FitzGerald v. McDonald's Lawsuit, 02C 3772

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
As filed and docketed May 28, 2002

The Plaintiff, JOHN P. FITZGERALD ("FitzGerald"), by and through his attorneys BOCHTE & KUZNIAR, P.C., complains against Defendant, MCDONALD'S CORPORATION ("McDonald's"), as follows:

1. This is an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., 42 U.S.C. §1981, and on pendent claims for employment practices in violation of the Illinois Human Rights Act and public policy under North Carolina State law.

2. The unlawful employment practices alleged below were committed in DuPage County, Illinois and Durham County, North Carolina.

3. This Court has jurisdiction of this cause of action pursuant to 28 U.S.C. §1331, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., 42 U.S.C. §1981. Jurisdiction over state claims is invoked pursuant to 28 U.S.C. §1367 as they are so related to the federal claim in this action that they form part of the same cause of action.

4. Venue is appropriate in this judicial district pursuant to 28 U.S.C. §1391 and 42 U.S.C. §2000e-5 in that the unlawful employment practice was committed in this district, the events giving rise to the claim occurred in this district and the records relevant to such employment practices are maintained and administered in this district.

5. Plaintiff JOHN P. FITZGERALD, was born on December 7, 1959, and is now 42 years of age. Plaintiff is a white male and a resident of Wildwood, Missouri. FitzGerald belongs to a class that is protected from discriminatory practices pursuant to 42 U.S.C. §2000e et seq., and 42. U.S.C. §1981, the Illinois Human Rights Act and the North Carolina Equal Employment Practices Act.

6. Defendant, MCDONALD'S CORPORATION, is a Delaware corporation registered to do business in the State of Illinois and in the State of North Carolina, with its principal place of business in Oak Brook, Illinois. McDonald's is engaged in an industry affecting commerce and, at all times pertinent hereto, was an employer within the meaning of 42 U.S.C. §2000e(b).

7. On March 20, 2001, within one hundred and eighty (180) days of the acts of which he complains, FitzGerald filed charges of employment discrimination with the Equal Employment Opportunity Commission against McDonald's.

8. On February 28, 2002, less than ninety (90) days prior to the filing of this Complaint, the Equal Employment Opportunity Commission issued to FitzGerald, pursuant to 42 U.S.C. §2000e-5(f)(7), a Notice of Suit Rights with respect to the charges of discrimination.

9. On November 9, 1983, FitzGerald began working for McDonald's as an Accounting Center Supervisor. His second position with the company was as Real Estate Representative, then Real Estate Asset Manager and then Oil Alliance Manager.

10. In October, 1998, FitzGerald was hired for a position with McDonald's as Real Estate Manager for the Raleigh, North Carolina Region.

11. FitzGerald was a loyal employee who on January 18, 2001 was terminated effective February 16, 2001 by Karen King, a white female. FitzGerald was replaced by and his position was filled by an African American female.

12. FitzGerald performed his job satisfactorily and was terminated without cause.

13. McDonald's is an unusual employer that has persisted in a course of conduct supporting a suspicion that it calculated to discriminate against the majority as evidenced by the following:

(a) McDonald's discriminated against the majority by practicing a system referred to as "Parity". McDonald's committed to have a specific number of restaurants or percentage of restaurants owned by African Americans and that said restaurants would achieve average sales and cash flows equal to those owned by non African American individuals. In order to achieve "Parity", McDonald's sold company operated restaurant stores to African Americans on terms not provided members of the majority. McDonald's provided increased on going financial assistance to African American franchisees that was not generally available to non-minority franchisees. Less than qualified, under capitalized African Americans were put into high volume/high profit locations simply to attain a "Parity" number. This procedure was at the expense of other more qualified majority individuals.

(b) McDonald's held "Parity" franchise meetings where specific sites were identified as "Parity only" locations. New sites were to be developed and targeted as "Parity only" sites.

(c) Non minority franchisees were not informed of or offered the special favorable deals which were given to minority franchisees to achieve McDonald's "Parity" goal.

(d) Comparisons are done on a regular basis to allow management to step in and provide additional support to minority ("Parity") franchisees, which support is not made available to non minority franchisees.

(e) Specific positions within the McDonald's organization are targeted as "diversity" positions. A "diversity" position is one for which white males are automatically disqualified regardless of qualifications.

