Harvey Levin v. Lisa Madigan , 692 F.3d 607 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2820
H ARVEY N. L EVIN,
Plaintiff-Appellee,
v.
L ISA M ADIGAN, in her individual capacity,
A NN S PILLANE, A LAN R OSEN,
R OGER F LAHAVEN , and D EBORAH H AGAN,
Defendants-Appellants,
and
L ISA M ADIGAN, in her official capacity as
Attorney General of Illinois, O FFICE OF THE
ILLINOIS A TTORNEY G ENERAL, and
S TATE OF ILLINOIS,
Defendants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 4765—Edmond E. Chang, Judge.
A RGUED A PRIL 3, 2012—D ECIDED A UGUST 17, 2012
2 No. 11-2820
Before B AUER, P OSNER, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Harvey N. Levin worked as an
Illinois Assistant Attorney General from September 5,
2000, until his termination on May 12, 2006. Levin was
over the age of sixty at the time of his termination and
believes he was fired because of his age and gender.
Accordingly, Levin filed suit against 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. He asserts
claims for relief under the Age Discrimination in Em-
ployment Act (ADEA), 29 U.S.C. § 621 et seq., Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
and the Equal Protection Clause of the Fourteenth Amend-
ment via 42 U.S.C. § 1983. The individual-capacity de-
fendants argued at the district court that they were
entitled to qualified immunity with respect to Levin’s
§ 1983 age discrimination claim. Specifically, they argued
that Levin’s § 1983 claim is precluded by the ADEA
because the ADEA is the exclusive remedy for age dis-
crimination claims. The district court disagreed and
denied qualified immunity. The case is now before us
on interlocutory appeal, and for the following reasons,
we affirm the judgment of the district court.
I. B ACKGROUND
Levin was fifty-five years old when he was hired as
an Assistant Attorney General in the Office of the
Illinois Attorney General’s Consumer Fraud Bureau on
No. 11-2820 3
September 5, 2000. On December 1, 2002, Levin was
promoted to Senior Assistant Attorney General and
retained this title until he was terminated on May 12,
2006. Levin was evaluated on an annual basis and his
performance reviews indicate that he consistently met
or exceeded his employer’s expectations in twelve
job categories. The Illinois Attorney General’s Office
asserts, however, that Levin’s low productivity, excessive
socializing, inferior litigation skills, and poor judgment
led to his termination. Although not addressed in
Levin’s evaluations, these issues were discussed among
Levin’s supervisors and brought to Levin’s attention.
Levin was one of twelve attorneys fired in May 2006.
After he was terminated, Levin was replaced by a
female attorney in her thirties. Two other male attorneys
from the Consumer Fraud Bureau, both over the age of
forty, were also terminated and replaced by younger
attorneys, one male and one female. The Illinois Attorney
General’s Office disputes that these new hires “replaced”
the terminated attorneys because the younger attorneys
were not assigned the three former attorneys’ cases.
Levin filed his complaint in the Northern District
of Illinois on August 23, 2007, asserting claims of age
and sex discrimination under the ADEA, Title VII, and
the Equal Protection Clause via 42 U.S.C. § 1983. The
defendants in this suit are divided into two groups
for litigation purposes: (1) Lisa Madigan, in her official
capacity as the Illinois Attorney General, the Office of the
Illinois Attorney General, and the State of Illinois (the
“Entity Defendants”), and (2) Lisa Madigan as an indi-
4 No. 11-2820
vidual, Ann Spillane, Alan Rosen, Roger Flahavan, and
Deborah Hagan (the “Individual Defendants”). Only
the Individual Defendants have appealed to this court.
On November 26, 2007, the Entity Defendants and the
Individual Defendants filed separate motions to
dismiss Levin’s complaint in its entirety. On December 12,
2007, the district court stayed discovery, requiring Levin
to respond to the Entity Defendants’s motion as to
whether he was an “employee” for purposes of the
ADEA and Title VII. On September 12, 2008, the district
court held that Levin was an “employee” and lifted the
stay on discovery. The Entity Defendants filed a
second motion to dismiss shortly thereafter. Following
discovery, the Entity Defendants and the Individual
Defendants filed separate motions for summary judg-
ment on November 13, 2009.
The district court ruled on the five pending motions
in two separate opinions, both of which are pertinent to
the issues before this court. In the first opinion, decided
March 10, 2010, the Honorable David H. Coar addressed
the three pending motions to dismiss. See Levin v.
Madigan, 697 F. Supp. 2d 958 (N.D. Ill. 2010) [hereinafter
Levin I]. Relevant to this appeal, Judge Coar granted
the Individual Defendants’ motion to dismiss Levin’s
§ 1983 equal protection claim for age discrimination. Id.
at 972. In that motion, the Individual Defendants
asserted that the § 1983 claim was either precluded by
the ADEA or they were entitled to qualified immunity.
After acknowledging that the Seventh Circuit has yet
to address ADEA exclusivity, Judge Coar held that the
No. 11-2820 5
ADEA does not foreclose Levin’s § 1983 equal protec-
tion claim. Id. at 971. But Judge Coar granted qualified
immunity for the Individual Defendants because the
availability of such a claim was not clearly established at
the time Levin was terminated. Id. at 972 (“Indeed, this
Court’s lengthy analysis of the availability of such
claims demonstrates that the law is not clearly estab-
lished.”).
On January 7, 2011, Levin’s case was reassigned to the
Honorable Edmond E. Chang. Judge Chang issued an
opinion on July 12, 2011, granting in part and denying in
part the two pending motions for summary judgment.
Levin v. Madigan, No. 07 C 4765, 2011 WL 2708341, at *23
(N.D. Ill. July 12, 2011) [hereinafter Levin II]. Judge Chang
did not disturb Judge Coar’s ruling that the ADEA is not
the exclusive remedy for age discrimination claims. Id. at
*8. He did, however, reverse two of Judge Coar’s prior
rulings, in light of additional briefing. First, Judge Chang
determined that Levin is not an “employee” for purposes
of Title VII and the ADEA, thus foreclosing any claim
Levin could bring under those statutes. See id. at *11.
