Levin v. Madigan et al

Filing 36

MOTION by Defendants Lisa Madigan, Ann Spillane, Alan Rosen, Roger P Flahaven, Deborah Hagen to dismiss Plaintiff's Amended Complaint (Allen, Deborah)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HARVEY N. LEVIN,
)
)
Plaintiff,
)
)
v.
)
No. 07 C 4765
)
LISA MADIGAN, Individually and as
)
Hon. David H. Coar,
Illinois Attorney General, OFFICE OF
)
Judge Presiding
THE ILLINOIS ATTORNEY GENERAL,
)
THE STATE OF ILLINOIS, ANN SPILLANE, )
individually, ALAN ROSEN, individually,
)
ROGER P. FLAHAVEN, individually and
)
DEBORAH HAGAN, individually,
)
)
Defendants.
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THE INDIVIDUAL DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT
NOW COME Defendants, LISA MADIGAN, Individually, ANN SPILLANE, individually,
ALAN ROSEN, individually, ROGER FLAHAVEN, individually, and DEBORAH HAGAN,
individually, by and through their attorney, LISA MADIGAN, Attorney General of Illinois, and
pursuant to Federal Rule of Civil Procedure 12(b)(6), move this Honorable Court to Dismiss
Plaintiff’s Amended Complaint, with prejudice.
1.

Plaintiff, Harvey Levin, filed his original Complaint on August 23, 2007, alleging that

Lisa Madigan, Illinois Attorney General, the Office of the Illinois Attorney General, and the State
of Illinois discriminated against him on the basis of gender in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000 (“Title VII”) and on the basis of age in violation
of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”).
2.

Defendants moved to dismiss the original Complaint pursuant to Federal Rule of

Civil Procedure 12 (b)(6). In response to Defendants’ motion, Plaintiff filed an Amended
Complaint.

3.

Counts I and II of Plaintiff’s Amended Complaint again allege that Lisa Madigan,

Illinois Attorney General, the Office of the Attorney General, and the State of Illinois discriminated
against Plaintiff on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000 (“Title VII”) and on the basis of age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”).
4.

Newly added Count III alleges that the original three Defendants, plus Lisa Madigan,

individually, and four other senior members of the Office of the Attorney General, individually,
discriminated against Plaintiff on the basis of gender in violation of the Equal Protection Clause of
the United States Constitution. Newly added Count IV alleges that the original three Defendants,
plus Lisa Madigan, individually, and four other senior members of the Office of the Attorney
General discriminated against Plaintiff on the basis of age in violation of the Equal Protection Clause
of the United States Constitution
5.

Plaintiff’s Equal Protection claim for age discrimination in Count IV should be

dismissed because the ADEA is the exclusive federal remedy for age discrimination.
6.

Plaintiff’s Amended Complaint should be dismissed in its entirety because Plaintiff

fails to plead the prima facie elements for any claim and, if his pleadings are deemed sufficient,
Plaintiff pleads facts which demonstrate he is not entitled to relief.
7.

Plaintiff’s Equal Protection damages claims for age and gender discrimination in

Counts III and IV should be dismissed because the Defendants are entitled to qualified immunity.
8.

Plaintiff’s status as a former employee precludes his request for injunctive relief.

9.

Defendants move to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6)

because Plaintiff can state no set of facts that would permit him to recover.

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10.

Defendants incorporate the attached Memorandum in Support of their 12(b)(6)

Motion to Dismiss in support of this motion.
WHEREFORE, Defendants, LISA MADIGAN, Individually, ANN SPILLANE,
individually, ALAN ROSEN, individually, ROGER FLAHAVEN, individually, and DEBORAH
HAGAN, individually, pray that this Court enter an Order, pursuant to Federal Rule of Civil
Procedure 12(b)(6), dismissing with prejudice Plaintiff’s claims against them.

Respectfully submitted,
LISA MADIGAN, Individually, ANN SPILLANE,
Individually, ALAN ROSEN, Individually,
ROGER P. FLAHAVEN, Individually, and
DEBORAH HAGAN, Individually,

LISA MADIGAN
Attorney General

s/ Deborah J. Allen
DEBORAH J. ALLEN
Assistant Attorney General
100 West Randolph Street
13th Floor
Chicago, Illinois 60601
[phone]

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