James E. Zombro v. Baltimore City Police Department Bishop L. Robinson, Commissioner, Baltimore City Police Department

crimination and he is entitled to relief MURNAGHAN, Before CHAPMAN (1982). under 42 U.S.C. 1983 and 1985 §§ WILKINSON, Judges. Circuit upon 1985 action an conspiracy between Police Commission- CHAPMAN, Judge: Circuit er City Robinson and “Baltimore Police This is Department.” discrimination action Zombro also claims that brought under U.S.C. Department and 1985 Police and the Commissioner §§ (ADEA), seq. et equal protection under Act U.S.C. right to

violated his effectuating Zombro, however, Plaintiff declined to Amendment the Fourteenth bring the ADEA.1 Rath- his transfer. this action under er, employer’s alleges he that his action opinion dated October In memorandum violation granted defen- district court guarantee or clause of Fourteenth the. summary stat- judgment, dants’ motion Amendment, and that this federal constitu- a Four- ing failed to assert that Zombro deprivation is a of tional violation sufficient liberty in- property or teenth Amendment rights give rise 1983 action. to a § action required to maintain an as terest Particularly, the 1983 and 1985. under §§ provides comprehen The ADEA a property had no court stated Zombro statutory prohibit discrimi sive scheme specific post duty of or work in a interest age. in employment nation on the basis of Department. in the location plan to facilitate and The was structured age discrimination is claims that Zombro encourage compliance through an informal for action under proper a basis § process Rog of conciliation mediation. and sup- facts to that he sufficient and Co., Engineering ers Exxon Research & is of action. There a port a cause such 834, (3rd Cir.1977), 550 F.2d cert. de dispute to the reason his factual 749, 1022, nied, L.Ed. 434 U.S. 98 S.Ct. transfer, he that he need not and asserts (1978). prerequisite bring A 2d 770 the un- liberty property interest establish a or ing a is that private of action the Four- protection clause the der of the Employment Opportunity Commission or under 1983 or teenth Amendment §§ (EEOC) given sixty days notice. must be 1985. 626(d). period designed 29 U.S.C. This § give the the EEOC time mediate II. grievance methods “by informal of concilia A. tion, conference, and persuasion.” 29 U.S. provides perti- Title 42 U.S.C. 1983 § 626(b). right pri The C. to commence a § part: nent noted, action, vate it should be terminates who, any Every person under color of upon filing by of an EEOC. the action the custom, ordinance, statute, regulation, or 626(c). Finally, notification to 29 U.S.C. § subjects any of usage ... ... citizen the days given must be within 180 the EEOC deprivation to the United States ... alleged unlawful actions took after the any rights, privileges, or se- immunities seeking place, party is also state unless laws, by the Constitution and shall cured 626(d)(1). relief. U.S.C. § party injured.... to the be liable If a of substantive under violation any not in itself create Section does by way of a the ADEA could be asserted Rather, rights. substantive action, aggrieved party could basis receive specific provisions of law. avoid these deprivation by the Con right of a “secured plaintiff The would have direct and immedi- stitution and laws” of the United States courts, the com- ate access to federal person acting color under of state law. prehensive process be administrative would Chapman Rights Or v. Houston Welfare bypassed, goal compliance 1905, ganization, 441 U.S. through mediation would be discarded. (1979). L.Ed.2d purposes The and structure of the claims, course, are with the notion that the Plaintiffs fall inconsistent The compre- supplanted by scope specific remedies it affords could be within the of the judicial inescapable relief. The provided remedies alternative hensive administrative foregoing Employment conclusion to be from the Age Discrimination drawn 49B, 1, etseq. similarly tion Md.Ann.Code art. Plaintiff declined to seek relief statutes. The Maryland's State under the anti-discrimina- if 42 is that U.S.C. 1983 is available to U.S. 101 S.Ct. litigant, congressional

the ADEA quoting Maine v. Thi boutot, scheme behind ADEA enforcement could 22 n.

easily undermined, destroyed.2 if (1980) 2514 n. (Powell, 65 L.Ed.2d 555 J., very object bypassing specific dissenting); see also National Sea Clammers, process one supra administrative 101 S.Ct. at assumes, 2626-27; thus principal was the reason Great American Federal Sav why ings and Loan Association Novotny, brought this action was not under the 366, 375-78, 2350- overriding question presented In Novotny availability this case is ruled whether that a Title VII violation could not procedures detailed be as- of the ADEA foreclose by way 1985(3), serted of 42 U.S.C. private brought action 1983 to conspiracy counterpart of 1983. To enforce al- specifically substantive ad action, low such an reasoned, the Court protected by May dressed and the ADEA. comprehensive would eviscerate the Plaintiff, words, the in statu- cavalierly by other tory scheme by Congress enacted in pass Title comprehensive process the fashioned VII, including express limitations, op- time by Congress by in ADEA merely the as portunity conciliation, investigation by serting a right violation of a constitutional EEOC, etc. Id. at 373-96, the 99 S.Ct. at statutory right? rather than the 2349-61. 1983, standing alone, Section cannot Novotny applied National Sea was preemption by compre

