Levin v. Madigan et al

Filing 37

MEMORANDUM by Lisa Madigan, Ann Spillane, Alan Rosen, Roger P Flahaven, Deborah Hagen in support of motion to dismiss 36 and Exhibits A - E (Attachments: # 1)(Allen, Deborah)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HARVEY N. LEVIN,

)
)
Plaintiff,
)
)
v.
)
)
LISA MADIGAN, Individually and as
)
Illinois Attorney General, OFFICE OF
)
THE ILLINOIS ATTORNEY GENERAL,
)
THE STATE OF ILLINOIS, ANN SPILLANE, )
individually, ALAN ROSEN, individually,
)
ROGER P. FLAHAVEN, individually and
)
DEBORAH HAGAN, individually,
)
)
Defendants.
)

No. 07 C 4765
Hon. David H. Coar,
Judge Presiding

THE INDIVIDUAL DEFENDANTS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR 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 for
their Memorandum in support of their Motion to Dismiss Plaintiff’s Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6), state as follows:
I. INTRODUCTION
Harvey Levin (“Plaintiff”), a former Senior Assistant Attorney General, filed a four-count
Amended Complaint against the Office of the Attorney General, Lisa Madigan, individually and in
her official capacity, the State of Illinois, and four senior members of the Office of the Attorney
General, in their individual capacities, alleging that his employment as an Assistant Attorney General

was “terminated”1 due to his age and gender. See Plaintiff’s Amended Complaint attached hereto
as Exhibit “A” at ¶ 9. Plaintiff’s Amended Complaint pleads claims under the ADEA, Title VII and
the Equal Protection Clause. See Exhibit A.
Plaintiff previously filed a Complaint naming only Lisa Madigan, Illinois Attorney General,
the Office of the Attorney General, and the State of Illinois as Defendants. See Plaintiff’s original
Complaint attached hereto as Exhibit “B”. The original Complaint pleaded only claims under the
ADEA and Title VII. Relying on Seventh Circuit precedent holding, as a matter of law, that
Assistant Attorneys General are not employees covered under either act, Defendants moved to
dismiss Plaintiff’s Complaint.

Plaintiff responded to Defendant’s motion by amending his

Complaint to add four senior members of the Office of the Attorney General (as well as the Attorney
General herself) as defendants and pleading that each individual willfully and intentionally ended
Plaintiff’s employment simply because Plaintiff is a male over the age of forty. See Exhibit A,
Counts III and IV. Plaintiff also added a lengthy, additional paragraph to Counts I and II which
attempts to plead around the Seventh Circuit’s dispositive holding. See Exhibit A, Counts I and II,
¶ 25. This additional paragraph, taken as true for purposes of this motion, pleads that Plaintiff, as
a Senior Assistant Attorney General with more than thirty years of legal experience, never exercised
independent judgment, never acted unless directed to do so and once directed to perform even the
most menial task, would not act unless his words and actions were scripted by others. Id. Despite
his attempt, Plaintiff’s Amended Complaint does not cure the defects in his original Complaint and
does not plead any claims for which Defendants can be liable in this forum.

1

In fact, Plaintiff resigned and the Office of the Attorney General’s records reflect a
resignation by Plaintiff.
2

Count III of Plaintiff’s Amended Complaint, brought pursuant to 42 U.S.C. § 1983, alleges
that the individual Defendants discriminated against Plaintiff on the basis of gender in violation of
the Equal Protection Clause. Count IV, also brought pursuant to 42 U.S.C. § 1983, alleges that the
individual Defendants discriminated against Plaintiff on the basis of age in violation of the Equal
Protection Clause. Plaintiff’s Equal Protection claim for age discrimination should be dismissed
because the ADEA is the exclusive federal remedy for claims of age discrimination. In addition,
Plaintiff’s Equal Protection damages claims for age and gender discrimination should be dismissed
because, based upon the allegations, Defendants are entitled to qualified immunity. Further,
Plaintiff’s Amended Complaint should be dismissed 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. Plaintiff’s status as a former employee, moreover, precludes
his request for injunctive relief.
II. LEGAL STANDARD
When considering a Motion to Dismiss under Rule 12(b)(6) the Court must accept as true
all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.
Pickrel v. City of Springfield, 45 F.3d 1115 (7th Cir. 1995). The Court will dismiss a Complaint
under Rule 12(b)(6) if it appears the plaintiff has not alleged facts that would entitle him to relief.
See Conley v. Gibson, 335 U.S. 41 (1957).
The Supreme Court has recently commented on the pleading standard in Federal Courts,
stating that while “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations,... a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]’ to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
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action will not do.” Bell Atlantic Corp. v. Twombly , 127 S.Ct. 1955, 1964-65 (2007) (quoting
Papasan v. Allain, 478 U.S. 265 (1986) (citation omitted)).
III. ARGUMENT
A.

