Kilpatrick v. Crenshaw County Commission et al

Filing 13

OPINION. An appropriate judgment will be entered. Signed by Honorable Judge Myron H. Thompson on 6/8/2016. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOHN KILPATRICK,

)
)
Plaintiff,
)
)
v.
)
)
CRENSHAW COUNTY COMMISSION )
and BENJAMIN H. SANDERS,
)
in his individual capacity )
as County Engineer,
)
)
Defendants.
)

CIVIL ACTION NO.
2:13cv953-MHT
(WO)

OPINION
Plaintiff
pursuant

to

John
42

Kilpatrick

U.S.C.

brought

§ 1983,

this

claiming

action

that

the

defendants, the Crenshaw County Commission and County
Engineer Benjamin H. Sanders, violated his civil rights
in two ways.

First, he claims that the defendants

urged him to resign on account of his advanced age and
fired him when he refused to do so.

He frames this as

an equal-protection claim, rather than as a claim under
the Age Discrimination in Employment Act
U.S.C.

§§ 621-634.

defendants

denied

Second,
him

the

he

claims

procedural

(ADEA), 29
that

the

due-process

protections prescribed by their own policy.
seeks damages as well as injunctive
relief.

Kilpatrick

and declaratory

Jurisdiction is proper under 28 U.S.C. §§ 1331

(federal question) and 1343 (civil rights).
This

case

in

now

before

the

court

on

the

defendants’ motion to dismiss both claims against them.
For

the

reasons

that

follow,

that

motion

will

be

granted and this lawsuit dismissed in its entirety.

I.

LEGAL STANDARD

In considering the defendants’ motion to dismiss,
the court accepts the plaintiff’s allegations as true,
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and
construes the complaint in the plaintiff’s favor, Duke
v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).
issue

is

not

whether

a

plaintiff

will

“The

ultimately

prevail but whether the claimant is entitled to offer
evidence to support the claims.”
416 U.S. 232, 236 (1974).

Scheuer v. Rhodes,

To survive a motion to

dismiss, a complaint need not contain “detailed factual

2

allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007).

However, it must contain “enough facts to

state a claim to relief that is plausible on its face.”
Id. at 574.

II.

FACTS

Kilpatrick’s factual allegations, which the court
accepts as true for the purposes of deciding the motion
to dismiss, are as follows.
Kilpatrick had worked for defendant Crenshaw County
Commission for 16 years when he was terminated in June
2012.

Most recently, he worked for six and a half

years as a landfill operator under the auspices of the
Crenshaw County Highway Department, which is headed by
defendant Sanders.
In February 2012, Sanders informed Kilpatrick, who
was then in his early eighties, that, if he did not
retire, he would be fired because he was “just too old
to continue working.”
Subsequently,

Complaint (doc. no. 1) at 3.

Kilpatrick

was

3

“subjected

to

adverse

disciplinary
until

he

actions

received

a

by

his

letter

immediate
informing

supervisor,”
him

that

his

employment had been terminated, effective immediately. 1
Although he does not specifically state as much, it can
be

inferred

from

his

factual

allegations

that

the

states

in

letter gave no reason for the dismissal.
Crenshaw

County’s

personnel

manual

relevant part: 2
“When
an
anticipated
disciplinary
action involves a deprivation of an
employee’s right, such as suspension
without pay or dismissal from service,
the appointing authority will comply
with
the
required
due
process
requirements
of
these
guidelines
before the effective date of the
proposed action.
As a minimum the
county’s due process requirement will
include the following:
a. The employee will be notified by
his/her
appointing
authority
in

1. The nature of the alleged misconduct underlying
these disciplinary actions is not specified either in
the complaint or in the briefing on the motion to
dismiss.
2. This quotation (which appears to include errors
either in the original or else in the transcription)
comes from Kilpatrick’s complaint and not from any
document in evidence.
4

writing before the effective date of
any proposed discipline:
(1) the
reason(s) for the proposed discipline;
(2) the proposed disciplinary action
to be taken and the effective date;
(3) of his/her right to due process
hearing; (4) of his/her right to
appear in person at the hearing and/or
to
be
represented
by
reasonable
representation of his/her choice; (5)
the date, time and place of such
hearing; (6) of the witnesses, if any,
to
appear
and/or
right
to
ask
questions of such witnesses; (7) of
his/her
right
to
respond
to
the
charges orally or in writing; and (8)
of his/her right to call individuals
to speak in his/her behalf.
b. The employee will have three (3)
working days in which to respond to
this notice....”
Id. (doc. no. 1) at 4-5.
Kilpatrick

“avers

that

the

defendants

him in contravention of their own policy.”