withstand a more Clammers, supra, proscribe private statutory remedy designed hensive to re action Supreme under 1983. The actions, Court specific dress § unlawful such as held that a 1983 Zombro, action was alleged by those barred be- § unless the statute cause had created a detailed stat- question congressional manifests a in utory enforcement scheme under the Water tent to allow an pur individual a choice of Act, 1251, Pollution Control et 33 U.S.C. suing independently rights § under both the seq., Protection, Research, and the Marine statutory scheme applica and some other Act, 1401, and Sanctuaries et 33 U.S.C. § ble federal statute. County Middlesex In seq. The framework available under the Sewerage Authority v. National Sea specific comprehen- is no less Clammers, 1, 2615, 453 U.S. 101 S.Ct. sive. Supreme the Court in structed alleged that “when is [the state] judice, sub controversy however, In the have violated a pro federal statute which City Department Baltimore Police comprehensive vides its own alleged purposes to have violated for scheme, requirements of that enforce equal protec- 1983not the but the § procedure may bypassed ment not tion clause of the Fourteenth Amendment. bringing 1983.” Id. directly suit under § The bring Plaintiffs decision to this em- 20, 2626, quoting Chapman at S.Ct. at ployment discrimination case under Rights v. Houston Organization, pass- Fourteenth Amendment without even Welfare 600, 2, 1905, 1945 673 n. n. ing reference to the ADEA makes this an (1979) (Stewart, J., dis unusual case. senting). Hornbeck, H.R. v. Supreme The suggested (D.Md.1981), Court has that a the court turned down a foreclosed, gov- 1983 action is predicated “where the

