Reed v. Town of Branford

• Decision Date: 13 December 1996
• Docket Number: No. 395cv1244 (JBA).,395cv1244 (JBA).
• Citation: 949 F.Supp. 87
• Parties: William R. REED v. TOWN OF BRANFORD, Peter R. Stallings and Judy E. Gott.
• Court: U.S. District Court — District of Connecticut

949 F.Supp. 87

William R. REED v. TOWN OF BRANFORD, Peter R. Stallings and Judy E. Gott.

No. 395cv1244 (JBA).

United States District Court, D. Connecticut.

December 13, 1996.

John R. Williams, The Law Offices of John R. Williams, New Haven, CT, for plaintiff.

Stephen J. Courtney, Gesmonde, Pietresimone, Sgrignari, Pinkus & Sachs, Hamden, CT, for defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS [doc. # 17]

ARTERTON, District Judge.

Plaintiff William R. Reed ("Reed") brought this suit, pursuant to 42 U.S.C. §§ 1983, 1985, and 1988, against the Town of Branford ("the Town"); Peter R. Stallings ("Stallings") Superintendent of the Town's Waste Water Treatment Plant; and Judy E. Gott ("Gott") First Selectman of the Town. This matter comes before the Court on defendants' motion to dismiss all counts of plaintiff's complaint, except for that aspect of the first count alleging procedural due process violations against the two individual defendants in their individual capacities.

In count one of his complaint, plaintiff claims that, in terminating his employment, the Town, Stallings, and Gott, in both their individual and official capacities, violated his right to the equal protection of the laws when they fired him on account of his age. In addition, plaintiff claims that defendants violated his substantive and procedural due process rights by terminating his employment and failing to provide him with a hearing and an opportunity to be heard. Count two states a claim against the Town for the intentional infliction of emotional distress. Counts three and four also state claims of intentional infliction of emotional distress against the individual defendants, Stallings and Gott, respectively.

Defendants have moved to dismiss plaintiff's equal protection claim against the Town and Stallings and Gott, in their official capacities, on the grounds that plaintiff has not pled a "custom or policy" of discrimination, as required under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny. Defendants also move to dismiss this count against all defendants on the grounds that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., provides the exclusive remedy for plaintiff's claim. With respect to plaintiff's substantive due process claim, defendants move to dismiss on the grounds that plaintiff has no recognized due process right to public employment. Finally, defendants move to dismiss plaintiff's § 1985 claim because he has not alleged sufficient facts to state a claim of conspiracy under § 1985(3) and plaintiff's Fifth Amendment claim on the grounds that this Amendment applies solely to actions of the federal government.

With respect to plaintiff's second count, defendants move to dismiss because plaintiff did not file a written notice of intent to sue with the Town clerk, as required under Connecticut General Statute § 7-465(a). Finally, defendants move to dismiss counts three and four, which allege intentional infliction of emotional distress, for failure to state a claim upon which relief can be granted. For the following reasons, defendants' motion [doc. # 17] is GRANTED in part and DENIED in part.

FACTS

For the purposes of this motion, the facts are briefly stated as follows. Plaintiff Reed was hired by defendants in April, 1979 as Assistant Superintendent of the Branford Sewage Treatment Facility. He served in this position until, at age 50, he was terminated on April 21, 1994 and replaced by a younger person who plaintiff alleges was substantially less qualified. Plaintiff further alleges that defendants have "falsely and maliciously" claimed that plaintiff was terminated because of incompetence or inadequate work performance.

STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests only the sufficiency of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Anderson v. Coughlin, 700 F.2d 37, 40 (2d Cir.1983). In making this determination, the court must accept as true the material facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir.1995). See also Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686.

DISCUSSION

COUNT ONE

I. Age Discrimination

In count one, plaintiff alleges, inter alia, that defendants impermissibly discharged him on account of his age. Defendants argue that this claim is preempted by the ADEA. While plaintiff may be precluded from bringing a § 1983 claim premised solely on a violation of the ADEA, plaintiff's age discrimination claim makes no reference to the ADEA, but rather looks directly to the Equal Protection Clause of the United States Constitution. The issue presented by defendants' motion to dismiss is thus whether the ADEA provides the exclusive remedy for all age discrimination in employment claims, including those alleging constitutional violations.

