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GILLISPIE v. VILLAGE OF FRANKLIN PARK

December 13, 2005.

BENNIE GILLISPIE, JR., Plaintiff,
v.
VILLAGE OF FRANKLIN PARK, and MICHAEL SERVINI Defendants.



The opinion of the court was delivered by: JEFFERY COLE, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I.

BACKGROUND

  A.

  Background Of The Litigation

  The plaintiff, an African-American employee of the Village of Franklin Park's Streets and Sanitation Department, filed a two-count complaint in January 2002 under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act, alleging that he was the victim of racial harassment and discrimination at the workplace. Gillispie v. Village of Franklin Park, No. 02 C 0148. A year later, the parties entered into a written settlement agreement, which provided for binding arbitration of any future employment dispute arising out of his continued employment with the Village, including claims of racial discrimination. The agreement provided that the costs of the arbitration, excluding attorney's fees, would be borne by the loser.

  For a time, all was well. But then in late 2004, Mr. Gillispie filed a complaint in the district court against the Village and his supervisor, Michael Servini. An amended complaint followed alleging that in violation of 42 U.S.C. §§ 1981 and 1983 the defendants discriminated against him due to his race by subjecting him to a hostile work environment and by retaliating against him when he complained about it. The Village has moved to dismiss the amended complaint, claiming there is no subject matter jurisdiction. The motion, which cites not a single case, is based on the ipse dixit that it is "obvious that the claims contained in plaintiff's complaint . . . are subject to the arbitration provision contained in the parties' settlement agreement." (Motion to Dismiss, ¶ 4).*fn1 Mr Gillispie's response is only slightly less laconic. It relies on a single case, which, as will be seen, does not begin to answer the questions raised in this case.

  B.

  Mr. Gillespie's Settlement Of The Earlier Litigation

  Paragraph 3 of the settlement agreement provides:
3. In further consideration of the promises made in this Release, Gillispie agrees to the following conditions:
(a) That any dispute or claim concerning his continued employment with the Village of Franklin Park, or the terms, conditions, or benefits of such employment, such as, or similar to but not exclusive of racial harassment or failure to promote but not based on race, including whether such dispute or claim is arbitrable or not,*fn2 will be settled by binding arbitration, including any and all legal theories that may be applicable, including, but not limited to statutory violations or causes of action which may authorize suit for any such violations, such as or similar to but not necessarily exclusive of, Title VII of the Civil Rights Equal Pay Act or the Illinois Human Rights Act, but do not include dispute involving pensions or worker compensation claims. The arbitration proceeding shall be conducted under the rules of the American Arbitration Association in effect at the time a written demand for arbitration is made. A copy of any written demand for arbitration shall also be served upon the Superintendent of Utilities Department. A decision and award of the arbitrator made under the said rules shall be exclusive, final and binding on both parties, heirs, executors, administrators, successors and assigns. The costs and expenses, not inclusive of attorneys' fees, of arbitration, shall be borne by the party who does not prevail. (Emphasis supplied).*fn3
  Mr. Gillispie does not challenge the aspect of the fee-shifting provision that awards costs and expenses to the prevailing party. Nor does he contend that his claims are outside the scope of what he agreed to arbitrate. Rather, his sole argument is that the arbitration provision is unenforceable because Paragraph 3 provides in plain and unambiguous language that he could not be awarded attorney's fees in the arbitration, even if he were to prevail, whereas he would be eligible for a fee award as the prevailing party under the Civil Rights Attorneys' Fee Awards Act of 1976 if the case were heard here.*fn4 This argument rests on a cramped interpretation of Paragraph 3 and an impermissible reading of McCaskill v. Management Corporation, 298 F.3d 677 (7th Cir. 2002), the sole case on which he relies.

  II.

  ANALYSIS

  A.

  The Federal Arbitration Act ("FAA") was enacted in 1925 and then re-enacted and codified as Title 9 of the United States Code. The purpose of the FAA is "`to reverse the longstanding judicial hostility to arbitration agreements . . . and to place them on the same footing as other contracts.'" Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 89 (2000). This aim requires "`rigorous[] enforce[ment]'" of agreements to arbitrate in order to give effect to the contractual rights and expectations of the parties. Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). Consistent with the declared national policy favoring arbitration, employment discrimination claims of all kinds are arbitrable, as are other kinds of statutory violations. See Green Tree Financial Corp.-Alabama, 531 U.S. at 89; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-35 (1991).*fn5 In Gilmer, which involved a claim under the Age Discrimination in Employment Act, the Supreme Court held that there was no reason to treat civil rights statutes any differently than other important statutes that may be the subject of enforceable arbitration agreements and stressed that pre-dispute arbitration ...


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