             Case: 15-14752   Date Filed: 06/24/2016    Page: 1 of 8


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 15-14752
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:14-cv-03489-RWS



ANTHONY W. DUVA,

                                                 Plaintiff - Appellant,

versus

BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
SUSAN L. BARCUS,
Senior Vice President of Advancement and
Chief Development Officer,
RICARDO AZZIZ,
President and CEO, Georgia Regents University,
SUSAN NORTON,
Vice President, Human Resources,
JENNIFER RUSS,
Associate Vice President,

                                                 Defendants - Appellees.
                 Case: 15-14752       Date Filed: 06/24/2016       Page: 2 of 8


                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Georgia
                             ________________________

                                        (June 24, 2016)



Before MARTIN, JORDAN, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Anthony Duva appeals the district court’s dismissal of Duva’s age

discrimination suit, filed under the Age Discrimination in Employment Act, 29

U.S.C. § 623(a)(1) (“ADEA”), and 42 U.S.C. § 1983. Duva named as Defendants

his former employer, the Board of Regents of the University System of Georgia

(“Board”), and four Georgia Regents University (“GRU”) executives, each sued in

his or her individual and official capacity (“individual defendants”). No reversible

error has been shown; we affirm. 1

       Duva, who was 66 years old when his position at GRU was eliminated, filed

this civil action against Defendants. He says that he was discriminated against

based on his age. In an amended complaint, Duva purported to assert (1) an

1
 “We review de novo the district court’s grant of a motion to dismiss . . . , accepting the
allegations in the complaint as true and construing them in the light most favorable to the
plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
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ADEA claim against the Board; (2) a section 1983 claim against the individual

defendants for violation of the Equal Protection Clause; and (3) a section 1983

claim against the individual defendants for violation of Duva’s procedural due

process rights.2



                                                I.



       Under the Eleventh Amendment, an unconsenting state (including the state’s

agencies and departments) is immune from suit in federal court by the state’s own

citizens. Pennhurst State Sch. & Hosp., et al. v. Halderman, et al., 104 S. Ct. 900,

908 (1984). The Eleventh Amendment bar applies irrespective of whether a

plaintiff seeks monetary or injunctive relief. Cory v. White, 102 S. Ct. 2325, 2329

(1982).

       Congress intended the ADEA to abrogate the states’ Eleventh Amendment

immunity. But the Supreme Court has concluded that Congress exceeded its

constitutional authority in enacting the ADEA and, thus, “[t]he ADEA’s purported

abrogation of the States’ sovereign immunity is . . . invalid.” Kimel, et al. v. Fla.

Bd. of Regents, et al., 120 S. Ct. 631, 642, 650 (2000).


2
 Duva raises no challenge to the district court’s determination that, as a state employee alleging
a pretextual termination, Duva can state no substantive due process claim. For background, see
McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc).
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      The parties do not dispute that the Board is an agency of the State of

Georgia. Thus, the district court dismissed properly Duva’s ADEA claim against

the Board as barred by the Eleventh Amendment. In addition, because Duva

asserted his ADEA claim only against the Board -- and against no individual

defendant in his or her official capacity -- the exception established in Ex parte

Young is inapplicable. See Lane v. Cent. Ala. Cmty. College, 772 F.3d 1349,

1351 (11th Cir. 2014) (under Ex parte Young, “official-capacity suits against state

officials are permissible . . . under the Eleventh Amendment when the plaintiff

seeks prospective equitable relief to end continuing violations of federal law.”

(quotations omitted) (emphasis in original)); Ex parte Young, 28 S. Ct. 441, 453-

54 (1908) (recognizing an exception to Eleventh Amendment immunity in suits

seeking to compel a state officer to comply with federal law).



                                          II.



      Based on two independent grounds, the district court dismissed Duva’s

Equal Protection claim against the individual defendants. First, the district court

concluded that Duva’s section 1983 claim for age discrimination was precluded by

the ADEA. Second, the district court determined that Duva stated no claim for




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relief under section 1983 because he failed to allege that the purported age

discrimination lacked a rational relationship to a legitimate state interest.

