. at 87 n. S.Ct. (declining stay required FAA). or not a under the address whether district court should have This questioned court has also whether there stay dismissal). entered a rather a than any authority is statutory dismissing for a plain language gives of the FAA only court a case when arbitration. See Kroll power grant stay. Assoc., Inc., See 9 U.S.C. v. Doctor’s contrast, nothing 1993). in the FAA refers to the Cir. uncertainty surrounding power district court's to dismiss a case. See ability, district authority, court’s or to dismiss McClain, Stephen also H. FAA, Under a New Su a case yet under the another reason to Decision, preme Court Litigants Seeking Arbi- decline over appeal. this to dismiss truly intend they

whether ... or or mean

action something else mean to do ‍​​​​​​​​‌‌​​​‌‌‌‌​​‌​​​​​​​​‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​​‍they Dustrol, Inc. v. also

entirely.”). See 2002 WL

Champagne-Webber, * 2002) Jan.24, (N.D.Tex. (citing 122500, 4 clearly states court district case because court dismisses

that “the unadjudicated longer no

there are court.”). before the presently ap- lack I conclude that we

Accordingly, this case and over

pellate case therefore remanded

would have dispo- district for

back to the order. Without

sition or clarification opine proceed we agree- validity of the

on the

ment. COMPANY, INSURANCE

ALLSTATE Lakhia, subrogee of Sam

Plaintiff-Appellant, INCORPORATED,

MENARDS,

Defendant-Appellee.

No. 01-2139. Appeals, States Court

United Circuit.

Seventh Nov.

Argued 5, 2002. April

Decided

Case Details

Case Name: Gloria J. McCaskill v. Sci Management Corporation, Sci Illinois Services, Incorporated, Doing Business as Evergreen Cemetery, Sam Smith

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 4, 2002

Citation: 285 F.3d 623

Docket Number: 00-2839

Court Abbreviation: 7th Cir.