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Harvey Levin v. Lisa Madigan

July 12, 2011


The opinion of the court was delivered by: Judge Edmond E. Chang


Plaintiff Harvey Levin brings an action against the State of Illinois, the Office of the Illinois Attorney General, Lisa Madigan, individually and in her official capacity as Illinois 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. Levin's complaint sets forth the following claims: age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 (Count 1); sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (Count 2); sex discrimination in violation of the equal protection clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (Count 3); and age discrimination in violation of the equal protection clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (Count 4). Despite their occasionally overlapping strategies, Defendants split into two groups in defending this lawsuit: (1) Lisa Madigan, in her official capacity as Illinois Attorney General, the Office of the Illinois Attorney General, and the State of Illinois (the "Entity Defendants"); and (2) Lisa Madigan as an individual, Ann Spillane, Alan Rosen, Roger Flahavan, and Deborah Hagan (the "Individual Defendants"). Both sets of defendants move for summary judgment on all of Levin's claims [R. 178, 191]. For the reasons stated below, Defendants' motions for summary judgment are granted in part and denied in part consistent with this opinion.



Harvey Levin, a 66-year-old male, began his employment as an Assistant Attorney General in the Office of the Illinois Attorney General (OIAG) on September 5, 2000. R. 183, 199, Defs.' Statement of Facts (DSOF)*fn1 ¶ 4; R. 228, Pl.'s Statement of Additional Facts (PSOF) ¶¶ 1-2. Levin was 55 years old at the time he was hired by the OIAG. DSOF ¶ 6. He had over thirty years of legal experience, primarily in the insurance defense field. DSOF ¶ 13. Levin was assigned to work in the Consumer Fraud Bureau in Chicago, which is one of the six bureaus within the Consumer Protection Division. DSOF ¶ 10. Assistant Attorneys General in the Consumer Fraud Bureau are generally responsible for investigating consumer complaints, filing cases when the investigations reveal that it is appropriate, handling their own litigation case load, and, for more experienced attorneys, participating in multi-state litigation and supervising junior attorneys. DSOF ¶ 11; Defs.' Exhs. R, NN. Because the Consumer Fraud Bureau receives approximately 33,000 complaints annually, AAGs assigned to the Bureau are expected to work productively and efficiently. DSOF ¶ 12. In addition to their litigation responsibilities, AAGs in Consumer Fraud Bureau also educate the public about consumer protection, draft legislative proposals and analyze consumer bills pending in the legislature, and recommend the OIAG's position on the bills. DSOF ¶ 11.

Before he was hired, Levin interviewed with the Deputy Attorney General for Civil Litigation, Roger Flahaven (44 years old), the Chief of the Consumer Protection Division, Patricia Kelly (55 years old), and the Chief of the Consumer Fraud Bureau, Charles "Gil" Fergus (53 years old).*fn2 DSOF ¶¶ 5, 6-9. Levin's certificate of appointment to the position of Assistant Attorney General is dated September 5, 2000, and was issued by former Illinois Attorney General James E. Ryan . DSOF ¶¶ 4, 77; Defs.' Exh. GG. Levin received a second certificate of appointment when Lisa Madigan replaced James Ryan as the Illinois Attorney General in January 2003. DSOF ¶¶ 41, 76; Defs.' Exh. FF.

