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Levin v. Madigan

March 10, 2010

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.



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

MEMORANDUM OPINION AND ORDER

Plaintiff, Harvey Levin ("Levin" or "Plaintiff"), a former Senior Assistant Attorney General, brings an action against the State of Illinois, the Office of the Illinois Attorney General, Lisa Madigan, individually and in her official capacity as Attorney General, and four senior members of the Office of the Illinois Attorney General in their individual capacities (collectively, "Defendants"), alleging that his employment was terminated on the basis of his age and gender. Plaintiff's four-count complaint sets forth the following claims: age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 61 (Count I), sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count II), sex discrimination in violation of the equal protection clause of the 14th Amendment under 42 U.S.C. § 1983 (Count III), and age discrimination in violation of the equal protection clause of the 14th Amendment under 42 U.S.C. § 1983 (Count IV). Presently before this Court are three motions: (1) the individual Defendants' motion to dismiss [Dkt. 36], (2) the issues pending from the first motion to dismiss filed by Defendants Lisa Madigan, the Office of the Attorney General, and the State of Illinois [Dkt. 33], and (3) the second motion to dismiss filed by Defendants Lisa Madigan, the Office of the Attorney General, and the State of Illinois [Dkt. 58]. For the reasons stated below, the individual Defendants' motion to dismiss [Dkt. 36] is granted in part and denied in part, the entity Defendants' first motion to dismiss [Dkt. 33] is granted in part and denied in part, and the entity Defendants' second motion to dismiss [Dkt. 58], which the Court construes as a motion for reconsideration, is denied.

FACTUAL BACKGROUND*fn1

Plaintiff, Harvey Levin, a 62-year-old male, was employed as 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 September 5, 2000 by Patricia Kelly, the Chief of Consumer Protection, with the approval of Roger Flahaven, the Deputy Attorney General for Civil Litigation. In 2002, Levin was promoted to Senior Assistant Attorney General, the second lowest attorney position in the office.

Levin's job performance was more than satisfactory, and he consistently met or exceeded his employer's legitimate job expectations. On the last performance review prior to his termination, Levin received ratings of "Exceeds Expectations" in six of twelve categories and "Meets Expectations" in the remaining categories. Levin was replaced by a less qualified, substantially younger female. Around the same time that Levin was terminated, Defendants also terminated two other male Assistant Attorneys General who were over the age of 50 and whose work performances were satisfactory or better. Both were also replaced with younger, less qualified females.

Defendants filed their first motions to dismiss in November 2007, and in December 2007, this Court ordered the parties to address specifically whether, as a matter of law, an Assistant Attorney General is an "employee" under the ADEA and Title VII. On September 12, 2008, the Court held that Plaintiff was not exempt from employee status under either Title VII or the ADEA because he was not appointed by the Attorney General. Levin v. Madigan, No. 07 C 4765, 2008 U.S. Dist. LEXIS 84616, at *14 (N.D. Ill. Sept. 12, 2008). The Court now considers the remaining arguments in Defendants' initial motions to dismiss, as well as the second motion to dismiss filed by Defendants Lisa Madigan, Illinois Attorney General, the Office of the Attorney General, and the State of Illinois.

ANALYSIS

I. Defendants' Second Motion to Dismiss

The Court first addresses the second motion to dismiss filed by Defendants Lisa Madigan, Illinois Attorney General, the Office of the Attorney General, and the State of Illinois. Defendants move to dismiss Counts I and II of Plaintiff's complaint, which allege violations of Title VII and the ADEA, for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Title VII and the ADEA protect "employees" from unlawful employment practices, 42 U.S.C. § 2000e-2; 29 U.S.C. § 623(a), yet exclude from coverage elected officials and certain members of their staffs. See 42 U.S.C. § 2000e(f); 29 U.S.C. § 630(f). Defendants argue that, given the additional facts the Court may consider under their 12(b)(1) motion, Plaintiff is not an "employee" covered by Title VII or the ADEA. Plaintiff contends that the issue of whether a party is an "employee" under these statutes is not the proper subject of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The Court agrees.

In Arbaugh v. Y & H Corp., the United States Supreme Court held that the issue of whether a party is an "employer" under Title VII was an element of the party's claim for relief relating to the merits, not a jurisdictional requirement; therefore, that issue was not the proper subject of a 12(b)(1) motion to dismiss on jurisdictional grounds. 546 U.S. 500, 516 (2006). In reaching this decision, the Court reasoned that the provision of Title VII dealing with the definition of an "employer" "does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Id. at 515 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)) (internal quotation marks omitted). This observation led the Court to identify a "readily administrable bright line:"

If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as non-jurisdictional in character.

Id. at 515-16 (citation and footnote omitted).

Applying that rule here, Congress' failure to designate "employee" status as a threshold jurisdictional issue means that the Court should treat this restriction as non-jurisdictional. See id. Indeed, Congress included the definition of "employee" in the same section as the definition of "employer" at issue in Arbaugh, see 42 U.S.C. § 2000e(f), and "has not suggested that the definition of 'employee' has any greater jurisdictional significance than the definition of 'employer.'" Harris v. Attorney Gen. of the U.S., 657 F.Supp.2d 1, 8 (D.C. Cir. 2009); see also Xie v. Univ. of Utah, 243 Fed. Appx. 367, 371 (10th Cir. 2007) ("As with the fifteen-or-more employees requirement addressed in Arbaugh, there is no indication that Congress considered employee status to be a threshold jurisdictional requirement."). Accordingly, Arbaugh requires that the Court characterize Plaintiff's "employee" status as a question relating to the merits of his case rather than as a jurisdictional issue.