Second, Judge Chang held that the Individual
Defendants were not entitled to qualified immunity on
Levin’s § 1983 claim for age discrimination. Id. at *12-13.
Rejecting Judge Coar’s reasoning, Judge Chang noted
that “[w]hen determining whether qualified immunity
applies to protect a defendant, the question is
whether a reasonable official would have known that the
official was violating a clearly established constitutional
right, which is a substantive question, not a question
concerning whether a particular procedural vehicle (i.e.,
6 No. 11-2820
cause of action) is available.” Id. at *12. Because it is
clearly established that the Fourteenth Amendment
forbids arbitrary age discrimination, see Kimel v. Fla. Bd.
of Regents, 528 U.S. 62, 83-84 (2000), Judge Chang held
that qualified immunity did not apply and Levin had
established a genuine issue of material fact such that his
§ 1983 age discrimination claim could proceed to trial.
Levin II, 2011 WL 2708341, at *20. The Individual Defen-
dants filed this timely appeal, asking this court to find
that they are entitled to qualified immunity because
the ADEA is the exclusive remedy for Levin’s age discrimi-
nation claims.
II. A NALYSIS
A. Appellate Jurisdiction
Levin does not dispute that we have jurisdiction over
an order denying qualified immunity under the collateral
order doctrine. See Surita v. Hyde, 665 F.3d 860, 868 (7th
Cir. 2011). But Levin believes this court lacks jurisdiction
over the issue of whether the ADEA precludes a § 1983
equal protection claim. Levin asserts that this issue,
resolved in Judge Coar’s opinion, is not inextricably
intertwined with Judge Chang’s denial of qualified im-
munity. See Research Automation, Inc. v. Schrader-Bridgeport
Int’l, Inc., 626 F.3d 973, 976-77 (7th Cir. 2010) (doctrine
of pendent jurisdiction allows appellate court to review
an interlocutory order that is inextricably intertwined
with an appealable order).
We disagree with Levin’s analysis. Instead, we be-
lieve this case is analogous to Wilkie v. Robbins, 551 U.S.
No. 11-2820 7
537 (2007). In Wilkie, on an interlocutory appeal of the
denial of qualified immunity, the Supreme Court consid-
ered whether a new, freestanding damages remedy
should exist under Bivens. Id. at 548-50 (citing Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971)). The Supreme Court held that it had
jurisdiction to consider whether such a remedy existed
because the recognition of an entire cause of action is
“directly implicated by the defense of qualified immunity.”
Id. at 549 n.4 (quoting Hartman v. Moore, 547 U.S. 250, 257
n.5 (2006)). Similar to Wilkie, the very existence of a free-
standing damages remedy under § 1983 is directly im-
plicated by a qualified immunity defense such that we
have jurisdiction over this appeal. Thus, we first consider
whether the ADEA precludes a § 1983 equal protection
claim before we turn to the issue of qualified immunity.
B. General Preclusion of § 1983 Claims
Section 1 of the Civil Rights Act of 1871, codified as
42 U.S.C. § 1983, “authorizes suits to enforce individual
rights under federal statutes as well as the Constitution”
against state and local government officials. City of
Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119
(2005). Section 1983 does not create substantive rights,
but operates as “a means for vindicating federal rights
conferred elsewhere.” Padula v. Leimbach, 656 F.3d 595,
600 (7th Cir. 2011) (quoting Ledford v. Sullivan, 105 F.3d
354, 356 (7th Cir. 1997)).
In evaluating the limits of relief available under § 1983
for statutory claims, the Supreme Court has held that
8 No. 11-2820
“[w]hen the remedial devices provided in a particular
Act are sufficiently comprehensive, they may suffice to
demonstrate congressional intent to preclude the
remedy of suits under § 1983.” Middlesex Cnty. Sewerage
Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). In
Sea Clammers, the Supreme Court held that a suit for
damages under the Federal Water Pollution Control
Act (“FWPCA”) or Marine Protection, Research, and
Sanctuaries Act of 1972 (“MPRSA”) could not be
brought pursuant to § 1983 because both Acts “provide
quite comprehensive enforcement mechanisms.” Id.
These mechanisms include citizen-suit provisions, which
allow private citizens to sue for prospective relief, and
notice provisions requiring such plaintiffs to notify
the EPA, the State, and the alleged violator before
filing suit. Id. at 6.
Over two decades after Sea Clammers, the Supreme
Court again rejected a plaintiff’s attempt to seek
damages under § 1983 for violation of a statute which
provided its own, more restrictive judicial remedy. See
Rancho Palos Verdes, 544 U.S. at 121-23. In Ranchos Palos
Verdes, the plaintiff filed suit for injunctive relief under
the Telecommunications Act of 1996 (“TCA”) and
sought damages and attorney’s fees under § 1983 after a
city planning committee denied his request for a
conditional-use permit for an antenna tower on his prop-
erty. Id. at 117-18. The TCA “imposes specific limita-
tions on the traditional authority of state and local gov-
ernments to regulate the location, construction, and
modification of [wireless communications] facilities.” Id.
at 115. When a permit is requested and denied, the
No. 11-2820 9
TCA requires local governments to provide a written
decision, supported by substantial evidence, within a
reasonable period of time. Id. at 116. An individual
may seek judicial review within thirty days of this deci-
sion, id., and the court is required to hear and decide
the case on an expedited basis, id. at 122. Further, a
plaintiff may not be entitled to compensatory damages
and cannot recover attorney’s fees and costs. Id. at 122-23.
In discerning congressional intent, the Court held that
“[t]he provision of an express, private means of redress
in the statute itself is ordinarily an indication that
Congress did not intend to leave open a more expansive
remedy under § 1983.” Id. at 121. Conversely, the Court
noted that “in all of the cases in which we have held that
§ 1983 is available for violation of a federal statute, we
have emphasized that the statute at issue . . . did not
provide a private judicial remedy . . . for the rights vio-
lated.” Id. Because the TCA’s provisions limit the
relief available to private individuals and provide for
expedited judicial review, the Court held that the TCA
precludes relief under § 1983. Id. at 127.