The Second Circuit has not yet ruled on whether all § 1983 claims based on age discrimination are preempted by the ADEA. However, the circuits that have considered the issue have held that ADEA provides the exclusive remedy for such discrimination. See Zombro v. Baltimore City Police Department, 868 F.2d 1364, 1369 (4th Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989); Ray v. Nimmo, 704 F.2d 1480, 1485 (11th Cir.1983); Paterson v. Weinberger, 644 F.2d 521, 524-25 (5th Cir. 1981). District courts within this circuit, however, have been divided. See Jungels v. State University College of New York, 922 F.Supp. 779, 785 (W.D.N.Y.1996) (ADEA not exclusive remedy); Gregor v. Derwinski, 911 F.Supp. 643, 651 (W.D.N.Y.1996) (ADEA is exclusive remedy); Reale v. Jenkins, 1993 WL 37091, *4 (S.D.N.Y.) (ADEA is exclusive remedy); Tranello v. Frey, 758 F.Supp. 841, 850-51 n. 3 (W.D.N.Y.1991) (ADEA is exclusive remedy), aff'd on other grounds, 962 F.2d 244 (2d Cir.), cert. denied, 506 U.S. 1034, 113 S.Ct. 813, 121 L.Ed.2d 686 (1992).

Reviewing the prior district-court opinions from this circuit, the Court favors the reasoning of Jungels, the most recent. In Jungels, Judge Curtin observed that Second Circuit precedents establish that Title VII does not preempt § 1983 claims for unconstitutional sex and race discrimination in employment. 922 F.Supp. at 785 (citing Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir.1993)). The Second Circuit recently affirmed this position in Annis v. County of Westchester, 36 F.3d 251, 255 (2d Cir.1994). The Jungels court could discern no reason to distinguish the ADEA from Title VII for purposes of preemption. This Court reaches a similar conclusion, and notes that none of the prior district-court opinions in this Circuit address this concern; indeed, none provide more than a brief, conclusory analysis of the preemption question.

The Jungels court also relied on an earlier Northern District of Iowa opinion reaching the same result, Mummelthie v. City of Mason City, Iowa, 873 F.Supp. 1293 (N.D.Iowa 1995), aff'd mem., 78 F.3d 589 (8th Cir.1996). In Mummelthie, Judge Bennet offers a highly comprehensive analysis of ADEA exclusivity, and considers the issue in significantly greater depth than the appellate court decisions reaching contrary results. Mummelthie criticizes Zombro, the leading circuit court decision on ADEA exclusivity, for failing to consider the close analogy between Title VII and the ADEA and for failing to examine the language and legislative history of the ADEA in order to determine legislative intent with respect to preemption. 873 F.Supp. at 1323. The Mummelthie court, in its own assessment of the language, structure and legislative history of the ADEA, could discern no intent, either express or inferable, to preempt § 1983 claims based on age discrimination in violation of the constitution. Id. at 1324-28. This Court, like the Jungels court, finds the analysis in Mummelthie to be persuasive.

The Supreme Court has stated that in order for a § 1983 remedy to be foreclosed by a subsequent statute,

the statutory framework must be such that allowing a plaintiff to bring a § 1983 action would be inconsistent with Congress's carefully tailored scheme. The burden to demonstrate that Congress has expressly withdrawn the remedy is on the defendant. We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right.

Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106-07, 110 S.Ct. 444, 449, 107 L.Ed.2d 420 (1989). In light of the persuasive reasoning offered by Jungels and Mummelthie, which are not addressed in the defendants' briefs, the Court cannot conclude that defendants have met their heavy burden in attempting to show that the ADEA preempts § 1983 claims for unconstitutional age discrimination in employment.

II. Substantive Due Process

Plaintiff claims that defendants' conduct during the course of his termination was of such an extreme nature as to violate the requirements of substantive due process protected by the Fourteenth Amendment. Defendants seek dismissal of this claim on the ground that termination from public employment may not give rise to a substantive due process claim.

The Second Circuit has articulated the purpose and limitations of substantive due process as follows:

The due process clause was intended to prevent government from abusing its power, or employing it as an instrument of oppression. The clause has been held to have a substantive component that protects individual liberty against certain government actions regardless of the fairness...