(f) In September, 2000, the position of Manger of Hospital Development became available within the McDonald's organization. FitzGerald was recommended for the position by the person who was promoted out of it. Thomas Nolan, Director of Special Development in Oak Brook, Illinois was instructed that he could only fill the position with a "diversity" candidate. The Director of special Development was upset with the discriminatory criteria placed on the position and would have filled the position with FitzGerald a qualified candidate, but for his no white males regardless of qualifications, mandate. This was a so called "diversity" position. Thomas Nolan, informed FitzGerald that he was his first choice for the position had it not been for the "diversity" requirements dictated to him by his superior. Mr. Nolan reported to Charles Scott, his superior, that he would not fill the position based on "diversity" requirements mandated by upper management. As a consequence of Mr. Nolan's refusal to disregard qualifications in favor of "diversity" the open position was allotted to a different department namely the Oil Department.

(g) Minority employees are given preferential treatment when separating from McDonald's. Both Hispanic males and an African American female were given preferential and special treatment when separating from McDonald's that was not offered to or available to FitzGerald.

14. FitzGerald believes that his position was made available and he was terminated so that a "diversity" candidate, a black female, could fill his position.

15. FitzGerald was allowed thirty (30) days from the date he was relieved of his duties to use McDonald's resources to search for another position within the company.

16. FitzGerald's search within the company for an alternative position revealed two potential jobs that were open and available, namely (i) Real Estate Manager with the Mall Development Group, and (ii) Real Estate Manager with the Oil Department Group.

17. The Director of the Mall Development Group was John Glatz and the Director of the Oil Development Group was Thomas Morrison. Both directors reported to Charles Scott, Vice President of Special Development.

18. FitzGerald contacted John Glatz with respect to the Mall Development Position and was interviewed by John Glatz.

19. On January 19, 2001, John Glatz was instructed by the "highest authority" at McDonald's that he could not offer the Mall position unless the candidate met the "diversity criteria and that best qualified was not a factor to be considered".

20. On January 23, 2001, John Glatz left a voice mail message on FitzGerald's telephone answering machine informing FitzGerald that he was instructed by the "highest authority" to "bring on board a diversity candidate and that best qualified was not the criteria at this point".

21. John Glatz gave the Mall position to a female as instructed by his supervisor regardless of qualifications.

22. John Glatz filled the Mall position pursuant to the mandate given him, "that he could not offer the position unless the candidate met the criteria diversity" regardless of who was best qualified.

23. After interviewing for the Real Estate Manager position in the Oil Department, FitzGerald was told that they were going in a different direction and the position was given to a less qualified female. Thomas Morrison was given the same mandate by upper management as was given to John Glatz, to wit, that the position must be filled by a non white male, "diversity candidate" and that best qualified was not the criteria.

25. John P. FitzGerald was qualified for both the Mall Development position and the Oil Development position.

26. John P. FitzGerald was not hired for either the Mall Development position or the Oil Development position because he is a white male and not a "diversity candidate" regardless of his excellent qualifications for either position.

27. As a direct and proximate result of McDonald's acts and omissions, FitzGerald has sustained and continues to suffer substantial loss and earnings, earning capacity, employment benefits and has suffered and will suffer in the future irreparable and severe mental and emotional harm, anguish, humiliation and embarrassment.

28. McDonald's acted willfully and recklessly and with intentional and willful disregard for the rights of FitzGerald and for the consequences of their actions.

Plaintiff JOHN P. FITZGERALD realleges and incorporates by reference, the allegations in Paragraphs 1 through 28 as though set forth herein.

29. McDonald's has discriminated against FitzGerald in the terms and conditions of his employment and has permitted racial and sex discrimination against FitzGerald and has created and maintained a racially and gender biased hostile working environment and failed to hire and promote him, all in violation of 42 U.S.C. §2000e, et seq., and 42 U.S.C. §1981.

30. McDonald's has engaged in a continuing and pervasive pattern and practice of sex and race discrimination in employment opportunities, promotions and other terms and conditions of employment and created and maintained a sexually hostile working environment and failed to hire and promote FitzGerald all in violation of 42 U.S.C. §2000e et seq.

31. That FitzGerald has been damaged as a direct and proximate result of McDonald's acts and omissions as aforesaid.

A. That the Court declare McDonald's conduct complained of herein to be in violation of FitzGerald's rights as secured by 42 U.S.C. §2000e.