§ action on a claim under § erning statute an exclusive reme- clause of the Four dy for violation of its terms.” Pennhurst teenth presented Amendment which was Halderman, State Hospital School and with other actions on the same matter adopt argument, If litigant we Plaintiffs protects rights § because the section may bypass any remedy Congress may provide privileges “secured the Constitution and directly and come into federal court under laws" of the United States. Act), (Re- capped 29 U.S.C. Rehabilitation Act of Children brought under the Act) of All 1983 while the Education habilitation U.S.C. 29 U.S.C. proceeding Act of Handicapped Children a state administrative was Rights pending. Civil Act of District dismissed and the The Court U.S.C. § VII). (based stating page on Title 42 U.S.C. action and we affirmed 239: Novotny, all Relying rejected the court recognized correctly The court district claims, including the Fourteenth premature federal action claim, plaintiffs Amendment because Scruggs not had exhausted comprehensive admin to exhaust the failed their remedies ei- administrative procedures provided the various istrative Handicapped All ther the Education for as handicap statutes. “To Act or the Children Rehabilitation Act. selfsame as a constitutional sert Myers [Shipbuilding] v. Bethlehem Congress has endeavored 41, 50-52, Corp., statutory through specific schemes protect L.Ed. pro the remedies prohibited] ... until [is Scruggs’ allegation that their administra- process by the have administrative vided tive remedies were futile is refuted Hornbeck, supra at 222. exhausted.” been final decision their administrative Moreover, Scruggs’ favor. citation similarly has demon 42 U.S.C. which does re- to entertain a disinclination strated quire exhaustion reme- administrative bypassed a in which have actions dies, prevail entitle did not them in favor their race to the courthouse. predicated 1983 claim of a § Preiser v. Rod In violation. constitutional Tyson, v. F.Supp. See also Turillo 535 577 475, 1827, 411 93 S.Ct. 36 riguez, U.S. (D.R.I.1982) (Education All for Handi- (1973), 439 the court turned down L.Ed.2d capped Children Act’s remedial devices attempts disregard specif prisoners’ the sufficiently comprehensive found to infer remedy corpus of in ic the habeas statute congressional intent 1983 withdraw § alleging 1983 of an action under favor § remedy). rights. of In constitutional violations prudential policy evince These cases Robinson, 992, v. Smith Congress provided a that where has com- (1984), 82 L.Ed.2d the sim 746 court framework, prehensive remedial such as of ilarly held that the Education the Handi ADEA, plaintiff the relieved of the is not Act, seq., et 20 capped U.S.C. § obligation proce- remedial to follow that remedy spelled out the for the exclusive claiming by dure that action state violative notwithstanding the plaintiffs, fact statutory of violates the scheme also the had raised. constitutional claims been (or Amendment some other con- Fourteenth In Brown v. right). A General Services Adminis stitutional mere assertion that tration, rights 425 48 constitutional have been somehow ipso action, infringed 1981 the does not defeat the L.Ed.2d a § facto coverage, application exclusivity of of Court held that the Civil and § comprehensive specifical- Rights statutory Act of as added 11 of the scheme § Congress Employment Opportunity ly of redress the Act enacted al- (1970 ed., leged rights. Supp. of U.S.C. 2000e-16 violation § IV), challeng for remedy exclusive is not This Court unaware case employ in ing racial discrimination federal distinguished many at bar can be though ment even such cited above insofar as the cases § the Constitution.” Id. “clearly violated ... predicated alleged judice sub claim on an 824-25, 96 at 1963-64. at only does constitutional violation Scruggs Campbell, part rest or whole on F.2d 237 viola- Cir.1980), (4th handicapped rights of a tions substantive under parents brought comprehensive action 20 ADEA or some other statu- child a federal Nevertheless, 1415(e)(2)(Education tory general of All U.S.C. Handi- scheme. suits, Marston, (N.D. policy precluding F.Supp. where Ill.1978) (“Congress has enacted a intended the ADEA to specifically designed to statute redress remedy be the exclusive for discrimina alleged by plaintiff, grievances is as employment.”) tion federal applicable in such as the instances case The text and context of the ADEA itself constitutional claim is bar as cases where a provisions confirm this conclusion: “The statutory brought attached to a un- chapter this shall be enforced in accordance policy der 1983. We hold that this powers, remedies, procedures with should be followed unless the provided 211(b), (except sections for comprehensive statutory history of the (a) thereof)_” subsection 29 U.S.C. question congres- scheme manifests a 626(b). part Section 216 is a of the Fair pur- an individual to sional intent allow (FLSA), Labor Standards Act 29 U.S.C. independently rights sue under both the seq., et and it has held been §§ comprehensive statutory scheme and other statutory remedy of that section is the statutes, applicable state and federal such remedy sole employee available to the as 42 1983. We find no such U.S.C. § may of whatever he language history intent in the under the Inflight have FLSA. Lerwill v. Pictures, Inc., Motion F.Supp. An examination of the Act reveals that it (N.D.Calif.1972). precisely drawn, statute, is a detailed sim- provisions of the we thus ilar to other schemes which have conclude, congressional evidence intent provide judicial held to the exclusive been foreclose actions for discrimination un- stated abuse. The conclusion der 1983. To allow such actions would is irresistible that the ADEA only congressional circumvent the obvious judicial remedy for claims of exclusive mandate, procedures as the well detailed Burroughs Corp., discrimination. Platt v. implausible Act. It is (E.D.Pa.1976). A preserve pri- would have intended to similarly of federal courts number have vate cause of action under 1983 for opined that substantive secured that cause when of action the ADEA not be used as the basis for undermine, debilitate, if severely would See, e.g., a 1983 suit. Paterson v. Wein- by the enforcement mechanism created 521, (5th Cir.1981) 644 berger, F.2d Congress, under the ADEA. we (following the extension of the to believe, permit plaintiffs did not intend to employees, federal the ADEA ex- became bypass comprehensive statutory the remedy clusive discrimination in clearly language scheme embodied in the employment); Ring Crisp federal v. Coun- legislative history merely and of the ADEA 477, ty Hospital F.Supp. Authority, they employed by agency are an (M.D.Ga.1987)(“ADEA is the exclusive operating under color of state law. discrimination, for claims of congressional In addition to intent evi- those claims are whether founded the dent in the ADEA to foreclose discrimi- or on Constitution created the 1983, nation suits under we also conclude underlying It is the conduct and counselling that additional factors exist not the asserted that determine the recognizing hesitation before a 1983 rem- remedy.”); Bailey, McCroan edy in an 1201, case. The (S.D.Ga.1982) F.Supp. (rights 1209-10 Maryland City laws of the State and the created ADEA cannot be enforced Baltimore, 1983); as as through well well-established Morgan v. Humboldt public policy, recognize District, 440, government County School (D.Nev.1985)(§ employers, especially police departments, preempted 1983 action must ADEA where have wide discretion and control over fails management of the their allege showing personnel facts a violation of some and inter- federally right operations. particularly secured other than those nal This is true in ADEA); already protected by police department, paramilitary depart- the Christie right encompass every conceiv- public of action to ment, discipline and internal where police grievance workplace. commissioner in the safety require that able authority precise statutory discretion afforded broad and enacted a conceived the reassign members of assign and ADEA, remedy, redress the unlaw- the In a case posts.3 department to various alleged by If acts the Plaintiff. we ful probationary of a involving the dismissal bypass the as the Plaintiff were empha servant, Supreme Court the civil do, transfer wholesale seeks to we would rule that the “well-established sized relations into the feder- public employment traditionally granted has been Government any specific courts without concrete al ‘dispatch of its the widest latitude priori- expression of federal constitutional ” Sampson v. Mur internal affairs.’ own ty- 937, 949, 61, 83, 94 S.Ct. ray, 415 U.S. governmental em L.Ed.2d claim, The source of Zombro’s as relationship signifi was a ployer-employee suits, many is as other discrimination well Kennedy, 416 U.S. factor Arnett v. cant of the Four clause 1644, 40 L.Ed.2d noteworthy Amendment. It is teenth employee (1974), held a civil service explicitly Supreme Court has stated pre-termi- right to a process no had due equal protection clause does not that the Powell, hearing. evidentiary Justice nation aged” recognize defined as the a “class emphatically stated concurring opinion, in a special protec suspect class in need of be a “Government, employer, tion in which sub control over must wide discretion have judicial scrutiny." Massa ject to “strict and inter management personnel of its Murgia, Board Retirement v. chusetts 168, 94 at 1651. at S.Ct. nal affairs.” Id. 307, 313-14, 2566- conclude, light of in the We therefore (1976).4 Citing Unit ADEA reme existence Co., 304 v. Carolene Products ed States relationship in dies, employer-employee 783- 152-153 n. U.S. discipline, mo involving police this case— Murgia n. 82 L.Ed. 1234 special factor public safety rale and —is age does not define stated that “old recognizing a that counsels hesitation group in need of a ‘discrete and insular’ ... absent af of action constitutional cause majori- ‘extraordinary protection from contrary Con indications firmative ” process.’ political tarian Harris, 658 F.2d gress. See Purtill 96 S.Ct. at 2566. Cir.1981)(ADEA preempts ju (3rd 137-138 directly on the Con dicial remedies based Court, following instructions of This age discrimination stitution for claims of Court, readily acknowl- has employment). federal validity predi- 1983 actions edged the race, sex, religious discrimina- or cated on to construct today The court declines infringement specific of First tion or an equal spacious of the from the contours Apart impermis- from rights.5 Amendment federal protection generalized a clause protection Murgia equal in Unlike the claim of Baltimore 4. 3.The Code of Public Local Laws challenging 23A, equitable which was an action City, pursuant Art. of enacted compulsory constitutionality statute, retirement of a Maryland, police commission- of vests the Code only alleg- the case at bar addresses discretionary powers to adminis- er with broad challenge age-based disparate edly treatment department. affairs of the ter and control the particular personnel decision. We do not a granted Among specific powers and duties -type challenge mandatory Murgia a hold that authority police is the to the commissioner by the ADEA. statutes is foreclosed retirement reassign, assign, and reallocate To allocate duties, Department to those George's of the members in v. Prince This Court held Keller 5. (4th Cir.1987), organizational subdivisions of and to those County, that Title 827 F.2d 952 VII, Department though in his as the Commissioner en- it has a even necessary judgment may apparatus, preclude public best serve does not a deem forcement Depart- bringing public employee action and the a the interests of sector alleged protec- violations of the based on ment. minority opinion 16-7(4). Although City, em- tion clause. of Baltimore Public Local Laws personnel First incorrect or ill-advised deci- discrimination or race or sex sible sions.” violations, we have declined Amendment personnel (footnote omitted). in the multitude of