III.

terminated

Id. at 5.

AGE DISCRIMINATION

Oddly, Kilpatrick initially described his firing as
retaliation for his refusal to resign.
framed

this

claim

in

his

subsequent

Because he has
briefing

as

an

age-discrimination claim, rather than as a retaliation
5

claim, and because it is much more logically considered
as such, the court will proceed to address it this way.
The

defendants

age-discrimination

argue

claims

that

cannot

be

constitutional
brought

under

§ 1983; they argue that ADEA is the exclusive remedy. 3
They

also

argue

that

Kilpatrick’s

age-discrimination

claim should be dismissed because he is precluded--by a
state-court

judgment

in

an

proceeding

finding

that

unemployment-compensation
he

was

terminated

for

misconduct--from arguing that he was terminated for any
other reason, such as his age.

The court will dismiss

Kilpatrick’s claim based on the former argument, so it
need not discuss the latter.
The court is, however, significantly hampered by
Kilpatrick’s

counsel’s

abject

failure

to

respond

meaningfully to either of the defendants’ arguments.

3. The defendants state in their motion to dismiss
that Kilpatrick filed an EEOC charge, which was
dismissed--without a finding that the defendants had
violated ADEA--on October 1, 2012, and that he failed
to file an ADEA claim within 90 days thereafter as
required by 29 U.S.C. § 626(e).
It seems, therefore,
that he can no longer bring an action under ADEA.
6

Counsel’s brief response to the argument that ADEA is
the exclusive remedy for age discrimination is totally
unhelpful: although it notes that the Supreme Court
granted

certiorari

in

a

relevant

case

and

then

dismissed the writ as improvidently granted, it offers
no substantive argument other than that “the law is not
settled

on

age

discrimination

Court should not dismiss.” 4
at 7.

matters

and

thus

the

Pl.’s Resp. (doc. no. 11)

Counsel would do well to recall that “the onus

is on the parties [and not on the court] to formulate
arguments....”

Resolution Trust Corp. v. Dunmar Corp.,

43 F.3d 587, 599 (11th Cir. 1995). 5

4. Indeed,
it
appears
that
counsel
has
misconstrued the defendants’ argument on this point as
“that age discrimination is not prohibited by the
Fourteenth Amendment as enforced by section 1983.”
Pl.’s Resp. (doc. no. 11) at 6.
Defendants argue not
that the Equal Protection Clause does not forbid age
discrimination, but that Congress, in passing ADEA,
prescribed
a
comprehensive
remedial
scheme
for
vindicating both the statutory right it created as well
as the pre-existing constitutional right to be free
from age discrimination.
5. Likewise, in his response to the defendants’
preclusion argument, counsel states irrelevantly that
“the
plaintiff
submits
that
he
was
denied
an
7

Whether ADEA is the exclusive federal remedy for
age discrimination is an open question in this circuit.
However, the Eleventh Circuit (like the D.C. Circuit)
has reached the narrower conclusion that ADEA is the
exclusive remedy for age-discrimination claims brought
by federal employees.

Ray v. Nimmo, 704 F.2d 1480,

1485 (11th Cir. 1983) (citing Paterson v. Weinberger,
644

F.2d

521,

524-25

(5th

Cir.