      About the district court’s first ground for dismissal, the majority of Circuit

Courts of Appeal to address the issue have ruled that the ADEA precludes the

filing of age discrimination claims under section 1983. See Tapia-Tapia v. Potter,

322 F.3d 742, 745 (1st Cir. 2003); Hildebrand v. Allegheny Cnty., 757 F.3d 99,

110 (3rd Cir. 2014); Zombro v. Balt. City Police Dep’t, 868 F.2d 1364, 1369 (4th

Cir. 1989); Lafleur v. Tex. Dep’t of Health, 126 F.3d 758, 760 (5th Cir. 1997);

Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009);

Migneault v. Peck, 158 F.3d 1131, 1140 (10th Cir. 1998), vacated on other grounds

by Bd. of Regents of Univ. of N.M. v. Migneault, 120 S. Ct. 928 (2000);

Chennareddy v. Bowsher, 935 F.2d 315, 318 (D.C. Cir. 1991); but see Levin v.

Madigan, 692 F.3d 607, 617 (7th Cir. 2012) (concluding that the ADEA does not

preclude section 1983 equal protection claims). This Court has not yet weighed in

on this debate. And, because resolution of the preclusion issue is not dispositive in

this appeal, we need not decide that issue today.

      Even if we assume -- without deciding -- that Duva was permitted to raise an

independent section 1983 claim for age discrimination, we agree with the district

court’s alternative independent ground for dismissing Duva’s Equal Protection




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claim. 3 Age is no suspect classification under the Equal Protection Clause; thus,

states may discriminate on the basis of age without violating the Fourteenth

Amendment “unless the varying treatment of different groups or persons is so

unrelated to the achievement of any combination of legitimate purposes that we

can only conclude that the [state’s] actions were irrational.” Kimel, 120 S. Ct. at

645-46. Because age classifications are “presumptively rational,” the party

challenging the constitutionality of an age classification “bears the burden of

proving that the facts on which the classification is apparently based could not

reasonably be conceived to be true by the governmental decisionmaker.” Id.

(quotation omitted).

       In his first amended complaint, Duva failed to allege that the individual

defendants’ purported age discrimination lacked a rational relationship to a

legitimate state interest. Accordingly, Duva failed to state a plausible claim for

relief under the Equal Protection Clause. The district court dismissed properly

Duva’s section 1983 claim.




3
 Duva has failed to challenge the district court’s second independent ground for dismissal on
appeal; that issue is abandoned. See Carmichael v. Kellogg, Brown & Root Serv., 572 F.3d
1271, 1293 (11th Cir. 2009).
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                                         III.



      About Duva’s procedural due process claim against the individual

defendants, the district court first concluded that Duva had a property interest in

his continued employment. The district court determined, however, that Duva

failed to allege sufficiently that he was in fact denied procedural due process.

      To state a section 1983 claim for violation of procedural due process, a

plaintiff must allege both “a deprivation of some right protected by the due process

clause” and that the state refused to provide a process adequate to remedy the

alleged procedural deprivation. See Cotton v. Jackson, 216 F.3d 1328, 1331 (11th

Cir. 2000) (citing McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc)).

Where adequate state remedies exist, but a plaintiff fails to take advantage of them,

the plaintiff can state no violation of procedural due process. Id. When

determining the existence of an adequate state remedy, we look not only to the

process “employed by the board, agency or other governmental entity whose action

is in question, but also [to] the remedial process state courts would provide if

asked.” Horton v. Bd. of Cnty. Comm’rs, 202 F.3d 1297, 1300 (11th Cir. 2000).

      In his amended complaint, Duva alleges that the individual defendants

deprived him of his due process rights by failing to conduct a post-termination

hearing, failing to afford Duva an opportunity to confront and cross-examine


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adverse witnesses, and by failing to otherwise allow Duva a “meaningful

opportunity to be heard.” Even if we accept that Duva has alleged sufficiently a

deprivation of a due process right, a constitutional due process violation occurs

only after the state refuses to provide a process adequate to remedy that procedural

deprivation. See Cotton, 216 F.3d at 1331; McKinney, 20 F.3d at 1557, 1563.

Because Duva alleged no facts showing that he asked for remedial procedures, that

the state refused to make available such procedures, or that the state’s procedures

were otherwise unavailable to Duva or inadequate to remedy the alleged

procedural deprivation, Duva -- as a matter of law -- has failed to state a claim for

violation of procedural due process.

      AFFIRMED.




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