While the plaintiffs in Sea Clammers and Rancho
Palos Verdes sought to assert federal statutory rights
under § 1983, two other Supreme Court cases have ex-
amined whether a plaintiff is precluded from asserting
constitutional rights under § 1983 when a remedial statutory
scheme also exists. In Smith v. Robinson, the Supreme
Court held that Congress intended the Education of the
Handicapped Act (“EHA”), 91 Pub. L. No. 230, 84 Stat. 175,
as amended, 20 U.S.C. § 1400 et. seq. (1982), “to be the
10 No. 11-2820
exclusive avenue through which a plaintiff may assert
an equal protection claim to a publicly financed special
education.” 468 U.S. 992, 1009 (1984), superseded by
statute, Handicapped Children’s Protection Act of 1986,
Pub. L. No. 99-372, 100 Stat. 796. The EHA was designed
to “aid the States in complying with their constitu-
tional obligations to provide public education for handi-
capped children.” Id. The Act established “an enforce-
able substantive right to a free appropriate public educa-
tion” and “an elaborate procedural mechanism to
protect the rights of handicapped children.” Id. at 1010-
11. Under the EHA, plaintiffs were entitled to a fair
and adequate state hearing, detailed procedural safe-
guards, and judicial review. Id. at 1011. Relying on
the comprehensive statutory scheme and legislative
history, the Supreme Court held that Congress did not
intend to allow a handicapped child to bypass the
EHA and go directly to court with a § 1983 equal pro-
tection claim as “such a result [would] render super-
fluous most of the detailed procedural protections in
the statute.” Id.1
1
Notably, Congress disagreed with the Supreme Court’s
interpretation of its intent. In the Handicapped Children’s
Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986),
Congress added the following provision to the EHA:
Nothing in this title shall be construed to restrict or
limit the rights, procedures, and remedies available
under the Constitution, title V of the Rehabilitation
Act . . . of 1973, or other Federal statutes protecting the
(continued...)
No. 11-2820 11
In Preiser v. Rodriguez, the Supreme Court considered
whether state prisoners deprived of good-time credits
could pursue their claims for equitable relief under § 1983
or if such a remedy was unavailable because of the
habeas corpus statutes, 28 U.S.C. §§ 2241, 2254. 411 U.S.
475, 477 (1973). The Supreme Court discussed the
history of habeas corpus and recognized that “over the
years, the writ of habeas corpus evolved as a remedy
available to effect discharge from any confinement
contrary to the Constitution or fundamental law.” Id. at
485. Procedurally, the writ requires a prisoner to
exhaust his adequate state remedies prior to seeking
federal judicial relief. Id. at 489. The Court held that
Congress intended habeas corpus to be the sole remedy,
as “[i]t would wholly frustrate explicit congressional
intent to hold that the respondents in the present case
could evade this requirement by the simple expedi-
1
(...continued)
rights of handicapped children and youth, except that
before the filing of a civil action under such laws
seeking relief that is also available under this part, the
procedures under subsections (b)(2) and (c) shall be
exhausted to the same extent as would be required
had the action been brought under this part.
Thus, although Congress requires a handicapped plaintiff
asserting a claim for free appropriate education to first exhaust
his or her administrative remedies under the EHA, § 1983 equal
protection claims are no longer precluded. See Bd. of Educ. of
E. Windsor Reg’l Sch. Dist. v. Diamond, 808 F.2d 987, 995 (3d Cir.
1986).
12 No. 11-2820
ent of putting a different label on their pleadings.”
Id. at 489-90.
Although we have highlighted the four opinions in
Sea Clammers, Rancho Palos Verdes, Smith, and Preiser, each
of which found a § 1983 claim precluded, the Supreme
Court does not “lightly conclude that Congress in-
tended to preclude reliance on § 1983 as a remedy” for
the deprivation of a federal right. Smith, 468 U.S. at 1012
(noting that § 1983 has always been “an independent
safeguard against deprivations of federal constitutional
and statutory rights”). In fact, the Court has rejected § 1983
preclusion arguments in several other cases. See, e.g.,
Blessing v. Freestone, 520 U.S. 329, 348 (1997) (if Title IV-D
of the Social Security Act gives rise to individual rights,
its enforcement scheme contains no private remedy
and is not comprehensive enough to preclude § 1983 lia-
bility); Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 520-23 (1990)
(unlike the statutory schemes in Sea Clammers and
Smith, “[t]he Medicaid Act contains no comparable provi-
sion for private judicial or administrative enforcement”
and its administrative scheme is not “sufficiently com-
prehensive to demonstrate a congressional intent to
withdraw the private remedy of § 1983”); Wright v. City
of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 427-
29 (1987) (Department of Housing and Urban Develop-
ment’s generalized powers under its regulations and
an amendment to the Housing Act were not sufficiently
comprehensive to foreclose a § 1983 remedy).
Most recently, the Supreme Court considered whether
Title IX of the Education Amendments of 1972, 20 U.S.C.
No. 11-2820 13
§ 1681(a), precludes a § 1983 equal protection claim.
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009). The
Court first acknowledged the importance of discerning
congressional intent and summarized its prior rulings,
stating:
In cases in which the § 1983 claim alleges a consti-
tutional violation, lack of congressional intent
may be inferred from a comparison of the rights
and protections of the statute and those existing
under the Constitution. Where the contours of
such rights and protections diverge in significant
ways, it is not likely that Congress intended to
displace § 1983 suits enforcing constitutional
rights. Our conclusions regarding congressional
intent can be confirmed by a statute’s context.
Id. at 252-53. The Court also recognized that, in its
prior opinions finding preclusion, the statutes at issue
required plaintiffs to exhaust their administrative
remedies or comply with other procedural require-
ments before filing suit. Id. at 254. “Offering plaintiffs
a direct route to court via § 1983 would have cir-
cumvented these procedures and given plaintiffs access
to tangible benefits—such as damages, attorney’s fees,
and costs—that were unavailable under the statutes.” Id.
Turning to the statute before it, the Supreme Court
examined Title IX’s remedial scheme and determined
that Title IX does not preclude a § 1983 equal protection
claim. Title IX prohibits discrimination on the basis of
gender in educational programs that receive federal
financial assistance. Id. at 255 (quoting 20 U.S.C. § 1681(a)).
