Opp v. Office of State's Attorney of Cook County

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-3714, 09-3923 & 10-1060

C HRISTINE A. O PP,

Plaintiff-Appellant,

v.

O FFICE OF THE STATE’S A TTORNEY

OF C OOK C OUNTY, et al.,

Defendants-Appellees.

E DWARD J. B ARRETT,

Plaintiff-Appellant,

v.

C OOK C OUNTY STATE’S A TTORNEY

O FFICE, et al.,

Defendants-Appellees.

L EONARD C AHNMANN,

Plaintiff-Appellant,

v.

R ICHARD A. D EVINE, individually and in his

official capacity as S TATE’S A TTORNEY OF

C OOK C OUNTY, ILLINOIS, et al.,

Defendants-Appellees.

2 Nos. 09-3714, 09-3923 & 10-1060

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cv-06120—Elaine E. Bucklo, Judge.

No. 1:08-cv-06124—Harry D. Leinenweber, Judge.

No. 1:08-cv-06207—Ruben Castillo, Judge.

A RGUED S EPTEMBER 21, 2010—D ECIDED D ECEMBER 29, 2010

Before B AUER, SYKES and H AMILTON, Circuit Judges.

B AUER, Circuit Judge. The appellants, former Assistant

State’s Attorneys to the Cook County State’s Attorney,

each brought an action claiming unlawful employment

termination in violation of the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The

district court granted the defendant-appellees’ motions

to dismiss ruling that the plaintiff-appellants were ex-

cluded from the ADEA’s coverage because they held

policymaking positions as a matter of law. We affirm.

I. BACKGROUND

A. Christine Opp

Appellant Opp began working for the Cook County

State’s Attorney’s Office as an Assistant State’s Attor-

ney in January 1997. Opp’s final position during this

employment was as the supervisor of the Preliminary

Nos. 09-3714, 09-3923 & 10-1060 3

Hearings Courtroom and as the “first chair” for the

Sixth District overflow felony courtroom. Opp had con-

sistently received “qualified” or “highly qualified” perfor-

mance evaluation ratings.

In response to budget reductions in December 2006,

Cook County State’s Attorney Richard Devine sent out a

memorandum informing Assistant State’s Attorneys

that if personnel cuts became necessary, the cuts would

be based on performance evaluations. On February 16,

2007, Opp was informed that her employment was

being terminated. The reason given was for “the future

needs of the office.”

Opp’s complaint stated that she was fifty-seven years

old at the time of her termination and the oldest em-

ployee assigned to the Sixth District. She was also the

only employee from that District whose employment

was terminated during February 2007. Opp’s complaint

stated that she was replaced by an individual substan-

tially younger. Opp claimed that she was terminated

because of her age.

B. Edward Barrett

Appellant Barrett was hired as an Assistant State’s

Attorney in July 1990. Barrett’s final position with the

State’s Attorney’s Office was in the Criminal Prosecutions

Bureau in the Fourth District. Barrett regularly received

“adequate and qualified” evaluations of his job perfor-

mance.

4 Nos. 09-3714, 09-3923 & 10-1060

On February 16, 2007, Barrett was informed that his

employment was being terminated. Like Opp, Barrett

was told that his termination was due to budget reduc-

tions and for “the future needs of the office.” Barrett

claimed that he was replaced by a new attorney who

was younger and that the State’s Attorney hired up to

seventy new attorneys who were all younger than him,

just months after his termination. Barrett was forty-four

years old at the time of his termination and likewise

contended that his discharge was due to age discrim-

ination.

C. Leonard Cahnmann

Appellant Cahnmann began working for the Cook

County State’s Attorney’s Office as an Assistant State’s

Attorney in September 1998. On March 2, 2007, Cahnmann

was terminated for reasons he was told were “due

to budgetary constraints.” Cahnmann alleged that in

reality he was terminated because of his advanced

age and that the “budgetary constraints” he was

informed of were only pretext. Cahnmann was born

on November 7, 1946, making him sixty years old at

the time he was terminated.

II. DISCUSSION

We review de novo the district court’s decision to grant

a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), accepting the well-pleaded allega-

tions in the complaint as true and drawing all rea-

Nos. 09-3714, 09-3923 & 10-1060 5

sonable inferences in favor of the plaintiff. Porter v.

DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996) (citing Travel All

Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d

1423, 1429 (7th Cir. 1996)).

A. Appointees on the Policymaking Level

The appellants brought their actions pursuant to the

ADEA and contend that they are “employees” covered by

the scope of that statute. The relevant section of the

ADEA that defines the term “employee” reads:

The term “employee” means an individual employed

by any employer except that the term “employee”

shall not include any person elected to public office

in any State or political subdivision of any State by

the qualified voters thereof, or any person chosen by

such officer to be on such officer’s personal staff, or

an appointee on the policymaking level or an im-

mediate adviser with respect to the exercise of the

constitutional or legal powers of the office.

