Zombro v. Baltimore City Police Dept.

• Citation: 868 F.2d 1364
• Decision Date: 20 April 1989
• Docket Number: No. 86-2659,86-2659
• Parties: 49 Fair Empl.Prac.Cas. 297, 49 Empl. Prac. Dec. P 38,785, 57 USLW 2512 James E. ZOMBRO, Plaintiff-Appellant, v. BALTIMORE CITY POLICE DEPARTMENT; Bishop L. Robinson, Commissioner, Baltimore City Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1364

868 F.2d 1364

49 Fair Empl.Prac.Cas. 297,

49 Empl. Prac. Dec. P 38,785, 57 USLW 2512

James E. ZOMBRO, Plaintiff-Appellant, v. BALTIMORE CITY POLICE DEPARTMENT; Bishop L. Robinson Commissioner, Baltimore City Police Department Defendants-Appellees.

No. 86-2659.

United States Court of Appeals Fourth Circuit.

Argued March 9, 1988.

Decided March 3, 1989.

Rehearing In Banc Denied April 20, 1989.

Michael Marshall (Herbert R. Weiner, Schlachman, Potler, Belsky & Weiner, P.A., Baltimore, Md., on brief), for plaintiff-appellant.

Millard S. Rubenstein, Asst. City Sol., Baltimore, Md., (Benjamin Brown, City Sol., on brief), for defendants-appellees.

Before MURNAGHAN, CHAPMAN and WILKINSON, Circuit Judges.

CHAPMAN, Circuit Judge:

This is an age discrimination action brought under 42 U.S.C. Secs. 1983 and 1985 and the Fourteenth Amendment to the United States Constitution. Plaintiff James Zombro, a member of the Baltimore City Police Department, contends that he was unlawfully transferred from one department to another because of his age. He seeks compensatory damages and reassignment to his former post with the Inner Harbor Tactical Division. The district court granted summary judgment in favor of defendants Police Commissioner and Police Department. We affirm, but for reasons different from those expressed by the district court.

I.

Plaintiff James Zombro was employed as an officer with the Baltimore City Police Department, and worked with the Inner Harbor Tactical Division. In early March 1986, the Inner Harbor Unit Supervisor, Lt. Johnson, informed Zombro that he was going to be transferred out of the Unit. Johnson contends that he based the transfer on Zombro's purported poor attitude, particularly his "harsh demeanor" with Inner Harbor visitors and merchants. Zombro asserts that Johnson "advised the Plaintiff that he had been in his current assignment to the Tactical Division, Inner Harbor, too long and that he should not assume he could not be transferred. Lt. Johnson further indicated," according to Zombro's Complaint, "that certain officers, including the Plaintiff, may be transferred because of their age." Plaintiff Zombro also alleged that he did not request a transfer from Inner Harbor to a "job of lesser status." Zombro was transferred to the Northeast Section on March 31, 1986, at the same pay as when he was with the Inner Harbor Tactical Division.

Zombro was forty-five years of age when this action was commenced. He claims he was subjected to unlawful age-based discrimination and that he is entitled to relief under 42 U.S.C. Secs. 1983 and 1985 (1982). The Sec. 1985 action is based upon an alleged conspiracy between the Police Commissioner Robinson and the "Baltimore City Police Department." Zombro also claims that the Police Commissioner and the Department violated his right to equal protection under the Fourteenth Amendment in effectuating his transfer.

In a memorandum opinion dated October 22, 1986, the district court granted defendants' motion for summary judgment, stating that Zombro failed to assert a Fourteenth Amendment liberty or property interest as required to maintain an action under Secs. 1983 and 1985. Particularly, the court stated that Zombro had no property interest in a specific post of duty or work location in the Department.

Zombro claims that age discrimination is a proper basis for an action under Sec. 1983 and that he alleged sufficient facts to support such a cause of action. There is a factual dispute as to the reason for his transfer, and he asserts that he need not establish a liberty or property interest under the equal protection clause of the Fourteenth Amendment or under Secs. 1983 or 1985.

II.

A.

Title 42 U.S.C. Sec. 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....