14 No. 11-2820
Two enforcement mechanisms exist: (1) “an administra-
tive procedure resulting in the withdrawal of federal
funding from institutions that are not in compliance”
and (2) an implied private right of action, through which
a plaintiff may seek injunctive relief and recover dam-
ages. Id. A plaintiff suing under Title IX is not required to
exhaust any administrative remedies or provide notice
before filing suit; instead, “plaintiffs can file directly in
court and can obtain the full range of remedies.” Id.
(internal citation omitted). Further, Congress failed to
include an express private right remedy, and the Court
“has never held that an implied right of action had the
effect of precluding suit under § 1983, likely because of the
difficulty of discerning congressional intent in such a
situation.” Id. at 256.
The Court also emphasized the differences between
the protections guaranteed by Title IX and the Equal
Protection Clause. First, Title IX permits a plaintiff to
sue institutions and programs receiving federal
funding, but does not authorize suit against school offi-
cials, teachers, or other individuals. Id. at 257. In contrast,
§ 1983 equal protection claims reach state actors,
including individuals, municipalities, and other state
entities. Id. Second, some policies that are exempted under
Title IX could still be subject to claims under the Equal
Protection Clause. Id. (citing United States v. Virginia, 518
U.S. 515, 534 (1996) (male-only admissions policy at
Virginia Military Institute would not violate Title IX but
did violate the Equal Protection Clause); Miss. Univ. for
Women v. Hogan, 458 U.S. 718, 731 (1982) (policy of admit-
ting only females at traditionally single-sex college
No. 11-2820 15
violated the Equal Protection Clause, but such policies
are exempted under Title IX)). Finally, the Court noted
that “the standards for establishing liability may not be
wholly congruent.” Id. For example, a Title IX plaintiff
may only have to show that a school administrator acted
with deliberate indifference while a § 1983 plaintiff
must demonstrate the existence of a municipal custom,
policy, or practice. Id. at 257-58. Because of these differ-
ences and the absence of a comprehensive remedial
scheme, the plaintiffs’ § 1983 equal protection claim
was not precluded.
We conclude from these cases that, in determining
whether a § 1983 equal protection claim is precluded by
a statutory scheme, the most important consideration
is congressional intent. Congressional intent may be
construed from the language of the statute and legisla-
tive history, Smith, 468 U.S. at 1009, the statute’s context,
Rancho Palos Verdes, 544 U.S. at 127 (Breyer, J., concurring),
the nature and extent of the remedial scheme, Sea
Clammers, 453 U.S. at 20, and a comparison of the
rights and protections afforded by the statutory scheme
versus a § 1983 claim, Fitzgerald, 555 U.S. at 252-53. A
statutory scheme may preclude a § 1983 constitutional
claim, see Smith, 468 U.S. at 1013, especially if a § 1983
claim circumvents the statute’s carefully tailored
scheme and provides access to benefits unavailable
under that scheme, Fitzgerald, 555 U.S. at 254. Keeping
these concepts in mind, we now turn to the issue before
us: whether the ADEA precludes a § 1983 equal protec-
tion claim.
16 No. 11-2820
C. ADEA Preclusion of § 1983 Claims
Congress enacted the ADEA “to promote employment
of older persons based on their ability rather than age;
to prohibit arbitrary age discrimination in employment;
[and] to help employers and workers find ways of
meeting problems arising from the impact of age on
employment.” 29 U.S.C. § 621(b). The ADEA makes it
unlawful for an employer to “to fail or refuse to hire or
to discharge any individual or otherwise discriminate
against any individual . . . because of such individual’s
age.” Id. § 623(a)(1). In general, the ADEA provides cover-
age for private, state, and federal employees who are
forty years of age and older, id. §§ 630(f), 631(a), 633a(a),
albeit with a few notable exceptions, see id. §§ 623(j), 630(f).
The Act “incorporates some features of both Title VII
and the Fair Labor Standards Act of 1938 [FLSA], which
has led [the Supreme Court] to describe it as ‘something
of a hybrid.’ ” McKennon v. Nashville Banner Publ’g Co., 513
U.S. 352, 357 (1995) (quoting Lorillard v. Pons, 434 U.S.
575, 578 (1978)). Specifically, the substantive provisions
of the ADEA are modeled after Title VII, while its
remedial provisions incorporate provisions of the FLSA.
Id.; 29 U.S.C. § 626(b).
The ADEA expressly grants individual employees a
private right of action. McKennon, 513 U.S. at 358 (citing
29 U.S.C. § 626(c) (“Any person aggrieved may bring a
civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the
purposes of this chapter.”)). An ADEA plaintiff must
first file a charge with the Equal Employment Oppor-
No. 11-2820 17
tunity Commission (EEOC), generally within 180 days
of the unlawful age discrimination. 29 U.S.C. § 626(d)(1).
The EEOC then notifies all parties involved and, if the
EEOC believes there has been a violation, the agency
“promptly seek[s] to eliminate any alleged unlawful
practice by informal methods of conciliation, conference,
and persuasion.” Id. § 626(d)(2). If the EEOC charge
is dismissed or terminated, the EEOC is required to
notify the plaintiff. Id. § 626(e).
Sixty days after filing an EEOC charge, a plaintiff is
entitled to file a civil lawsuit and, if he seeks damages,
receive a trial by jury. Id. § 626(c)(1)-(2). This right termi-
nates, however, if the EEOC files its own lawsuit to
enforce the plaintiff’s claim. Id. § 626(c)(1). “When con-
fronted with a violation of the ADEA, a district court
is authorized to afford relief by means of reinstatement,
backpay, injunctive relief, declaratory judgment, and
attorney’s fees.” McKennon, 513 U.S. at 357. If a vio-
lation was willful, a plaintiff may recover liquidated
damages. Id. “The Act also gives federal courts the dis-
cretion to ‘grant such legal or equitable relief as may
be appropriate to effectuate the purposes of [the Act].’ ”
Id. at 357-58 (quoting 29 U.S.C. § 626(b)).