intervene 607 F.2d at 638-39 public daily made management decisions qualified Courts are not to review and judgment substitute their for these sub- agencies. discretionary judgments pro- of jective, (4th Whiting, 607 F.2d 634 In Clark experts faculty promotions fessional Cir.1979), addressed constitu- this Court engage independently in an intelli- or to equal protection denial of tional claims of comparison of the gent informal scholar- In brought under process and due teaching ly or talents of contributions challenged de- university professor a Clark faculty promotion denied one member tenure. The court determined nial of faculty with those of another member over the case. We jurisdiction lacked short, granted promotion; courts reasoned: may engage “second-guessing” not University have never been hes- authorities connection Federal courts thus faculty promotions. with on constitutional itant to intervene discharge pro- hiring, or grounds Id. at 640. including ac- public employees,

motion of un- We find Zombro’s as asserted personnel, where the asserted ademic Amendment, der the Fourteenth based tainted action taken was claim is transfer, upon alleged discriminatory is not or was or sex discrimination justiciable. racial There is no claim denial equal protection upon race or sex or exercise of penalize intended upon the discrimination based exercise But, rights. First Amendment absent protected rights. First Amendment Admit- discrimi- impermissible sex or racial such may “positive tedly, the ADEA constitute or First Amendment restraints— nations express statutory mandate” under Clark. express positive consti- clear violations however, complaint, has In his Zombro tutional or “[t]he mandate — made no claim under the appropriate not the fo- federal court is rum in to review the multitude B. daily made personnel decisions that are Zombro’s claim under U.S.C. accept by public agencies. We must alleges that the Police Commission mis- harsh fact that numerous individual police department to conspired with the er day-to-day in the ad- takes are inevitable of his deny him affairs. The United ministration of our 1985(3)requires conspiracy age. Section feasibly cannot States Constitution not persons.” or more Zombro has “of two require judicial re- construed to federal Depart conspiracy. such every such error. the ab- view The Police person. ment is not a Commis public em- any sence of claim that the Department cannot be sioner as head by a desire to cur- ployer was motivated conspiracy into with held to have entered penalize of an tail or to the exercise Kirven, 775 Department. Buschi v. constitutionally protected employee’s (4th Cir.1985). A de F.2d 1251-53 rights, presume must that official we itself. conspire with partment and, erroneous, regular if can action was 1985 must be The claim under U.S.C. § ways. corrected in other best be allege facts it does not dismissed because of Fourteenth granted. Due Process Clause the Fed.R. upon relief can be 12(b)(6). guarantee against Amendment is not a Civ.P. brought by public employ- sector

phasizes ADEA, parallels VII between Title and the comparable of con- ees. We find no evidence Keller is unlike the case at bar in that the support equal protec- history gressional § intent to 1983 of Title VII reveals that Con- age challenges of gress comprehensive tion in the area did not intend the statu- comprehensive remedial tory operate with the scheme of VII to to the exclu- concurrent Title of framework of the sion of Fourteenth Amendment claims racial 1372 82 herein, judg- reasons stated

For the majority argues compre- The ADEA’s court is that the district ment of enforcement mechanism demon- hensive AFFIRMED. Congress’ preempt strates intent to use of equal protection 1983 to redress viola- § MURNAGHAN, Judge, Circuit arising tions discrimination in dissenting part concurring in reasoning public employment. That part: the crucial distinc- flawed because blurs majority that Zombro agree I with types very tions two different between legally sufficient claim to state has failed 1983 claims discrimination cases. § However, the ma- 42 U.S.C. § a comprehensive The existence of reme congressional intent in thwarted jority has preclude dial in the ADEA scheme would Age Discrimination declaring that basing only suit if his Zombro’s he were (“ADEA”)1 precludes Act Employment rights 1983 action on the cre substantive § 1983 use of 42 U.S.C. to assert § Zombro’s ADEA by ated itself. See Middlesex alleged age for protection claim County Sewerage Authority v. National 1983 Zombro’s claim re- discrimination. § Ass’n, 1, 20, Sea Clammers U.S. grant I reverse the would mains viable. 2615, 2626, (1981) S.Ct. L.Ed.2d judgment on the claim summary § (§ remedy plain foreclosed because proceed- further the case for and remand on rights tiffs created under ings. statutes, two of which federal both con comprehensive “quite tained enforcement I. mechanisms”). however, Zombro, bases overstepped majority has its bounds The rights his 1983 action created § substituting judgment for its Protection Clause of Fourteenth Congress question on the whether enact- Amendment, not ADEA. When Con repealed ADEA 1983 reme- ment of the § gress creating enacts a law substantive alleged equal protection violations dies prescribes in that statute de govern- arising out of discrimination in comprehensive tailed and enforcement Congress, employment. It is for ment scheme, presume, it is reasonable to absent Court, to repeal to decide whether this specific contrary, to the that Con evidence statutory remedies created gress intended mechanism be the redress for seek constitutional violations. remedying method for exclusive violations however, ignored has its majority, id.; created that statute. See role and assumed for itself the proper has Bailey, McCroan v. nullify remedies power previous- § (S.D.Ga.1982) (rights created by 1209-10 government employees. ly available ADEA not be enforced in 1983 ac any majority has acted without evidence tion); Wayne Day County v. Board of Congress intended ADEA whatsoever (6th Auditors, 749 F.2d Cir. to foreclose claims under 1984) (§ 1983 cannot used to enforce despite 1983 and several indications VII, Title has its because Title VII own preserve lawmakers fact wished mechanism). See also Great remedy for constitutional claims Savings Federal Loan American & Ass’n age discrimination cases. 366, 378, Novotny, (1979) (vio 2345, 2351-52, L.Ed.2d A. Title VII cannot be asserted in lation of action). However, 1985(3) mere decide the enactment of the ex To whether ADEA’s foreclosed Zombro’s discrimina- istence of statu tory nothing tion claim under we must tells us about whether focus repeal intended to or to what intended. See retain Smith Robinson, 1983 cause of action for enforcement of 104 S.Ct. § seq. 1. 29 U.S.C. 621 et prior

