ADEA Retaliation Provision Does Not Preclude a Section 1983 Retaliation Claim: Ninth Circuit

Practical Law Legal Update w-002-9650 (Approx. 6 pages)

ADEA Retaliation Provision Does Not Preclude a Section 1983 Retaliation Claim: Ninth Circuit

by Practical Law Labor & Employment

Background

Ronnie Stilwell worked for the City of Williams, Arizona (City) as a superintendent for the City's Water Department. In 2009, Stilwell signed a sworn statement supporting a former City employee who was suing the City for retaliation under the ADEA. Stilwell also planned to testify on the former employee's behalf. Beginning in December 2009, the City took several negative actions against Stilwell, including criticizing Stilwell's job performance and claiming that Stilwell neglected security issues at the City's water plant. In December 2010, while the City investigated the water plant issue, the City placed Stilwell on administrative leave. In January 2011, the City terminated Stilwell's employment.

Stilwell sued in US district court, alleging among other things that the City retaliated against him in violation of both the ADEA and the First Amendment. The district court granted summary judgment to the City on all of Stilwell's claims, including his First Amendment retaliation claim under Section 1983. The district court found that the ADEA's retaliation provision precluded a Section 1983 First Amendment retaliation claim. Stilwell appealed.

Outcome

In a 2-1 decision, the Ninth Circuit reversed and remanded, holding that:

The ADEA's anti-retaliation provision does not preclude First Amendment retaliation claims under Section 1983.
When Congress limits enforcement of a statutorily-created right by creating a specific remedial scheme that is narrower than Section 1983, the statute precludes Section 1983 claims.
When a statute only recognizes a constitutional right or adds options for enforcing that constitutional right, and the statute's rights and protections are significantly different from and narrower than the rights and protections provided by the Constitution, the statute does not preclude a Section 1983 remedy.

The Ninth Circuit found that Stilwell's speech about the City's alleged retaliation against the former employee was protected by the First Amendment because it:

Was outside the scope of his regular job duties.
Implicated matters of public concern.

The Ninth Circuit noted that:

Section 1983:
- is not a source of substantive rights;
- merely provides a means for vindicating constitutional and statutory rights; and
- may not provide a basis for vindicating rights where Congress has enacted a statute that indicates an intent to preclude Section 1983 lawsuits.
(42 U.S.C. § 1983; Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).)
To determine whether a Section 1983 claim is precluded by a statute, the US Supreme Court has considered whether the statutory scheme provides for a comprehensive enforcement mechanism demonstrating Congress intended the statute to preclude Section 1983 lawsuits (Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981)).
In Smith v. Robinson, the Supreme Court held that the Education of the Handicapped Act (EHA) precluded Section 1983 suits alleging Fourteenth Amendment equal protection violations based on disability discrimination in education because:
- constitutional equal protection rights and the rights protected by the EHA were "virtually identical;"
- the EHA had an elaborate procedural mechanism to protect the rights of handicapped children; and
- Congress gave no indication that it intended to allow Section 1983 lawsuits to remedy violations of rights conferred by the EHA.
(468 U.S. 992, 1013 (1984).)
In City of Rancho Palos Verdes, California v. Abrams, the Supreme Court held that the Telecommunications Act precluded Section 1983 because:
- the Telecommunications Act created a private right of action with a limited 30-day statute of limitations and no allowance for awarding attorneys' fees or costs; and
- allowing Section 1983 suits without those limitations "would distort" the Telecommunications Act's scheme of "expedited judicial review and limited remedies."
(544 U.S. 113 (2005).)
In Fitzgerald v. Barnstable School Committee, the Supreme Court held that Title IX did not preclude using Section 1983 to remedy gender discrimination in educational programs receiving Federal financial assistance, and that plaintiffs alleging gender discrimination could also bring equal protection claims under Section 1983. The Court stated that "the crucial consideration" for determining whether Section 1983 is precluded is "what Congress intended." The Court also based its decision on significant differences it identified between a Title IX claim and a Section 1983 Equal Protection Clause claim, noting there was a "mismatch" between the provisions about:
- which entities may be sued and which entities are exempted;
- the conduct each provision prohibits; and
- the liability standards and burdens of proof required for a party to prevail under each provision.
(555 U.S. 246, 252-57 (2009).)
The ADEA provides for a:
- private right of action; and
- requirement that parties pursuing ADEA claims first exhaust administrative remedies by filing a complaint with the EEOC.
(29 U.S.C. § 626(c) and 29 U.S.C. § 626(d).)
The rights and protections provided by the ADEA's retaliation provision differ from Section 1983 First Amendment retaliation claims, including about:
- who may be sued and who may sue under each provision (state employees cannot sue under the ADEA but can sue under Section 1983, and the ADEA applies to private and public employees with 20 or more employees except states while Section 1983 generally does not apply to private employers);
- how to establish liability under each provision (ADEA plaintiffs have a greater burden of proof than a First Amendment retaliation claim plaintiff); and
- the remedies available under each provision (ADEA plaintiffs may not seek emotional distress damages, but Section 1983 allows for emotional distress damages).
The ADEA's retaliation provision provides less protection to an alleged victim of retaliation than the First Amendment, including by:
- excluding independent contractors and state employers from protection against ADEA retaliation;
- not allowing ADEA retaliation plaintiffs to sue individuals;
- requiring ADEA retaliation plaintiffs to meet a higher burden of proof; and
- excluding emotional distress damages.
The Ninth Circuit's holding in Ahlmeyer v. Nevada System of Higher Education that the ADEA's discrimination provisions were "significantly comprehensive" to preclude Section 1983 claims was distinguishable to this case involving ADEA retaliation claims because the:
- ADEA's retaliation provision is different from the ADEA's discrimination provision;
- ADEA's retaliation provision is narrower than the First Amendment in many ways while the ADEA's discrimination provision provided more protection against age discrimination than the Equal Protection Clause; and
- holding in Ahlmeyer was based on the ADEA providing more protection in the area of age discrimination than the constitution provided.
(See 555 F.3d 1051, 1054-59 (9th Cir. 2009).)

Practical Implications

The Ninth Circuit's decision in Stilwell applies the Supreme Court test for determining whether Section 1983 is precluded by the ADEA's retaliation provision. The Ninth Circuit found that Section 1983 was not precluded because the ADEA's retaliation provision provides narrower protection than Section 1983.

ADEA Retaliation Provision Does Not Preclude a Section 1983 Retaliation Claim: Ninth Circuit | Practical Law