Whether the ADEA precludes a § 1983 equal protection
claim is a matter of first impression in the Seventh Cir-
cuit. All other circuit courts to consider the issue
have held that the ADEA is the exclusive remedy for
age discrimination claims, largely relying on the Fourth
Circuit’s reasoning in Zombro v. Baltimore City Police
Department, 868 F.2d 1364 (4th Cir. 1989). See, e.g., Ahlmeyer
18 No. 11-2820
v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th
Cir. 2009); Tapia-Tapia v. Potter, 322 F.3d 742, 745 (1st Cir.
2003); Migneault v. Peck, 158 F.3d 1131, 1140 (10th Cir.
1998), vacated on other grounds sub nom., Bd. of Regents of
Univ. of N.M. v. Migneault, 528 U.S. 1110 (2000); Lafleur
v. Tex. Dep’t of Health, 126 F.3d 758, 760 (5th Cir. 1997);
Chennareddy v. Bowsher, 935 F.2d 315, 318 (D.C. Cir. 1991).
District courts located in other circuits, however, are
split on the issue. Compare Shapiro v. N.Y. City Dep’t of
Educ., 561 F. Supp. 2d 413, 420 (S.D.N.Y. 2008) (weight
of authority in the Second Circuit holds that the ADEA
does not preclude a § 1983 claim), and Mustafa v. State
of Neb. Dep’t of Corr. Servs., 196 F. Supp. 2d 945,
956 (D. Neb. 2002) (the ADEA does not impliedly repeal
§ 1983 constitutional claims), with Kelley v. White, No.
5:10CV00288, 2011 WL 4344180, at *3 (E.D. Ark. Sept. 15,
2011) (the ADEA is the exclusive remedy for age dis-
crimination claims), and Phillis v. Harrisburg Sch. Dist.,
No. 1:07-cv-1728, 2010 WL 1390663, at *10 (M.D. Pa.
Mar. 31, 2010) (same). In the present case, two district
court judges from the Northern District of Illinois held
that the ADEA does not preclude a § 1983 equal protec-
tion claim. Accord McCann v. City of Chicago, Nos. 89 C 2879
& 90 C 0464, 1991 WL 2538, at *2 (N.D. Ill. Jan. 8, 1991).
In Zombro, the Fourth Circuit held that allowing a
plaintiff to seek recovery for age discrimination through
a § 1983 equal protection claim would undermine the
comprehensive remedial scheme set forth in the ADEA.
868 F.2d at 1366-67. Citing the ADEA’s provisions re-
quiring notice to the EEOC, informal conciliation, and
termination of a plaintiff’s action upon the filing of a
No. 11-2820 19
complaint by the EEOC, the court believed that if a
plaintiff could pursue a § 1983 action instead, “[t]he
plaintiff would have direct and immediate access to
the federal courts, the comprehensive administrative
process would be bypassed, and the goal of compliance
through mediation would be discarded.” Id. at 1366.
Where Congress has enacted a comprehensive statutory
scheme, such as the ADEA, the Fourth Circuit holds
that preclusion of § 1983 suits is appropriate “unless
the legislative history of the comprehensive statutory
scheme in question manifests a congressional intent to
allow an individual to pursue independently rights
under both the comprehensive statutory scheme and
other applicable state and federal statutes, such as 42
U.S.C. § 1983.” Id. at 1369. The Fourth Circuit found
no such intent in the language and history of the ADEA.
Id. That court also relied upon the ADEA’s adoption
of Section 216 of the FLSA, which has been held to be
“the sole remedy available to the employee for enforce-
ment of whatever rights he may have under the FLSA.”
Id. (citing Lerwill v. Inflight Motion Pictures, Inc.,
343 F. Supp. 1027 (N.D. Cal. 1972)). To the court, this
shared provision, along with the ADEA’s precisely
drawn statutory scheme, evidenced congressional
intent that the ADEA be the exclusive remedy for age
discrimination suits. Id.
Several circuit courts addressing ADEA preclusion
have simply relied on Zombro’s holding. See, e.g., Tapia-
Tapia, 322 F.3d at 745 (“The ADEA provides the exclu-
sive federal remedy for age discrimination in employ-
ment.” (citing Zombro, 868 F.2d at 1369)); Chennareddy, 935
20 No. 11-2820
F.2d at 318 (same). But not all district court judges are
convinced. The leading district court case rejecting
ADEA preclusion of § 1983 equal protection claims is
Mummelthie v. City of Mason City, Iowa, 873 F. Supp. 1293
(N.D. Iowa 1995). In that case, Judge Bennett sharply
criticized the Fourth Circuit’s analysis in Zombro, noting
that the court failed to consider the statutory language
and legislative history of the ADEA, as well as its sim-
ilarities to Title VII, a statutory scheme which does not
preclude § 1983 claims. Id. at 1319, 1322 (citing, e.g., Trigg
v. Fort Wayne Cmty. Sch., 766 F.2d 299, 302 (7th Cir. 1985)
(“A plaintiff may sue her state government employer
for violations of the Fourteenth Amendment through
§ 1983 and escape Title VII’s comprehensive remedial
scheme, even if the same facts would suggest a violation
of Title VII.”)).
Given the conflicting case law, further review of this
issue is required. Although the ADEA enacts a compre-
hensive statutory scheme for enforcement of its own
statutory rights, akin to Sea Clammers and Rancho Palos
Verdes, we find that it does not preclude a § 1983 claim
for constitutional rights.2 While admittedly a close call,
especially in light of the conflicting decisions from our
sister circuits, we base our holding on the ADEA’s lack
2
Because this decision creates a conflict among the circuits, this
opinion has been circulated before release to all active judges
under Circuit Rule 40(e). No judge favored a hearing en banc;
Circuit Judge Flaum did not participate in the consideration
or decision of this case.
No. 11-2820 21
of legislative history or statutory language precluding
constitutional claims, and the divergent rights and pro-
tections afforded by the ADEA as compared to a § 1983
equal protection claim. Cf. Fitzgerald, 555 U.S. at 252-53.
