Michael Mach v. Will County Sheriff ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2907 & 09-1044
M ICHAEL W. M ACH,
Plaintiff-Appellant,
v.
W ILL C OUNTY S HERIFF,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 3378—James B. Zagel, Judge.
A RGUED M AY 28, 2009—D ECIDED S EPTEMBER 1, 2009
Before B AUER, F LAUM, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Michael Mach, a law enforcement
officer in Will County, Illinois, claimed that the Will
County Sheriff discriminated against him in violation
of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 623(a)(1). The district court found no
evidence of discrimination and granted summary judg-
ment in the Sheriff’s favor, a decision Mach now appeals.
The real dispute at oral argument, however, focused on
2 Nos. 08-2907 & 09-1044
the district court’s order that Mach pay some of the Sher-
iff’s legal fees because Mach litigated part of this case in
bad faith. We find no error in either decision below.
I. B ACKGROUND
Michael Mach has served as a deputy sheriff with the
Will County Sheriff’s Department since 1988. He spent
the bulk of his career in the traffic division, where his
duties included enforcing traffic regulations and investi-
gating accidents. After years of satisfactory performance,
the following series of events in late 2003 and early 2004
earned him warnings, a suspension, and ultimately a
transfer to the patrol division.
In September 2003, Mach’s supervisor, Director
Raymond Horwath, issued a memorandum to all traffic
deputies 1 stating that, due to budget concerns, they may be
temporarily assigned to the patrol division. None of the
traffic deputies were particularly happy about this pros-
pect, but Horwath’s memo sought their cooperation in
making this short-term solution as palatable as possible.
That month, Mach was assigned to three consecutive
days in the patrol division. After his third shift on Septem-
ber 11, he deposited some of his traffic equipment outside
of Horwath’s door, accompanied by a note stating that
he no longer needed the equipment because he had
been transferred indefinitely to patrol. Mach also re-
1
At this time, there were six deputy sheriffs assigned to the
traffic division.
Nos. 08-2907 & 09-1044 3
quested that he be removed from the traffic division’s
“call-out” list while assigned to patrol.
An “exasperated” Horwath believed that Mach had
“overstepped his bounds” by dumping his gear at
Horwath’s door without speaking to him directly.
Horwath conferred with his superiors, Deputy Chief John
Moss and Chief Deputy Patrick Maher, who agreed that
Mach should be transferred to patrol. Mach grieved the
proposed transfer, and after a subsequent meeting, Will
County Sheriff Paul Kaupas decided to give Mach a
second chance. Over objections from Horwath, Moss,
and Maher, Sheriff Kaupas transferred Mach back to traffic.
Mach did not take advantage of his reprieve. Within
months, his performance began a steady decline. On
February 11, 2004, Horwath investigated Mach and
issued a written reprimand for actions occurring in
the preceding month. Horwath specifically cited Mach’s
failure to adhere to directives and his unsatisfactory
performance.
Just over one week later, on February 19, Horwath
instructed Mach to complete and return a complaint
form regarding speeding vehicles by February 25. Mach
failed to follow the instruction, declined to take ad-
vantage of a one-day extension granted by Horwath, and
finally landed in an administrative interview with
his union representative and Horwath. Following a pre-
disciplinary hearing on March 25, Horwath recom-
mended that Mach be suspended without pay for one
day. Horwath also warned Mach that any further dis-
cipline could result in a transfer out of traffic.
4 Nos. 08-2907 & 09-1044
But Mach’s performance did not improve, particularly
with respect to his traffic enforcement duties. Mach
consistently issued warnings instead of citations to
drivers exceeding the speed limit by more than twenty
miles per hour. Even Sheriff Kaupas cautioned Mach
that his practices could lead to a transfer after Mach
issued a warning to a driver speeding ninety-three miles
per hour in a fifty-five-miles-per-hour zone. Deputy
Chief Moss and Chief Deputy Maher warned Mach that
he needed to cite more motorists for driving under the
influence, but Mach failed to do so. Mach neglected an
accident investigation for over two months, and
Horwath had to reassign it to another deputy. Other
officers commented on Mach’s “passive aggressive be-
havior” and his “reluctance to follow directions.” Mach’s
performance grade for 2003 was a paltry 2.86 out of 5.00,
the lowest of the division. The officer with the next
lowest score, a 3.28, was also transferred from traffic
in 2004.