On December 1, 2002, Levin was promoted to Senior Assistant Attorney General and received a salary raise. PSOF ¶ 2. He remained in the Consumer Fraud Bureau, with Fergus acting as his immediate supervisor for the duration of Levin's employment. PSOF ¶ 33. Nonetheless, the composition of the OIAG changed over the years Levin was employed there. In January 2003, Lisa Madigan was sworn in as the Attorney General for the State of Illinois and designated Ann Spillane as her Chief of Staff. Defs.' Exh. P ¶ 2. In September 2004, Deborah Hagan was selected as the new Chief of the Consumer Protection Division, replacing Patricia Kelly. PSOF ¶ 39; Pl.'s Exh. F at 5:5-9; Defs.' Exhs. U ¶ 4, N ¶ 31. The Chief of Consumer Protection supervises the operation of the Consumer Fraud Bureau. Defs.' Exh. U ¶ 5. Thus, Fergus began reporting directly to Hagan. Defs.' Exh. H ¶ 6. At the time of Levin's firing on May 12, 2006, Hagan reported to Roger Flahaven, the Deputy Attorney General for Civil Litigation. Defs.' Exh. U ¶ 29. Alan Rosen became Flahaven's supervisor after joining the OIAG as Madigan's Chief Deputy Attorney General on December 12, 2005. Defs.' Exh. AA ¶ 7. Rosen reported to Spillane who, in turn, reported to Attorney General Madigan. PSOF ¶ 42.


Throughout Levin's employment, the OIAG required the job-performance evaluation of new attorneys at least three months and fifteen days before the completion of their first six months of employment, and further evaluations at the completion of their first full year and once per year thereafter. PSOF ¶ 18. The OIAG based its salary raises on these annual, standardized performance evaluations. Id. Each non-supervisory employee, including Levin, was evaluated according to twelve categories: (1) preparation; (2) knowledge of law; (3) planning; (4) advocacy skills; (5) communication/negotiation skills; (6) work ethic/productivity; (7) initiative; (8) human relations; (9) judgment; (10) supervisory reporting; (11) professional responsibility; and (12) professional development. PSOF ¶ 19. In each category, attorneys were rated with the numbers 1 (needs improvement), 2 (meets expectations), or 3 (exceeds expectations). PSOF ¶ 19. "Exceeds expectations" meant that the attorney "exceeded overall performance objectives" and the attorney's overall performance was "clearly better than most individuals at this level." Pl.'s Exh. D-2. To achieve an "exceeds expectations" rating, the attorney was "highly skilled in the technical and managerial requirements of the job" and "made exceptional contributions in meeting difficult challenges." Id. A rating of 2, or "meets expectations," meant that the attorney "[h]as successfully achieved performance objectives" and "[m]ay have exceeded some objectives, but overall the individual has competently performed the assigned duties." Id. This rating also "[d]emonstrates the [attorney's] motivation to improve performance." Id. Finally, the lowest rating of "needs improvement" signified that the attorney "[h]as not completely or consistently met performance objectives" and "[h]as not completely reached standards of quality and quantity for performance objectives." Id.

During Levin's employment at the OIAG, he was consistently evaluated as "meets expectations" or "exceeds expectations" in each of the twelve categories listed above. PSOF ¶ 20; Pl.'s Exhs. D-2 -- D-7. His average scores across these twelve categories for each year of his employment were as follows:

Year Average Score

2000 2.5 2001 2.83 2002 2.83 2003 2.6 2004 2.5 2005 2.5 Levin's evaluations were completed by his direct supervisor, Charles Fergus. DSOF ¶ 38. Although Levin's 2004-2005 evaluations were reviewed and signed by Deborah Hagan, and his 2001-2003 evaluations were signed by Patricia Kelly, Fergus states that he completed Levin's evaluations without input from anybody else. See Pl.'s Exhs. D-2 -- D-7; Defs.' Exh. H ¶ 55. Levin's early evaluations from 2000, 2001, and 2002 contain individual comments about his performance, all of which are positive. See Pl.'s Exhs. D-5 -- D-7. For instance, in 2002, Fergus described Levin as "a top rate experienced litigator" who was "of great help to all in the Bureau." Pl.'s Exh. D-5. Levin exhibited "outstanding performance on the executive committees of the Firestone . . . multi state cases." Id. Similar comments were included on Levin's 2001 written evaluation: "Excellent attorney who is always willing to assist others in the Bureau. Has done an outstanding job on the executive committee for the Bridgestone/Firestone multistate." Pl.'s Exh. D-6. Finally, Levin's 2000 written evaluation, which graded his work during the first four months of employment, stated that Levin was "involved in several serious matters and doing an excellent job." Pl.'s Exh. D-7.

