Levin v. Madigan

• Decision Date: 17 August 2012
• Docket Number: No. 11–2820.,11–2820.
• Citation: 692 F.3d 607,115 Fair Empl.Prac.Cas. (BNA) 1281
• Parties: Harvey N. LEVIN, Plaintiff–Appellee, v. Lisa MADIGAN, in her individual capacity, Ann Spillane, Alan Rosen, Roger Flahaven, and Deborah Hagan, Defendants–Appellants, and Lisa Madigan, in her official capacity as Attorney General of Illinois, Office of the Illinois Attorney General, and State of Illinois, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

692 F.3d 607

115 Fair Empl.Prac.Cas. (BNA) 1281

Harvey N. LEVIN, Plaintiff–Appellee,

v.Lisa MADIGAN, in her individual capacity, Ann Spillane, Alan Rosen, Roger Flahaven, and Deborah Hagan, Defendants–Appellants,andLisa Madigan, in her official capacity as Attorney General of Illinois, Office of the Illinois Attorney General, and State of Illinois, Defendants.

No. 11–2820.

United States Court of Appeals,

Seventh Circuit.

Argued April 3, 2012.

Decided Aug. 17, 2012.

Edward R. Theobald (argued), Attorney, Chicago, IL, for Plaintiff–Appellee.

Brett E. Legner (argued), Michael A. Scodro, Attorneys, Office of the Attorney General, Chicago, IL, for Defendants–Appellants.

Before BAUER, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Harvey N. Levin worked as an Illinois Assistant Attorney General from September 5, 2000, until his termination on May 12, 2006. Levin was over the age of sixty at the time of his termination and believes he was fired because of his age and gender. Accordingly, Levin filed suit against the State of Illinois, the Office of the Illinois Attorney General, Illinois Attorney General Lisa Madigan, in her individual and official capacities, and four additional Attorney General employees in their individual capacities. He asserts claims for relief under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment via 42 U.S.C. § 1983. The individual-capacity defendants argued at the district court that they were entitled to qualified immunity with respect to Levin's § 1983 age discrimination claim. Specifically, they argued that Levin's § 1983 claim is precluded by the ADEA because the ADEA is the exclusive remedy for age discrimination claims. The district court disagreed and denied qualified immunity. The case is now before us on interlocutory appeal, and for the following reasons, we affirm the judgment of the district court.

I. Background

Levin was fifty-five years old when he was hired as an Assistant Attorney General in the Office of the Illinois Attorney General's Consumer Fraud Bureau on September 5, 2000. On December 1, 2002, Levin was promoted to Senior Assistant Attorney General and retained this title until he was terminated on May 12, 2006. Levin was evaluated on an annual basis and his performance reviews indicate that he consistently met or exceeded his employer's expectations in twelve job categories. The Illinois Attorney General's Office asserts, however, that Levin's low productivity, excessive socializing, inferior litigation skills, and poor judgment led to his termination. Although not addressed in Levin's evaluations, these issues were discussed among Levin's supervisors and brought to Levin's attention.

Levin was one of twelve attorneys fired in May 2006. After he was terminated, Levin was replaced by a female attorney in her thirties. Two other male attorneys from the Consumer Fraud Bureau, both over the age of forty, were also terminated and replaced by younger attorneys, one male and one female. The Illinois Attorney General's Office disputes that these new hires “replaced” the terminated attorneys because the younger attorneys were not assigned the three former attorneys' cases.

Levin filed his complaint in the Northern District of Illinois on August 23, 2007, asserting claims of age and sex discrimination under the ADEA, Title VII, and the Equal Protection Clause via 42 U.S.C. § 1983. The defendants in this suit are divided into two groups for litigation purposes: (1) Lisa Madigan, in her official capacity as the Illinois Attorney General, the Office of the Illinois Attorney General, and the State of Illinois (the “Entity Defendants”), and (2) Lisa Madigan as an individual, Ann Spillane, Alan Rosen, Roger Flahavan, and Deborah Hagan (the “Individual Defendants”). Only the Individual Defendants have appealed to this court.

On November 26, 2007, the Entity Defendants and the Individual Defendants filed separate motions to dismiss Levin's complaint in its entirety. On December 12, 2007, the district court stayed discovery, requiring Levin to respond to the Entity Defendants's motion as to whether he was an “employee” for purposes of the ADEA and Title VII. On September 12, 2008, the district court held that Levin was an “employee” and lifted the stay on discovery. The Entity Defendants filed a second motion to dismiss shortly thereafter. Following discovery, the Entity Defendants and the Individual Defendants filed separate motions for summary judgment on November 13, 2009.