1. Statutory Text and Legislative History
Nothing in the text of the ADEA expressly precludes a
§ 1983 claim or addresses constitutional rights. See
Zombro, 868 F.2d at 1374 (Murnaghan, J., concurring in
part and dissenting in part). Nor does the legislative
history provide clear guidance on this issue.3 Although
3
Mummelthie and other district courts rely, in part, on the
legislative history of the ADEA in finding that Congress did not
intend to preclude § 1983 equal protection claims. In 1972,
Senator Lloyd Bentsen sponsored an ADEA amendment to
subject federal, state, and local government employers to the
ADEA. See 118 Cong. Rec. 15,895 (1972). At the time, a similar
Title VII amendment had been proposed, and an unidentified
committee report stated that federal, state, and local employees
should be entitled “to the same benefits and protections in
equal employment as the employees in the private sector.” Id.
After citing this report, Senator Bentsen argued that “the
principles underlying these provisions in the EEOC bill are
directly applicable to the [ADEA].” Id. In a House report
addressing the Title VII amendment, Congress clearly acknowl-
edged the continued viability of a § 1983 claim. H.R. Rep. No.
92-238, at 18 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2154
(“In establishing the applicability of Title VII to State and
local employees, the Committee wishes to emphasize that the
(continued...)
22 No. 11-2820
the Zombro court interpreted this lack of explicit
language or legislative history as congressional intent not
to allow individuals to pursue constitutional rights
outside of the ADEA’s scheme, see id. at 1369, we reach
the opposite conclusion. Congress’s silence on the issue
tells us nothing about preclusion—we do not know
whether Congress even considered alternative constitu-
tional remedies in enacting the ADEA.
We agree with the Zombro majority that the ADEA
sets forth a rather comprehensive remedial scheme. The
ADEA provides a private right of action, requires notice
and exhaustion of remedies, and limits the damages
available under the Act. See 29 U.S.C. § 626(b), (d)(1)-(2).
Like Sea Clammers and Rancho Palos Verdes, this scheme
speaks volumes as to how Congress intended allegations
of statutory age discrimination to proceed.
3
(...continued)
individual’s right to file a civil action in his own behalf, pursu-
ant to [42 U.S.C. §§ 1981, 1983], is in no way affected.”).
Mummelthie therefore concludes that Senator Bentsen’s com-
ment implies that the same non-preclusion principle applies
to the ADEA. 873 F. Supp. at 1325-26.
Although at first blush, Senator Bentsen’s remark appears
to support Mummelthie’s reasoning, his comments are some-
what ambiguous and it’s unclear whether he was referencing
H.R. Rep. No. 92-238 and the committee’s statement that § 1983
claims were “in no way affected.” Given the ambiguous
nature of Senator Bentsen’s remark, we have a difficult time
relying on it as proof of congressional intent.
No. 11-2820 23
But, as to constitutional claims, we do not believe Con-
gress’s intent is as apparent as other circuit courts have
found. As noted in Mummelthie, “the ADEA does not
purport to provide a remedy for violation of federal
constitutional rights” and no express language in-
dicates that Congress intended to foreclose relief under
§ 1983 for constitutional violations. 873 F. Supp. at 1325.
Beyond that, we have a hard time concluding that Con-
gress’s mere creation of a statutory scheme for age dis-
crimination claims was intended to foreclose pre-
existing constitutional claims. Congress frequently
enacts new legal remedies that are not intended to
repeal their predecessors. See, e.g., Salinas v. United States,
522 U.S. 52, 64 (1997) (comparing the general criminal
conspiracy statute to the later-enacted Racketeer Influ-
enced and Corrupt Organizations Act (RICO)). Accord-
ingly, the Supreme Court has emphasized on several
occasions that “repeals by implication are not favored
and will not be presumed unless the intention of the
legislature to repeal is clear and manifest.” Hui v.
Castaneda, 130 S. Ct. 1845, 1853 (2010) (quoting Hawaii v.
Office of Hawaiian Affairs, 556 U.S. 163, 175 (2009)).
What, then, do we make of the Supreme Court’s
holdings in Smith and Preiser, which held that constitu-
tional claims were barred by the existence of comprehen-
sive statutory schemes? In both of those cases, the
statutes at issue were specifically designed to address
constitutional issues. For instance, the habeas corpus
statutes in Preiser provide a remedy for prisoners “in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis
24 No. 11-2820
added); accord 28 U.S.C. § 2254(a). Similarly, the Smith
court acknowledged that “[t]he EHA is a comprehen-
sive scheme set up by Congress to aid the States in com-
plying with their constitutional obligations to provide
public education for handicapped children.” 468 U.S. at
1009 (emphasis added). The statute itself provides
that federal intervention is necessary to “ensure equal
protection of the law.” 20 U.S.C. § 1400(c)(6). This goal
is also referenced in the legislative history, as recognized
in Smith. 468 U.S. at 1010 (quoting S. Rep. No. 94-168, at
13 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1437).
These references demonstrate that Congress considered
alternative constitutional remedies in enacting the EHA.
The ADEA is readily distinguishable. “In contrast to
the statutes at issue in Preiser and in Smith, the ADEA
does not purport to provide a remedy for violation of
constitutional rights. Instead, it provides a mechanism
to enforce only the substantive rights created by the
ADEA itself.” Zombro, 868 F.2d at 1373 (Murnaghan, J.,
concurring in part and dissenting in part). For the pre-
clusion of constitutional claims, we believe more is
required than a comprehensive statutory scheme. This
notion is supported by the Supreme Court’s references
in Smith to the legislative history of the EHA. 468 U.S.
at 1009 (“Both the provisions of the statute and its legisla-
tive history indicate that Congress intended handi-
capped children with constitutional claims to a free
appropriate public education to pursue those claims
through the carefully tailored administrative and judicial
mechanism set out in the statute.”). Thus, in Smith, it was
more than just the comprehensive remedial scheme that
No. 11-2820 25
convinced the Court that the EHA is an exclusive remedy.
In this way, Smith differs from Sea Clammers and
Rancho Palos Verdes, cases tasked only with determining
whether § 1983 statutory claims were precluded by
that statute’s own comprehensive scheme. In sum, even
though the ADEA is a comprehensive remedial
scheme, without some additional indication of congres-
sional intent, we cannot say that the ADEA’s scheme
alone is enough to preclude § 1983 constitutional claims.
