Christine A. Opp v. Office of the State’s Attorney of Cook County

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3714, 09-3923 & 10-1060
CHRISTINE A. OPP,
Plaintiff-Appellant,
v.
OFFICE OF THE STATE’S ATTORNEY
OF COOK COUNTY, et al.,
Defendants-Appellees.
EDWARD J. BARRETT,
Plaintiff-Appellant,
v.
COOK COUNTY STATE’S ATTORNEY
OFFICE, et al.,
Defendants-Appellees.
LEONARD CAHNMANN,
Plaintiff-Appellant,
v.
RICHARD A. DEVINE, individually and in his
official capacity as STATE’S ATTORNEY OF
COOK COUNTY, ILLINOIS, et al.,
Defendants-Appellees.

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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.
ARGUED SEPTEMBER 21, 2010—DECIDED DECEMBER 29, 2010
Before BAUER, SYKES and HAMILTON, Circuit Judges.
BAUER, 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

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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.

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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-

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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

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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

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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

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8 Nos. 09-3714, 09-3923 & 10-1060
These types of cases include Soderbeck v. Burnett County, 752 1
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).
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. Nonetheless, we clarified the application of1
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

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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

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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

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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 AFFIRM.
12-29-10

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