As a result of these deficiencies, Horwath recommended
on August 31, 2004, that Deputy Chief Moss transfer
Mach to patrol. Moss agreed and informed Mach
the next day; Sheriff Kaupas made the final decision to
permanently transfer Mach. Mach was forty-seven years
old at the time of his transfer. Charles Albin, age thirty-
nine, temporarily filled his shift, and Michael Johnson,
age forty-seven, permanently filled the position.
Mach filed this lawsuit on June 21, 2006, alleging that
Sheriff Kaupas violated the ADEA, 29 U.S.C. § 623(a)(1).
Mach stated six distinct grounds for his discrimination
Nos. 08-2907 & 09-1044 5
claims, including his transfer to a less prestigious position
in the patrol division.2 Sheriff Kaupas moved for sum-
mary judgment, attacking all six of Mach’s arguments.
In his response brief, Mach abandoned five of the six
arguments, leaving only the claim based on his transfer.
The district court granted the Sheriff’s motion on July 1,
2008, finding that Mach’s transfer was based on his poor
job performance, not his age. The court also held that
Mach’s transfer was not a materially adverse change in
employment because he produced no evidence that
the new position was objectively less prestigious or
accompanied by lesser pay, benefits, or opportunities
for career advancement.
Following summary judgment, the district court
granted in part the Sheriff’s Motion for Fees and Costs.
The court found that Mach had litigated in bad faith by
abandoning five of his six allegations of age discrimina-
tion only after the Sheriff had filed his opening sum-
mary judgment brief. The court noted that although
Mach had not litigated the entire case in bad faith, he
caused the Sheriff to expend unneeded time, effort, and
cost in briefing all six arguments when Mach knew, based
on the discovery, that those arguments were “worthless.”
The court therefore required Mach to pay five-sixths
2
Mach’s other alleged acts of discrimination were (1) denying
him the opportunity to work overtime, (2) denying him
travel time, (3) creating a hostile work environment, (4) manipu-
lating his work schedule, and (5) denying him the opportunity
to teach training courses.
6 Nos. 08-2907 & 09-1044
(eighty-three percent) of the Sheriff’s fees incurred in
preparing the summary judgment brief, as well as
certain associated costs.
II. A NALYSIS
Mach now challenges both of the district court’s rulings.
First, he claims that he produced sufficient evidence
to survive summary judgment. Second, he argues that the
court abused its discretion by requiring him to pay a
portion of the Sheriff’s fees and costs. We reject both of
his arguments.
A. Summary Judgment
We review de novo the district court’s grant of summary
judgment, and we examine the record in the light most
favorable to Mach, the non-moving party. Faas v. Sears,
Roebuck & Co., 532 F.3d 633, 640 (7th Cir. 2008). Summary
judgment is appropriate where the record reveals that
there is no genuine issue as to any material fact. Fed. R.
Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In both his reply brief and at oral argument, Mach
focused almost exclusively on the district court’s imposi-
tion of fees and costs, ignoring his appeal of the sum-
mary judgment decision. We see good reason for this—
the record does not support Mach’s ADEA claim.
The ADEA prohibits an employer from discriminating
against an employee because of his age. 29 U.S.C.
§ 623(a)(1); Faas, 532 F.3d at 641. The Supreme Court
Nos. 08-2907 & 09-1044 7
recently held that an ADEA plaintiff must demonstrate
that his age was the “but-for” cause of the challenged
employment action. Gross v. FBL Fin. Servs., Inc., 129 S. Ct.
2343, 2352 (2009). Mach argued his claim solely based
on the direct method of proof,3 and we limit our dis-
cussion accordingly.
The direct method required Mach to produce direct or
circumstantial evidence that the Sheriff transferred him
because of his age. See Hemsworth v. Quotesmith.Com, Inc.,
476 F.3d 487, 490 (7th Cir. 2007); see also Sylvester v. SOS
Children’s Vills. Ill., Inc., 453 F.3d 900, 902-03 (7th Cir. 2006)
(explaining the difference between direct and indirect
methods of proof). Direct evidence typically requires an
admission of discriminatory animus, but a plaintiff may
also produce circumstantial evidence that establishes
the employer’s discriminatory motive through a longer
chain of inferences. Atanus v. Perry, 520 F.3d 662, 671 (7th
Cir. 2008); see also Nagle v. Vill. of Calumet Park, 554 F.3d
1106, 1114-15 (7th Cir. 2009); Isbell v. Allstate Ins. Co., 418
F.3d 788, 794 (7th Cir. 2005) (referring to the ubiquitous
“convincing mosaic” of circumstantial evidence).
