case in either subjective
or objective bad faith. Presumably, Plaintiff's counsel relied upon
Plaintiff's representations as to what he believed the true reason for
his failure to obtain one of the vacant stationary engineer positions
was, and she dutifully began to zealously represent her client in this
matter. Although the Court ultimately found that Plaintiff's claim lacked
an evidentiary basis, Plaintiff's counsel continues to disagree with this
finding, and the Court cannot say that the lack of an evidentiary basis
for this suit is so clear that Plaintiff must have litigated this case
for some improper purpose. Accordingly, the Court declines Defendants'
request for an award of attorneys' fees, pursuant to both § 1988 and
§ 1927, based upon the Court's finding of a lack of evidentiary
support for Plaintiff's claim.
B. WRONG LEGAL TEST
While it is true that parties are generally bound by the decisions made
by their attorneys, Diersen v. Chicago Car Exchange, 110 F.3d 481, 489
n. 8 (7th Cir. 1997), the Court highly doubts that Plaintiff had any
input whatsoever in formulating that part of his response to Defendants'
motion for summary judgment which dealt with the correct legal test
governing his claim. Because attorney's fees awarded pursuant to §
1988 are taxed directly against the client, the Court is loath to award
Defendants' motion for their attorneys' fees pursuant to § 1988.
Although the McDonnell Douglas test as applied in the First Amendment
context may be legally baseless, a First Amendment claim based upon Rutan
Therefore, the Court will not award Defendants their attorney's fees,
pursuant to 42 U.S.C. § 1988, based upon Plaintiff's invocation of the
McDonnell Douglas test rather than the Mt. Healthy test as the one to be
employed by the Court in resolving his claim.
Furthermore, the Court will not award Defendants their attorneys'
fees, pursuant to 28 U.S.C. § 1927, based upon Plaintiff's counsel's
reliance upon the McDonnell Douglas test either. Contrary to Plaintiff's
assertion otherwise, whether circumstantial evidence may be used to
create a genuine issue of material fact as to whether a defendant's
proffered reason for not awarding a plaintiff an employment position is
not an issue of first impression. In fact, the Court specifically noted
in its previous Opinion that a plaintiff may employ circumstantial
evidence to defeat a motion for summary judgment. Coffey, 218 F. Supp.2d
"However, the circumstantial evidence must do more than simply `raise
some eyebrows'; it must be sufficient to raise a jury question about the
role of the political factors." Wilkie v. Obourn, 2002 WL 338401, *7
(S.D.Ill. Jan. 7, 2002), citing Tarpley v. Jeffers, 96 F.3d 921, 930 (7th
Cir. 1996). Plaintiff's circumstantial evidence failed to meet this
liberal standard. Coffey, 218 F. Supp.2d at 1004.
Moreover, as the Court noted in its previous Opinion, Plaintiff's claim
is clearly governed by the Mt Healthy standard, not McDonnell Douglas.
Id. at 1002.
Although counsel made a feeble argument in responding to Defendants'
motion for attorneys' fees that there should be a change in the law,*fn1
the Court is not persuaded by her argument given the long line of cases
in the Seventh Circuit holding that "[w]hatever may be the case under
labor and civil rights statutes, Mt. Healthy
establishes the approach for
litigation under the first amendment." Gooden v. Neal, 17 F.3d 925, 928
(7th Cir. 1994).
Nevertheless, the Court cannot say that Plaintiff's counsel's reliance
upon the wrong legal test was vexatious or marked by bad faith. It is true
that other counsel may, after appropriate inquiry, have found reliance
upon McDonnell Douglas to be unsound. However, Plaintiff's counsel's
employment of the wrong legal standard did little to multiply the
proceedings, increase Defendants' attorneys' fees, or prejudice
In addition, had Defendants believed Plaintiff's reliance upon the
McDonnell Douglas test to be so egregious as to warrant some sort of
sanction, they could have moved for sanctions pursuant to Federal Rule of
Civil Procedure 11 after Plaintiff filed his response to their motion for
summary judgment. They did not, and accordingly, the Court declines
Defendants' request for an award of attorneys' fees, pursuant to both
§ 1988 and § 1927, based upon Plaintiff's assertion that the
McDonnell Douglas test rather than the Mt. Healthy test governs his
C. PATTERN OF QUESTIONABLE RUTAN CLAIMS
Finally, the Court does not believe it to be appropriate to impose
Defendants' attorneys' fees upon Plaintiff as part of their costs of suit
merely because his counsel has engaged in a pattern of filing
questionable Rutan claims against the State of Illinois. As far as the
Court is aware, Plaintiff has not previously filed any Rutan or other
civil rights suits against the State in any federal court, nor has he
been a serial litigant (frivolous or otherwise) in any state court.