The Ninth Circuit’s recent Ahlmeyer decision raises
one additional point on this issue that necessitates dis-
cussion, as the court relied upon our prior precedent.
As background, because age is not a suspect classifica-
tion, an equal protection claim of age discrimination
in employment is subject only to rational basis review, in
which the age classification must be rationally related to
a legitimate state interest. See Kimel, 528 U.S. at 83-84.
In contrast, the ADEA “prohibits substantially more
state employment decisions and practices than would
likely be held unconstitutional under the applicable
equal protection, rational basis standard.” Id. at 86. Thus,
the Ahlmeyer decision notes in its opinion that “[b]ecause
the ADEA provides broader protection than the Con-
stitution, a plaintiff has ‘nothing substantive to gain’ by
also asserting a § 1983 claim.” 555 F.3d at 1058 (citing
Williams v. Wendler, 530 F.3d 584, 586 (7th Cir. 2008)).
In Williams, we briefly discussed the plaintiffs’ failure
to differentiate their Title VI and equal protection
claims. 530 F.3d at 586. Citing Sea Clammers, we noted
that “[w]hen Congress enacts a comprehensive scheme
26 No. 11-2820
for enforcing a statutory right that is identical to a right
enforceable under 42 U.S.C. § 1983, . . . the section 1983
lawsuit must be litigated in accordance with the
scheme.” Id. We then recognized that, according to the
Supreme Court, Title VI proscribes only those racial
classifications that violate the Equal Protection Clause.
Id. (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265,
287 (1978)). Thus, there was nothing to gain by asserting
an equal protection claim, and failure to comply with
Title VI’s procedural requirements would have left the
plaintiffs without a remedy. Id. But again, like Smith,
Title VI’s legislative history provides insight into Con-
gress’s intent. See Bakke, 438 U.S. at 286-87 (“In view of
the clear legislative intent, Title VI must be held to
proscribe only those racial classifications that would
violate the Equal Protection Clause . . . .” (emphasis
added)). In light of this clear congressional intent,
Williams (like Smith) is also distinguishable from the
ADEA. And while we freely acknowledge that
the ADEA’s heightened scrutiny provides a stronger
mechanism for plaintiffs to challenge age discrimination
in employment, absent any additional indication from
Congress, we simply cannot infer that Congress
intended to do away with a § 1983 constitutional alter-
native. See Smith, 468 U.S. at 1012 (“Since 1871, when it
was passed by Congress, § 1983 has stood as an independ-
ent safeguard against deprivations of federal constitu-
tional and statutory rights.”).
Finally, the circuit courts rely upon Congress’s incorpo-
ration of the FLSA’s remedial scheme in finding that
Congress intended to preclude a § 1983 constitutional
No. 11-2820 27
remedy. See Zombro, 868 F.2d at 1369. This is a perplexing
argument because the cases which have found the FLSA
to be an exclusive remedy do not (and, in fact, cannot)
address constitutional claims. See Kendall v. City of Chesa-
peake, Va., 174 F.3d 437, 439 (4th Cir. 1999) (“We hold
that the elaborate remedial scheme provided in the
FLSA demonstrates a congressional intent to prohibit
§ 1983 actions to enforce such FLSA rights.” (emphasis
added)); Lerwill, 343 F. Supp. at 1029 (same). Unlike
Title VII and the ADEA, the rights created by the FLSA
are not based on rights also guaranteed by the Constitu-
tion. Thus, cases addressing FLSA exclusivity speak
little to the issue presently before this court. We have
no quarrel with the notion that the FLSA is the sole
remedy for the enforcement of FLSA rights and,
similarly, the ADEA is the sole remedy for the enforce-
ment of ADEA rights.4 Even the district courts that
believe the ADEA does not preclude § 1983 constitu-
tional claims agree on this point. See, e.g., Mustafa, 196
F. Supp. 2d at 956 n.13 (“[S]ection 1983 cannot be used as
an alternate mechanism to assert violation of the
ADEA’s provisions against states.”); Mummelthie, 873 F.
Supp. at 1317 (“The court has no dispute with the con-
clusions of those federal courts holding that . . . state,
local, and private employees cannot use § 1983 to
address violations based directly on the ADEA itself and
4
We have also recognized that a plaintiff may not seek
to enforce rights conveyed by Title VII through a § 1983 claim.
See Trigg, 766 F.2d at 301 (citing Great Am. Fed. Sav. & Loan
Ass’n v. Novotny, 442 U.S. 366, 376 (1979)).
28 No. 11-2820
not on independent, federal constitutional rights.”).
Because the FLSA lacks a constitutional counterpart,
it provides little additional guidance beyond the
statutory text.5
2. Comparison of Rights and Protections
Given the absence of any clear or manifest congressional
intent in either the language of the statute or the legisla-
5
Like many other district courts, Judge Coar relied upon Title
VII and the ADEA’s similarities in finding no preclusion, citing
precedent from this court recognizing the two statutes’ like-
nesses. Levin I, 697 F. Supp. 2d at 970. In those cases, we
noted the statutes’ similar “objectives, substantive prohibi-
tions, and legislative histories,” Kelly v. Wauconda Park Dist.,
801 F.2d 269, 271 (7th Cir. 1986), and recognized that Title VII
“is the legislation which most closely parallels the ADEA.”
EEOC v. Elrod, 674 F.2d 601, 607 (7th Cir. 1982).
Although Title VII is certainly useful in interpreting sub-
stantive provisions of the ADEA, see Kelly, 801 F.2d at 271
(analyzing the ADEA’s definition of an “employer”), it is less
helpful in this instance. As several sources acknowledge, the
remedial provisions of the ADEA, which we focus on in deter-
mining exclusivity, differ from those of Title VII. See, e.g.,
Ahlmeyer, 555 F.3d at 1058-59; David C. Miller, Alone in its
Field: Judicial Trend to Hold that the ADEA Preempts § 1983 in
Age Discrimination in Employment Claims, 29 Stetson L. Rev. 573,
593-95 (2000). Title VII’s legislative history also speaks
explicitly to the issue of § 1983 preclusion, while there is no
similar history for the ADEA. See Trigg, 766 F.2d at 301 n.3.