The record in this case is devoid of facts from which a
jury could infer that the Sheriff transferred Mach because
of his age. The stated reason for Mach’s transfer—his
poor job performance—was well known and thoroughly
documented. Mach engaged in what was perceived by
3
An ADEA plaintiff may also prove his claim under the
indirect method, see Faas, 532 F.3d at 641, but Mach did not
make this argument.
8 Nos. 08-2907 & 09-1044
superiors as an act of insubordination, and he failed to
improve his work after receiving a second chance,
repeated warnings, and a one-day suspension. Mach
was the lowest-rated traffic deputy for 2003, and the
Sheriff transferred the officer with the next-lowest rating
as well. Mach did not adequately refute any of these
performance issues nor suggest that the discipline itself,
other than the challenged transfer, was age-related.
In fact, Mach pointed to no circumstantial evidence of
discriminatory animus, save for one lone comment pur-
portedly made by Horwath. According to Mach, Horwath
told him months before August 2004 that he should be
transferred to patrol because he was nearing retirement.
An isolated comment or “stray remark” is typically
insufficient to create an inference of discrimination, but
it may suffice if it (1) was made by the decision-maker,
(2) around the time of the decision, and (3) referred to
the challenged employment action. Hemsworth, 476 F.3d
at 491; Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694
(7th Cir. 2006).
We need not move past the first factor—that Horwath
was not the decision-maker dooms Mach’s claim. Mach
does not dispute that Sheriff Kaupas made the final
decision to transfer him to patrol, but he argues that
Horwath unduly influenced the Sheriff’s determination.
In some instances, we may impute the prejudices of a
subordinate or coequal employee to the formal decision-
maker. See Lust v. Sealy, Inc., 383 F.3d 580, 584-85 (7th
Cir. 2004); see also Shager v. Upjohn Co., 913 F.2d 398, 405
(7th Cir. 1990). This is appropriate where the employee
Nos. 08-2907 & 09-1044 9
was “able to influence the decision,” Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997), “tainted
the decision maker’s judgment,” Hoffman v. MCA, Inc.,
144 F.3d 1117, 1122 (7th Cir. 1998), or was “able to manipu-
late the decisionmaking process,” Willis v. Marion County
Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997).
We need not explore the outer contours of this so-
called “cat’s paw” theory because to succeed, Mach must
at least show that Horwath had some influence over the
employment decision. See Brewer v. Bd. of Trs. of the Univ. of
Ill., 479 F.3d 908, 917-19 (7th Cir. 2007) (analyzing the
influence by a non-decision-maker over a decision-maker
required to impute the former’s discriminatory animus
to the latter). Mach is unable to do so.
Sheriff Kaupas made an untainted, independent
decision to transfer Mach. Horwath was not the only
superior officer troubled by Mach’s job performance.
Deputy Chief Moss and Chief Deputy Maher each
voiced his disapproval to the Sheriff and recommended
that Mach be transferred. The Sheriff himself had previ-
ously warned Mach that further incidents could result
in transfer. Most convincingly, Mach’s “cat’s paw” argu-
ment is belied by the Sheriff’s prior rejection of recom-
mendations by Horwath, Moss, and Maher to transfer
Mach following his insubordinate incident in Septem-
ber 2003. Sheriff Kaupas, far from blindly submitting to
Horwath’s allegedly discriminatory desire, independently
granted Mach a second chance. The record is clear that
the Sheriff then made an independent decision to
transfer Mach in fall 2004.
10 Nos. 08-2907 & 09-1044
Without a causal relation between Horwath’s state-
ment and the Sheriff’s decision, this single piece of cir-
cumstantial evidence supporting Mach’s case becomes
irrelevant. See Lust, 383 F.3d at 584. Mach has produced
no additional evidence that the Sheriff transferred
Mach because of his age, and his ADEA claim must fail.4
The evidence indicated that the Sheriff honestly believed
that Mach was performing his job poorly, and this
belief precipitated Mach’s transfer. We agree with the
district court that summary judgment was appropriate.
B. Award of Fees and Costs
We now turn to the district court’s fees and costs order,
which was the focus in Mach’s reply brief and at oral
argument. We review the court’s decision to award fees
for an abuse of discretion. Aaron v. Mahl, 550 F.3d 659,
667 (7th Cir. 2008).