Levin's last evaluation was completed on December 7, 2005 -- about five months before his termination. PSOF ¶ 23; Pl.'s Exh. D-2. In that evaluation, Levin was rated as "exceeds expectations" in the following categories: preparation, knowledge of law, advocacy skills, communication/negotiation skills, initiative, and judgment. Id. Levin was rated "meets expectations" in all remaining categories: planning, work ethic/productivity, human relations, supervisory reporting, professional responsibility, and professional development. Id. Levin did not receive a "needs improvement" rating in any category. PSOF ¶ 24.

In an affidavit submitted in connection with Defendants' motions for summary judgment, Fergus claims that, contrary to Levin's positive employment evaluations, his performance left much to be desired. See Defs.' Exh. H. Fergus cites a number of specific incidents in support of his contention that Levin lacked the productivity and judgment expected of a Senior Assistant Attorney General with more than thirty years of legal experience. Id. ¶¶ 20-50. Fergus claims that these incidents were addressed with Levin at the time that they occurred, and Fergus therefore omitted these incidents from Levin's annual written evaluations. Id. ¶ 52. Fergus explains further that, when completing written evaluations, he tries to focus on the positive aspects of an attorney's performance. Id. ¶ 53. According to Fergus, Levin's positive evaluations reflected that Levin "had the necessary legal mechanics." Id. ¶ 54. However, Levin's declining average scores indicate that he "was not progressing as he should have been . . . [and] his performance did not meet the requirements of his senior title and his litigation approach did not meet the approach of the Office." Id.


Defendants contend that there are numerous reasons for their decision to fire Levin. While Levin's written evaluations do not reflect these alleged problems, Defendants claim that Levin's unsatisfactory performance was discussed amongst his supervisors and brought to Levin's attention as well. DSOF ¶ 36.


In particular, Defendants allege that Levin's productivity fell below the productivity of other attorneys in the Consumer Fraud Bureau. DSOF ¶ 14. Despite the significance that the OIAG places on resolving cases in the most efficient manner possible, Levin settled only two cases in 2005 -- one of which was four years old. DSOF ¶¶ 15-16. Fergus and Hagan claim that Levin's record indicated that he was not resolving cases at the rate expected of him. DSOF ¶ 16. Moreover, from January 1, 2006 through May 12, 2006, Levin had no enforcement activity: he filed no lawsuits, nor did he obtain any settlements, judgments, or "assurances of voluntary compliance." DSOF ¶ 17. Levin disputes this alleged period of inactivity, and points to a lawsuit he filed against Ronald W. Kafka and Father & Sons Contractors, home repair contractors against whom the OIAG had received complaints over many years, on May 2, 2006. Pl.'s Exh. G ¶ 56, G-8; Defs.' Exh. H ¶ 45.