rights indepen- statutory that existed to and volved schemes specifically de- signed Congress dently provide of the ADEA. methods for enforcing rights constitutional violations. majority adopts presumption a The that Rodriguez, Preiser v. 411 U.S. congressional enactment of a statute con- S.Ct. L.Ed.2d 439 the Court taining comprehensive a enforcement held prisoners that state could not assert repeal result in mechanism will of all exist- their through constitutional claims § ing remedies for violations of Congress had enacted the federal to, of, yet independent are similar those corpus statute, 2254,2 habeas 28 U.S.C. § presump- created the statute. Such a provided specific a more mechanism Supreme tion runs counter to the Court’s prisoners challenge custody their on strong policy against repeals legislation of grounds. 489-90, constitutional Id. at by implication. “In the of some absence S.Ct. at 1835-1837. In another decision on showing affirmative of an intention re- majority relies, which the Supreme the peal, only permissible justification the for a Court held that the Education of the Handi- repeal by implication is when the earlier capped (“EHA”)3 precluded Act plain- the and later statutes are irreconcilable.” using tiff from to “assert an § Mancari, 535, 550, Morton v. protection claim to a publicly spe- financed 2474, 2482, L.Ed.2d 290 cial Robinson, education.” Smith v. Here, equal protec- the and a 1983 3466-3467, hardly They tion claim are irreconcilable. (1984) (holding superseded merely represent complementary methods 1415(f)).4 by 20 language U.S.C. The of fighting age of discrimination. We must the EHA history and its con- presume, specific unless there is evidence Congress vinced Court that intended contrary, intended to provide, alia, statute to inter a detailed government allow state and local employ- handicapped mechanism for children to as- challenge alleged age ees to sert their constitutional claims. Id. at equal protection on grounds under § 1009-10, 1016, 104 S.Ct. at 3470.5 as well as under the ADEA. In contrast to the statutes at issue in Preis- majority contrary tries to bolster its Smith, er and the ADEA pur- does not by relying conclusion on two cases in which port provide a for violation of Supreme Court held that the existence Instead, rights. constitutional provides of only mechanism to enforce the substantive precluded mechanism a 1983 action based Thus, created the ADEA itself. constitutional violations. Nei- comprehensiveness of remedy pre- ther case conflicts with the view that the scribed since it does not ADEA does not foreclose Zombro’s 1983 claims, extend to constitutional does not Supreme claim. Both Court decisions in- presumption rebut in- pertinent part: S.Rep. 2. Section 2254 Cong., 5.See also No. 94th 1st Sess. (a) Court, thereof, reprinted Supreme Cong. in 1975 U.S.Code & Justice Ad.News judge, ("It circuit or a district court shall entertain is the intent of the Committee to application corpus for a writ of habeas protect right establish and to education for person custody pursuant behalf of a to the handicapped provide all children and to assist- judgment only ground aof State court on the carrying ance responsi- to the States in their out custody that he is in in violation the Consti- of bilities under State law and the Constitution of tution or laws or treaties the United States. provide equal protection the United States added). (Emphasis laws") added); (emphasis 20 U.S.C. 1400(b)(9) ("it seq. 3. 20 U.S.C. et in the national interest the Federal Government assist State and local Supreme It remains to be seen whether the provide programs efforts to to meet the edu- modify analysis preemption Court will its handicapped cational needs of children in order light Congress’ overruling § 1983 remedies in law") (empha- to assure major holding. Despite of Smith's the uncer- added). sis tainty, I will assume here that Court would continue to follow the same an- alytical approach. 1374 government em- acknowledged that some age 1983 in discrimina- to retain