The district court ruled on the five pending motions in two separate opinions, both of which are pertinent to the issues before this court. In the first opinion, decided March 10, 2010, the Honorable David H. Coar addressed the three pending motions to dismiss. See Levin v. Madigan, 697 F.Supp.2d 958 (N.D.Ill.2010) [hereinafter Levin I ]. Relevant to this appeal, Judge Coar granted the Individual Defendants' motion to dismiss Levin's § 1983 equal protection claim for age discrimination. Id. at 972. In that motion, the Individual Defendants asserted that the § 1983 claim was either precluded by the ADEA or they were entitled to qualified immunity. After acknowledging that the Seventh Circuit has yet to address ADEA exclusivity, Judge Coar held that the ADEA does not foreclose Levin's § 1983 equal protection claim. Id. at 971. But Judge Coar granted qualified immunity for the Individual Defendants because the availability of such a claim was not clearly established at the time Levin was terminated. Id. at 972 (“Indeed, this Court's lengthy analysis of the availability of such claims demonstrates that the law is not clearly established.”).

On January 7, 2011, Levin's case was reassigned to the Honorable Edmond E. Chang. Judge Chang issued an opinion on July 12, 2011, granting in part and denying in part the two pending motions for summary judgment. Levin v. Madigan, No. 07 C 4765, 2011 WL 2708341, at *23 (N.D.Ill. July 12, 2011) [hereinafter Levin II ]. Judge Chang did not disturb Judge Coar's ruling that the ADEA is not the exclusive remedy for age discrimination claims. Id. at *8. He did, however, reverse two of Judge Coar's prior rulings, in light of additional briefing. First, Judge Chang determined that Levin is not an “employee” for purposes of Title VII and the ADEA, thus foreclosing any claim Levin could bring under those statutes. See id. at *11. Second, Judge Chang held that the Individual Defendants were not entitled to qualified immunity on Levin's § 1983 claim for age discrimination. Id. at *12–13. Rejecting Judge Coar's reasoning, Judge Chang noted that “[w]hen determining whether qualified immunity applies to protect a defendant, the question is whether a reasonable official would have known that the official was violating a clearly established constitutional right, which is a substantive question, not a question concerning whether a particular procedural vehicle ( i.e., cause of action) is available.” Id. at *12. Because it is clearly established that the Fourteenth Amendment forbids arbitrary age discrimination, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83–84, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), Judge Chang held that qualified immunity did not apply and Levin had established a genuine issue of material fact such that his § 1983 age discrimination claim could proceed to trial. Levin II, 2011 WL 2708341, at *20. The Individual Defendants filed this timely appeal, asking this court to find that they are entitled to qualified immunity because the ADEA is the exclusive remedy for Levin's age discrimination claims.

II. Analysis

A. Appellate Jurisdiction

Levin does not dispute that we have jurisdiction over an order denying qualified immunity under the collateral orderdoctrine. See Surita v. Hyde, 665 F.3d 860, 868 (7th Cir.2011). But Levin believes this court lacks jurisdiction over the issue of whether the ADEA precludes a § 1983 equal protection claim. Levin asserts that this issue, resolved in Judge Coar's opinion, is not inextricably intertwined with Judge Chang's denial of qualified immunity. See Research Automation, Inc. v. Schrader–Bridgeport Int'l, Inc., 626 F.3d 973, 976–77 (7th Cir.2010) (doctrine of pendent jurisdiction allows appellate court to review an interlocutory order that is inextricably intertwined with an appealable order).

We disagree with Levin's analysis. Instead, we believe this case is analogous to Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, on an interlocutory appeal of the denial of qualified immunity, the Supreme Court considered whether a new, freestanding damages remedy should exist under Bivens.Id. at 548–50, 127 S.Ct. 2588 ( citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). The Supreme Court held that it had jurisdiction to consider whether such a remedy existed because the recognition of an entire cause of action is “directly implicated by the defense of qualified immunity.” Id. at 549 n. 4 ( quoting Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Similar to Wilkie, the very existence of a freestanding damages remedy under § 1983 is directly implicated by a qualified immunity defense such that we have jurisdiction over this appeal. Thus, we first consider whether the ADEA precludes a § 1983 equal protection claim before we turn to the issue of qualified immunity.

B. General Preclusion of § 1983 Claims

Section 1 of the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983, “authorizes suits to enforce individual rights under federal statutes as well as the Constitution” against state and local government officials. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Section 1983 does not...