SHELDON SCOTT v. CITY OF SOUTH BEND (2024)

OPINION AND ORDER

Sheldon Scott was a law enforcement officer with the South Bend Police Department. He says he was removed from his position as a task force officer (TFO) with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) because of his age. He sued Attorney General of the United States Merrick Garland in his official capacity for age discrimination in violation of the Age Discrimination in Employment Act (ADEA). Attorney General Garland requests summary judgment. The court grants it.

BACKGROUND

In April 2003, Sheldon Scott began working for the South Bend Police Department (SBPD) [65-1 at 14; 65-2]. In 2010, he was assigned to work as a TFO with the Project Disarm Regional Enforcement Task Force—a collaboration among the ATF, SBPD, other regional police departments, and other entities aimed at reducing violent crime in Northern Indiana [63-5 at 1; 65-1 at 237-240]. As a TFO, his primary duty was to assist the Metro Homicide Unit with shootings and other firearms-related activities. [65-1 at 16-17].

The officers assigned to the task force continued to be employees of their respective municipal departments [65-4 at 11-12], which continued to provide their salary and employment benefits [65-3 at 7]. While Officer Scott was a TFO, SPBD retained control over his work hours, including the approval of overtime [65-3 at 7].¹ The Memorandum of Understanding (MOU) between the ATF and SBPD indicated that the ATF “may have funds available to reimburse overtime,” but the MOU was not a funding document [65-3 at 7]. Officer Scott was paid by SBPD [65-1 at 229], and his tax forms and retirement plan were provided by the City of South Bend [65-1 at 230-231].

As a TFO, he was governed by SBPD's standards of conduct [65-1 at 64-65] and his written performance evaluations were completed by SBPD [65-1 at 170, 229-230]. The ATF did not have the power to take any disciplinary action against him [65-4 at 25].

The day-to-day supervision of Officer Scott and the other TFOs was the mutual responsibility of the participating law enforcement agencies, with the ATF Resident Agent in Charge (RAC) in Fort Wayne exercising operational control of the task force [65-3 at 2; 65-4 at 14]. Officer Scott and the other TFOs were assigned credentials by the United States Marshals Service, but acknowledged and agreed that their assignment to the task force did “not constitute employment by the United States Marshals Service, the United States Department of Justice, or the United States Government” [65-5 at 1].

While a TFO, Officer Scott also worked on other special assignments for the SBPD [65-1 at 20], including being a member (since 2005) and later assistant commander (since 2016) of the Special Weapons & Tactics Team (SWAT) [65-1 at 20-21]. He assisted with numerous trainings at SBPD [65-1 at 26-29]. From 2016 to 2020, while a TFO, Officer Scott was also the assistant commander of SBPD's St. Joseph County Drug Investigation Unit [65-1 at 23, 232]. In this role, he supervised five employees [65-1 at 23-24]. He didn't receive additional wages for this role, but it provided opportunities to earn overtime [65-1 at 24].

In February 2018, Officer Scott intervened in a lawsuit involving the City of South Bend [65-1 at 8-10]. Also in 2018, Officer Scott was involved in an altercation at a local bar, which included him punching a local prosecutor [65-1 at 49, 236-237]. The next year, SBPD launched an investigation into the Drug Investigation Unit [65-1 at 37-38]. The investigators learned that members of the unit were drinking alcohol in the office [65-1 at 54-56]. During the investigation, several officers were negative in describing Officer Scott's conduct and managerial style, calling him a poor leader, “people user,” and “absolute c—ksucker.” [65-1 at 271-272]. As a result of the investigation, the Drug Investigation Unit was disbanded [65-1 at 57].

In 2020, the SBPD informed the ATF that it intended to implement three-year term limits on the Project Disarm Regional Enforcement Task Force [65-7 at 38; 65-1 at 59-60]. On June 9, 2020, ATF's then-RAC Scott McCart and Special Agent Kyle Lerch (who coordinated the task force in South Bend) met with Officer Scott, both together and then separately, regarding the application process for the task force [65-8 at 2; 65-9 at No. 11]. During the meeting, RAC McCart says he told Officer Scott that “his interactions with other detectives from [South Bend] and other agencies” meant that his position on the task force “may be in jeopardy,” as “his actions/personality had negatively affected ATF's relationship with other [South Bend] Detectives and agencies, particularly, Elkhart ICE and Mishawaka” [65-8 at 2]. Special Agent Lerch expressed concerns to RAC McCart that Officer Scott failed to complete required paperwork on time and lacked initiative in cultivating informants to generate prosecutions [65-8 at 2; 65-4 at 24, 35].