Fergus and Kelly claim that Levin's productivity was hampered by his focus on unnecessary minutia in his cases. DSOF ¶ 18. Additionally, Fergus, Kelly, Hagan, and Flahaven all blame Levin's allegedly low productivity on his excessive socializing in the Office. DSOF ¶ 19. In their affidavits, Fergus, Kelly, and Hagan make identical, general claims that they personally saw Levin walking around the halls, standing in other attorneys' offices, and standing in the offices of employees who were not in the Bureau on a frequent basis. DSOF ¶ 19. Spillane's affidavit describes similar behavior -- specifically, that Levin would come to her office, which was about twenty-eight offices from his own office, or find Spillane in the hallway near her office to chat about matters that were not work related. Exh. P ¶ 19. The OIAG's Director of Attorney Recruitment and Professional Development, Ruta Stropus, also submitted an affidavit detailing how Levin would frequently come to her office -- located about nineteen offices from his -- to chat. Exh. W ¶ 21. At least one of Levin's co-workers in the Consumer Fraud Bureau confirms these accounts. Assistant Attorney General Katrina WanzerDerhake asserts that Levin would frequently come to her office to talk about topics unrelated to work, including his vacations and other personal matters. Defs.' Exh. V ¶ 4. Wanzer-Derhake claims further that when the topic turned to work, Levin would regale her with unwanted war stories about his past cases. Id. ¶ 4. She also observed Levin standing in the offices of other attorneys, and there were instances where attorneys complained to Wanzer-Derhake about Levin's frequent social visits. Id. ¶¶ 6-7. Fergus, Kelly, and Hagan state that junior attorneys, including Wanzer-Derhake, Steve Mange, and Sarah Alipourian, reported that they were uncomfortable with how much time Levin would spend in their offices. Defs.' Exhs. H ¶¶ 28-30; U ¶¶ 16-18; N ¶¶ 16-17.

Levin denies all of these allegations. See Pl.'s Exh. G. He claims that he did not get mired in minutia on his cases, nor did he spend an excessive amount of time socializing with others in the Office. Id. ¶¶ 25, 32-33.


Defendants also claim that they were not satisfied with the way Levin handled the few cases that were assigned to him. Specifically, Defendants found it problematic that Levin oftentimes took extreme positions in multi-state litigation cases without first discussing the issue with his supervisors. DSOF ¶ 27. Hagan states that she received complaints from Assistant Attorneys General in other states about Levin's insistence that the OIAG would not agree to a certain position or certain terms when, in fact, the OIAG had not made a decision about such positions or terms. Defs.' Exh. U ¶¶ 24-27. Fergus claims that this problem continued, despite his efforts to counsel Levin about the importance of keeping his supervisors informed about all multi-state litigation and refraining from taking positions without the Office's approval. Defs.' Exh. H ¶¶ 38-41.

According to Defendants, Levin required more supervision than should have been necessary for his years of legal experience. Id. ¶ 44. For instance, with respect to the home repair contractors lawsuit Levin filed in May 2006, Fergus recounts how Levin struggled to come up with a sufficient complaint. Id. ¶ 46. Levin's "drafts were sparse" and Fergus spent a lot of time helping Levin put together the complaint. Id. Hagan also claims that she witnessed Levin struggle as an attorney. Defs.' Exh. U ¶ 28. She alleges that Levin mishandled the settlement of a multi-state case involving Direct TV. Id. The OIAG had recently settled a very similar case, yet Levin failed to provide the settlement documents to the multi-state group. Id. Hagan was disappointed that Levin overlooked the importance of consistency and did not seem to have a good grasp on the issues in the settlement. Id.

Again, Levin denies these allegations. Pl.'s Exh. G ¶¶ 34-38.


Defendants also cite various other reasons for their decision to fire Levin. In addition to his low productivity and inferior litigation skills, Defendants allege Levin exercised poor judgment on a number of other occasions. For instance, when a new attorney joined the OIAG in 2004 or 2005, Levin allegedly made an inappropriate comment about Katrina Wanzer-Derhake's fashion and/or shopping habits.*fn3 Levin admits that he made a comment, but that Wanzer-Derhake told him she was not offended and was proud of her fashion expertise. Pl.'s Exh. G ¶ 30. Levin claims Fergus and Hagan never talked to him about this incident. Id. ¶ 31. In contrast, WanzerDerhake states that Levin's comment "embarrassed [her] in front of the new attorney and . . . demeaned her professionally." Defs.' Exh. V ¶ 10. After female attorneys complained about the nature of the comment, Fergus and Hagan contend that they spoke to Levin about the comment and he agreed that it was inappropriate. Defs.' Exhs. H ¶ 50, U ¶ 23.