B. That the Court permanently enjoin McDonald's and its owners, officers, managers, management personnel, employees, agents, attorneys, successors and assigns and those acting in concert therewith, from any conduct violating FitzGerald's rights and the rights of others similarly situated as secured by 42 U.S.C. §2000e.

E. That the Court order McDonald's to make whole FitzGerald by providing him appropriate lost earnings and benefits with prejudgment interest and other affirmative relief.

F. That the Court award FitzGerald attorney's fees and costs incurred in prosecuting this action.

G. That the Court award FitzGerald such additional and further relief as this Court deems equitable and just.

Plaintiff, JOHN P. FITZGERALD realleges and incorporates by reference the allegations contained in Paragraphs 1 through 31 as though set forth herein.

32. McDonald's has discriminated against the Plaintiff in the terms and conditions of his employment, has permitted racial and sex discrimination against FitzGerald and has created and maintained a racially and gender biased hostile working environment, all in violation of the Illinois Human Rights Act, 775 ILCS 5/10-101 et seq.

33. McDonald's has engaged in a continuing and pervasive pattern and practice of sex and race discrimination in employment opportunities, promotions and other terms and conditions of employment and created and maintained a racially and sexually hostile working environment by failing to hire and promote FitzGerald all in violation of the Illinois Human Rights Act.

34. Plaintiff has been damaged as a direct and proximate result of the Defendant's acts and omissions.

A. That the Court declare Defendant's conduct complained of herein to be in violation of FitzGerald's rights as secured by the Illinois Human Rights Act.

B. That the Court permanently enjoin McDonald's and its owners, officers, management personnel, employees, agents, attorneys, successors, assigns and those acting in concert therewith from any conduct violating FitzGerald's rights and the rights of others similarly situated as secured by the Illinois Human Rights Act.

E. That the Court order McDonald's to make FitzGerald whole by providing him appropriate lost earnings and benefits with prejudgment interest, and other affirmative relief.

F. That the Court award FitzGerald attorney's fees and costs incurred in prosecuting this action.

G. That the Court award Plaintiff such additional and further relief as it deems just and proper.

Plaintiff, JOHN P. FITZGERALD realleges and incorporates by reference the allegations contained in Paragraphs 1 through 34 as though set forth herein.

35. By the conduct described above, McDonald's and its agents intentionally discriminated against FitzGerald in the terms and conditions of hiring and promotion because of his sex and race in violation of the North Carolina Equal Employment Practices Act and North Carolina Public Policy.

A. That the Court declare Defendant's conduct complained of herein to be in violation of FitzGerald's rights as secured by the North Carolina Equal Employment Practices Act.

E. That the Court order McDonald's to make FitzGerald whole by providing him appropriate lost earnings and benefits with prejudgment interest, and other affirmative relief.

F. That the Court award FitzGerald attorney's fees and costs incurred in prosecuting this action.

G. That the Court award Plaintiff such additional and further relief as it deems just and proper.

Plaintiff, JOHN P. FITZGERALD realleges and incorporates by reference the allegations contained in Paragraphs 1 through 35 as though set forth herein.

36. McDonald's Corporation is liable for the intentional and negligent conduct of its officers, agents and employees toward FitzGerald, as it was foreseeable, at McDonald's direction and within the course and scope of their employment relationship with McDonald's Corporation.

37. That officers and agents of McDonald's, including but not limited to John Glatz and those in highest authority, acted negligently and committed intentional and reckless conduct with respect to John FitzGerald.

38. That McDonald's employees, officers and agents committed the aforesaid acts while acting at all times material hereto, within the scope of their authority while in the course and scope of their employment and while attempting to further the business of McDonald's Corporation.

39. That McDonald's Corporation, at all times material hereto, employed the officers, managers and agents involved, and therefore it is liable for the actions of its agents under the theory of respondeat superior.

WHEREFORE, JOHN P. FITZGERALD prays for damages against McDonald's Corporation in an amount which will fully and fairly compensate him for his injuries and damages, for punitive damages in an amount sufficient to deter others and punish McDonald's Corporation and for attorney's fees, interest and costs as allowed by law.

JOHN P. FITZGERALD, Plaintiff	) ) ) ) ) ) ) ) ) ) ) )	Gen. No.	02C 3772
v.		COMPLAINT JURY TRIAL DEMANDED
MCDONALD'S CORPORATION, a Delaware Corporation, Defendant.