Lafleur v. Steeg

United States Court of Appeals,
Fifth Circuit.
No. 97-50152
Summary Calendar.
Richard D. LAFLEUR, Plaintiff-Appellee,
v.
TEXAS DEPARTMENT OF HEALTH, et al., Defendants,
and
Susan Steeg, Defendant-Appellant.
Oct. 31, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:
The Appellant, Susan Steeg ("Steeg") appeals the denial of
qualified immunity on the Appellee's, Richard Lafleur ("Lafleur"),
§ 1983 claim against her. Lafleur's § 1983 claim alleged "an equal
protection violation to be free from age discrimination in
employment." Lafleur's cause of action also alleges a claim of age
discrimination against the Texas Department of Health brought under
the Texas Commission on Human Rights Act ("TCHRA"), TEX. LABOR CODE
§ 21.001, et seq.1
Specifically, Lafleur complains that Steeg prevented him from
receiving a pay raise, while approving raises for other persons in
1
Lafleur's state law claim of age discrimination under the
TCHRA is not preempted by the Age Discrimination in Employment Act,
29 U.S.C. § 601 et seq. See 29 U.S.C. § 633; Pointer v. Crown
Cork & Seal Co., Inc., 791 F.Supp. 164 (S.D.Tex.1992).
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her department who had less experience and were under age forty.
We note that Lafleur's complaint refers to "younger employees
receiving the raises," thus Lafleur is not asserting a gender based
claim under § 1983. Because we conclude that Lafleur's § 1983
claim is preempted by the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621 et seq., we reverse and remand with
instructions to dismiss the § 1983 cause of action.
Section 1983 does not create any substantive rights, but
instead was designed to provide a remedy for violations of
statutory and constitutional rights. Jackson v. City of Atlanta,
Tex., 73 F.3d 60, 63 (5th Cir.), cert. denied, --- U.S. ----, 117
S.Ct. 70, 136 L.Ed.2d 30 (1996); Hobbs v. Hawkins, 968 F.2d 471,
475 (5th Cir.1992). The Supreme Court in Golden State Transit
Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107
L.Ed.2d 420 (1989) (Golden II ), articulated a two-part test to
determine whether a § 1983 remedy exists: (1) if the plaintiff
asserts the violation of a federal right, then a § 1983 remedy
exists unless, (2) the defendant can show that Congress
specifically foreclosed a remedy under § 1983 by providing a
comprehensive enforcement mechanism for protection of a federal
right. Id. at 106, 110 S.Ct. at 448. Likewise, this Court has
stated that where Congress has enacted a statute that covers a
specific substantive area providing specific remedies, a cause of
action under § 1983 is foreclosed. Britt v. Grocers Supply Co.,
Inc., 978 F.2d 1441, 1447-48 (5th Cir.1992); Irby v. Sullivan, 737
F.2d 1418, 1428 (5th Cir.1984) (section 1983 is not available when
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the governing statute provides an exclusive remedy for violations
of its terms).
We note that this Court has not squarely addressed the
question of whether the ADEA preempts a non-federal employee's §
1983 claim of age discrimination. In Paterson v. Weinberger, 644
F.2d 521 (5th Cir.1981) this Court held that a federal employee's
Fifth Amendment age discrimination claim was preempted by § 633a of
the ADEA, as the ADEA "was intended to provide [the] exclusive
remedy for age discrimination". Id. 644 F.2d at 525. (citation
omitted).
Further, we also recognize that the Court in Britt, in
answering the question of whether the ADEA preempted the National
Labor Relations Act, broadly held that "Congress intended the ADEA
to be the exclusive remedy for age discrimination claims." Britt,
978 F.2d at 1449. The Court, as part of its reasoning, noted that
"a number of cases ... hold that an age discrimination claim
brought under § 1983 is preempted by the ADEA." Id. 978 F.2d at
1448. Although dicta, we agree, as have other courts, with this
proposition. See, e.g., Zombro v. Baltimore City Police Dept., 868
F.2d 1364 (4th Cir.1989) (holding that plaintiff could not maintain
an action for age discrimination under § 1983 because the claim
fell within scope of the ADEA); White v. Frank, 718 F.Supp. 592,
595 (W.D.Tex.1989), aff'd, 895 F.2d 243 (5th Cir.1990); Ring v.
Crisp County Hosp. Auth., 652 F.Supp. 477, 482 (M.D.Ga.1987)
(rejecting plaintiff's equal protection claim under § 1983 and
holding that the ADEA was the exclusive remedy for claims of age
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discrimination, whether those claims are founded on the
Constitution or on rights created by the ADEA); Gregor v.
Derwinski, 911 F.Supp. 643 (W.D.N.Y.1996) (following Zombro ).
Accordingly, because Congress has enacted a statutory
provision to confront age discrimination in the work place via the
ADEA, and based on this circuit's opinion that the ADEA is the sole
remedy for persons who have been discriminated against based on
their age, we are compelled to hold that where a plaintiff asserts
a claim of age discrimination under § 1983 and where the facts
alleged will not independently support a § 1983 claim, the
plaintiff's age discrimination claim is preempted by the ADEA.
Consequently, because Lafleur has not alleged any facts which would
support an independent claim under § 1983, Lafleur's § 1983 age
discrimination claim is preempted by the ADEA. We express no
opinion as to the merit of Lafleur's claims.
Thus, finding that Lafleur's § 1983 claim is preempted by the
ADEA, we reverse the district court's order and remand with
instructions to dismiss such claim. See, e.g. Jackson v. City of
Atlanta, Tex., 73 F.3d 60, 64 (5th Cir.), cert. denied, --- U.S. --
--, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996).
REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.
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