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More on Last Week’s Grant in No. 06-1321, Gomez-Perez v. Potter

The following summary was written by Anna Molpus, a labor and employment associate at the Akin Gump office in Washington, DC.

Last Week, the Supreme Court agreed to consider whether the Age Discrimination in Employment Act (ADEA) prohibits federal employers, as opposed to private employers, from retaliating against employees who file complaints alleging age discrimination.

Myrna Gomez-Perez, a 45-year-old employee of the U.S. Postal Service, filed an age discrimination complaint after her supervisor denied her transfer request. After filing her complaint, Gomez-Perez alleges her supervisors and co-workers retaliated against her, and that her hours were drastically reduced. She appealed a summary judgment ruling against her in the U.S. District Court for Puerto Rico, which did not reach the question of whether the ADEA’s private cause of action for federal employees alleging age discrimination implicitly includes a retaliation cause of action.

On appeal, the First Circuit noted that the parallel ADEA provision governing private employers expressly provides for retaliation claims and reasoned that Congress would have said so explicitly had it intended for a similar cause of action against federal employers. The Court was not persuaded that Congress meant to prohibit “discrimination and retaliation” when it said merely “discrimination,” and held that the ADEA does not include a cause of action for retaliation by federal employers. In so holding, the First Circuit disagreed with the D.C. Circuit’s holding in Forman v. Small that Congress intended the ADEA’s mandate that federal employment decisions “shall be made free from any discrimination based on age” to include a ban on retaliation for age-discrimination allegations.

Gomez-Perez petitioned the Supreme Court to resolve a conflict between the circuits, and emphasized the applicability of the Court’s holding in Jackson v. Birmingham Bd. of Educ. (2005) that the private right of action for sex discrimination implied by Title IX encompasses retaliation claims. In Jackson, the Court held that retaliation is an implied form of discrimination “on the basis of sex” for Title IX purposes, and the petition analogized that retaliation is a form of discrimination “based on age” under the ADEA. The petition also referenced regulations implemented by the Equal Employment Opportunity Commission – the agency authorized to enforce the ADEA – interpreting the statute to prohibit “retaliation for opposing any practice made unlawful by…the Age Discrimination in Employment Act.”

In its opposition brief, the government asserted the correctness of the First Circuit ruling and argued that employee protections in the Civil Service Reform Act, U.S. Postal Service regulations, and postal employees’ collective bargaining agreement provide sufficient avenues of redress for employees like Gomez-Perez. The government argued that the Jackson decision is distinguishable because it interprets Title IX’s implied right of action whereas the ADEA contains an explicit private right of action for aggrieved employees. Instead, the government brief highlighted language from the Supreme Court’s decision in Burlington Northern & Santa Fe Railway v. White (2006) that emphasized the different types of harm Congress seeks to prevent via an anti-discrimination provision as opposed to an anti-retaliation provision. Correspondingly, the government argues, if Congress had intended to make both types of harm actionable against federal employers it would have included both types of provisions in the plain language of the ADEA.

The Petitioner’s brief and the reply brief are due Nov. 5 and Dec. 3, respectively. The AARP has filed an amicus curiae brief on behalf of Gomez-Perez. The case is expected to be argued in January.