United States Court of Appeals,

Fifth Circuit.

No. 97-50152

Summary Calendar.

Richard D. LAFLEUR, Plaintiff-Appellee,

v.

TEXAS DEPARTMENT OF HEALTH, et al., Defendants,

and

Susan Steeg, Defendant-Appellant.

Oct. 31, 1997.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:

The Appellant, Susan Steeg ("Steeg") appeals the denial of

qualified immunity on the Appellee's, Richard Lafleur ("Lafleur"),

§ 1983 claim against her. Lafleur's § 1983 claim alleged "an equal

protection violation to be free from age discrimination in

employment." Lafleur's cause of action also alleges a claim of age

discrimination against the Texas Department of Health brought under

the Texas Commission on Human Rights Act ("TCHRA"), TEX. LABOR CODE

§ 21.001, et seq.1

Specifically, Lafleur complains that Steeg prevented him from

receiving a pay raise, while approving raises for other persons in

1 Lafleur's state law claim of age discrimination under the TCHRA is not preempted by the Age Discrimination in Employment Act,

et seq. See

; Pointer v. Crown Cork & Seal Co., Inc.,

(S.D.Tex. 1992).

1 her department who had less experience and were under age forty.

We note that Lafleur's complaint refers to "younger employees

receiving the raises," thus Lafleur is not asserting a gender based

claim under § 1983. Because we conclude that Lafleur's § 1983

claim is preempted by the Age Discrimination in Employment Act

("ADEA"),

et seq., we reverse and remand with

instructions to dismiss the § 1983 cause of action.

Section 1983 does not create any substantive rights, but

instead was designed to provide a remedy for violations of

statutory and constitutional rights. Jackson v. City of Atlanta,

Tex.,

, 63 (5th Cir.), cert. denied, --- U.S. ----,

,

(1996); Hobbs v. Hawkins,

(5th Cir. 1992). The Supreme Court in Golden State Transit

Corp. v. City of Los Angeles,

,

,

(1989) (Golden II ), articulated a two-part test to

determine whether a § 1983 remedy exists: (1) if the plaintiff

asserts the violation of a federal right, then a § 1983 remedy

exists unless, (2) the defendant can show that Congress

specifically foreclosed a remedy under § 1983 by providing a

comprehensive enforcement mechanism for protection of a federal

right. Id. at 106,

. Likewise, this Court has

stated that where Congress has enacted a statute that covers a

specific substantive area providing specific remedies, a cause of

action under § 1983 is foreclosed. Britt v. Grocers Supply Co.,

Inc.,

(5th Cir. 1992); Irby v. Sullivan,

(5th Cir. 1984) (section 1983 is not available when

2 the governing statute provides an exclusive remedy for violations

of its terms).

We note that this Court has not squarely addressed the

question of whether the ADEA preempts a non-federal employee's §

1983 claim of age discrimination. In Paterson v. Weinberger,

(5th Cir. 1981) this Court held that a federal employee's

Fifth Amendment age discrimination claim was preempted by § 633a of

the ADEA, as the ADEA "was intended to provide [the] exclusive

remedy for age discrimination". Id.

. (citation

omitted).

Further, we also recognize that the Court in Britt, in

answering the question of whether the ADEA preempted the National

Labor Relations Act, broadly held that "Congress intended the ADEA

to be the exclusive remedy for age discrimination claims." Britt,

. The Court, as part of its reasoning, noted that

"a number of cases ... hold that an age discrimination claim

brought under § 1983 is preempted by the ADEA." Id.

. Although dicta, we agree, as have other courts, with this

proposition. See, e.g., Zombro v. Baltimore City Police Dept.,

(4th Cir. 1989) (holding that plaintiff could not maintain

an action for age discrimination under § 1983 because the claim

fell within scope of the ADEA); White v. Frank,

(W.D.Tex. 1989), aff'd,

(5th Cir. 1990); Ring v.

Crisp County Hosp. Auth.,

(M.D.Ga. 1987)

(rejecting plaintiff's equal protection claim under § 1983 and

holding that the ADEA was the exclusive remedy for claims of age

3 discrimination, whether those claims are founded on the

Constitution or on rights created by the ADEA); Gregor v.

Derwinski,

(W.D.N.Y. 1996) (following Zombro ).

Accordingly, because Congress has enacted a statutory

provision to confront age discrimination in the work place via the

ADEA, and based on this circuit's opinion that the ADEA is the sole

remedy for persons who have been discriminated against based on

their age, we are compelled to hold that where a plaintiff asserts

a claim of age discrimination under § 1983 and where the facts

alleged will not independently support a § 1983 claim, the

plaintiff's age discrimination claim is preempted by the ADEA.

Consequently, because Lafleur has not alleged any facts which would

support an independent claim under § 1983, Lafleur's § 1983 age

discrimination claim is preempted by the ADEA. We express no

opinion as to the merit of Lafleur's claims.

Thus, finding that Lafleur's § 1983 claim is preempted by the

ADEA, we reverse the district court's order and remand with

instructions to dismiss such claim. See, e.g. Jackson v. City of

Atlanta, Tex.,

, 64 (5th Cir.), cert. denied, --- U.S. --

--,

,

(1996).

REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

4