tended enforcing challenged mandatory retire- of sub- had ployees a method cases as tion arising grounds, from sources other equal protection on as ment rules stantive ADEA, ADEA.6 and had succeed- than the as under the well having in the rules on rare occasions ed B. See House Se- declared unconstitutional. Aging, Mandatory Re- can, on against preemption lect Committee presumption Human Cost The Social and tirement: by specific evidence course, be rebutted of of Idleness, Cong., of 1st Sess. to foreclose use 95th Congress intended that Enforced protection 15-17, Ag- for on bring equal claims “Committee 38 1983 to [hereinafter ing Report”], reprinted in EEOC, in Legisla- the work- age discrimination However, lan- neither in place. History Age Discrimination tive of body leg- extensive of (1981) nor the guage itself Employment Act 347 [herein- any intent Con- history evinces Cong. islative “Legislative History”];8 123 after dis- remedies reprinted in gress to eliminate 34,306-07 (1977), Legis- Rec. the enact- prior existed that crimination (“A court History, 493-94 Federal lative at fact, legislative In ment of the ADEA. equal-protection guaran- recently held that opposite. precisely the history suggests preclude singling out of certain tees early most employees for retirement when enacting 1978 course of al- in similar circumstances were others statute,7 Congress dem- to the amendments continue”) (excerpt newspa- lowed to understanding that the ADEA onstrated its into per column inserted Senator Church plain- age discrimination preclude did not debate). Despite during floor know- protection record equal bringing federal tiffs from government employees, Congress ing that some Specifically, members claims. Administration, Aging Report recognized Committee on 8.The Services 6. Brown v. General 1961, challenge age 820, would continue to 48 L.Ed.2d inapposite governmental employment by majority, is on discrimination in another case cited equal protection grounds: because Zombro be decided here to the issue to employee. held that Brown is not a federal the committee A number of witnesses before Rights provided Act of 1964 Civil mandatory retirement based contended challenging racial dis- the exclusive means solely unconstitutional because on is employment. U.S. at crimination in federal process" "equal protec- violates the “due However, 835, have as we S.Ct. at 1969. and 14th Amendments tion” clauses of 5th before, holding emphasized was Brown's Proponents posi- of this the Constitution. showing legislative history be- encouraged by two almost simulta- tion were lieved, prior mistakenly, extension albeit in which were seen as neous decisions workers, government "federal VII Title position. to their favorable judicial intention- employees had no 15, reprinted Aging Report, at Committee employment Keller discrimination.” al acts of History, Among Legislative the court at 324. (4th George's County, 827 F.2d v. Prince Report Bradley decisions discussed in the Brown, Cir.1987), citing 425 U.S. at Vance, (D.D.C.1977), which had However, "Congress aware of at 1965-66. mandatory retirement rules on struck down employees such the remedies for state Following grounds. passage equal protection Keller, preexisted 827 F.2d Title VII." to the the Su- amendments Thus, added). in Keller (emphasis we held Bradley, holding preme that the Court reversed employees government that state and local complied mandatory with the retirement rules claims under could assert race protection require- equal Fifth Amendment’s holding notwithstanding of Brown. ments. 440 U.S. below, Congress’ intent As discussed in the text respect for state and to Title VII remedies with pro- discussion of For further significant government local workers challenges tection provisions interpreting of the aid in the similar Rosenblum, government employment, see M. Age Combating Steps Discrimination The Next Special to Man- Employment: With protected raised 7. The 1978 amendments Reference Working Policy, Paper datory mandatory Retirement age category prohibited 70 and Aging, Cong., Special Committee on 95th S.Rep. Senate employees. See retirement of certain 1977), (Comm. reprinted Print reprinted 1st Sess. 8-11 Cong., in 1978 2d Sess. No. 95th History, Legislative at 288-91. Cong. & Ad.News 504. U.S.Code protected e.g., Day, whom the had since 749 F.2d at the Fourth framing were their discrimination ac- VII, Circuit has concluded that Title even claims, tions as though it has a expressed disapproval practice no of the or mechanism, preclude public does sec suggested any way in it intended bringing employee tor a 1983 action § ADEA to foreclose such constitutional chal- violations of the Four fact, lenges. report one committee indi- teenth Amendment’s Protection Congress cates that some members of ex- George’s Clause. Keller v. Prince Coun pected challenges such constitutional to 952, 953, (4th ty, Cir.1987) 827 F.2d 958-63 future, although they continue in the real- (plaintiff sought redress racial discrimi light ized in the chance success was slim VII). nation under both 1983 and Title § Supreme per opinion of the Court’s curiam legislative history The of Title VII’s in Massachusetts Board Retirement v. amendments, which coverage extended to 307, 2562, Murgia, 427 U.S. 49 government employees, made clear Con upheld L.Ed.2d 520 manda- gress’ intent that Title VII not foreclose tory against equal pro- retirement law equal protection claims under 1983 based challenge. Ag- tection Committee on See racial, types sexual or other of discrimi ing Report, 38, reprinted Legislative at in by nation covered the statute. Id. at 958- History, at 347.9 62. Congress Had wished to foreclose access legislative history of the 1972 Title fight age to remedies other than ADEA to particularly helpful VII amendments is in discrimination, certainly it could have done deciphering congressional intent in amend amendments, in so the 1978 or at least ing ADEA coverage in 1974 to extend expressed could have desire to do so in its government Kelly, workers. 801 F.2d at the various floor debates and committee sponsored 271. Senator Bentsen first reports. Congress But did I not. must amendment to the ADEA in 1972 at the Congress’ infer from inaction that it intend- considering same time exten ed that discrimination would government employees. sion of Title VII to continue to have 1983 available to seek Id.; Elrod, (7th EEOC v. 674 F.2d alleged equal protection redress for viola- Cir.1982). time, At that Senator Bentsen tions. on the floor of the “I stated Senate: be Rights Title VII of the Civil Act of principles underlying lieve that the these 1964,10the statute on which the ADEA was provisions [extending in the EEOC bill Title closely patterned, also useful in protection government VII are workers] sight into whether intended Age directly applicable to the Discrimina ADEA to foreclose all 1983 actions for Employment Cong.Rec. tion in Act.” Mayer discrimination. See Oscar & 15,895 (1972),reprinted Legislative in His Evans, 750, 755-56, Co. v. S.Ct. tory, at 208. The and other (1979) (rely 60 L.Ed.2d 609 upon circuits have relied Senator Bentsen’s ADEA); ing interpret on Title Kelly VII to proposed 1972 comments on his Dist., Park 801 F.2d Wauconda congressional amendments as evidence of (7th Cir.1986) (same), denied, 271-72 cert. enacting in intent those amendments two 940, 107 480 U.S. S.Ct. Nakshian, years later. (1987). Although See Lehman v. generally is estab 14, 15, 166-67 nn. lished that 1983 cannot to en U.S. be used itself, see, (1981); force created Title VII nn. 2704-05 L.Ed.2d 548 Report 9. The states: (1979)] they agree Many ruling also that the likeli- believe that the Court’s in the —but Murgia complete- very case does not close the door hood of success is bleak. ly Aging Report reprinted to successful constitutional attacks on man- Committee on at datory retirement in the courts—as demon- Legislative History at 347. Bradley strated decision recent (D.D.C.1977), 10. seq. Vance rev'd U.S.C. 2000e et [436 271; Elrod, remedy might availability F.2d at Kelly, 801 F.2d on ADEA be minuscule com have would pared impact allowing such a that, history convinces me compre on Title VII’s would have protections ADEA’s extending hensive enforcement scheme. Government 1974, Congress employees government employees types victimized who are approach taken two to follow intended by Title covered have VII amending Title That VII. years earlier greater a far incentive than discrimina provide is, new statu- Congress intended bring claims tion victims to their workers, government protections to tory equal protection clause. That retain allowing their while them by Title types covered alleged equal 1983 for of action under § scrutiny closer subject are to much VII arising from discrimi- protection violations age claims chal than when discrimination Keller, 827 workplace. See nation in the lenged equal protection grounds. (citing legislative history F.2d at 958-62 classifications are sub Whereas race-based Congress’ in- demonstrates explicitly that ject scrutiny to under the Pro strict not foreclose state and tent Title VII gender-based tection classifica Clause rights to seek governmental local workers’ tions are under intermediate-level reviewed under 42 U.S.C. redress for discrimination scrutiny,11 Supreme applies the 1983). §§ scrutiny more rational-basis far deferential argues Congress could The majority challenges equal age to dis protection a preserve to 1983 as not have intended Bradley, v. crimination. Vance See remedy for (1979) 59 L.Ed.2d 171 U.S. 99 S.Ct. severely action “would such cause of mandatory retirement rules (upholding debilitate, undermine, the enforce- if not challenge); against protection equal Mur by Congress un- created ment mechanism (same). gia, U.S. rea- majority’s I find the der the ADEA.” scrutiny plaintiffs Under rational basis up Congress, soning unpersuasive. It to bring rarely prevail. they may But still Court, the risks and not to balance this Thus, majority govern suit.12 the vast allowing alternative benefits inherent ment workers assert discrimina who fight against in the co-exist remedies to rely to on ADEA tion claims will choose VII, In the context of Title discrimination. mechan prescribed and its enforcement need to Congress clearly believed that the simply They ism.13 have much better methods to dis- variety retain combat winning they if sue chance of under the outweighed the risk multi- crimination bypassing stat ADEA. Wholesale ple undermine Title VII’s remedies would altogether unlikely occur. ute hence is mechanism. enforcement willing to Congress Since take the Keller, Nothing indi- at 959-61. 827 F.2d employees by- government might risk that intended strike a Congress cates that pass Title VII’s enacting different balance mechanism in the areas of sex and race predic- Keller, majority’s discrimination, dire

