U.S. Supreme Court Dismisses Government Worker’s Age Bias Appeal

U.S. Supreme Court Dismisses Government Worker’s Age Bias Appeal

 WASHINGTON, D.C. — The U.S. Supreme Court this morning in a per curiam, one-sentence decision dismissed the appeal of a government worker’s age discrimination case “as improvidently granted” (Lisa Madigan, et al. v. Harvey Levin, No. 12-872, U.S. Sup.; See October 2013, Page 43).

Age Bias Claims

Harvey Levin worked as an Illinois assistant attorney general from Sept. 5, 2000, until May 12, 2006. Levin, who was over 60 at the time he was fired, believed that he was fired because of his age and gender. He sued the State of Illinois, the Office of the Illinois Attorney General, Illinois Attorney General Lisa Madigan (in her individual and official capacities) and four additional attorney general employees (in their individual capacities) in the U.S. District Court for the Northern District of Illinois. He brought claims under the Age Discrimination in Employment Act (ADEA), 29 U.S. Code Section 621, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S. Code Section 2000e, et seq., and the equal protection clause via 42 U.S. Code Section 1983.

The individual-capacity defendants argued that they were entitled to qualified immunity with respect to Levin’s Section 1983 age discrimination claim. On March 10, 2010, Judge David H. Coar agreed that they were entitled to qualified immunity because the availability of such a claim was not clearly established when Levin was terminated. However, Judge Coar disagreed with the defendants that the ADEA forecloses Levin’s Section 1983 equal protection claim.

On Jan. 7, 2011, Levin’s case was reassigned to Judge Edmond E. Chang. Judge Chang on July 12, 2011, granted in part and denied in part two pending motions for summary judgment. Judge Chang did not disturb Judge Coar’s ruling that the ADEA is not the exclusive remedy for age discrimination claims. However, he ruled that Levin is not an “employee” for purposes of Title VII and the ADEA. Judge Chang also held that the individuals were not entitled to qualified immunity on Levin’s Section 1983 claim for age discrimination.

The individual defendants filed an interlocutory appeal, asking the Seventh Circuit to find that they were entitled to qualified immunity because the ADEA was the exclusive remedy for Levin’s age discrimination claims.

No Immunity

The Seventh Circuit panel affirmed [an enhanced version of this opinion is available to lexis.com subscribers]. “At the time of the alleged wrongdoing, it was clearly established that age discrimination in employment violates the Equal Protection Clause. . . . Although age is not a suspect classification, states may not discriminate on that basis if such discrimination is not ‘rationally related to a legitimate state interest.’  Whether or not the ADEA is the exclusive remedy for plaintiffs suffering age discrimination in employment is irrelevant, and as Judge Chang noted, it is ‘odd to apply qualified immunity in the context where the procedural uncertainty arises from the fact that Congress created a statutory remedy for age discrimination that is substantively broader than the equal protection clause.’  . . . Because Levin’s constitutional right was clearly established, the Individual Defendants are not entitled to qualified immunity,” Judge Michael S. Kanne wrote for the panel.

The defendants petitioned the U.S. Supreme Court. The petition was granted March 18. Oral arguments were held Oct. 7.


Solicitor General Michael A. Scodro of Chicago represents the petitioner. Edward R. Theobald III of Chicago represents Levin.

Michigan Solicitor General John J. Bursch in Lansing, Mich., filed an amicus curiae brief on behalf of Michigan and 20 other states. Matthew J. Ginsburg of Washington filed an amicus brief on behalf of The American Federation of Labor and Congress of Industrial Organizations and The Service Employees International Union. Brian J. Murray of Jones Day in Chicago filed an amicus brief on behalf of International Municipal Lawyers Association, The Council of State Governments and The International City/County Management Association. Francisco M. Negron Jr. of National School Boards Association in Alexandria, Va., filed an amicus brief on behalf of National School Boards Association and Illinois Association of School Boards. Alice M. O’Brien of National Education Association in Washington filed an amicus brief on behalf of the National Education Association. Thomas W. Osborne of AARP Foundation Litigation in Washington filed an amicus brief on behalf of AARP and National Senior Citizens Law Center. Stephen I. Vladeck in Washington filed an amicus brief on behalf of law professors.

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