The district court determined that Mach litigated in
bad faith by retaining five of the six grounds for his
4
The district court alternatively held that Mach’s lateral
transfer was not a “materially adverse employment action”
because he did not demonstrate that his new position in
patrol was objectively less prestigious or that it required a
reduction in pay, benefits, opportunity for advancement, or
the use of lesser skill. See Mach v. Will County Sheriff, No. 06 C
3378, 2008 WL 2692018, at *3 (N.D. Ill. July 1, 2008). Because
we are convinced that summary judgment was appropriate
given the lack of evidence of the Sheriff’s discriminatory
motive, we need not address this issue.
Nos. 08-2907 & 09-1044 11
discrimination suit until summary judgment, despite
knowing after discovery that they were meritless. Specifi-
cally, the court held:
I think timing is important in these matters. . . .
The process of discovery, which leads to abandon-
ment, is usually good faith litigation, and this case
seems to be no exception. Where I do find enough
bad faith to justify fee shifting, I find it only in
one circumstance. Plaintiff knew that a summary
judgment motion was coming. On January 9, 2008,
I set a motion schedule requiring service of a
summary judgment motion by February 29,
2008. The summary judgment motion briefed
and argued all six acts of age discrimination. It
inflicted unnecessary costs upon Defendant. One
litigates in bad faith when one leaves on the table
those claims which it knows are worthless, at least
if litigation continues over those claims. Based on
the papers in this case, it was clear to Plaintiff’s
counsel, well before the defense served its
motion, that five of the alleged acts of discrimina-
tion were non-starters.
Mach’s main objection to the court’s order is that it
essentially established a new rule requiring a litigant to
abandon a theory of recovery before summary judgment
or face sanctions. He avers that the court’s approach
would cause plaintiffs to half-heartedly argue doomed
claims rather than drop them and risk sanctions. We do
not read the district court’s ruling so broadly.
The ADEA incorporates by reference the fee-shifting
provision of the Fair Labor Standards Act (FLSA). See 29
12 Nos. 08-2907 & 09-1044
U.S.C. § 626(b). The FLSA’s fee-shifting provision refers
only to a prevailing plaintiff, see id. § 216(b), and says
nothing of a prevailing defendant. We have thus held
that the ADEA’s remedial scheme does not preclude
application of the common law rule that a prevailing
defendant may obtain attorneys’ fees if the plaintiff
litigated in bad faith. EEOC v. O & G Spring & Wire Forms
Specialty Co., 38 F.3d 872, 883 (7th Cir. 1994). This exception
to the typical “American rule,” under which each party
bears his own litigation expenses, applies where “a party
has ‘acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.’ ” Chambers v. NASCO, Inc., 501 U.S. 32,
45-46 (1991) (quoting Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 258-59 (1975)); see also Stive v. United
States, 366 F.3d 520, 521 (7th Cir. 2004).
Exactly what constitutes bad faith has been the subject
of some uncertainty. Courts have used phrases such as
harassment, unnecessary delay, needless increase in the
cost of litigation, willful disobedience, and recklessly
making a frivolous claim. See Stive, 366 F.3d at 521-22
(collecting and discussing cases). We have also noted,
when analyzing the meaning of “unreasonably and vexa-
tiously” in the similar context of 28 U.S.C. § 1927, that
the term “bad faith” has both a subjective and objective
meaning, and we often treat reckless and intentional
conduct equally. See Kotsilieris v. Chalmers, 966 F.2d 1181,
1184-85 (7th Cir. 1992); In re TCI, Ltd., 769 F.2d 441, 445
(7th Cir. 1985). Furthermore, bad faith may occur
beyond the filing of the case and “ ‘may be found, not only
in the actions that led to the lawsuit, but also in the con-
duct of the litigation.’ ” Roadway Express, Inc. v. Piper, 447
Nos. 08-2907 & 09-1044 13
U.S. 752, 766 (1980) (quoting Hall v. Cole, 412 U.S. 1, 15
(1973)).