Officer Scott remembers this meeting differently. He says RAC McCart said that Special Agent Lerch wanted to remove him from the task force, but RAC McCart assured him that his work performance was impeccable and that he was unsure why Special Agent Lerch wanted to remove him [65-9 at No. 11]. Officer Scott says Special Agent Lerch told him he did great work and was always busy, but he “expressed concern that some other law enforcement agencies might not want to work with [him]” [id.]. He says Special Agent Lerch “stated that he was intimidated by [Officer Scott's] work experience and [his] age and did not believe he could manage [Officer Scott] and that he [was] not a real supervisor for the ATF” [65-9 at No. 11; 65-1 at 99, 266-267].

In August 2020, the position was posted by the SBPD [65-11]. Officer Scott submitted a statement of interest for the position to SBPD Chief of Police Scott Ruszkowski, SBPD Division Chief Tim Lancaster, SBPD Investigative Bureau Captain Jason Biggs, and SBPD Investigative Bureau Sergeant Robert Wise [65-12]. After interviews, which were waivable for current task force officers reapplying, then-Acting RAC Sean Skender, Assistant Special Agent in Charge Brendan Iber, Special Agent Lerch, and SBPD Sergeant Wise conferred about the applicants [65-10; 65-1 at 98; 65-4 at 31-32]. Officer Scott was one of six finalists [80-3 at No. 12].

Agents Skender, Iber, and Lerch decided to re-select Officer Bayne Bennett and to select Officer Brandon Stec [65-4 at 34]. Officer Bennett was re-selected based on his experience and ability to work well with others [65-4 at 82]. Officer Stec was selected “based on his ability to work proactive cases, his ability to work with others, his eagerness to help out other departments and his overall ability to work [ ] confidential informants and cultivate them” [65-4 at 82].

Officer Scott was reportedly not re-selected based on his history of lack of proactive work, his shortcomings in completing administrative paperwork, and his behaviors and interactions with other officers that “ruin[ed] relationships with other agencies and causing drama that the ATF did not want to be represented in” [65-4 at 82-83]. In late 2020, he concluded his assignment with the task force and returned to a patrol assignment with the SBPD [65-1 at 17] before his retirement last year.

STANDARD

Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The non-moving party must present the court with evidence on which a reasonable jury could rely to find in his favor. Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022). The court must construe all facts in the light most favorable to the non-moving party, viewing all reasonable inferences in that party's favor, Bigger v. Facebook, Inc., 947 F.3d 1043, 1051 (7th Cir. 2020), and avoid “the temptation to decide which party's version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003); see also Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 924-25 (7th Cir. 2020).

In performing its review, the court “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead, the “court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Id. The court must grant a summary judgment motion when no such genuine factual issue—a triable issue—exists under the law. Luster v. Ill. Dep't of Corr., 652 F.3d 726, 731 (7th Cir. 2011).

DISCUSSION

The Age Discrimination Employment Act (ADEA) protects federal employees and applicants forty years of age and older from age-based employment discrimination by a federal government employer. See 29 U.S.C. § 633a. It provides that “personnel actions” affecting people forty years of age or older “shall be made free from any discrimination based on age.” Id.; see also Babb v. Wilkie, 140 S.Ct. 1168, 1171 (2020). This provision covers executive agencies like the ATF. See 29 U.S.C. § 633a.

Officer Scott concedes that he was principally employed by SBPD but argues that the ATF was also his employer for ADEA purposes. Multiple entities may be considered an employee's employer for the purposes of ADEA liability. Equal Emp. Opportunity Comm'n v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995). A defendant may be a “de facto or indirect employer” of the plaintiff so far as it “controlled the plaintiff's employment relationship.” Id. If an entity “pull[s] the strings” in the background and essentially controls employment decisions, it is considered a de facto employer. See id. at 171.

To determine whether there existed an employer-employee relationship with the ATF, the court looks to the “economic realities of the work situation” and considers five factors: (1) the extent of the putative employer's control and supervision over the putative employee; (2) the kind of occupation and nature of skill required; (3) the putative employer's responsibility for the costs of operation; (4) the method and form of payment and benefits; and (5) the length of the job commitment. Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 702 (7th Cir. 2015) (citing Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991)).

