Purtill v. Harris

658 F.2d 134, 26 Fair Empl. Prac. Cas. (BNA) 940, 1981 U.S. App. LEXIS 18264, 26 Empl. Prac. Dec. (CCH) 32,061
CourtCourt of Appeals for the Third Circuit
DecidedAugust 24, 1981
DocketNo. 81-1187
StatusPublished
Cited by106 cases

This text of 658 F.2d 134 (Purtill v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Purtill v. Harris, 658 F.2d 134, 26 Fair Empl. Prac. Cas. (BNA) 940, 1981 U.S. App. LEXIS 18264, 26 Empl. Prac. Dec. (CCH) 32,061 (3d Cir. 1981).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The first question for decision presented by this appeal by a federal employee from the district court’s grant of summary judgment for the government defendants is whether section 15 of the Age Discrimination in Employment Act, 29 U.S.C. § 633a, preempts judicial remedies based directly on the Constitution for claims of age discrimination in federal employment. We also must decide whether a plaintiff bringing an action under section 15 of the ADEA must exhaust the administrative remedies he has chosen to pursue before filing suit. The district court held that the ADEA pro[136]*136vides the exclusive judicial remedy for the plaintiff’s claims of age discrimination and that once the plaintiff initiated a proceeding for administrative relief, he was required to exhaust his administrative remedies as a prerequisite to his ADEA suit. We affirm, but we remand to the district court to allow the appellant an opportunity to amend his complaint with an allegation supporting his claim that he has exhausted his administrative remedies under the ADEA, at least as to one complaint.

I.

The plaintiff below, James Purtill, is fifty-three years of age and is employed by the Social Security Administration in the Department of Health and Human Services at its Philadelphia office. On two occasions Purtill’s superiors failed to promote him from his position as Professional Group Specialist (GS-12) in the Medicare Regional Office to a position as a Medicare Contractor Operations Specialist (GS-13). After each incident, Purtill filed a complaint with HHS alleging that he was denied the promotions because of his age. The department denied both of his complaints and he pursued two separate administrative appeals to the Equal Employment Opportuni-. ty Commission.1 Purtill then filed the present suit in federal district court, proceeding on two theories. Count one of his complaint was brought against HHS and demanded relief under the ADEA. In addition to a statement of the facts underlying his two administrative complaints, Purtill alleged that 180 days had passed since he had initiated those proceedings. Count two was brought against certain named individuals, all of whom are supervisory officials at HHS’. Philadelphia Regional Office, and asked for legal and equitable relief directly under the Constitution, see Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and under 42 U.S.C. §§ 1985 and 1986. The thrust of the allegations in this count was that Purtill was subjected to retaliatory harassment in violation of his fifth amendment rights for filing age discrimination complaints. The district court granted the defendants’ motion for summary judgment, concluding on count one that the plaintiff had failed to exhaust his administrative remedies and on count two that the amendment of the ADEA extending coverage to federal employees preempted constitutional Bivens remedies.2 Purtill v. Harris, No. 80-3311 (E.D.Pa. December 16, 1980).

II.

In analyzing the Bivens claim, the district court applied the principle that a right of action under thé Constitution will not be implied where effective alternative forms of relief are available and accepted the reasoning set forth in Christie v. Marston, 451 F.Supp. 1142 (N.D.Ill.1978), and Paterson v. Weinberger, 644 F.2d 521 (5th Cir. 1981). The appellees argue that unlike the situations where a Bivens claim has been upheld, the statutory remedial scheme here provides the plaintiff with complete and efficient remedies. Compare Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Federal Tort Claims Act not considered effective or complete); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Congressional employee claiming sex discrimination not covered by Title VII); Bivens (state remedies for invasions of privacy by federal agents inadequate).

The appellant contends that Carlson v. Green compels a different result, stressing the following passage in the Court’s opinion:

Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a [137]*137right. Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate “special factors counsel-ling hesitation in the absence of affirmative action by Congress.” 403 U.S. at 396, 91 S.Ct. at 2004; Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 2276 (1979). The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra, 403 U.S. at 397, 91 S.Ct. at 2005; Davis v. Passman, 442 U.S. at 245-247, 99 S.Ct. at 2276-2278.

446 U.S. at 18-19, 100 S.Ct. at 1471-1472 (emphasis in original). He concludes that this passage indicates a presumption that there is a constitutional remedy applicable to his claim parallel to his statutory rights. We find evidence both of Congressional intent that section 15 of the ADEA be a substitute for other remedies and of factors counselling hesitation in implying a right of action.

Defendants need not show that Congress recited any magic words to demonstrate that the statutory remedy was intended to be exclusive; rather, the inquiry at this stage is limited to a determination of Congressional intent. Id. at 19 n.5, 100 S.Ct. at 1472 n.5. In Brown v. GSA, 425 U.S. 820, 829, 96 S.Ct. 1961, 1966, 48 L.Ed.2d 402 (1976), the Court concluded that the remedies available to federal employees for racial discrimination under section 717 of the Civil Rights Act, 42 U.S.C. § 2000e-16, were intended to be “exclusive” and “preemptive.” See also Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 2351, 60 L.Ed.2d 957 (1979); Davis v. Passman, 442 U.S. 228, 247 n.26, 99 S.Ct. 2264, 2278 n.26 (1979). The Court based this determination on both the legislative history and an examination of “the balance, completeness, and structural integrity” of section 717 and Title VII. Brown, 425 U.S. at 828, 832, 96 S.Ct.

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Bluebook (online)
658 F.2d 134, 26 Fair Empl. Prac. Cas. (BNA) 940, 1981 U.S. App. LEXIS 18264, 26 Empl. Prac. Dec. (CCH) 32,061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purtill-v-harris-ca3-1981.