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Bervid v. Alvarez

August 20, 2009

PAUL ANTHONY BERVID, PLAINTIFF,
v.
ANITA ALVAREZ, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES; RICHARD A. DEVINE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; ROBERT J. MILAN, IN HIS INDIVIDUAL CAPACITY; ADRIENNE D. MEBANE, IN HER INDIVIDUAL CAPACITY; THE OFFICE OF THE STATE'S ATTORNEY OF COOK COUNTY, AN AGENCY OF THE STATE OF ILLINOIS; THE COUNTY OF COOK, AN ILLINOIS MUNICIPAL CORPORATION, BODY POLITIC AND UNIT OF LOCAL GOVERNMENT DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff brought a two count complaint seeking monetary damages and injunctive relief for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626 ("ADEA") (count I), and in violation of the equal protection clause of the Fourteenth Amendment under 42 U.S.C. § 1983 ("§ 1983") (count II).*fn1 Plaintiff claims to have been unlawfully terminated from his employment as an Assistant State's Attorney ("ASA") with defendant Office of the State's Attorney of Cook County ("OSA" or the "Office"), and that the remaining defendants participated in his termination. Defendants have moved to dismiss the complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, the motion is granted.

I.

According to the allegations in the complaint, plaintiff began as an ASA with the Office in June of 1993. On or about June 14, 2006, defendant Devine observed, in the course of a meeting with plaintiff, that some ASAs were "retired but coming to work every day" and stated that he was going to cut the older, "dead wood" to make room for the advancement of the younger attorneys.

In December 2006, in response to budget reductions, Devine circulated a memorandum to all ASAs, in which he stated that if personnel cuts became necessary, the cuts would be based on performance evaluations. Throughout his employment at OSA, plaintiff consistently received ratings of "highly qualified" or "qualified" on all of his performance evaluations, and for the last three years in which he was evaluated, he received ratings of "highly qualified" in every category. Nevertheless, at a meeting on February 16, 2007 (at which none of the individual defendants was present), plaintiff was informed, without explanation, that he would be terminated effective March 2, 2007. Plaintiff was forty-seven years old at the time. He claims that a total of forty-three ASAs were terminated on that date, of whom twenty-eight were over age forty.

Plaintiff appealed his termination pursuant to the review process explained to him at the February 16 meeting. On or about April 11, 2007, plaintiff received a telephone call from Gerald Nora, Executive Assistant for Policy, who told plaintiff that "the Defendants had made a mistake and that Plaintiff would be rehired." Two weeks later, plaintiff received a letter stating substantially the same information. Thereafter, plaintiff made three telephone calls in attempt to have his employment reinstated; but messages he left were not returned, and plaintiff was not rehired.

On or about July 26, 2007, plaintiff filed a complaint against ASA with the Illinois Department of Human Rights and the United States Equal Employment Opportunity Commission. He received a "right to sue" letter from the EEOC on September 11, 2008.

Plaintiff asserts that at the time defendants terminated him, they were planning to hire as many as seventy new attorneys in 2007, "who would be cheaper than the experienced attorneys like Plaintiff and those being terminated in March 2007." Plaintiff alleges that in fact, OSA hired thirty new attorneys in May of 2007, all of whom were under age forty, and by the end of 2007, defendants had hired over seventy new ASAs. All but five of the new hires were under age forty, and the majority "were paid far less" than the terminated ASAs. Between May and July of 2007, however, OSA paid "parity raises" to "almost" every ASA then employed by the Office (amounting to as much as $6,000 per year per person), and in August of 2007, the Cook County Board granted cost of living increases to many employees, including ASAs.*fn2

Plaintiff claims that the "so called budget crisis" that prompted the March 2007 terminations was a "subterfuge," since defendants knew at the time of plaintiff's termination that ASAs at the Office would be receiving pay increases. Plaintiff also claims that he was not hired personally or directly by any State's Attorney; that his age was a factor in the decision to terminate him; that defendants discriminated against him intentionally and maliciously; and that he suffered damages as a result.

Defendants raise a number of arguments in their motion to dismiss. First, they contend that plaintiff was not an "employee" as that term is defined in ADEA and thus does not fall within the scope of the statute's protections. On this basis, defendants seek dismissal of plaintiff's ADEA claim in its entirety. Defendants also argue that because ADEA does not provide for individual liability, even if plaintiff were deemed an employee under the statute, his claim must be dismissed against the individual defendants.

As to plaintiff's equal protection claim under § 1983, defendants argue that plaintiff has pled himself out of this claim by alleging facts that demonstrate defendants had a rational basis for his termination, which is all that is required to survive constitutional scrutiny. In other words, defendants argue that on its face, the complaint shows that plaintiff suffered no constitutional violation. Defendants also argue that in any event, qualified immunity shields them from liability for the putative violation and that the complaint fails to plead that the individual defendants acted with the requisite intent to deprive plaintiff of a constitutional right. Finally, defendants argue that Cook County should be dismissed from the case because the complaint contains insufficient factual matter to support liability against this defendant.

II.

A motion to dismiss tests the sufficiency of a complaint, not its merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In resolving a motion under Rule 12(b)(6), I must accept all well-pleaded allegations in the complaint as true and consider the facts in the light most favorable to the plaintiff. Americanos v. Carter, 74 F.3d 138, 140 (7th Cir. 1996). The plaintiff must, nevertheless, allege sufficient factual material ...


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