Before analyzing these factors, the court starts with the obvious reality: Officer Scott acknowledged that his assignment as a TFO did “not constitute employment by the United States Marshals Service, the United States Department of Justice, or the United States Government” and “agree[d] to perform the duties required under this Special Deputation with the knowledge that he [was] neither entering into an employment agreement with the Federal Government or any element thereof, nor being appointed to any position in the Federal Service by virtue of this special deputation.” [65-5 at 1]. Officer Scott provides no argument why the court should look beyond his acknowledgement that he was not an employee of the federal government. No reasonable jury could consider this acknowledgment, based on this record's entirety, and conclude that he was an employee of the federal government.

In addition, the federal government lacked the extent of control—the most important factor—that would denote Officer Scott a federal employee. See Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 361 (7th Cir. 2016). Though the MOU acknowledged that the “day-to-day supervision and administrative control of the Task Force Officers was the mutual responsibility of the participating law enforcement agencies” [65-3 at 2], it also said SBPD “retain[ed] control over” the TFOs’ “work hours, including the approval of overtime” and that the TFOs “remain[ed] subject to [SBPD's] policies while assigned to the Task Force” [65-3 at 2, 7].

The extent of control “depends, to a significant degree, on the ability to hire and fire.” Bridge, 815 F.3d at 361. Officer Scott says the ATF both hired and fired him when it originally selected him as TFO and later didn't select him.² But it was the SBPD, not the ATF, who posted the position description and sought applications [65-11]. Three ATF agents and one SBPD sergeant conducted interviews [65-10; 65-1 at 98; 65-4 at 31-32]. The Acting RAC and Special Agents made the decision about who would fill the roles [65-4 at 34]. Though Officer Scott was not selected to continue with the task force by the ATF, he was not fired in the traditional sense as the ATF did not have the ability to discipline him or terminate his pay [65-4 at 25]. He was taken off an assignment, but not fired from his employment. The officers assigned to the task force continued to be employees of their respective municipal departments [65-4 at 11-12]. Officer Scott returned to a patrol assignment with the SBPD after ending his assignment with the task force [65-1 at 17].

Also relevant is whether the putative employer had the right to control and direct an individual's work, “not only as to the result to be achieved, but also as to the details by which that result is achieved.” Love, 779 F.3d at 703 (quoting Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 493 (7th Cir. 1996) (emphasis omitted)). The ATF RAC exercised operational control of the task force [65-3 at 2; 65-4 at 14] and assigned tasks to the TFOs, including Officer Scott [80-5 ¶ 12]. That said, Officer Scott marshals no additional evidence that the ATF had the right to control the details by which the completion of those tasks was achieved. The ATF didn't hold Officer Scott to its standards of conduct, perform written performance evaluations, or have disciplinary power over him [65-1 at 64-65, 170, 229-230; 65-4 at 25]. SBPD “retain[ed] control over” a TFO's “work hours, including the approval of overtime” [65-3 at 2, 7]. In many other ways, SBPD controlled Officer Scott's work. While a TFO from 2016 to 2020, Officer Scott also served as the assistant commander of SBPD's St. Joseph County Drug Investigation Unit. This unit worked cooperatively with the ATF [80-5 ¶ 4], but Officer Scott was the supervisor of five county employees and no federal employees [65-1 at 23-24]. Also while a TFO, Officer Scott was a member of the SWAT Team and provided training for members of the SBPD [65-1 at 20-21, 26-29].

The first factor weighs against a finding of federal employee status as the ATF didn't have control over Officer Scott's work hours, didn't have the ability to approve overtime, didn't perform performance evaluations, didn't hold him to its standards of conduct, didn't have any disciplinary power, and because Officer Scott continued his significant involvement in various SBPD units, including as a supervisor to county employees.

The second factor is the type of occupation and nature of skills required for the job. Officer Scott attended the Indiana Law Enforcement Academy but was never sent to the Federal Law Enforcement Training Center (FLETC) [65-1 at 227-228]. Officer Scott fails to address this factor in briefing and marshals no evidence that he received any training from the ATF or developed an important job skills in the ATF's workplace. This factor weighs only against a finding of employee status.

