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Levin v. Madigan

September 12, 2008


The opinion of the court was delivered by: Honorable David H. Coar


Plaintiff Harvey Levin ("Plaintiff"), a former Senior Assistant Attorney General, filed a four-count complaint alleging discrimination on the basis of age and sex by the following Defendants: the Office of the Illinois Attorney General; the State of Illinois; Lisa Madigan, acting in her official capacity as the Illinois Attorney General; and individual defendants Lisa Madigan, Ann Spillane, Alan Rosen, and Roger Flahaven. Plaintiff's Complaint sets forth the following claims: Age Discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 in Count I; Sex Discrimination under Title VII, 42 U.S.C. § 2000 in Count II; Discrimination based on Sex in violation of Equal Protection, 42 U.S.C. § 1983 in Count III; and Discrimination based on Age in violation of Equal Protection, 42 U.S.C. § 1983 in Count IV. Before this Court now brought by the Office of the Attorney General, the State of Illinois, and Attorney General Madigan (collectively "Defendants") is a motion to dismiss Counts I and II of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendants' motion to dismiss Counts I and II is DENIED.


Plaintiff was a Senior Assistant Attorney General in the Consumer Fraud Bureau of the Illinois Attorney General's Office at the time of his termination on May 12, 2006. He was hired as an Assistant Attorney General on or about September 5, 2000, by Patricia Kelly, the Chief of Consumer Protection, with the approval of Roger Flahaven, the Deputy Attorney General for Civil Litigation. (Pl.'s Resp. to Defs.' Motion to Dismiss Ex. A, ¶ 7.) In 2002, he was promoted to Senior Assistant Attorney General, the second lowest attorney position in the Office.

Plaintiff is a sixty-two-year-old man. His job performance was more than satisfactory and he consistently met or exceeded his employer's legitimate job expectations. On his last performance rating prior to his termination, he received a rating of "Exceeds Expectations" in six of twelve categories and "Meets Expectations" in the remaining categories. Plaintiff was replaced with a substantially younger and less qualified woman. In May 2006, Defendants also terminated two male Assistant Attorneys General over the age of 50 in the Consumer Fraud Bureau and replaced them with less qualified, younger females.

According to the job description of a Senior Assistant Attorney General in the Illinois Attorney General's Office, "A Senior Assistant Attorney General conducts complex legal research and represents the Attorney General in legal proceedings as assigned. The Senior Assistant Attorney General shall independently make prosecutorial and other litigation decisions. He or she shall prepare and try cases in various courts, interview witnesses, prepare motions and conduct research for future trials."*fn2

Plaintiff did not serve on the Attorney General's personal staff, did not advise or personally report to the Attorney General, and did not have direct contact with the Attorney General during the performance of his job duties. Plaintiff had no authority to decide what lawsuits were filed or how they were resolved. The positions he occupied were career positions that did not coincide with the terms of office of the Attorney General.


To satisfy federal pleading standards, a plaintiff need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief," sufficient to provide the defendant with "fair notice" of the claim and its basis. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Although, as Defendants point out, under Bell Atlantic, a complaint requires more than "labels and conclusions," id. at 1964-65, the Seventh Circuit has emphasized that Bell Atlantic "did not . supplant the basic notice pleading standard." Tamayo v. Blagojevich, No. 07-2975, 2008 WL 2168638, at *8 (7th Cir. May 27, 2008). In employment discrimination cases, a complaint must merely "give the defendant sufficient notice to enable him to begin to investigate and prepare a defense." Id. at *8.


Plaintiff alleges in Counts I and II of his Complaint that Defendants terminated his employment because of his age and sex in violation of Title VII and the ADEA. Under both statutes, a person who brings suit against an employer over an unlawful employment practice must be an "employee." 42 U.S.C. § 2000(e)(5); 29 U.S.C. § 623(a). Defendants argue that Plaintiff's ADEA and Title VII claims must be dismissed because Plaintiff is not an employee within the meaning of either statute.

Both Title VII and the ADEA define an employee as any person employed by an employer, with the following exemption for elected officials and certain members of their staff:

[T]he term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.

42 U.S.C. § 2000e(f); 29 U.S.C. § 630(f) (emphasis added). Defendants argue that Plaintiff falls within this exemption because he is "an appointee on the policy making level." Therefore, they contend, he cannot bring this action for employment discrimination. The language of the elected officials exemption raises two questions for this court: the first is whether Plaintiff's position was "on the policy making level" and the second is whether the fact that ...

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