Mach v. Will County Sheriff

• Decision Date: 01 September 2009
• Docket Number: No. 09-1044.,No. 08-2907.,08-2907.,09-1044.
• Citation: 580 F.3d 495
• Parties: Michael W. MACH, Plaintiff-Appellant, v. WILL COUNTY SHERIFF, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

580 F.3d 495

Michael W. MACH, Plaintiff-Appellant, v. WILL COUNTY SHERIFF, Defendant-Appellee.

No. 08-2907.

No. 09-1044.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2009.

Decided September 1, 2009.

John A. Baker, Attorney (argued), Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant.

Terrence F. Guolee, Attorney (argued), Querrey & Harrow, Chicago, IL, for Defendant-Appellee.

Before BAUER, FLAUM, and KANNE, Circuit Judges.

KANNE, 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 judgment in the Sheriff's favor, a decision Mach now appeals. The real dispute at oral argument, however, focused on the district court's order that Mach pay some of the Sheriff's legal fees because Mach litigated part of this case in bad faith. We find no error in either decision below.

I. BACKGROUND

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 investigating 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 deputies¹ 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 prospect, 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 September 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 requested 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 advantage of a one-day extension granted by Horwath, and finally landed in an administrative interview with his union representative and Horwath. Following a predisciplinary hearing on March 25, Horwath recommended that Mach be suspended without pay for one day. Horwath also warned Mach that any further discipline could result in a transfer out of traffic.

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 behavior" 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 claims, including his transfer to a less prestigious position in the patrol division.² Sheriff Kaupas moved for summary 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 discrimination only after the Sheriff had filed his opening summary 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 (eighty-three percent) of the Sheriff's fees incurred in preparing the summary judgment brief, as well as certain associated costs.

II. ANALYSIS

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In both his reply brief and at oral argument, Mach focused almost exclusively on the district court's imposition of fees and costs, ignoring his appeal of the summary 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 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., ___ U.S. ___, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009). Mach argued his claim solely based on the direct method of proof,³ and we limit our discussion 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 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 purportedly made by Horwath. According to Mach, Horwath told him...