1981));

see

also

Chenareddy v. Bowsher, 935 F.2d 315, 318 (D.C. Cir.
1991) (citing a Fourth Circuit case reaching a broader
holding).
Ray is not, though, easily extensible to the cover
claims by plaintiffs who are not federal employees,
because
example)

there
where

exist
a

other

federal

contexts
statutory

(Title
scheme

VII,

for

is

the

exclusive remedy only for federal, and not for other,

opportunity
to
fully
and
fairly
litigate
the
defendants’ denying him due process....”
Pl.’s Resp.
(doc. no. 11) at 6.
But the defendants nowhere argue
that Kilpatrick should be collaterally estopped from
bringing his due-process claim, and counsel does not
address the argument they do make--that Kilpatrick had
a full and fair opportunity to, and actually did,
litigate his age-discrimination claim.
8

employees.
Supp.

See Mummelthie v. Mason City, Ia., 873 F.

1293,

1316-17

(N.D.

Iowa

1995)

(Bennett,

J.)

(concluding, in part by analogy to Title VII and based
on the legislative histories of both statutes,
ADEA

is

the

exclusive

remedy

for

that

age-discrimination

claims by federal, but not for other, employees), aff'd
on other grounds, 78 F.3d 589 (8th Cir. 1996).
Hence,

the

court

appeals for guidance.

must

look

to

other

courts

of

Although there is no controlling

Supreme Court or Eleventh Circuit case law directly on
point,

the

court

concludes,

in

line

with

the

overwhelming weight of authority, that the defendants
are correct that Kilpatrick’s age-discrimination claim
can be brought only under ADEA.
Whether a federal statute precludes § 1983 claims
turns on congressional intent, which can be inferred
“[w]hen the remedial devices provided in a particular
Act are sufficiently comprehensive.”

Middlesex Cnty.

Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1,
20-21 (1981).

Until 2012, every court of appeals to

9

consider

the

issue

had

held

that

the

comprehensive

remedial scheme enacted in ADEA is the exclusive remedy
for age-discrimination claims; they found that “[i]t is
implausible

that

Congress

would

have

intended

to

preserve the private cause of action under § 1983 for
age

discrimination

when

that

cause

of

action

would

severely undermine, if not debilitate, the enforcement
mechanism created by Congress under the ADEA.”

Zombro

v. Baltimore City Police Dep’t, 868 F.2d 1364, 1366-69
(4th Cir. 1989), cert. denied, 493 U.S. 850 (1989); see
also 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) (relying
on the holding of Britt v. Grocers Supply Co., Inc.,
978 F.2d 1441, 1448-49 (5th Cir. 1992)). 6

6.

Although

the

First
10

Circuit’s

decision

in

In Levin v. Madigan, however, the Seventh Circuit
diverged, holding that § 1983 age-discrimination claims
were not foreclosed by ADEA.
Cir. 2012).

692 F.3d 607, 616 (7th

Admitting that it was a “close call,” id.

at 617, Levin relied on Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246 (2009), which held that Title IX
does not preclude § 1983 sex-discrimination claims in
the education context.
although

ADEA

“sets

The Levin court reasoned that
forth

a

comprehensive

remedial

scheme,” 692 F.3d at 618, Fitzgerald required, and the
court could not find,
congressional

intent”

any “additional indication of
to

preclude

§ 1983

claims

alleging violations of the constitutional, as opposed
to statutory, right to be free from age discrimination,
id. at 619-20.
congressional

According to Levin, “clear or manifest
intent

in

either

the

language

of

the

statute or the legislative history” would be required.

Tapia-Tapia
involved
the
analytically
distinct
age-discrimination claims of a federal rather than
state, local, or private employee, it stated broadly
and unequivocally that ADEA “provides the exclusive
federal remedy for age discrimination in employment.”
322 F.3d at 745.
11

Id. at 621.

The court bolstered its conclusion by

noting certain distinctions between ADEA and the Equal
Protection Clause regarding who may sue and be sued
under them.

Id. at 621-22.

The Supreme Court granted

certiorari on this issue, 133 S. Ct. 1600 (2013), heard
oral

argument,

and

then

dismissed

the

writ

as

improvidently granted, 134 S. Ct. 2 (2013).
Since Levin, another court of appeals has rejected
its reasoning.

Hildebrand v. Allegheny Cnty., 757 F.3d

99, 107-110 (3d Cir. 2014), cert. denied, 135 S. Ct.
1398

(2015).