Defendants correctly point out that Plaintiff fails to identify a case from the Seventh Circuit or any district court in Illinois which holds specifically that the question of whether a party is an "employee" under Title VII or the ADEA is non-jurisdictional. Nor has the Court been able to find such a case. Nevertheless, based on the clear rule stated by the Supreme Court in Arbaugh, and its application by other circuits to identical facts, the Court holds that the question of Plaintiff's "employee" status is non-jurisdictional. Every circuit court to consider this issue has found accordingly. See Harris, 657 F.Supp.2d at 8 (applying Arbaugh and concluding that the "employee" requirement of Title VII is non-jurisdictional); Townsend v. Shook, 323 Fed. Appx. 245, 250 (5th Cir. 2009) ("we hold that application of Title VII's personal staff exclusion does not present a lack of subject matter jurisdiction issue") (footnote omitted); Xie, 243 Fed. Appx. at 371 ("in light of the Supreme Court's decision in Arbaugh, we now conclude that employee status is an element of Dr. Xie's Title VII claims rather than a matter of subject matter jurisdiction.") (footnote omitted). Because the issue of Plaintiff's "employee" status is non-jurisdictional, it is not the proper subject of a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

Instead of rejecting Defendants' motion outright, the Court construes this motion as a motion for reconsideration. Although Defendants suggest this alternative, they fail to cite a Federal Rule of Civil Procedure under which the Court may consider their motion for reconsideration. Typically, courts consider motions for reconsideration, which challenge the merits of a district court's decision, under either Rule 59(e) or Rule 60(b). See Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); Mitchell v. Bledsoe, No. 06-624-DRH, 2010 U.S. Dist. LEXIS 8778, at *1-2 (S.D. Ill. Feb. 2, 2010). Because Defendants failed to file this motion within the timeframe required by Rule 59(e),*fn2 the Court must analyze their motion under Rule 60(b). See Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009).

Relief from judgment under Rule 60(b) "is an extraordinary remedy granted only in exceptional circumstances." Pullen-Walker v. Roosevelt Univ., 263 Fed. Appx. 517, 518 (7th Cir. 2008) (citing Karraker v. Rent-A-Center, 411 F.3d 831, 837 (7th Cir. 2005)). Under Rule 60(b), courts may grant parties relief on several narrow grounds including mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud. See Fed. R. Civ. P. 60(b). However, "the rule is not intended to correct mere legal blunders," Cash v. Ill. Div. of Mental Health, 209 F.3d 695, 697 (7th Cir. 2000),and "[r]econsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir. 1996).

The basis for Defendants' motion is that a "manifest error of fact" caused the Court to conclude improperly that Plaintiff was an "employee" under Title VII and the ADEA. Defendants specifically challenge the Court's holding that Plaintiff was not appointed by an elected official and therefore failed to fall within the provisions excluding elected officials and their personal staff members from the protection of Title VII and the ADEA. See 42 U.S.C. § 2000e(f); 29 U.S.C. § 630(f). According to Defendants, Plaintiff misrepresented the facts necessary to the Court's consideration of whether Plaintiff was appointed by an elected official (namely, Attorney General James Ryan). However, Defendants fail to provide evidence that supports this serious allegation. Instead, Defendants essentially repackage the same arguments already considered and rejected by this Court. In that vein, Defendants' motion revolves around several documents they claim indicate Plaintiff's acknowledgment that he was appointed by the Attorney General. These documents consist of a form Plaintiff signed, which is entitled "Attorney General's Rules of Professional Conduct Compliance Statement Form" and states that Plaintiff was "duly appointed to serve by Attorney General Jim Ryan," and two "certificates of appointment" in Plaintiff's name-one issued under Attorney General Ryan's tenure, and another issued by Attorney General Lisa Madigan when she took office. Quoting from these exact documents in support of their first motion to dismiss, Defendants pointed out that "[t]he certificate states that Harvey Levin 'has been appointed Assistant Attorney General and is authorized and empowered to execute and fulfill the duties of that Office according to the law, and to have and to hold the said Office, with all of the powers, privileges, and emoluments thereunto appertaining during the pleasure of the Attorney General.'" (R. 52, Defs' Reply Br. in Supp. of Defs' First Mot. to Dismiss at 8-9.)

Invoking the same "certificates of appointment" again here, Defendants argue that these documents demonstrate that Plaintiff misled the Court by claiming that he was not appointed by Attorney General James Ryan and by offering evidence that he was hired by Patricia Kelly, the Chief of Consumer Protection, with the approval of Roger Flahaven, Deputy Attorney General of Civil Litigation. However, Defendants neither present new arguments nor offer any evidence that Plaintiff was not in fact hired by Patricia Kelly, without any participation by Attorney General James Ryan. Perhaps Defendants take issue with the Court's legal conclusion that Plaintiff was "appointed" by the individuals who hired him, not by the Attorney Generals whose names formally appear on his certificates of appointment. However, a Rule 60(b) motion is not the proper vehicle for a challenge to the Court's legal analysis. See Cash, 209 F.3d at 697. Defendants have failed to demonstrate that exceptional circumstances justify the extraordinary remedy of relief under Rule 60(b), and their motion for reconsideration is therefore denied.

II. Defendants' Initial Motions to Dismiss

The Court now turns to the initial motions to dismiss ...


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