Thus, awarding Defendants their attorneys' fees, pursuant to
42 U.S.C. § 1988, would not deter frivolous filings or do anything to
alleviate the courts' crowded dockets. If anything, an award of
Defendants' attorneys' fees imposed against Plaintiff may chill a future
meritorious plaintiff from pursuing his civil rights action for fear of
having to pay his opponent's attorney's fees should he ultimately be
Whether Defendants are entitled to their attorneys' fees pursuant to
28 U.S.C. § 1927, however, is a closer question.
As Defendants note, since 1993, Plaintiff's counsel has filed at least
ten Rutan law suits (including the instant suit) against the State of
Illinois in the United States District Courts for the Central and
Southern Districts of Illinois. One of those suits was brought against
the Illinois Department of Mental Health and Developmental Disabilities;
one was brought against the Illinois Environmental Protection Agency; two
were brought against the Illinois Department of Public Aid; and the
remaining suits were brought against the Illinois Department of
Corrections. These cases were heard by United States District Judges
Gilbert (four cases), McDade (one case), Beatty (one case), Scott (one
case), and this Court (three cases). The law firm of Jenner and Block
represented at least one of the defendants in each of these ten cases.
Finally, in each case, the district court entered summary judgment
against the plaintiffs and in the defendants' favor as to all counts
alleged in the complaints.
More important than the number or outcome of the cases, however, is the
pattern noted by the Court in its previous Opinion. Coffey, 218 F. Supp.2d
at 1001. Specifically, in this case, in Winkelman v. Magne,
173 F. Supp.2d 821 (C.D.Ill. 2001), and in Wilkie, Plaintiff's counsel
litigated the cases to the summary judgment stage without finding a trace
of evidence during the discovery process of a causal connection between
the plaintiffs' political associations or activities (or lack thereof)
and the defendants' hiring decisions. Coffey, 218 F. Supp. at 1004,
quoting Wilkie, 2002 WL 338401 at *5. In addition, as noted supra, in
this case (Id. at 1002), in Winkelman (173 F. Supp.2d at 825), in Wilkie
(2002 WL 338401 at *5), and in DeHeve v. Price, 189 F. Supp.2d 830, 834
n. 5 (C.D.Ill. 2002), Plaintiff's counsel advanced the McDonnell Douglas
test as the one applicable to Rutan claims despite the clear authority
from the Seventh Circuit holding that Mt. Healthy is the appropriate
The Court is puzzled and somewhat troubled by this pattern established
by Plaintiff's counsel-an honorable member of this bar who has, in the
past, prevailed for her clients by advancing novel legal issues. In fact
(as she has repeatedly reminded the Court), Plaintiff's counsel was
counsel for the plaintiff in Rutan v. Republican Party of Illinois,
497 U.S. 62 (1990), i.e., the seminal case which formed the basis for
Plaintiff's claim in this case.
However, cobbling and bootstrapping together unrelated inferences and
innuendos and labeling it "circumstantial evidence", citing the magic
case "Rutan", and applying a legal test which is inapposite are
insufficient grounds to defeat a motion for summary judgment, and a
reasonable jury could not rely upon these factors in order to find in a
plaintiff's favor. Counsel as experienced as Plaintiff's should know
But does this pattern rise to the level of sanctionable conduct under
28 U.S.C. § 1927? The Court is unwilling to make such a finding this
In declining Defendant's request for attorneys' fees, the Court makes
three observations. First, as far as the Court is aware, neither the law
firm of Jenner and Block nor any other defendant or defense counsel have
ever asked a district court to impose attorneys' fees against Plaintiff's
counsel pursuant to § 1927 for her unreasonable or vexatious
conduct. Thus, this case is the first case to chronicle Plaintiff's
counsel's record of bringing questionable Rutan claims against the State
of Illinois. Second, the Court notes that Plaintiff and his counsel have
filed a notice of appeal with the Seventh Circuit challenging the Court's
ruling on Defendants' motion for summary judgment. Perhaps on appeal, the
Seventh Circuit will reiterate to Plaintiff's counsel what the
appropriate and applicable legal test in this case is and will re-instruct
her as to the relevance of the proffered "circumstantial evidence" in
Third, the Court is hopeful that, after reading this and the Court's
other Opinion in this case, Plaintiff's counsel will take a more studied
approach to future cases which she files on behalf of would-be
plaintiffs. The Court is also hopeful that, in the future, Plaintiff's
counsel will be more open to the idea of voluntarily dismissing suits
when it becomes clear during the discovery process that there is no
evidence of discrimination to be found.
Although the Court is cognizant and even sympathetic to the time and
expense which defendants like the instant ones-and ultimately the
taxpayers-must shoulder when they are sued in their official capacities,
the Court is also aware that being subjected to law suits is part of
their official duties and, in some cases, is a necessary check against
unlawful employment decisions. In short, the Court is unwilling to find
that Plaintiff's counsel acted in subjective or objective bad faith,
for some improper purpose, or vexatiously in the above-captioned case.
Thus, the Court declines Defendants' request for an award of attorneys'
fees, pursuant to both § 1988 and § 1927, based upon Plaintiff's
counsel's pattern of filing questionable Rutan claims against the State
Ergo, Defendant's Motion for Attorney's Fees is DENIED.