Contrary to the F.2d at see tions, for preserving it seems reasonable that intended the § risk equal protection discrimi- tolerate the much smaller violations might “severely forego the nation undermine” cases will not ADEA remedies in favor of constitutional nor ADEA’s enforcement “debilitate” the I fact, challenge 1983. conclude that any effect that mechanism. law, See, altogeth- University as a matter e.g., Mississippi eliminate his claim 11. Women for 718, 724, Hogan, U.S. S.Ct. 3335- er. Boren, (1982); Craig 73 L.Ed.2d 1090 451, 456, U.S. why record is unclear from the Zombro 13.It asserting means did not ADEA as the choose his claim. likelihood of success That Zombro’s majority wrongly bleak is relied alleged intended to allow state and local ro’s equal protec- Zombro, government employees, such as tion violations despite remains viable alleged age subject who are discrimina- existence of the ADEA. workplace, option

tion in the to retain the bringing equal protection claim under II. 1983, as well as a claim under the ADEA. majority merely is not content precludes hold that the ADEA

C. Zombro’s Unfortunately, 1983 claim. majority I pre The result reach is consistent with compounds by adding its mistake to its decisions of the vious Court and opinion grossly dictum that misstates Although this neither Circuit.14 court has protection The majority opinion ap- law. directly addressed the issue of whether the pears to assert that if even Zombro’s suit ADEA forecloses an action for an preempted by were his violation, equal protection have as both Fourteenth Amendment claim under sumed that such a re constitutional claim justiciable would not be because he has not Bradley, mains available. See alleged discrimination based on race or sex (analyz 95 n. at 940-41 n. protected or exercise of First Amendment ing plaintiff’s claim under rights. majority’s strange Under the view component Amendment, of Fifth even law, government of the employees appar- though plaintiff previously had asserted a ently equal protection could never raise claim, facts, based on same under the challenges age discrimination in the ADEA); Mayor City v. Johnson & Coun workplace, even if the ADEA did not exist. Baltimore, (4th cil 731 F.2d 210-11 Although that view is mere dictum and Cir.1984) (in alleging age suit discrimina value, precedential thus has no I feel com- tion, equal protec court considered both an pelled respond I majori- because fear the tion claim under 1983 and a claim based ty’s unnecessary misleading and comments ADEA), grounds, on the rev’d on other produce could confusion which come will 353, 105 472 U.S. S.Ct. to haunt us in back future cases. (1985); Grisell, Arritt v. 567 F.2d (4th (same). Cir.1977) also, 1269-72 See majority’s position The flies in the face Lubbock, v. 664 F.2d 1266-71 Alford Supreme of several decisions of the (5th 1982) (same), denied, Cir. Unit A cert. earlier, I and our own Circuit. As noted 975, 102 456 U.S. S.Ct. Supreme Court at least twice has al- (1982). The in courts those cases ex litigants challenge age lowed discrimina- pressed propriety no concern about equal protection grounds. on tion See bringing in 1983 action discrimi (chal- Bradley, 440 U.S. 99 S.Ct. 939 My proposed disposition nation case. lenging mandatory retirement law under merely explicit the case makes the correct equal protection component of Fifth assumption ness of the on which the Su Amendment); Murgia, 427 U.S. preme op Court and our own Circuit have (challenging mandatory S.Ct. 2562 retire- years. erated under for several ment Protection Clause of sum, prior Amendment). history and Fourteenth alsoWe have al- Johnson, decisions of the challenges. Court and our lowed such See support Circuit (equal protection challenge conclusion that Zomb- F.2d 209 14. The Furthermore, majority suggests Scruggs Camp- it enacted the ADEA. it is unclear bell, (4th Cir.1980), compels 630 F.2d 237 plaintiffs Scruggs whether the in based their however, Scruggs, different result. does not 1983 action on the created the stat- my conflict with conclusion that the ADEAdoes containing utes mechanisms, enforcement Scruggs not foreclose Zombro’s 1983 claim. instead, or on constitutional or involved statutes other than ADEA. Whatev- arising independently other of those stat- Congress may enacting er have intended in explained, utes. As I have that distinction is statutes, those I have illustrated that deciding crucial in whether a statute forecloses demonstrated no intent to foreclose 1983 ac- an action under equal protection tions based on violations when rule); Arritt, duty occupied “positions and who critical to