29 U.S.C. § 630(f) (2010).

The ADEA thus excludes from its coverage four types

of persons: (1) elected officials; (2) the personal staff of an

elected official; (3) appointees on the policymaking level;

and (4) “an immediate advisor with respect to the

exercise of the constitutional or legal powers of the

office.” The appellees contend, and the district court

held, that the appellants are situated within the third

exception as appointees on the policymaking level. We

agree that all Assistant State’s Attorneys are appointees

6 Nos. 09-3714, 09-3923 & 10-1060

on the policymaking level and therefore are not within

the coverage of the ADEA.

The appellants argue that Assistant State’s Attorneys

are not appointees on the policymaking level and are

employees covered by the scope of the ADEA. This cir-

cuit’s case law regarding the interpretation of an ap-

pointee on the policymaking level is well-established.

An individual is considered an appointee on the policy-

making level if “the position held by the individual

authorizes, either directly or indirectly, meaningful

input into governmental decision-making on issues

where there is room for principled disagreement on

goals or their implementation.” Americanos v. Carter, 74

F.3d 138, 141 (7th Cir. 1996) (quoting Heideman v.

Wirsing, 7 F.3d 659, 663 (7th Cir. 1993)).

We derived this test from a pair of cases in which the

Supreme Court permitted employee dismissals of indi-

viduals holding policymaking positions based on polit-

ical affiliation. Id. at 144; see generally Branti v. Finkel,

445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976).

Drawing from these First Amendment political patronage

cases, we articulated that in ADEA cases “the test

for determining if someone is an ‘employee’ . . . is essen-

tially indistinguishable from that applied in the political

firing context under the Elrod/Branti doctrine.” Americanos,

74 F.3d at 144 (citing Heck v. City of Freeport, 985 F.2d

305, 310 (7th Cir. 1993)).

The appellants contend that our use of the political

patronage analysis is “outdated and misplaced,” a con-

tention with which we strongly disagree. The appellants

Nos. 09-3714, 09-3923 & 10-1060 7

urge this court to overrule Americanos and follow the

approach of some other circuits, an invitation we decline

to accept. Whereas this court relies on a single test in

determining whether an individual is an appointee on

the policymaking level, the Second Circuit, for example,

applies differing approaches in First Amendment cases

and in ADEA/Title VII cases. Butler v. New York State

Dep’t of Law, 211 F.3d 739, 746-47 (2d Cir. 2000) (applying

the Elrod/Branti doctrine for a First Amendment

analysis and drawing on Title VII statutory language

and Congressional intent for a Title VII analysis). We

choose, however, not to draw a distinction between

how aggrieved individuals are interpreted as policy-

makers under the First Amendment and under the ADEA.

Appellants next argue that we should focus on an em-

ployee’s actual job functions and duties rather than the

powers inherent in that given position when making

a policymaking level determination. The appellants

further contend that each held a low-level position as

an Assistant State’s Attorney, and they were thus not on

a policymaking level. To the contrary, we held in

Tomczak v. City of Chicago that a court is to examine “the

powers inherent in a given office, as opposed to the

functions performed by a particular occupant of that

office. . . . [W]e emphasize[ ] the functions of the office

involved, not the officeholder.” Tomczak v. City of

Chicago, 765 F.2d 633, 640-41 (7th Cir. 1985).

The appellants maintain that we have in other cases

required an examination of the individual’s actual job

duties. The appellants incorrectly apply this infrequent

8 Nos. 09-3714, 09-3923 & 10-1060

requirement to their own case. They correctly point out

that in certain very limited situations, an individual’s

actual job duties are more relevant to the policymaker

analysis.1 Nonetheless, we clarified the application of

this standard in our analysis in Vargas-Harrison v. Racine

Unified School District. In that case, we made clear that

in many cases the duties and responsibilities of a

particular position are clearly outlined by law; in these

cases, the court may make the determination, as a

matter of law, that a certain position involves policy-

making. Vargas-Harrison v. Racine Unified Sch. Dist.,

272 F.3d 964, 972 (7th Cir. 2001) (finding that the plain-

tiff, an elementary school principal, was a policymaker

as a matter of law because school district regulations

clearly provided an undisputed description of her

duties and powers). We thus held that determining the

powers inherent in a given office may be done without

the aid of a finder of fact “when the duties and responsi-

bilities of a particular position are clearly defined by

1

These types of cases include Soderbeck v. Burnett County, 752

F.2d 285 (7th Cir. 1985) (finding that it is for the jury to decide

whether the employee is a policymaker based on his actual job

duties only when the aggrieved employee’s role is “sufficiently

uncertain.” In that case, the court left it to the jury to deter-

mine whether a woman who was characterized as a “clerical

worker” occupied a policymaking position.); Matlock v. Barns,

932 F.2d 658 (7th Cir. 1991) (where the court could not grant

summary judgment because there was nothing in the record

describing the plaintiff’s duties as a “legal investigator” for

the Law Department for the city of Gary).