Section 1983 does not in itself create any substantive rights. Rather, it provides a statutory basis to receive a remedy for the deprivation of a right "secured by the Constitution and laws" of the United States by a person acting under color of state law. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

The Plaintiff's claims, of course, fall within the scope of the specific and comprehensive administrative remedies provided by the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq. (1982). Plaintiff Zombro, however, declined to bring this action under the ADEA. ¹ Rather, he alleges that his employer's action was a violation of the equal protection guarantee or clause of the Fourteenth Amendment, and that this federal constitutional violation is a sufficient deprivation of rights to give rise to a Sec. 1983 action.

The ADEA provides a comprehensive statutory scheme to prohibit discrimination in employment on the basis of age. The plan was structured to facilitate and encourage compliance through an informal process of conciliation and mediation. Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 841 (3rd Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). A prerequisite to the bringing of a private action is that the Equal Employment Opportunity Commission (EEOC) must be given sixty days notice. 29 U.S.C. Sec. 626(d). This period is designed to give the EEOC time to mediate the grievance "by informal methods of conciliation, conference, and persuasion." 29 U.S.C. Sec. 626(b). The right to commence a private action, it should be noted, terminates upon the filing of an action by the EEOC. 29 U.S.C. Sec. 626(c). Finally, notification to the EEOC must be given within 180 days after the alleged unlawful actions took place, unless the party is also seeking state relief. 29 U.S.C. Sec. 626(d)(1).

If a violation of substantive rights under the ADEA could be asserted by way of a Sec. 1983 action, the aggrieved party could avoid these specific provisions of the law. The plaintiff would have direct and immediate access to the federal courts, the comprehensive administrative process would be bypassed, and the goal of compliance through mediation would be discarded. The purposes and structure of the ADEA are inconsistent with the notion that the remedies it affords could be supplanted by alternative judicial relief. The inescapable conclusion to be drawn from the foregoing is that if 42 U.S.C. Sec. 1983 is available to the ADEA litigant, the congressional scheme behind ADEA enforcement could easily be undermined, if not destroyed. ² The very object of bypassing the specific administrative process of the ADEA, one thus assumes, was the principal reason why this action was not brought under the ADEA.

The overriding question presented by this case is whether the availability and detailed procedures of the ADEA foreclose a private action brought under Sec. 1983 to enforce substantive rights specifically addressed and protected by the ADEA. May the Plaintiff, in other words, cavalierly bypass the comprehensive process fashioned by Congress in the ADEA by merely asserting a violation of a constitutional right rather than the statutory right?

Section 1983, standing alone, cannot withstand preemption by a more comprehensive statutory remedy designed to redress specific unlawful actions, such as those alleged by Zombro, unless the statute in question manifests a congressional intent to allow an individual a choice of pursuing independently rights under both the statutory scheme and some other applicable federal statute. In Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Supreme Court instructed that "when [the state] is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under Sec. 1983." Id. at 20, 101 S.Ct. at 2626, quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 673 n. 2, 99 S.Ct. 1905, 1945 n. 2, 60 L.Ed.2d 508 (1979) (Stewart, J., dissenting).

The Supreme Court has suggested that a Sec. 1983 action is foreclosed "where the governing statute provides an exclusive remedy for violation of its terms." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981), quoting Maine v. Thiboutot, 448 U.S. 1, 22 n. 11, 100 S.Ct. 2502, 2514 n. 11, 65 L.Ed.2d 555 (1980) (Powell, J., dissenting); see also National Sea Clammers, supra at 20-21, 101 S.Ct. at 2626-27; Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 375-78, 99 S.Ct. 2345, 2350-52, 60 L.Ed.2d 957 (1979).

In Novotny the Supreme Court ruled that a Title VII violation could not be asserted by way of 42 U.S.C. Sec. 1985(3), the conspiracy counterpart of Sec. 1983. To allow such an action, the Court reasoned, would eviscerate the comprehensive statutory scheme enacted by Congress in Title VII, including express time limitations, opportunity for conciliation, investigation by the EEOC, etc. Id. at 373-96, 99 S.Ct. at 2349-61.

Novotny was applied in National Sea Clammers, supra, to proscribe a private action under Sec. 1983. The Supreme Court held that a Sec. 1983 action was barred because Congress had created a detailed statutory enforcement scheme under the Water Pollution Control Act, 33 U.S.C. Sec. 1251, et seq., and the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. Sec. 1401, et seq. The framework available under the ADEA is no less specific and comprehensive.

In the controversy sub judice, however, the Baltimore City Police Department is alleged to have violated for purposes of Sec. 1983 not the ADEA, but the equal protection clause of the Fourteenth Amendment. The...