9th Cir.: ADEA precludes § 1983/14th Am. claims

The Ninth Circuit held that the Age Discrimination in Employment Act (ADEA) precludes any remedies under 42 U.S.C. § 1983 for statutory or constitutional violations.

The court reasoned that the ADEA's limited remedial scheme is sufficiently comprehensive to preclude any other remedies, notwithstanding that this leaves state employees without a remedy. Curiously, the decision does not mention a major § 1983 preclusion decision handed down by the Supreme Court just last month. Ahlmeyer v. Nevada System of Higher Educ., --- F.3d ----, 2009 WL 385875 (9th Cir. Feb. 18, 2009) (No. 06-15654).

 

          Ahlmeyer claimed she was denied workplace privileges and given reprimands where younger colleagues in similar circumstances were not. When her ADEA claim was dismissed on the basis of sovereign immunity, she sought leave to add an Equal Protection claim under § 1983. Other circuits have held that the ADEA precludes § 1983 claims. Zombro v. Baltimore City Police Dept., 868 F.2d 1364 (4th Cir.1989); Lafleur v. Tex. Dep't of Health, 126 F.3d 758, 760 (5th Cir.1997); Migneault v. Peck, 204 F.3d 1003, 1004 n. 1 (10th Cir.2000). Some district courts have disagreed.

 

          The panel adopted the reasoning of Zombro, saying that by providing more limited remedies under the ADEA, including the requirement of first filing with the EEOC, Congress implicitly meant to preclude § 1983 suits. Some courts have reasoned that since the ADEA is modeled on Title VII of the Civil Rights Act, the ADEA like Title VII is not preclusive. But the panel pointed out that while its substantive provisions are modeled on Title VII, the ADEA's remedial provisions are borrowed from the Fair Labor Standards Act, and do not for example provide emotional or punitive damages. The panel also said that the ADEA imposes a stricter standard than rational-basis review under the Equal Protection Clause, and it could not imagine any case in which the Constitution provides broader rights. Finally, the court said that the fact that preclusion would leave state workers without remedies was not determinative. It relied upon Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), which found relief under Ex Parte Young precluded by a comprehensive statutory scheme.

 

          It is strange that the court does not even mention Fitzgerald v. Barnstable Sch. Committee, 129 S.Ct. 788 (Jan. 21, 2009) (summary), which unanimously held that Title IX does not preclude Equal Protection claims under § 1983. Perhaps the panel thougt Barnstable distinguishable, because, e.g., Title IX does not impose exhaustion or notice requirements, or because Barnstable pointed to instances where the Constitution would provide greater protection. Yet Barnstable also points out that § 1983 is broader than antidiscrimination statutes in that it permits claims against individual state officials – and indeed, Ahlmeyer sought to bring a § 1983 claim against her former supervisor. Accordingly, the court's failure to consider the reasoning of Barnstable makes its holding at least questionable.