Nos. 09-3714, 09-3923 & 10-1060 9

law and regulations.” Id. (citing Pleva v. Norquist, 195 F.3d

905, 912 (7th Cir. 1999)).

The duties and powers inherent to State’s Attorneys

and Assistant State’s Attorneys with regard to setting

policy are well-defined by Illinois statutes and our own

case law. See 55 ILCS 5/3-9005. The State’s Attorney “has

the broad discretion to set whatever policies he or she

believes necessary to protect the interests of . . . society.”

Livas v. Petka, 711 F.2d 798, 800 (7th Cir. 1983). In order

to carry out the office’s duties, as well as set and imple-

ment policy, the State’s Attorney is empowered to

name assistants who “when so appointed shall take the

oath of office in the same manner as State’s Attorneys

and shall be under the supervision of the State’s Attor-

ney.” 55 ILCS 5/4-2003 (2010). Therefore, with regard

to Assistant State’s Attorneys, we have held that

“[u]nder Illinois law Assistant State’s Attorneys are

surrogates for the State’s Attorney. Assistant State’s

Attorneys ‘possess the power in the same manner and

to the same effect as the State’s Attorney.’ ” McGrath

v. Gillis, 44 F.3d 567, 571 (7th Cir. 1995) (quoting

People v. Tobias, 125 Ill. App. 3d 234, 242, 80 Ill. Dec. 496,

503, 465 N.E.2d 608, 615 (1984)). Moreover, we have

determined that “an Assistant State’s Attorney may, in

carrying out his or her duties, make some decisions

that will actually create policy.” Livas, 711 F.2d at 801.

The appellants contend that Assistant State’s Attorneys

merely implement policy actions on behalf of the State’s

Attorney. We disagree. An Assistant State’s Attorney

carries out policy on behalf of the government, and in

10 Nos. 09-3714, 09-3923 & 10-1060

doing so has “meaningful input into governmental

decision-making on issues where there is room for princi-

pled disagreement on goals or their implementation.” For

example, an Assistant State’s Attorney’s decisions and

actions in the courtroom are binding on the govern-

ment. The State’s Attorney grants an Assistant State’s

Attorney the authority to conduct a case in court, and,

from that point, the Assistant State’s Attorney acts as the

State’s Attorney in all respects. The Assistant State’s

Attorney may choose to prosecute or dismiss a case,

with or without the State’s Attorney’s input and guid-

ance. This alone raises Assistant State’s Attorneys to

the level of policymakers.

Because the appellants’ positions as Assistant State’s

Attorneys gave them inherent policymaking authority,

any arguments about their actual duties are irrelevant,

and we need not conduct a factual analysis of the ap-

pellants’ actual job duties. Because the appellants’ roles

as Assistant State’s Attorneys were clearly defined by

statute, we find that the district court’s determination

as a matter of law of the policymaking status of the ap-

pellants’ positions was proper.

B. Appointment

The second line of the appellants’ argument involves

their appointment as Assistant State’s Attorneys. The

appellants argue on appeal that they were not ap-

pointed by the State’s Attorney and thus cannot be con-

sidered “appointees” on the policymaking level. The

appellants maintain that they were not “named” or

“appointed” by the State’s Attorney, as they were hired

Nos. 09-3714, 09-3923 & 10-1060 11

by the State’s Attorney’s Office instead, and in any

case, they were hired as Assistant State’s Attorneys

before Richard Devine was elected as the Cook County

State’s Attorney.

The appellants’ argument that they were hired by the

State’s Attorney’s Office and not by the State’s Attorney

fails on all accounts. Assistant State’s Attorneys are

appointed by the State’s Attorney as a matter of Illinois

law. Illinois law states that “Assistant State’s Attorneys

are to be named by the State’s Attorney of the county.” 55

ILCS 5/4-2003 (2010). This statutory language gives

the State’s Attorney exclusive authority to appoint Assis-

tant State’s Attorneys. This statute makes plain that

Assistant State’s Attorneys are appointees.

The appellants further assert that they were hired as

Assistant State’s Attorneys before Richard Devine—the

State’s Attorney under whom each was terminated—was

elected, and they were thus not “chosen by” Richard

Devine. This argument has no merit. Each current Assis-

tant State’s Attorney is re-appointed upon the swearing

in of each new State’s Attorney. The appellants were

thus appointed by Richard Devine upon his swearing in.

III. CONCLUSION

For the reasons set forth above, the appellants are not

covered by the scope of the ADEA as a matter of law

and the appellants’ claims failed to state a claim for

relief. We A FFIRM .

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