Hunton Employment & Labor Perspectives

The Seventh Circuit gave an unexpected answer when asked:  is the Age Discrimination in Employment Act (ADEA) the exclusive remedy for federal age discrimination?   Deciding an issue of first impression for that court, it said no.  Levin v. Madigan, 7th Circuit, No. 11-2820, August 17, 2012.   The Seventh Circuit is an outlier, as every other circuit to consider the question (the 1st, 4th, 5th, 9th, 10th and D.C. Circuits) has held the ADEA is the sole remedy for federal age discrimination claims.

Plaintiff Harvey N. Levin was hired at age fifty-five as an attorney for the Illinois Attorney General’s office.  He was terminated six years later and replaced by a female in her thirties.     Levin sued for age and sex discrimination under the ADEA, Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment via 42 U.S.C. § 1983 (a claim available only against state and local governments).  He sued his boss in both her individual and official capacities.

The district court dismissed Levin’s Title VII and ADEA claims because he was not an “employee” under those laws.  But the court denied Defendants’ motions to dismiss the § 1983 claims.  The court found the individual defendants were not entitled to qualified immunity and the ADEA does not preclude the § 1983 claim.  The Seventh Circuit affirmed.

Section 1983 does not create substantive rights, but provides a vehicle to vindicate federal rights granted elsewhere.  If a statutory scheme has sufficiently complete remedial devices, it will preclude a remedy for the same wrong under § 1983.  The key issue is congressional intent.  The Seventh Circuit reviewed the text and legislative history to the ADEA and described preclusion under it “a close call.”  Ultimately, though, the court found the ADEA provides different rights and protections than § 1983 and thus did not preclude an equal protection constitutional claim.

The decision is notable as a deviation from the majority view.  Employers have long operated under the assumption that the only vehicle for a federal age discrimination claim is under the ADEA.  The ADEA requires an employee to first exhaust administrative remedies before the Equal Employment Opportunity Commission (EEOC), which significantly reduces the number of claims that actually reach court.  Now, at least for state and local government employers, that assumption may no longer be valid.  This case opens the door to increased litigation over age discrimination claims.

The case holds lessons for private employers as well.  The reasons Levin’s employer cited for his discharge were low productivity, excessive socializing, inferior litigation skills, and poor judgment.   His supervisors discussed these problems, but did not reflect them in Levin’s written performance evaluations, which remained glowing.  As the case proceeds to trial, this will impact the analysis of motive.  Plaintiff will doubtless use the positive reviews to argue his employer’s stated reason for dismissal was pretext for discrimination.