Several federal circuits have held that state (and other public) employees cannot seek relief for age discrimination under 42 U.S.C. § 1983, because the ADEA supposedly provides the exclusive remedy for such claims. Yet the Seventh Circuit steps surprisingly out-of-line, and holds that § 1983 claims may be brought to vindicate the federal constitutional right of Equal Protection against arbitrary age-based classifications, independently of the ADEA. It further holds that state agency heads cannot necessarily hide behind qualified immunity to avoid a lawsuit.
Levin v. Madigan, No. 11-2820 (7th Cir. Aug. 17, 2012): State employees who are age 40 and over enjoy only limited rights under the federal ADEA against age discrimination. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83-84 (2000), holds that states are immune under the Eleventh Amendment from money damages under the ADEA, the only cognizable relief being equitable (such as reinstatement). Moreover, policy-making staff are exempt from ADEA protections (29 U.S.C. §630(f)).
In this case, though, a Senior Assistant Attorney General (age 61) was held excluded from relief under the ADEA, yet allowed to seek relief for age discrimination under § 1983.
The Seventh Circuit, reviewing an interlocutory appeal of this case, affirms the district court's denial of qualified immunity to the supervising attorneys in the state attorney general's office who ordered the plaintiff's termination in 2006. In so doing, it bucked the decisions of several other circuits holding that the ADEA is the exclusive federal remedy for age discrimination.
The panel begins by observing that the Supreme Court holds "that '[when 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)." Thus in several cases in the Supreme Court, it has held that § 1983 claims of constitutional violations are superceded by more specific federal remedial statutes such as Smith v. Robinson, 468 U.S. 992 (1984) (Education of the Handicapped Act procedures precludes due process claims), and Preiser v. Rodriguez, 411 U.S. 475 (1983) (equitable relief under § 1983 unavailable because of habeas corpus statutes, 28 U.S.C. §§ 2241, 2254).
On the other hand, the panel notes that the Supreme Court has often found that § 1983 relief can coexist with federal statutes covering the same substantive claim, such as Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009), which held that Title IX did not preclude challenges to sex discrimination claims against schools under § 1983. The issue, then, of whether an employee could bring both ADEA and § 1983 claims to challenge age discrimination in employment was an issue of first impression in the circuit.
Several circuits had previously held or at least assumed that the availability of relief under ADEA, and the preconditions to bringing an ADEA case (such as filing an ADEA charge), barred resort to § 1983. Zombro v. Baltimore City Police Dept, 868 F.2d 1364 (4th Cir. 1989). See, e.g., Ahlmeyer 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).
The Seventh Circuit, though, rejects that line of cases. It holds that although the ADEA sets forth a comprehensive remedial scheme for age discrimination, it is not inconsistent with relief directly under the U.S. Constitution:
"'[T]he ADEA does not purport to provide a remedy for violation of federal constitutional rights' and no express language indicates that Congress intended to foreclose relief under § 1983 for constitutional violations. [Citation omitted.] Beyond that, we have a hard time concluding that Congress's mere creation of a statutory scheme for age discrimination claims was intended to foreclose preexisting constitutional claims. Congress frequently enacts new legal remedies that are not intended to repeal their predecessors."
Thus holding that an employee can thus sue a state directly for Equal Protection violations related to age, the panel also holds that the state-official defendants were not qualifiedly immune from damages.
"At the time of the alleged wrongdoing, it was clearly established that age discrimination 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 uncertainty arises from the fact that Congress created a statutory remedy for age discrimination that is substantively 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."