Harvey Levin, a former Illinois senior assistant attorney general, has been pursuing his age discrimination case against the state for more than six years. And although the U.S. Supreme Court had announced it would be open for business despite the federal government shutdown, he still was worried, four days out, that his case—the first of the new term—would be delayed.
But his case, Madigan v. Levin, was called by Chief Justice John Roberts Jr. shortly after the new term began on Monday morning. Levin, a member of the Supreme Court bar, was present and sitting in front of the justices at the counsel table with his lawyer, Edward Theobald of Chicago’s Law Offices of Edward R. Theobald, who argued the case, and Eric Schnapper of the University of Washington School of Law, who assisted on the brief.
The justices must decide whether the federal Age Discrimination in Employment Act replaces the civil rights statute, 42 U.S.C. Section 1983, as an alternative avenue for bringing age discrimination claims. Illinois argues it does. The U.S. Court of Appeals for the Seventh Circuit said no.
“Whether the ADEA precludes a Section 1983 claim is a matter of first impression in the Seventh Circuit,” Judge Michael Kanne wrote for that court. “All other circuit courts to consider the issue have held that the ADEA is the exclusive remedy for age discrimination claims.” However, he added, the court can not infer that Congress intended the federal age discrimination law to replace age discrimination claims under Section 1983 without additional evidence from the lawmakers.
It was undoubtedly a strange feeling on Monday to be sitting opposite attorneys from the office in which he served from September 2000 until his termination in May 2006. Levin was almost 62 when he was fired and says he consistently received performance evaluations that met or exceeded expectations. He is 68 now. He charges that a substantially younger female attorney, in her 30s, was hired to replace him. Two other attorneys, both over 50 and in the same bureau, were discharged at the same time as Levin, and he contends that they, too, were replaced by substantially younger lawyers.
The state, in its high court brief, counters that Levin’s “low productivity, excessive socializing, inferior litigation skills, and poor judgment led to his termination.” It also contends that, despite Levin’s claims, that “no newly hired attorney assumed respondent’s cases. Four of the twelve attorneys fired in May 2006 were under 40, and eight of the twelve were ‘substantially younger’ than respondent.”
Levin, a graduate of DePaul University School of Law, wasn’t ready to leave.
“I’ve done quite a number of varied things,” he said of his career prior to joining the attorney general’s office. “I’ve done estate planning, appellate work, general practice. I have many years of doing personal injury defense.”
But when he heard about the opening in the attorney general’s office, he said, “I decided I really wanted to do some public good.”
Levin worked in the consumer fraud bureau. He speaks with quiet pride of handling “some high-profile cases,” including being lead attorney in the Firestone and Ford rollover cases.
“The Firestone case resulted in a settlement of $41.5 million; the Ford case ended in a settlement of $51.5 million,” he recalled. “There were long injunctions. There was a case against DirectTV. And another, involving a company that promised employment to people, ended up with the company being barred from doing business in Illinois forever.”
The job was personally rewarding. “Although I represented the state, you do interact with the defrauded consumers. Many of them felt terrible when they were taken.”
He always asked the victims what their job was and whether they could teach him to do it if they talked to him constantly for two weeks.
“They would answer, ‘Oh, no, much more needs to be taught,’ ” he recalled. “ And then I would say, ‘What makes you think you could outsmart a professional fraudster? Don’t feel bad; they are professionals at this.’
“In some cases, we were able to get some or even all of the people’s money back. I remember some people said, ‘I never thought I’d get anything back.’ We did good work and helped a lot of people.”
Levin filed his lawsuit, asserting age and gender bias, in August 2007, but it has yet to go to trial on the merits. The state filed multiple motions to dismiss and for summary judgment in the district court. The case went to the Seventh Circuit on an interlocutory appeal from the trial court’s order denying the state summary judgment on the grounds of qualified immunity.
The state lost its appeal of the order denying it qualified immunity from Levin’s suit. The appellate court also affirmed the district court’s decision that Levin fell outside the scope of the federal age bias law because he was a high ranking official.
The last six years have not been easy, admitted Levin, who has two children, one in high school and the other in grammar school.
“I’m still licensed. I manage to do a few things but you don’t stand on a street corner with a sign to get legal business,” he said. “Once in a while somebody will call you up. It doesn’t happen regularly.”
And yet, he is optimistic despite the long trek through a system with which he is only too familiar. “I think the Seventh Circuit opinion was very logically decided. We’re very confident in our position.”
Contact Marcia Coyle at firstname.lastname@example.org.