Comments on: From Workplace Prof Blog: Today’s Argument in Gomez-Perez

By: Edelmiro Salas Gonzalez

Edelmiro Salas Gonzalez — Sat, 31 May 2008 12:38:44 +0000

Our prayers were answered. Myrna won 6-3. Justice Alito wrote the opinion and justice Kennedy joined.

By: Gregory Dillon

Gregory Dillon — Wed, 02 Apr 2008 18:12:53 +0000

All the Justices who spoke were concerned with how a decision here could affect Title VII jurisprudence. The most telling aspect of the transcript is Justice Scalia’s pretended annoyance that the statutory materials for Title VII were not included in the briefs. The possible impact on Title VII is the looming issue that the blog entry hardly addresses, yet is important to the Court; about three members asked if deciding this case would require a decision on the Title VII version of the issue. The second telling moment was Justice Alito’s point that it could look unfair that retaliation is only not covered when the government is the employer.

My prediction is the Court will drop the traditional retaliation analysis, and issue an “it depends ruling.” The decision will address that the Federal employee language is unique, and does not fit into the traditionally either/or analysis; that is, either the employee has protected “status” by virtue of being a race member, or by engaging in qualified “conduct” has been protected. It has been generally overlooked that Congress included the “such individual’s race or color” status language is only in the private sector provision.

An, “it depends” ruling frees the court from the criticism inherent in Justice Alito’s point that retaliation is only acceptable when the government is the employer. It fits with the ideology of go back and see what the statute actually says, and if retaliation claims are narrowed, it appears to come from Congress not the Court. And, it avoids what could be a precipitous change in Title VII law, or uncertainty over Title VII law. Look for a decision that says a federal employee filing an age discrimination claim don’t get automatic ADEA protection, but may use that filing to show the personnel action was not free from any – including Jackson type – discrimination based on age.

By: Edelmiro Salas Gonzalez

Edelmiro Salas Gonzalez — Sat, 01 Mar 2008 19:34:15 +0000

Hi! I read your blog on the oral argument of Gomez Perez v. Potter. I’m Ms. Gomez lawyer (the one who lost at the District Court and the First Circuit and who sat three chairs to the left of Mr. Guerra) I read your blog and I agree with most of your assesment. Just a few comments. Roberts was in the minority in Jackson v. Birmingham Board of Education, his is not new to the Jackson court, and we do not have our prayers (that’s all we can do now) with him. We ask those believer around ut to pray for justice Alito, form Princeton. As you stated so elocuently: “Maybe Justice Alito could turn out to be swing vote in this case or was he just placating the liberals?” In any event, I was pleased with reading your summary and I wish you the best.

Sincerely,

Edelmiro A. Salas Gonzalez

By: Chee Foong Chew

Chee Foong Chew — Wed, 20 Feb 2008 15:02:54 +0000

While I agree with the prediction of the outcome, I really doubt that the conservatives on the court would justify its outcome using legislative history. I would rather argue the text of the statues are different and doesn’t cover retaliation.

Interestingly, it was Justice Alito who pointed out the irony of the government’s position with respect to today’s case and yesterday’s case.

Maybe Justice Alito could turn out to be swing vote in this case or was he just placating the liberals?