United States District Court, N.D. Illinois, Eastern Division
For Harvey N. Levin, Plaintiff: Edward R. Theobald, LEAD ATTORNEY, Law Offices of Edward R. Theobald, Chicago, IL.
For Lisa Madigan, individually, and as Illinois Attorney General, Office of the Attorney General, The State of Illinois, Defendants: Deborah Joyce Allen, LEAD ATTORNEY, Illinois Department of Transportation, Schaumburg, IL.
For Ann Spillane, individually, Alan Rosen, individually, Roger P Flahaven, individually, Deborah Hagen, individually, Defendants: Deborah Joyce Allen, LEAD ATTORNEY, Illinois Department of Transportation, Schaumburg, IL; Jeffrey S. Fowler, LEAD ATTORNEY, Heather R.M. Becker, Joseph Michael Gagliardo, Laner Muchin, Ltd., Chicago, IL.
For James E. Ryan, Movant: Deborah Joyce Allen, LEAD ATTORNEY, Illinois Department of Transportation, Schaumburg, IL.
Honorable Edmond E. Chang, United States District Judge.
The individual-capacity Defendants have filed a motion for partial judgment on the pleadings [R. 323], asking for enter judgment in their favor as to Plaintiff Harvey Levin's equal-protection age-discrimination claim, which he brought via 42 U.S.C. § 1983. Defendants argue that Levin's § 1983 action is precluded by the Government Employee Rights Act of 1991 (GERA), when considered in concert with the Age Discrimination in Employment Act (ADEA). For the reasons stated below, Defendants' motion is denied.
I. Legal Standard
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party can move for judgment on the pleadings after the filing of the complaint and answer." Moss v. Martin, 473 F.3d 694, 698 (7th Cir. 2007). " A motion for judgment on the pleadings under Rule 12(c) . . . is governed by the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Adams v. Indianapolis, 742 F.3d 720, 727-28 (7th Cir. 2014). " To survive a motion to dismiss under Rule 12(b)(6), a complaint must 'state a claim to relief that is plausible on its face.'" Id. ( quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
In this long-running litigation, Defendants previously have argued that Congress's enactment of the ADEA precludes government employees from invoking § 1983 to bring age-based employment discrimination claims under the Equal Protection Clause. In Levin v. Madigan, the Seventh Circuit rejected that argument, holding that the ADEA does not preclude the use of § 1983 to bring equal-protection age discrimination claims. 692 F.3d 607, 621-22 (7th Cir. 2012). Defendants now argue that Levin should nevertheless be precluded from asserting a § 1983 claim because the ADEA in concert with GERA creates a comprehensive remedial regime which Congress intended to displace competing remedies under § 1983. R. 323, Defs.' Br. at 2-3.
A. Waiver & Forfeiture
Before getting to the motion, Levin makes a threshold contention to head-off any consideration of the motion, urging this Court not to consider it because Defendants have waived their chance to present the GERA argument. There is nothing in the record that supports a finding that Defendants " waived" the GERA argument, in the sense of intentionally relinquishing their right to rely on GERA for their preclusion argument. But forfeiture is another matter: it is true, as the Court explained during the status hearing of April 11, 2014, that Defendants have had the opportunity to raise the GERA argument each and every time that Defendants argued that the ADEA precluded equal-protection age-discrimination claims brought under § 1983. Defendants argue that Levin himself is the reason why Defendants did not raise GERA earlier; according to Defendants, because Levin previously argued that he was an " employee" covered by the ADEA, Defendants saw no reason to raise GERA. But Defendants took the position that Levin was not an employee covered by ADEA, but instead was an appointee appointed to his position by an elected official--that is, an appointee under GERA. See R. 59 at 5 n.5. Nothing prevented Defendants from arguing that, because Levin was an appointee covered by GERA, GERA acted in concert with the ADEA to preclude the § 1983 action, which is the very same argument Defendants want to present now, after a motion to dismiss and an appeal on the preclusion issue. Defendants contend that Levin was the master of his complaint, so they simply took made their arguments on that basis. But that is really a faç ade for the failure to make the argument earlier: consider if Levin had made no ADEA ...