The third and fourth factors concern, respectively, the responsibility for operating costs and the method and form of payment and benefits. The parties provide no evidence or argument concerning operating costs. On payment, Officer Scott only says the payment of overtime for ATF work depended on the RAC assigning work and approving it for overtime [80-5 ¶ 13]. But he doesn't contend that he was ever paid by the ATF. The MOU acknowledged that the ATF “may have funds available to reimburse overtime,” but Officer Scott marshals no evidence to show this happened [65-3 at 7]. The City of South Bend paid Officer Scott's salary, issued his tax documentation, and provided his benefits [65-1 at 229-231]. This fourth factor also weighs against an employee relationship with the federal government. See Bridge, 815 F.3d at 362 (“There is no evidence that [putative employer] ever paid any of these individuals for their work or withheld taxes from their paychecks.”).

Fifth, the length of the job commitment belies federal employment. “A mutual expectation of continued work is not, of itself, indicative of the kind of extensive control on which a finding of employee status is typically based.” See Bridge, 815 F.3d at 363. Though the TFO position earlier had not been subject to an enforced term limit, Officer Scott alleges that he was discriminated against in the failure to select him for the 2020 TFO position. That “position [wa]s limited to a three (3) year tenure” plus the possibility of extension for an additional year [65-11 at 1]. The assignment had a “particular endpoint,” which weighs against finding of employee status. Id. at 362-63; see also Bronson v. Ann & Robert H. Lurie Child. Hosp. of Chi., 69 F.4th 437, 450 (7th Cir. 2023) (three-year assignment, though a substantial period of time, did not weigh in favor of employment relationship where primary employer had authority to assign employee to another unit).

Officer Scott explicitly agreed that he was not an employee of the federal government when he took the TFO assignment. Even beyond this, the economic realities of the work situation don't support an employee relationship as no factors materially weigh in favor of an employee relationship between the ATF and Officer Scott and permit a reasonable jury to conclude that Officer Scott was employed by the federal government. Because no reasonable jury could conclude that the ATF was Officer Scott's employer, his ADEA claim against Attorney General Merrick Garland cannot proceed.

CONCLUSION

Accordingly, the court GRANTS summary judgment for Attorney General Garland on the ADEA claim [64]. No claims remain against Attorney General Garland.

SO ORDERED.

FOOTNOTES

1.   In several responses to Attorney General Garland's statement of material facts, Officer Scott unhelpfully cites generally to entire documents. For example, in response to fact #12, Officer Scott cites to “Scott Decl., ¶___)” seemingly forgetting to include the proper paragraph cite [79 at ¶ 12]. He also does this in response to facts #2, 14, 51, and 67 and in support of his additional facts #77, 78, 79, 80, and 81. The court won't do Officer Scott's job for him. “[I]t isn't the court's job to find the needle in the haystack, the truffle in the field, or the Waldo on the page.” Litsinger v. Forest River, Inc., 536 F. Supp.3d 334, 353 (N.D. Ind. 2021). The court will not scour the record without a suitable proffer of material facts or genuine issues. See Fed. R. Civ. P. 56(c)(1)(A) (parties must “cit[e] to particular parts of materials in the record”) (emphasis added); N.D. Ind. L.R. 56-1(b)(2)(C) (party must “cit[e] to evidence supporting each dispute of fact”); see, e.g., Hummel v. St. Joseph Cnty. Bd. of Comm'rs, 817 F.3d 1010, 1017 (7th Cir. 2016); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 547 n. 10 (7th Cir. 2002) (“it is not the responsibility of this court to ferret through the record for support for [plaintiff's] arguments”); Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (“court is not required to scour the record in search of evidence to defeat a motion for summary judgment”) (quotations and citations omitted). Where Officer Scott has failed to properly support an assertion of fact or failed to respond to statements of material fact altogether, as in #13 and 33, the court considers the fact undisputed for purposes of the motion. See N.D. Ind. L.R. 56-1(e)(2).

2.   Officer Scott's briefing in this area is at times unhelpful as again he provides incomplete or improper citations. Page two of his brief is illustrative [77 at 2]. For example, Officer Scott cites to “Sheldon Decl., ¶__” without providing a pincite. Elsewhere he cites a source, but one that doesn't support his assertion. For example, he says “[a]lthough he remained an employee of SBPD, his assignment to ATF was Scott's full-time duty station,” citing to “Sheldon Decl. ¶ 11,” but that paragraph concerns the task force selection process.

Damon R. Leichty Judge, United States District Court