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Argument preview: Gomez-Perez v. Potter

Does the federal-sector provision of the Age Discrimination in Employment Act (“ADEA”) prohibit federal employers from retaliating against employees who complain of age discrimination? The Court will hear argument on this question in the case of Gomez-Perez v. Potter, No. 06-1321, on February 19, 2008.


In 1974, Congress passed the federal-sector provision of the ADEA, which requires that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . be made free from any discrimination based on age.” In Forman v. Small (2001), the D.C. Circuit read this provision to prohibit retaliation against federal employees who complain of age discrimination, reasoning that a workplace cannot be “free from any discrimination based on age if, in response to an age discrimination claim, a federal employer [can] fire or take other action that [is] adverse to an employee.”
In this case, however, the First Circuit came to the opposite conclusion. The petitioner, Myrna Gomez-Perez, worked for the Puerto Rico Post Office as a part-time window distribution clerk. She filed an equal employment opportunity complaint alleging that a supervisor denied her request for a transfer to a full-time position based on her age. She subsequently filed the retaliation suit at issue in this case, claiming that after she filed her EEO complaint she was subjected to a series of reprisals that included groundless charges of sexual harassment, substantial reductions in her hours, and being harassed and mocked by her co-workers.
The district court dismissed her suit on sovereign immunity grounds. The First Circuit affirmed on a different ground. Acknowledging its disagreement with the D.C. Circuit, it held that the ADEA does not provide “a cause of action for retaliation as a result of having filed an age-discrimination related complaint” because the ADEA refers only to “discrimination,” rather than “retaliation”; discrimination and retaliation, the Court reasoned, are distinct wrongs for which Congress must provide distinct causes of action.

Petition for Certiorari

Myrna Gomez-Perez filed a petition for certiorari, which the Court granted on September 25, 2007.

In her petition, Gomez-Perez argued that the Court’s decision in Jackson v. Birmingham Board of Education controls her case. In Jackson, the Court held that although Title IX does not specifically refer to retaliation, its broad proscription of sex discrimination also prohibits retaliation against those who complain of sex discrimination. Title IX does so, the Court reasoned, because retaliation against those who complain of sex discrimination is itself a form of sex discrimination and thus falls within the statute’s general proscription of “discrimination” “on the basis of sex.” By analogy, Gomez-Perez argued, Congress’s strong policy against age discrimination, as embodied in the ADEA’s broad prohibition on age discrimination in the public sector, should encompass a bar on retaliation against those who complain of age discrimination. The conflict between the First Circuit’s opinion and the Court’s opinion in Jackson, as well as the conflict between the First and D.C. Circuits, provide adequate cause for review.

In his brief in opposition, the Postmaster General pointed out that the ADEA’s “provisions governing private employers separately prohibit both discrimination because of an individual’s age, and discrimination because an individual has filed an age discrimination complaint, while the ADEA provision governing federal employers prohibits only discrimination based on age.” The respondent pointed to the Court’s opinion in Burlington Northern & Santa Fe Railway v. White (2006), which held that Title VII’s bar on race and sex discrimination by private employers is “not co-terminous” with Title VII’s anti-retaliation provision, because the former “seeks to prevent injury to individuals based on who they are,” while the latter “seeks to prevent harm to individuals based on what they do.” Finally, the respondent argued that a one-to-one circuit split is not deep enough to justify a grant of certiorari. The respondent also noted that the petitioner’s collective bargaining agreement protects her from retaliation even if the ADEA does not.

Merits Briefing

In her brief on the merits, Gomez-Perez first argued that the text of the ADEA justifies a finding that its federal-sector provision prohibits retaliation. By its terms, the federal-sector provision reaches “[a]ll personnel actions affecting” older workers, and requires that those actions “be made free of any discrimination based on age. “[B]ecause retaliation facilitates discrimination,” Gomez-Perez said, “[the ADEA] must prohibit such conduct to ensure that all personnel actions are free from any age discrimination.” Again, she noted the Court’s holding in Jackson as consistent with this principle, and argued that because the ADEA’s proscription is broader than the one at issue in Jackson, “it is clearer here than it was in Jackson that the statutory language prohibits [retaliation].” Moreover, Gomez-Perez argued that Congress’s intention in enacting such a “sweeping discrimination ban” encompassed an understanding that it would also ban retaliation, because it understood that “protection from retaliation is essential to any discrimination ban.”

Gomez-Perez advanced three arguments why Congress understood the language of the federal-sector provision to prohibit retaliation. First, she noted, Congress added the federal-sector provision in 1974 – five years after the Court’s decision in Sullivan v. Little Hunting Park, which construed § 1982’s general discrimination ban on the transfer of private property to include a prohibition on retaliation. In Sullivan, the Court held that the petitioner could sue not only for the right he had been denied, but also for the retaliation he suffered when advocating for the rights protected by § 1982. Otherwise, a retaliatory sanction “would give impetus to the perpetuation of racial restriction on property,” which § 1982 prohibits. Later in Jackson, the Court decided that Congress “would have seen no need to enact a prohibition that specifically referred to retaliation” when passing the Title IX, because it understood that Title IX’s prohibition of sex discrimination encompassed retaliation under the reasoning of Sullivan. So too, Gomez-Perez argues, did Congress assume that the ADEA’s ban on age discrimination would include a ban on retaliation against federal employees who assert that right. For her second argument, Gomez-Perez contends that Congress modeled the ADEA’s federal-sector provision after Title VII’s federal-sector provision, whose “structure . . . makes clear that its federal-sector discrimination ban prohibits retaliation.” Finally, Gomez-Perez noted that at the time Congress enacted the ADEA provision, the Civil Service Commission had interpreted Title VII’s similar provision to prohibit retaliation.

In his brief on the merits, the Postmaster General reiterated his argument that the textual difference between the ADEA’s private-sector provision and its federal-sector provision evinces Congress’s intent not to prohibit retaliation by the latter. By including explicit protection from retaliation in the private-sector provisions but not in the federal-sector provision, he said, Congress acted “intentionally and purposefully” to limit the reach of the federal-sector provision. The respondent also noted that Congress limited the federal-sector provision in other ways, in particular by excluding from its reach any worker under the age of forty. By contrast, the private-sector provision covers all employees.

The Postmaster General argued that the Court’s holding in Jackson does not control here, because in Jackson, the Court confronted Title IX’s implied right of action, while here Congress provided two express rights of action. “While courts have a responsibility to ensure that a cause of action they infer is workable and sensible,” he argued, “the courts’ responsibility when confronted with two distinctly worded express causes of action is to give Congress’s different approaches different effects.”

The Postmaster General argued that Gomez-Perez’s contention that Congress modeled the ADEA’s federal-sector provision after its counterpart in Title VII does not justify a conclusion that the former prohibits retaliation. While acknowledging that “several courts of appeals have concluded that Title VII’s federal-sector provision prohibits retaliation,” he distinguished between Title VII and the ADEA by noting that “Title VII’s federal-sector provisions expressly incorporate a portion of Title VII’s private-sector provisions addressing retaliation.”

The Postmaster General noted that “to the extent that the Court has any doubt about the proper construction of Section 633a(a), the general rule against interpreting ambiguous statutes as creating new causes of action against the sovereign precludes recognizing a cause of action for retaliation under [the ADEA].” He also pointed out that the petitioner does not need a remedy for retaliation under the ADEA, because she has one under the Civil Service Reform Act, which “prohibits personnel practices taken in retaliation for the exercise of an employee’s rights under the ADEA or the employee’s participation in the EEO process, and establishes a right of judicial review.”