In

Hildebrand,

the

Third

Circuit

disagreed with Levin’s view that Fitzgerald “set[] a
higher bar for inferring preclusive intent in cases
where a plaintiff alleges a constitutional violation,”
id. at 107, concluding that it did not “disturb[] the
basic

principle

contrary,

we

may

that,
infer

absent
that

indications
Congress

to

intended

the
to

preclude § 1983 claims when it provides a sufficiently
comprehensive remedial scheme for the vindication of a
federal constitutional right,” id. at 108-09.

12

“[T]here

can be no debate that the ADEA provides a comprehensive
remedial scheme,” the court continued; it also found,
contrary to Levin, “that the rights and protections of
the

ADEA

differ

in

and

the

such

Equal

Protection

significant

ways

as

Clause
to

[do

not]

demonstrate

congressional intent to allow parallel § 1983 claims
alleging

age

discrimination,”

and

that

“the

ADEA

encompasses the protections afforded by the Fourteenth
Amendment, while significantly expanding prohibitions
on age discrimination elsewhere.”

Id. at 109.

In light of the complete absence of any substantive
argument to the contrary from Kilpatrick, this court
will follow the six courts of appeals to conclude that
ADEA precludes plaintiffs like Kilpatrick from bringing
age-discrimination claims under § 1983.

IV.

PROCEDURAL DUE PROCESS

Kilpatrick’s procedural due-process claim will be
dismissed as well.

Kilpatrick contends that he was

13

fired without the notice and opportunity to be heard
required by Crenshaw County’s personnel manual.
As

the

Supreme

Court

has

explained,

“an

unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the
procedural requirements of the Due Process Clause of
the

Fourteenth

postdeprivation
Hudson

v.

applying
between

Amendment

remedy

Palmer,
[this

cases

challenged,

for

468

in

and

which
cases

applied are challenged.
86

F.3d

191,

192

is

517,
a

a

a

loss

the

U.S.

doctrine],

if

533

meaningful

(1984).

distinction

state

process

which

in

available.”

the

is

“In
drawn

itself

is

procedures

as

See Bell v. City of Demopolis,

(11th

Cir.

1996)

(distinguishing

between a challenge to state procedure itself and a
challenge

to

state

procedure

as

applied).

The

significance of the distinction is that, when there is
an unauthorized action by a state actor, the procedural
due process violation does not become complete unless
and until the state refuses to provide due process.

14

McKinney

v.

Pate,

20

F.3d

1550

(11th

Cir.

1994).”

Carter v. Harris, 64 F. Supp. 2d 1182, 1187 (M.D. Ala.
1999) (Albritton, J.).
Here,

Kilpatrick

contends

not

that

Crenshaw

County’s pre-deprivation procedures, as outlined in its
personnel manual, were inadequate; rather, his claim is
that

those

procedures

defendants in his case.
a

constitutional

were

not

followed

by

the

However, he “cannot establish

violation

if

the

state

provided

meaningful postdeprivation remedy for his loss.

a

Here,

the state provides an adequate remedy through recourse
to its judicial system.”

Lumpkin v. City of Lafayette,

24 F. Supp. 2d 1259, 1266 (M.D. Ala. 1998) (Albritton,
J.);

see

[has]

also

noted

id.

that

at

1265

Alabama

(“[T]he
courts

Eleventh
review

Circuit

employment

termination proceedings ‘both to determine whether they
are supported by substantial evidence and to see that
the proceeding comport with procedural due process.’
[Bell,

86

F.3d

at

192.]

The

Alabama

courts

were

available to hear [the plaintiff’s] claim that the city

15

officials

failed

to

follow

established

procedures

requiring notice and a hearing before his termination.”
(citations omitted)).

Moreover,

Kilpatrick

arguing

is

actually

failure

to

follow

itself,

a

constitutional

clearly fails.

these

to the extent that
that

procedures

the
was,

violation,

defendants’
in

this

and

of

argument

See Smith v. State of Ga., 684 F.2d

729, 732 n.6 (11th Cir. 1982) (explaining that a “state
agency’s failure to follow its own regulations, without
more, [does not necessarily] offend[] due process”).
An appropriate judgment will be entered.
DONE, this the 8th day of June, 2016.
_ /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE