Imagine that you work for the Department of Transportation for the state. You are fifty-five years old and have been working for the Department for over twenty years. One day, you walk into work and your supervisor says, "You're fired: you are too old." Undoubtedly, your employer violated the Age Discrimination in Employment Act (ADEA). As mandated by the ADEA, you file a charge of age discrimination with the Equal Employment Opportunity Commission. The Commission investigates and grants you the authority to file a civil suit in federal court. In court, the judge informs you that the ADEA is not applicable against the states. You petition the court to amend your complaint, you now wish to assert a § 1983 claim against your supervisor in his official capacity for violating the Equal Protection Clause of the Fourteenth Amendment. The court denies your claim based on circuit precedent: the ADEA is the exclusive remedy for age discrimination in employment.
Until 2012, every circuit to consider the issue concluded that the ADEA precludes a § 1983 equal protection remedy. In 1989, in Zombro v. Baltimore City Police Department, the Fourth Circuit held that the ADEA precludes constitution-based § 1983 age-discrimination claims. Incorrectly, the court applied a preclusion analysis reserved for statute-based § 1983 claims. Since that time, most circuits have relied on the Fourth Circuit's problematic analysis and holding, those decisions have effectively eliminated a federal remedy for state employees suffering from age discrimination in employment. The dependence on Zombro suggests that courts do not understand the applicable preclusion analysis. In 2012, the Seventh Circuit in Levin v. Madigan became the first circuit to hold that the ADEA does not preclude § 1983 equal protection claims. Although the Seventh Circuit applied an improper analysis, it is the only circuit to engage in a comparative evaluation of the rights offered under the ADEA to the rights offered under § 1983 equal protection claims. The Seventh Circuit's decision diminishes the precedential value of Zombro and its progeny.
Based on Supreme Court precedent, this Comment demonstrates that no circuit court has applied the proper preclusion analysis to the ADEA's preclusion of § 1983 equal protection claims. As such, it proposes the proper standard for determining the preclusion of constitution-based § 1983 claims. Finally, this Comment applies its proposed test to the ADEA and § 1983. By expanding on the Seventh Circuit's comparative evaluation, this Comment concludes that the ADEA does not preclude § 1983 equal protection claims.
Murray A. Duncan III,
The Proper Preclusion Standard: Why the ADEA Is Not the Exclusive Remedy for Age Discrimination in Employment,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol8/iss1/9