Gomez-Perez v. Potter


Does the Age Discrimination in Employment Act prohibit federal employers from retaliating against employees who have complained of age discrimination?

Oral argument: 
February 19, 2008

Myrna Gomez-Perez worked full-time for the United States Postal Service (“USPS”) in Dorado, Puerto Rico. She transferred to another office to be closer to her ill mother, but after one month, she requested to return to her past position in Dorado. After her request was denied, Gomez-Perez, then forty-five years old, filed an equal employment opportunity ("EEO") complaint with the USPS alleging age discrimination. Gomez-Perez claims that after she filed the complaint, her supervisors retaliated by reducing her work hours and lodging false complaints against her. She filed suit against John E. Potter as Postmaster and the USPS in the United States District Court for the District of Puerto Rico alleging that her supervisors' retaliation was in violation of ? 633a of the Age Discrimination in Employment Act. The USPS filed a motion for summary judgment which the district court granted. Gomez-Perez appealed. On appeal, the United States Court of Appeals for the First Circuit affirmed the summary judgment and agreed with the district court that ? 633a of the ADEA prohibited age discrimination against federal employees, but did not create a cause of action for victims of retaliation. Gomez-Perez argues that an implicit right of action for retaliation should be read into the ADEA in order to avoid giving the government a blank check to discriminate after an initial complaint has been filed with the EEOC. The USPS argues for a strict reading of ? 633a, which does not explicitly include a right of action for retaliation. The outcome of this case will affect the right of federal government employees to be free of workplace age discrimination, and will affect the government's costs in investigating workplace discrimination claims.

Questions as Framed for the Court by the Parties 

Whether the federal-sector provision of the Age Discrimination in Employment Act, 29 U.S.C. ? 633a, prohibits retaliation against employees who complain of age discrimination.


Myrna Gomez-Perez started working for the United States Postal Service ("USPS") in 1987 in New York. Eight years later she transferred to Puerto Rico and started working full-time at the Dorado Post Office. In October of 2002, Gomez-Perez transferred to the Moca Post Office to be closer to her ill mother, and she reduced her hours to part-time. A month later, Gomez-Perez submitted a request to return to her former position at the Dorado Post Office. On the same day, her supervisor converted the vacant position from full-time to part-time, denied Gomez-Perez's transfer request, and filled the position with a different employee. Gomez-Perez filed a grievance, but it was denied. ? She then filed an equal employment opportunity ("EEO") complaint against the USPS alleging age discrimination. Gomez-Perez was forty-five years old.

Gomez-Perez asserts that after she filed her complaint, she was retaliated against at work. She claims that her name was written on sexual harassment posters, and her supervisors falsely accused her of sexually harassing her co-workers. She also alleges that her work hours were greatly reduced after she filed her EEO claim.

On November 11, 2003, Gomez-Perez filed suit against John E. Potter, the Postmaster General, and the USPS in the United States District Court for the District of Puerto Rico. She claimed that after filing her EEO complaint, she was retaliated against in violation of ? 633a of the Age Discrimination in Employment Act ("ADEA"). Section 633a of the ADEA requires the USPS to make personnel decisions free from age discrimination, and the Equal Employment Opportunity Commission to enforce the discrimination ban. 29 U.S.C. ? 633a. The USPS filed a motion for summary judgment which was referred to a magistrate judge. The magistrate issued a recommendation to the district court that the motion be granted. The magistrate reasoned that the United States had not waived sovereign immunity for retaliation suits under the ADEA, and therefore such suits were not permitted. The district court adopted the magistrate's reasoning and granted the motion for summary judgment. Gomez-Perez appealed.

The United States Court of Appeals for the First Circuit affirmed the summary judgment. The court acknowledged that ? 633a of the ADEA prohibited age discrimination against federal employees, but agreed that it did not create a cause of action for victims of retaliation. The Court noted that the ADEA provision governing private employers explicitly provides a cause of action for retaliation, but ? 633a, which governs federal employees, did not. To the court, this absence precluded Gomez-Perez's retaliation claim. In so holding, the First Circuit rejected the approach of the D.C. Circuit in Forman v. Small, which had reasoned that the absence was unimportant because Congress did not intend for federal employees to be disproportionately subject to age discrimination.? ?