mandatory retirement (same). foreign the conduct of our relations in the F.2d 1267 world,” post-war to raise an discrimina Whiting, Our decision Clark equal protection tion under the com claim Cir.1979), (4th support no F.2d 684 ponent Fifth Pro Amendment’s Due majority’s position Fourteenth for the Bradley, cess Clause. 440 U.S. at non-justiciable if claims are Amendment plaintiffs at 944.16 The alleged age occupied positions both at least as cases employment. majority government and sensitive that of a Balti hazardous ignores fact conveniently that Clark officer, City police yet more the Su recognized courts enter- expressly will preme equal Court did consider their equal protection claims from some tain non-justiciable. protection claims though employees even neither race public course, dangerous alleged. make Of discrimination is To sensitive nor sex clear, following nature of make it point inserted law we course, if rule Zombro to on the mer- “Of difficult for succeed footnote Clark: against equal protection plain- its of discriminated out-of-sta- his claim. on its face non-graduates, justiciable Murgia Bradley tiffs in both ultimate- ters or ly challenges, might presented.” failed in their constitutional protection merely part special n. 13. used at because the nature F.2d at 641 Clark least Foreign of law enforcement and the Ser- and racial discrimination as exam- sexual “positive particularly vice for the ples of violations of constitutional made difficult alleged to show that not ration- requirement's]” that must be ally government’s justiciable claim. related to interests. raise a 101-09, Bradley, 638. Zombro has such a See 99 S.Ct. at id. at See 944-48; Murgia, He has asserted a constitutional violation. 427 U.S. at discrimination, However, a claim S.Ct. at 2667-69. the likelihood claim based Supreme ultimately equal that a lose an plaintiff Court and our Cir- will that the own challenge protection make his or willing to examine does not cuit have been non-justiciable. her claim Protection Clause. Here, heavy would bur- majority Zombro bear attempts sup also to derive protection challenge equal den his even argument by its port non-justiciability depart- prove police if he were to emphasizing brought has his Zombro age: ment him of his transferred against police department, par “a amilitary department, challenging judg- legislative where internal disci “[T]hose public pline safety require police court that ment must convince the on commissioner be afforded broad discretion facts which the classifica- authority assign reassign apparently mem tion is based could not reason- department ably gov- posts.” to various be conceived be true bers fact in no way That makes Zombro’sconsti ernmental decisionmaker.” Vance v. 93, 111, non-justiciable, Bradley, tutional claim the Su In preme In a Murgia, Court has illustrated.15 case this, plaintiff carry Court allowed Massachu such as can this submitting police equal to assert an burden evidence to setts state officer show grounds legisla- asserted for the protection claim on discrimina any 2562. Three tive classification lack reasonable tion. 427 U.S. fact, later, foreign support ser but is none- years allowed this burden officers, performed hazardous theless a considerable one. who vice win, Johnson, grounds. (firefight- question not who should but See 731 F.2d 209 15. The here is ers); Arritt, officers). entertain the suit. (police whether the court should F.2d 1267 Al- though protection considered the we chal- government workers 16. We also have allowed lenges, ultimately we found no constitutional public safety implicate to chal- duties whose lenge violations in those two cases. York, York State Club Ass’n v. New New — -, -, omitted). (1988)(citation Al

101 L.Ed.2d

though equal protection chal a successful

lenge be unlike See, impossible.

ly, e.g., it is not McMahon (S.D.N. Barclay,

Y.1981) (invalidating, under rational-basis

test, provision New York Civil Law Service

prohibiting persons employment of over officers). police 29 as

We should remand Zombro’s pro-

claim to district court for further

ceedings. We do not us have before grounds

asserted on which the Baltimore

police department apparently based its al-

leged practice transferring older officers

away fact, from the Inner Harbor.

police department denies that it has such a

practice and asserts that Zombro was age.

transferred for reasons other than

Thus, we are unable to conduct the neces-

sary scrutiny rational-basis on the record remand, might

before us. On Zombro claim,

succeed his but he should be

given try. the chance to America,

UNITED STATES

Plaintiff-Appellee, PRINCE, Jr.,

William B.

Defendant-Appellant.

No. 87-6008

Summary Calendar. Appeals,

United States Court of

Fifth Circuit.

Feb. Rehearing and on Denial of

Order 2, 1989.

Rehearing En Banc March

Case Details

Case Name: James E. Zombro v. Baltimore City Police Department Bishop L. Robinson, Commissioner, Baltimore City Police Department

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 20, 1989

Citation: 868 F.2d 1364

Docket Number: 86-2659

Court Abbreviation: 4th Cir.