Thus, Title VII differs in a few significant ways and does not
add much to our analysis.
No. 11-2820 29
tive history, Fitzgerald directs us to compare the rights
and protections afforded by the statute and the Constitu-
tion. 555 U.S. at 252. We believe the rights and protec-
tions afforded by the ADEA and § 1983 equal protection
claims diverge in a few significant ways.
First, an ADEA plaintiff may only sue his employer,
an employment agency, or a labor organization. See 29
U.S.C. § 623. In contrast, a § 1983 plaintiff may file suit
against an individual, so long as that individual
caused or participated in the alleged deprivation of the
plaintiff’s constitutional rights. See Kuhn v. Goodlow, 678
F.3d 552, 555-56 (7th Cir. 2012). A § 1983 plaintiff may
also sue a governmental organization, but only if he can
demonstrate that the alleged constitutional violation
was “caused by (1) an express municipal policy;
(2) a widespread, though unwritten, custom or practice;
or (3) a decision by a municipal agent with final
policymaking authority.” Milestone v. City of Monroe, Wis.,
665 F.3d 774, 780 (7th Cir. 2011) (internal quotation
marks omitted). These divergent rights between the
ADEA and a § 1983 constitutional claim seriously affect
a plaintiff’s choice of defendants and his strategy for
presenting a prima facie case.
Second, the ADEA expressly limits or exempts claims
by certain individuals, including elected officials and
certain members of their staff, appointees, law enforce-
ment officers, and firefighters. See 29 U.S.C. §§ 623(j),
630(f); accord Fitzgerald, 555 U.S. at 257 (no preclusion
where some Title IX exemptions could form the basis of
equal protection claims). The statutory scheme also
30 No. 11-2820
prohibits claims by employees under the age of forty
or those bringing so-called “reverse age discrimination”
claims. See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S.
581, 593 (2004) (“[T]he text, structure, and history point
to the ADEA as a remedy for unfair preference based
on relative youth, leaving complaints of the relatively
young outside the statutory concern.”); Hamilton v. Cater-
pillar Inc., 966 F.2d 1226, 1228 (7th Cir. 1992). There are
no such limitations for § 1983 equal protection claims.
Finally, as a practical matter in light of the Supreme
Court’s decision in Kimel, state employees suing under
the ADEA are left without a damages remedy, as such
claims are barred by Eleventh Amendment sovereign
immunity. 528 U.S. at 91-92. In contrast, “[m]unicipalities
do not enjoy any kind of immunity from suits for
damages under § 1983.” Benedix v. Vill. of Hanover Park, Ill.,
677 F.3d 317, 318-19 (7th Cir. 2012) (citing Owen v. City
of Independence, Mo., 445 U.S. 622 (1980)). Without the
availability of a § 1983 claim, a state employee (like
Levin) who suffers age discrimination in the course of
his employment is left without a federal damages rem-
edy. See Mustafa, 196 F. Supp. 2d at 955 (“[T]he practical
effect [of ADEA preclusion] is elimination of all age
discrimination claims made against state actors in
federal court.”).6
6
Mustafa also notes that, despite Kimel, Congress “certainly
intended to provide a remedy for age discrimination against
state employers when it amended the ADEA in 1974.” 196 F.
(continued...)
No. 11-2820 31
In light of our analysis of the ADEA and the relevant
case law, and given these divergent rights and protec-
tions, we conclude that the ADEA is not the exclusive
remedy for age discrimination in employment claims.
D. Qualified Immunity
Because the ADEA does not preclude Levin’s § 1983
equal protection claim, we now turn to the issue of quali-
fied immunity. We review a district court’s denial of
summary judgment based on qualified immunity de novo.
Surita, 665 F.3d at 868. To determine whether state
actors are entitled to qualified immunity, we consider
“(1) whether the facts, taken in the light most favorable
to the plaintiffs, show that the defendants violated a
constitutional right; and (2) whether that constitutional
right was clearly established at the time of the alleged
violation.” Gonzalez v. City of Elgin, 578 F.3d 526, 540
(7th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223,
232 (2009)). Beyond asserting that the ADEA precludes a
§ 1983 claim, the Individual Defendants do not chal-
lenge the first prong on appeal. Thus, for our purposes,
we need only briefly discuss the second prong of the
qualified immunity analysis.
“A right is clearly established when, at the time of the
challenged conduct, the contours of a right are suf-
6
(...continued)
Supp. 2d at 956. Thus, ADEA exclusivity seems inconsistent
with Congress’s intent to provide a federal forum for state
employees. Id.
32 No. 11-2820
ficiently clear that every reasonable official would have
understood that what he is doing violates that right.”
Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473-74
(7th Cir. 2011) (internal quotation marks and brackets
omitted) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011)). Judge Coar’s opinion granted qualified
immunity as to Levin’s § 1983 equal protection claim,
finding that “whether the Seventh Circuit permits equal
protection claims for age discrimination in light of the
ADEA is unclear.” Levin I, 697 F. Supp. 2d at 972. Accord-
ingly, Judge Coar believed that the constitutional right
was not clearly established and qualified immunity was
appropriate. Id. On reconsideration, Judge Chang
reversed Judge Coar’s ruling, noting that “irrational age
discrimination is clearly forbidden by the Equal Protec-
tion Clause” and the issue of qualified immunity is “not a
question concerning whether a particular procedural
vehicle (i.e., cause of action) is available.” Levin II, 2011
WL 2708341, at *12.
We agree with Judge Chang. At the time of the alleged
wrongdoing, it was clearly established that age discrim-
ination in employment violates the Equal Protection
Clause. See Kimel, 528 U.S. at 83. 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.” Id. 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 uncer-
tainty arises from the fact that Congress created a
No. 11-2820 33
statutory remedy for age discrimination that is substan-
tively broader than the equal protection clause.” Levin II,
2011 WL 2708341, at *12. Because Levin’s constitutional
right was clearly established, the Individual Defendants
are not entitled to qualified immunity.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgment
of the district court.
8-17-12