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.

Count IV of Plaintiff’s Amended Complaint alleges age discrimination in violation of 42
U.S.C. § 1983. Count IV, however, should be dismissed because claims of age discrimination may
not be brought pursuant to § 1983. Every Circuit Court that has directly considered this issue has
concluded that the ADEA is the exclusive federal remedy for age discrimination.2 See Zombro v.
Baltimore City Police Dept., 868 F.2d 1364, 1368-70 (4th Cir. 1989); Migneault v. Peck, 158 F.3d
1131, 1140 (10th Cir. 1998), abrogated on other grounds by Kimel v. Florida Board of Regents, 528
U.S. 62 (2000); Lafleur v. Texas Dept. Of Correctional Services, 126 F.3d 758, 760 (5th Cir. 1997).
A §1983 action may be precluded when the remedial devices of a particular statute are
sufficiently comprehensive so as to demonstrate congressional intent to preclude such a remedy.
Middlesex County Sewerage Auth. v. Natl. Sea Clammers Assn., 453 U.S. 1, 20 (1981). In a detailed
analysis, the Fourth Circuit examined the ADEA and determined that it provides “a comprehensive
statutory scheme to prohibit discrimination in employment on the basis of age.” Zombro, 868 F.2d
at 1366.
Zombro brought a § 1983 and § 1985 suit against his employer and the Baltimore City Police
Commissioner following an involuntary transfer. Zombro was a police officer with the Baltimore
2

The Seventh Circuit has not ruled on the question, but one court in the Northern District
has held that “Congress intended the ADEA to be the exclusive remedy for age discrimination in
federal employment.” Christie v. Marston, 451 F.Supp. 1142, 1145 (N.D.Ill. 1978).
4

City Police Department. He was assigned to the Inner Harbor Tactical Division until March, 1986
when he was involuntarily transferred to another unit. Zombro alleged the transfer was the result
of impermissible age discrimination and conspiracy. Zombro’s supervisor said Zombro was
transferred because of his poor attitude and “harsh demeanor” with visitors and merchants. Id. at
1365. Zombro did not pursue his rights under the ADEA. Instead, he elected to pursue individual
liability against the Police Commissioner for violation of the Equal Protection Clause. The District
Court granted judgment in favor of defendants as a matter of law.
The Fourth Circuit Court of Appeals affirmed, but for reasons different than those relied upon
by the District Court. In its review, the Fourth Circuit sua sponte considered, and decided, whether
age discrimination claims brought pursuant to § 1983 are preempted by the ADEA. The Fourth
Circuit found preemption because the remedial devices of the ADEA were sufficiently
comprehensive so as to demonstrate congressional intent to preclude such a remedy. Id. at 13661370.
The ADEA has a comprehensive remedial scheme structured to “facilitate and encourage
compliance through an informal process of conciliation and mediation.” Id. at 1366. It requires
administrative charges and notice to the EEOC, deadlines, fact-finding, hearings and conciliation
mechanisms. 29 U.S.C. §§ 201-219 (1994). It empowers the fact-finding agency to investigate and
collect data, to inspect workplaces and question employees. 29 U.S.C. § 211. And it provides the
EEOC, which administers the ADEA, the opportunity to file suit if it believes a violation exists. 29
U.S.C. § 626 (c).
If a plaintiff were allowed to proceed directly with a § 1983 claim, “the congressional scheme
behind ADEA enforcement could easily be undermined, if not destroyed.” Zombro, 868 F.2d at
5

1367. Indeed, one must assume that is why a plaintiff proceeds under § 1983, to bypass an
unfavorable result required by the ADEA. Id.
Here, as demonstrated in Co-Defendants’ Motion to Dismiss, Plaintiff is not an “employee”
entitled to the ADEA’s protection. Because of that, he is foreclosed from bringing suit under the
ADEA. Once that result became apparent to him, Plaintiff filed this Amended Complaint,
attempting a §1983 claim against the five individual defendants. Simply because the ADEA
provides him no relief, however, does not mean that Plaintiff must be allowed to pursue an Equal
Protection Claim. “[T]he comprehensiveness of the ADEA, or of any enactment, is not diminished
by the fact that the scheme may not provide every imaginable remedy or create a basis for every
imaginable claim.” “Alone in its Field: Judicial Trend3 to Hold That the ADEA Preempts § 1983
in Age Discrimination in Employment Cases,” 29 Stetson L.Rev. 573, 588 (2000), a copy of which
is attached as Exhibit “C.” For these reasons, Defendants request that Count IV be dismissed.
B.

Plaintiff’s Amended Complaint Should Be Dismissed Because
Plaintiff Fails To Plead The Prima Facie Elements For Any
Claim. If His Pleadings Are Deemed Sufficient, Plaintiff Pleads
Facts Which Demonstrate He Is Not Entitled To Relief.

To prevail on his disparate treatment claims under the Equal Protection Clause, Plaintiff must
demonstrate: (1) that he is a member of a protected class; (2) that he is similarly situated to members
of the protected class; (3) that he suffered an adverse employment action; (4) that he was treated
differently from members of the unprotected class; and (5) that his employer acted with
discriminatory intent. McPhaul v. Board of Commissioners of Madison County, 226 F.3d 558, 564
3

The trend holding that the ADEA is the exclusive federal remedy for age discrimination
claims is continuing. See e.g., Barlieb v. Kutztown Univ. Of the Penn. State System of Higher
Education, et al., 2003 WL 22858575 (E.D.Pa. December 1, 2003); Marr v. Anderson, 2007 WL
2363116 (D.Nev. August 15, 2007), copies of which are attached as Exhibit “D.”
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(7th Cir. 2000). To show that a supervisor acted with discriminatory intent, Plaintiff must show that
the supervisor acted or failed to act with a “nefarious discriminatory purpose,” and discriminated
against him because of his membership in a definable class. Id. In pleading his claims, the Federal
Rules of Civil Procedure require Plaintiff to provide a “short and plain statement of the claim”
showing [he] “is entitled to relief.” Fed.R.Civ.Pro. 8(a)(2). The claim must be supported with
enough facts, taken as true, that plausibly suggest that the plaintiff is entitled to relief. See Bell Atl.
Corp. v. Twombly, 550 U.S. ____, 127 S.Ct. 1955, 1965 (2007). Plaintiff does not need to plead
detailed factual allegations, but his “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id. at 1964-65.
The Honorable Judge Shadur recently found unsupported references to “racial targeting” and
“race discrimination” and “maliciously & racially” to be “skeletal and purely conclusory
characterizations” insufficient to demonstrate the jurisdiction of the Court and the Complaint’s
viability. Jackson v. Casey, 07 C 5348 (N.D.Ill. Sept. 25, 2007). A copy of the Opinion is attached
as Exhibit E. Plaintiff’s Amended Complaint here suffers the same defects.
In his Amended Complaint Plaintiff repeatedly contends that the individual Defendants
“intentionally” or “knowingly and intentionally” or “maliciously and intentionally” terminated
Plaintiff’s employment “because of his sex and age.” See e.g. Exhibit A, Counts III and IV, ¶ 17,
19, 21, 25. Plaintiff makes no direct allegations of such discrimination and the only “fact”(rather
than conclusions) he pleads to support his claims is the alleged dismissal of two other male Assistant
Attorneys General over the age of forty. See e.g., Exhibit A, Counts III and IV, ¶ 17.

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The Office of the Attorney General, according to the Plaintiff’s Amended Complaint, has in
excess of five hundred (500) employees. See Exhibit A, Counts I and II, ¶ 4. Plaintiff’s bare
mention of two male Assistant Attorneys General, out of more than five hundred other persons, does
not suggest discrimination as Plaintiff would have this Court believe. Nor does that minuscule
number hint at a pattern or practice by the Defendants. Plaintiff simply has nothing more than his
conclusory statements and such are not sufficient to continue his claim in this Court.4
Plaintiff is also improperly attempting to impute respondeat superior liability on the other
individual supervisory defendants based upon the allegations against Defendant Hagan. Counts III
and IV plead that Defendant Hagan preferred that all Assistant Attorneys General be young women,
that Hagan refused to even read resumes from male applicants and that Hagan urged the individual
Defendants to terminate Plaintiff’s employment simply because Plaintiff is a male over the age of
forty. See Exhibit A, Counts III and IV, ¶ 14-17. There is, however, no respondeat superior liability
under § 1983. Whitman v. Nesic, 368 F.3d 931, 935 fn. 2 (7th Cir. 2004).
Plaintiff’s Amended Complaint should be dismissed for an additional reason. In pleading
his claim, a plaintiff can plead himself out of court by alleging facts which show he has no claim.
Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995). If plaintiff “pleads facts that show his
suit is time-barred or otherwise without merit, he has pleaded himself out of court.” Tregenza v.
Great Am. Commc’ns Co., 12 F.3d 717, 718 (7th Cir. 1993). Here, in attempting to plead around CoDefendants’ original Motion to Dismiss, Plaintiff has pleaded himself out of court.

4

Plaintiff’s claims are equally doomed because he fails to provide any fact, hint or tidbit
as to any similarly situated employee outside his protected class who was treated more favorably,
as is his burden.
8

In Count I of his Amended Complaint, Plaintiff pleads, in great detail, alleged “facts”about
his performance of his duties as a Senior Assistant Attorney General. These facts, taken as true for
purposes of this motion, amount to judicial admissions, see Keller v. United States, 58 F.3d 1194,
1198 n.8 (7th Cir. 1993), and show that Plaintiff, a Senior Assistant Attorney General, had to be told
which cases to file, prosecute, defend and settle. See Exhibit A, at Count I, ¶ 25 (e). The Amended
Complaint shows that Plaintiff, a Senior Assistant Attorney General with more than thirty years of
legal experience, had to be told what words, sentences and phrases to use in a lawsuit or the
resolution of a lawsuit. See Exhibit A, at Count I ¶ 25 (f). The Amended Complaint also shows that
Plaintiff, a Senior Assistant Attorney General, would not use his independent judgment to make
prosecutorial and other litigation decisions. See Exhibit A, at Count I ¶ 25 (m).
The Amended Complaint demonstrates that Plaintiff was not satisfactorily performing his
job. The facts show that Plaintiff was not performing his job at all and others were having to make
the Plaintiff’s decisions for him and script his actions. Common sense and the Plaintiff’s own
pleadings, then, demonstrate that Plaintiff was not meeting his employer’s legitimate expectations
and his “termination” was justified based on his non-performance of his job duties. Thus, at best,
even if the conclusory allegations in Plaintiff’s Amended Complaint are to be given any weight,
Plaintiff’s claims fail because he cannot prove that Defendants’ actions were taken because of his
age and sex, instead of his failure to perform his job satisfactorily.

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C.

Plaintiff’s Equal Protection Damages Claims For Age And
Gender Discrimination Should Be Dismissed Because The
Defendants Are Entitled To Qualified Immunity.

Plaintiff seeks, among other things, more than five hundred thousand dollars ($500,000) from
each individual Defendant in compensatory and punitive damages. See Exhibit A, pages 20 and 23.
Under the doctrine of qualified immunity, “government officials performing discretionary functions,
generally are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Behrens v. Pelletier, 516 U.S. 299, 304
(1996). The burden is on the plaintiff to prove , not the defendant official to disprove, the existence
of a clearly established right. Davis v. Sherer, 468 U.S. 183, 197 (1984); Kernats v. O’Sullivan, 35
F.3d 1171, 1176 (7th Cir. 1994). A plaintiff can meet this burden only by citing “closely analogous
cases” decided prior to the defendants’ challenged actions which clearly and consistently recognize
the right forming the basis of the cause of action. Upton, 930 F.2d 1209, 1212 (7th Cir. 1991) citing
Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir. 1988).
In determining whether a right is clearly established, the Supreme Court has admonished that
“[t]he contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right . . . [I]n light of the pre-existing law the unlawfulness must
be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[T]he test for immunity should
be whether the law was clear in relation to the specific facts confronting the public official when he
acted.” Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987).
Once a defendant asserts qualified immunity, plaintiff has the burden of showing that the law
was clearly established at the time of the challenged conduct. Perry v. Sheehan, 222 F.3d 309, 315
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(7th Cir. 2000). It is not enough to cite a constitutional right at a high level of generality, for
example, by saying that the plaintiff has the right to equal treatment or the right to be free from
vindictive treatment. The right must be sufficiently particularized, based on existing cases. Closely
analogous cases are required to find that a constitutional right is clearly established. Rakovich, 850
F.2d 1209.
Here, as demonstrated in section A above, Defendants are entitled to qualified immunity
because Plaintiff has not alleged and cannot establish that, at the time of his separation from the
Office of the Attorney General, age discrimination in employment was a cognizable claim under the
Equal Protection Clause. See e.g., Migneault v. Peck, 158 F.3d 1131, 1140 (10th Cir. 1998),
abrogated on other grounds by Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). Indeed, the
majority of case law holds that there is no such right.
Nor has Plaintiff established a cognizable claim for either age discrimination or gender
discrimination under the Equal Protection Clause because he pleads that he is not performing his job
to his employer’s legitimate expectations - indeed, where he pleads he is not even performing his job
at all. See section B, above. Certainly Plaintiff cannot claim a constitutional right to be free from
termination for failing to satisfactorily perform his job duties. And since no such argument can be
made, and no such right can be shown to exist, Defendants are immune from such a claim.
Finally, the novelty of Plaintiff’s § 1983 claims becomes more apparent in Plaintiff’s attempt
to impute respondeat superior liability on the other supervisory individual Defendants, based on the
allegations against Defendant Hagan. Counts III and IV plead that Defendant Hagan preferred that
all Assistant Attorneys General be young women, that Hagan refused to even read resumes from
male applicants and that Hagan urged the individual Defendants to terminate Plaintiff’s employment
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simply because Plaintiff is a male over the age of forty. See Exhibit A, Counts III and IV, ¶ 14-17.
Such conclusory, and unsupported, contentions fail to meet Plaintiff’s burden under § 1983.
Mateau-Anderegg v. School Dist. Of Whitefish Bay, 304 F.3d 618, 623 (7th Cir. 2002). Defendants
thus respectfully request that Plaintiff’s Amended Complaint be dismissed.
D.

Plaintiff’s Status As A Former Employee Precludes His Request
For Injunctive Relief.

Plaintiff brings the Amended Complaint for, among other things, matters concerning
injunctive and declaratory relief. “[T]he basic requisites of the issuance of equitable relief . . .
[includes] the likelihood of substantial and immediate reparable injury, . . . “ City of Los Angeles v.
Lyons, 461 U.S. 95, 103 (1983) (citation omitted). Plaintiff concedes that he no longer works for
the Defendants. See Exhibit A, ¶ 9. Therefore, no plausible inference can arise that Plaintiff is likely
to be the victim of Defendants’ alleged misconduct in the future. As such, his prayers for declaratory
and injunctive relief should be stricken.5

5

Ex parte Young, 209 U.S. 123 (1908), allows Plaintiff to pursue his claim for
reinstatement, as that is a prospective remedy. However, Plaintiff cannot even pursue that
remedy against the individual Defendants for none of them, as individuals, would have the
authority to reinstate Plaintiff. Any reinstatement would have to be made by the Office of the
Attorney General or the Attorney General, in her official capacity. Thus, injunctive relief against
the individual Defendants is not a proper request.
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IV. CONCLUSION
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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