Under the facts of this case, the district court did not
abuse its discretion in awarding fees to the Sheriff
after finding that Mach litigated in bad faith. The court
properly acknowledged that the ADEA only permits
sanctions if Mach litigated in bad faith, a standard the
court characterized as “a high barrier to an award of
fees.” These statements reveal a cautious and considered
deliberation, the result of which was the court’s con-
clusion that Mach had not litigated the entire case in bad
faith. But the court expressly determined that Mach
knew that five of the six bases for his claims were “worth-
less” and “non-starters.” The timing of Mach’s abandon-
ment was central to the court’s decision. Discovery
closed on December 20, 2007. The Sheriff’s summary
judgment brief was not due until more than two months
later, on February 29, 2008. Because Mach permitted
litigation to continue after discovery had erased any
doubt that his arguments had even a chance of success,
he inflicted unnecessary costs upon the Sheriff. The
court strictly limited its fee award to those unnecessary
expenses.
We emphasize that not every plaintiff who avers multi-
ple grounds for relief, only to subsequently abandon
some of them, will be vulnerable to sanctions—even if
such abandonment comes during the summary judg-
ment stage. A plaintiff may determine as a matter of
strategy that a weak, yet non-frivolous, argument is no
longer worth presenting so that he may focus the
14 Nos. 08-2907 & 09-1044
court’s attention on his more meritorious claims. It is also
possible that a party might be so persuaded by an oppo-
nent’s summary judgment brief that he justifiably aban-
dons a claim. We certainly do not encourage plaintiffs
to persist in meritless arguments through summary
judgment simply to avoid sanctions; in fact, abandoning
unprovable claims generally indicates the absence of bad
faith. Such practice benefits the parties, the court, and,
ultimately, the efficient administration of justice.
But where Mach went wrong is that he pressed all six
of his arguments after discovery had long ago revealed
that five of the six were “worthless.” This is not a case
where his claims, although leaking, held some water. If
that were so, pursuing them to summary judgment—even
facing great odds against their success—would not
warrant sanctions. But according to the district court,
discovery made clear to Mach that his arguments were
losers. We expect that sanctions such as these will be
rare. But in this case, we cannot conclude that the
district court abused its discretion in determining that
Mach’s conduct was in bad faith, vexatious, wanton, or
harassing.
Mach also argues that the district court’s ruling avoids
Rule 11 of the Federal Rules of Civil Procedure, which
provides a detailed procedure for addressing frivolous
litigation. But it is established that Rule 11 “has
not robbed the district courts of their inherent power to
impose sanctions.” Methode Elecs., Inc. v. Adam Techs., Inc.,
371 F.3d 923, 927 (7th Cir. 2004) (citing Chambers, 501 U.S.
at 49). The Supreme Court has made clear that “the inher-
Nos. 08-2907 & 09-1044 15
ent power of a court can be invoked even if procedural
rules exist which sanction the same conduct.” Chambers,
501 U.S. at 49.5 A district court should be cautious
when exercising such inherent authority, id. at 50; see also
Methode Elecs., Inc., 371 F.3d at 927, but it retains that
authority nonetheless.
In this case, Mach had notice that he might be subject
to sanctions—the Sheriff filed a motion requesting
them—and had an opportunity to respond. The court
found no evidentiary support for his arguments and no
reason for maintaining them through summary judg-
ment. The district court, who was familiar with the rele-
vant proceedings and therefore receives deference, see
Methode Elecs., Inc., 371 F.3d at 925, did not circumvent
Rule 11 or otherwise abuse its discretion in imposing
attorneys’ fees.
Finally, the district court did not err by requiring
Mach to pay for five-sixths of the fees for preparation
of the opening summary judgment brief. Mach avers
that each of the six claims did not occupy equal space
in the Sheriff’s brief, meaning that each one does not
justify equal compensation. But an argument’s succinct-
ness and brevity does not always mean that it required
less work; it may even indicate the opposite. Each of
Mach’s alleged acts of discrimination required independ-
ent discovery, research, and time. The court’s resolution
5
The Court in Chambers thoroughly analyzed the interplay
between various procedural rules and a court’s inherent
authority to impose sanctions. See 501 U.S. at 46-51.
16 Nos. 08-2907 & 09-1044
was a reasonable way to allocate the Sheriff’s unneces-
sary fees.
III. C ONCLUSION
Mach presented no evidence that his transfer was based
on his age, and the district court properly granted sum-
mary judgment against him. Likewise, the district court
did not abuse its discretion in awarding attorneys’ fees
to the Sheriff after finding that Mach litigated part of
his lawsuit in bad faith. We A FFIRM .
9-1-09