Defendants contend that Levin exhibited poor judgment and human relations skills when he repeatedly approached Alan Rosen, the Chief Deputy Attorney General, outside of the office. Defs.' Exh. AA ¶¶ 8-12. According to Rosen, a man from the OIAG -- whom he later identified as Levin (after the decision to fire Levin was made) -- approached him several times when he was walking home from the Office. Id. ¶¶ 8-9. This man would tell lengthy stories about his prior legal experiences and his work and views with respect to the OIAG. Id. ¶ 10. Rosen believed the man was over-exaggerating his role with the OIAG, and his narratives were "awkward and reflect[ed] poorly on himself." Id. ¶ 11. Rosen states that he would alter his route home from the office to avoid this person. Id. After the decision was made to fire Levin, Rosen was one of the attorneys present to inform him of his firing. Id. ¶¶ 17-18. At that meeting, Rosen recognized Levin as the person who had approached him several times during his walk home from work. Id. ¶ 20. Levin admits only that he and Rosen talked while walking home from work on one occasion. Pl.'s Exh. G ¶ 53.

Defendants point to another example of alleged poor judgment. During his tenure as an Assistant Attorney General in the Consumer Fraud Bureau, Levin and/or his wife filed multiple personal consumer fraud complaints with the Bureau. Defs.' Exh. H ¶ 47; Pl.'s Exh. G ¶¶ 49-50. For example, in March 2003, Levin filed a consumer fraud complaint against his dentist alleging that he was over-billed for some dental work. DSOF ¶ 32; Defs.' Exh. X. The dentist, through his legal counsel, contacted the OIAG regarding Levin's alleged representations that he would use his position in the Consumer Fraud Bureau to prove that the dentist had committed consumer fraud.

DSOF ¶ 33; Defs.' Exh. X. In a memorandum to Patricia Kelly dated March 27, 2003, Levin denied suggesting that the OIAG would act specially on his behalf to prosecute the dentist. Defs.' Exh. X. But he did acknowledge "that [he] should not have ever mentioned [the OIAG] as the basis of [his] experience. It was imprudent and a mistake in judgment." Id. Defendants put forth this evidence as demonstrative of their concern with Levin's judgment and ability to appropriately represent the OIAG. See R. 180 at 4.


In early 2006, the OIAG embarked on its annual process of conducting performance reviews of all attorneys in the Office. DSOF ¶ 43. At this point, Ann Spillane had served as Attorney General Madigan's Chief of Staff for three years and felt comfortable enough with her acquired knowledge of the Office and its attorneys to begin having more detailed discussions with the senior staff about attorneys who were potentially underperforming. DSOF ¶ 42; Defs.' Exh. P ¶ 14. In particular, Attorney General Madigan's emphasis on consumer protection issues had prompted Spillane to routinely review and discuss the status of consumer protection cases with Flahaven, Hagan, and Fergus. DSOF ¶ 48. Thus, over time, Spillane learned more about the attorneys in the Consumer Fraud Bureau and their level of performance. DSOF ¶ 48. At the outset of the 2006 review, Alan Rosen, who was new to the Office and participating in the annual performance review process for the first time, suggested that the OIAG take job actions with respect to attorneys that were identified as underperforming. DSOF ¶ 44.

On May 10 or 11, 2006, Spillane determined that Levin was underperforming and decided to terminate his employment. DSOF ¶ 63; Defs.' Exh. M at 41. She based her decision on the information she gathered from Levin's supervisors during the 2006 annual review process, as well as her own personal impressions of Levin. DSOF ¶¶ 62, 64; Defs.' Exh. P ¶ 18; PSOF ¶ 71. Spillane also reviewed a printout of the names, salaries, and last evaluation scores of all attorneys on the OIAG's budget before making her decision. PSOF ¶ 74. This list may also have included the attorneys' law school graduation dates.*fn4 PSOF ΒΆ 74; Pl.'s Exh. B at 42. On or before May 12, 2006, Spillane informed Attorney General Madigan that she planned to ...

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