From Workplace Prof Blog: Today’s Argument in Gomez-Perez
Note: The following argument recap is by Paul Secunda of the University of Mississippi School of Law and Workplace Prof Blog, where this entry is cross-posted.
The U.S. Supreme Court heard oral argument today in Gomez-Perez v. Potter, which asks the question of whether federal employees can bring a retaliation claim under the ADEA. As discussed in a post last Fall, the issue comes down to whether the federal employee provisions of the ADEA must mention retaliation expressly or whether retaliation actions can be implied from the discrimination language and similar language in the non-federal employee parts of the ADEA.
Going into oral argument, my sense was that this case will pit those members of the Court who do not wish to imply private rights of action without express Congressional intent and that part of the Court which is willing to imply protections in order to meet the broader remedial aspects of the law. The remedial part of the Court was successful in implying a retaliation action under Title IX without express language, but that decision in Jackson was written by Justice O’Connor in a 5-4 decision on a Court without Alito and Roberts.
The transcript today plays out like most people thought it would: Scalia, Alito, and Roberts expressing skepticism (and a silent Thomas apparently agreeing) that Congress could not have mistakenly left out the retaliation language, and Breyer, Souter, Ginsburg, and Stevens to varying degrees suggesting the lack of retaliation language in these provisions is not fatal given that the Court has read in such protections in cases like Jackson and that a discrimination right would mean little if an employee did not have protection from retaliation after filing such a claim.
These two quotes from the respective sides seem to sum up the arguments:
MR. GUERRA [attorney for plaintiff]: . . . .By its plain terms, Section 633a(a) bars retaliation against covered workers who have complained that have they suffered age discrimination. Such retaliation is directed at persons over –
JUSTICE SCALIA: Excuse me. By its plain terms?
MR. GUERRA: Yes, Justice Scalia.
JUSTICE SCALIA: Read it to me, would you?
And:
MR. GARRE [attorney for defendant]: . . . . The Age Discrimination and Employment Act does not expressly prohibit retaliation in the Federal sector context and it should not be read to impliedly prohibits such conduct either.
JUSTICE GINSBURG: Why not, given the Jackson precedent, where there was a similarly general ban on discrimination and we defined discrimination to include retaliation for complaining about discrimination?
Based on the make-up of this Court today, I see a 5-4 decision against the plaintiff. Although Kennedy was silent and as usual may be the decisive vote, he dissented in Jackson and is likely to do the same here. Kennedy and the majority are likely to find that this case is different from the Jackson Title IX case because of the legislative history of the ADEA, these federal provisions’ interaction with provisions in the Civil Service Reform Act of 1978, the difference between federal provisions in Title VII and the ADEA, and because the comparable provisions in Jackson were in a different statute, but are in the same statute here.
PS
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?
Comment by Chee Foong Chew — February 20, 2008 @ 10:02 am
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
Comment by Edelmiro Salas Gonzalez — March 1, 2008 @ 2:34 pm
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.
Comment by Gregory Dillon — April 2, 2008 @ 2:12 pm