Seventh Circuit Splits with Six Circuits on Qualified Immunity
The U.S. Court of Appeals for the Seventh Circuit has ruled that Illinois Attorney General Lisa Madigan and supervisors of the Attorney General’s Office are not entitled to qualified immunity from an Equal Protection § 1983 Age Discrimination claim brought by Harvey Levin, a former Senior Assistant Attorney General.
A three-judge panel acknowledged that its decision ran counter to rulings by six other circuits that the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims under the Equal Protection Clause and 42 U.S.C. § 1983. The Seventh Circuit voted unanimously on August 17, 2012 to affirm Northern District of Illinois Judge Edmond Chang's July 2011 judgment in Levin v. Madigan. Judge Michael Kanne wrote the opinion, joined by Judges William Bauer and Richard Posner citing “the ADEA's lack of legislative history or statutory language precluding constitutional claims, and the divergent rights and protections afforded by the ADEA as compared to a § 1983 equal protection claim."
"In light of our analysis of the ADEA and the relevant case law, and given these divergent rights and protections, we conclude that the ADEA is not the exclusive remedy for age discrimination in employment claims," Judge Kanne concluded. As for qualified immunity, at the time of the alleged violation "it was clearly established that age discrimination in employment violates the Equal Protection Clause," he wrote. "Because Levin's constitutional right was clearly
established, the Individual Defendants are not entitled to qualified immunity."
Harvey Levin was 55 years old in September 2000, when he became an assistant attorney general in the Illinois Attorney General’s consumer fraud bureau. Two years later, Illinois Attorney General James Ryan promoted Mr. Levin to a senior assistant attorney general. In May of 2006, the new Illinois Attorney General, Lisa Madigan, terminated Mr. Levin despite his consistent written performance evaluations that met or exceeded the Attorney General’s expectations in a dozen job categories. Mr. Levin was one of three consumer fraud bureau lawyers who were discharged and replaced with younger attorneys; Levin's replacement was a woman in her 30’s.
U.S. District Court Judge Edmond E. Chang has scheduled the jury trial on Harvey Levin’s age and sex discrimination in employment complaint for May 6, 2013 in the U.S. District Courthouse, 219 S. Dearborn Street, Room 1403, Chicago, Illinois 60604.
Harvey N. Levin is represented by Edward R. Theobald.