Assistant Prosecutor Is A "Policymaker" Not Covered By ADEA
OPP v. STATES ATTORNEY OF COOK COUNTY (December 29, 2010)
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Christine Opp, Edward Barrett, and Leonard Cahnmann were each employed as Cook County Assistant State's Attorneys as of the end of 2006. Each of them was dismissed in the first three months of 2007, ostensibly for budgetary reasons. Each of the three filed suit claiming that his or her dismissal was a violation of the Age Discrimination in Employment Act ("ADEA"). Judges Bucklo, Leinenweber, and Castillo (N.D. Ill.) each granted the defendants' motion to dismiss on the grounds that the plaintiffs were excluded from ADEA coverage because they held policymaking positions. The plaintiffs appeal.
In their opinion, Seventh Circuit Judges Bauer, Sykes, and Hamilton affirmed. ADEA excludes from the definition of "employee" elected officials, anyone on an elected official's staff, or an appointee of an elected official "on the policymaking level." The Court noted that, unlike the Second Circuit, it applies the same test in an ADEA case that it applies in a First Amendment political affiliation case. That test is whether the position authorizes "meaningful input into governmental decision-making." In applying the test, a court should look at the powers inherent in the job rather than any one person’s actual duties. The powers inherent in the position of Assistant State's Attorney are set by state law and have been described in prior decisions of the Court. In fact, an Assistant State's Attorney is a surrogate for the State's Attorney and does have the power to create policy. The plaintiffs therefore hold policymaking positions and are not covered by ADEA.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select