Kilpatrick v. Crenshaw County Commission et al
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
CRENSHAW COUNTY COMMISSION )
and BENJAMIN H. SANDERS,
in his individual capacity )
as County Engineer,
CIVIL ACTION NO.
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
protections prescribed by their own policy.
seeks damages as well as injunctive
Jurisdiction is proper under 28 U.S.C. §§ 1331
(federal question) and 1343 (civil rights).
defendants’ motion to dismiss both claims against them.
granted and this lawsuit dismissed in its entirety.
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).
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
allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
However, it must contain “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 574.
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
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
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.”
Complaint (doc. no. 1) at 3.
employment had been terminated, effective immediately. 1
Although he does not specifically state as much, it can
letter gave no reason for the dismissal.
relevant part: 2
action involves a deprivation of an
employee’s right, such as suspension
without pay or dismissal from service,
the appointing authority will comply
before the effective date of the
As a minimum the
county’s due process requirement will
include the following:
a. The employee will be notified by
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
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.
writing before the effective date of
any proposed discipline:
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
representation of his/her choice; (5)
the date, time and place of such
hearing; (6) of the witnesses, if any,
questions of such witnesses; (7) of
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
Id. (doc. no. 1) at 4-5.
him in contravention of their own policy.”
Id. at 5.
Oddly, Kilpatrick initially described his firing as
retaliation for his refusal to resign.
Because he has
age-discrimination claim, rather than as a retaliation
claim, and because it is much more logically considered
as such, the court will proceed to address it this way.
§ 1983; they argue that ADEA is the exclusive remedy. 3
claim should be dismissed because he is precluded--by a
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
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.
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
dismissed the writ as improvidently granted, it offers
no substantive argument other than that “the law is not
Court should not dismiss.” 4
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
Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir. 1995). 5
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,
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
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,
Chenareddy v. Bowsher, 935 F.2d 315, 318 (D.C. Cir.
1991) (citing a Fourth Circuit case reaching a broader
Ray is not, though, easily extensible to the cover
claims by plaintiffs who are not federal employees,
exclusive remedy only for federal, and not for other,
defendants’ denying him due process....”
(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.
See Mummelthie v. Mason City, Ia., 873 F.
(concluding, in part by analogy to Title VII and based
on the legislative histories of both statutes,
claims by federal, but not for other, employees), aff'd
on other grounds, 78 F.3d 589 (8th Cir. 1996).
appeals for guidance.
Although there is no controlling
Supreme Court or Eleventh Circuit case law directly on
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.”
Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1,
Until 2012, every court of appeals to
remedial scheme enacted in ADEA is the exclusive remedy
for age-discrimination claims; they found that “[i]t is
preserve the private cause of action under § 1983 for
severely undermine, if not debilitate, the enforcement
mechanism created by Congress under the ADEA.”
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
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
In Levin v. Madigan, however, the Seventh Circuit
diverged, holding that § 1983 age-discrimination claims
were not foreclosed by ADEA.
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.
The Levin court reasoned that
scheme,” 692 F.3d at 618, Fitzgerald required, and the
court could not find,
any “additional indication of
alleging violations of the constitutional, as opposed
to statutory, right to be free from age discrimination,
id. at 619-20.
According to Levin, “clear or manifest
statute or the legislative history” would be required.
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.
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
Id. at 621-22.
The Supreme Court granted
certiorari on this issue, 133 S. Ct. 1600 (2013), heard
improvidently granted, 134 S. Ct. 2 (2013).
Since Levin, another court of appeals has rejected
Hildebrand v. Allegheny Cnty., 757 F.3d
99, 107-110 (3d Cir. 2014), cert. denied, 135 S. Ct.
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
preclude § 1983 claims when it provides a sufficiently
comprehensive remedial scheme for the vindication of a
federal constitutional right,” id. at 108-09.
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
congressional intent to allow parallel § 1983 claims
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.
PROCEDURAL DUE PROCESS
Kilpatrick’s procedural due-process claim will be
dismissed as well.
Kilpatrick contends that he was
fired without the notice and opportunity to be heard
required by Crenshaw County’s personnel manual.
unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the
procedural requirements of the Due Process Clause of
applied are challenged.
See Bell v. City of Demopolis,
between a challenge to state procedure itself and a
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.
Carter v. Harris, 64 F. Supp. 2d 1182, 1187 (M.D. Ala.
1999) (Albritton, J.).
County’s pre-deprivation procedures, as outlined in its
personnel manual, were inadequate; rather, his claim is
defendants in his case.
However, he “cannot establish
meaningful postdeprivation remedy for his loss.
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,
termination proceedings ‘both to determine whether they
are supported by substantial evidence and to see that
the proceeding comport with procedural due process.’
available to hear [the plaintiff’s] claim that the city
requiring notice and a hearing before his termination.”
to the extent that
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
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