Harvey Levin v. Lisa Madigan
2012 U.S. App. LEXIS 17291
| 7th Cir. | 2012Background
- Levin, age 55 at hire as Assistant Attorney General in Sept. 2000, was terminated May 12, 2006; he sues the State of Illinois, the Office of the Illinois Attorney General, and several officials alleging ADEA, Title VII, and §1983 claims.
- Levin alleges age and gender discrimination in termination and that younger, often female, replacements were hired.
- Two groups of defendants: Entity Defendants (state officials) and Individual Defendants (Madigan and four aides); only the Individual Defendants appealed.
- District court denied qualified immunity on Levin’s §1983 age-discrimination claim; Coar previously found ADEA not exclusive and denied immunity on that basis.
- Levin’s performance reviews reportedly show consistency with expectations; defendants claim termination due to productivity, socializing, litigation skills, and judgment, with termination affecting Levin and two older colleagues.
- Levin followed the ADEA’s EEOC charging process and then sought damages; question presented includes whether ADEA precludes §1983 claims and whether qualified immunity applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the ADEA preclude §1983 equal protection claims? | Levin argues ADEA exclusivity bars §1983 claims. | Individual Defendants argue ADEA precludes §1983 equal protection claims. | No preclusion; §1983 claim may proceed. |
| Is the ADEA the exclusive remedy for age discrimination claims against state actors? | Levin contends ADEA is exclusive; precludes §1983. | Defendants contend exclusivity applies. | ADEA not exclusive remedy; §1983 claim remains viable. |
| Whether the district court’s denial of qualified immunity on the §1983 claim is proper given established law? | Levin need not show broader remedy preclusion to defeat immunity. | Defendants argued potential lack of clearly established right. | Right to be free from age discrimination under Equal Protection clearly established; immunity denied. |
| Is the Seventh Circuit jurisdictional issue over preclusion intertwined with qualified immunity review? | Levin challenges appellate jurisdiction over the preclusion issue. | Responds that jurisdiction is proper due to the collateral order and related rulings. | Appellate jurisdiction acknowledged; preclusion issue review retained. |
| Does the ADEA's remedial scheme permit damages that §1983 could provide for constitutional claims? | Allowing §1983 damages would undermine ADEA scheme. | The remedy structure may not preclude §1983. | ADEA preclusion not supported; §1983 damages available for constitutional claims. |
Key Cases Cited
- Sea Clammers, United States v. Middlesex County Sewerage Auth., 453 U.S. 1 (U.S. 1981) (comprehensive remedial schemes may preclude §1983 claims when appropriate)
- Ranchos Palos Verdes, City of v. Abrams, 544 U.S. 113 (S. Ct. 2005) (private remedies and expedited review limit §1983)
- Smith v. Robinson, 468 U.S. 992 (S. Ct. 1984) (EHA exclusive remedy for constitutional claims in education rights)
- Preiser v. Rodriguez, 411 U.S. 475 (S. Ct. 1973) (habeas remedies may foreclose §1983 in special contexts)
- Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (S. Ct. 2009) (congressional intent governs preclusion; Title IX not preclusive of §1983)
- Kimel v. Florida Bd. of Regents, 528 U.S. 62 (S. Ct. 2000) (age discrimination not suspect class; but constitutional rights can be violated)
- Zombro v. Baltimore City Police Department, 868 F.2d 1364 (4th Cir. 1989) (ADEA exclusive remedy or not; circuit split on preclusion)
- Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051 (9th Cir. 2009) (supports non-preclusion view; contrast with others)
- Wilkie v. Robbins, 551 U.S. 537 (S. Ct. 2007) (jurisdiction over qualified immunity issue on interlocutory appeal)