Statutory Background

The Age Discrimination in Employment Act ("ADEA") was enacted in 1967 to protect persons age 40 and older from age discrimination in the private workplace. The ADEA became applicable to the federal government with the passing of the Fair Labor Standards Amendments in 1974. The Amendments also expanded the definition of "employer" in ? 623, the section governing the private-sector, to include state governments. Section 623 prohibits private employers, and States as employers, from discriminating on the basis of age. Employers under ? 623 are also prohibited from retaliating against any employee who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter." Federal employees are protected from discrimination under ? 633a of the ADEA. Section 633a bans the federal government from making personnel decisions on the basis of age, but does not specifically prohibit retaliation against employees who have charged their employers with ADEA violations. ?

The United States Postal Service ("USPS") contends that by inserting a self-contained federal-sector provision, ? 633a, Congress intentionally omitted the federal government from the anti-retaliation provisions set forth in ? 623. Instead of permitting federal employees the right to take their claims before a federal judge, Congress directed the Civil Service Commission ("CSC"), later renamed the Equal Employment Opportunity Commission ("EEOC"), to enforce the anti-discrimination provisions of ? 633a. In 1978, Congress added ? 633(f) which states that personnel actions covered by ? 633a(a), the section of the ADEA that prohibits the federal government from age discrimination, will not be subject to other provisions of the ADEA other than ? 631, which limits age discrimination claims to employees over 40 years of age. The inclusion of ? 633a(f) raised questions about whether Congress intended to exclude an anti-retaliation provision. Even though the ADEA does not explicitly prohibit retaliation, the USPS Manual prohibits retaliation against employees that file complaints with the Equal Employment Opportunity Commission.

Does ? 633a include a right of action for retaliation?

Did Congress intend for the ADEA's ban on age discrimination to permit federal employees to sue the federal government for retaliation? Gomez-Perez argues that it did. However, the United States Court of Appeals for the First Circuit disagreed, finding that no such cause of action was created. The First Circuit underscored the difference between "discrimination" and "retaliation" provisions - that anti-discrimination provisions protect individuals from injury based on their status, while anti-retaliation rules protect individuals from injury because of their actions. Since the distinction between the two types of provisions is clear, the court found that Congress intended to omit a cause of action for retaliation from ? 633a. The First Circuit also relied on Lehman v. Nakshian, 453 U.S. 156, 162 (1981) to support its determination that Congress "demonstrated that it knew how to provide a statutory right . when it wished to do so elsewhere in the very 'legislation cited.'"

Gomez-Perez responds that the First Circuit's analysis was unsound because Congress's choice of language, the relevant legislative history, and the regulatory interpretation of the provision upon which ? 633a was modeled all support the conclusion that Congress intended the age discrimination provision to include a right of action for retaliation. Gomez-Perez also contends that the First Circuit's ruling was inconsistent with Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005). The Supreme Court in Jackson held that retaliation against a person who complained of sex discrimination constituted intentional discrimination based on sex in violation of Title IX of the Civil Rights Act of 1964. Gomez-Perez argues that similar logic should be used to find an implied retaliation cause of action from the discrimination ban in the ADEA. The USPS argues, however, that Jackson should be read narrowly to apply only in that particular statutory context. Jackson underscores the importance of context in statutory construction, USPS asserts. Since Congress explicitly included a right of action for retaliation in the private-sector provisions, USPS argues that Congress intended to omit the right in the federal-sector provisions.

Gomez-Perez also argues that the court of appeals erroneously decided that the judicially-created presumption that a general discrimination ban also bars retaliation, formed in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), was inapplicable here. In Jackson, 544 U.S. at 167, the court presumed that Congress adopted Title IX with knowledge of the Sullivan ruling. Gomez-Perez asserts that the same presumption should apply to the Congress that drafted the federal age discrimination ban found in ? 633a. Finally, Gomez-Perez advances that since the Court found an implicit right of action for retaliation in Title IX which is broader than the age discrimination ban in ? 633a, the Court should find a right of action for retaliation in the ADEA in the interest of consistency.

The USPS argues that the plain reading of ? 633a(a) bans discrimination based on age, thereby protecting an individual's status, but not an individual's EEO activities. The USPS also contends that by amending the ADEA to include ? 633a(f), which excludes provisions of the ADEA other than ? 633a from being applied to the federal government, Congress intended to distinguish the rights of federal employees from those of private-sector employees and preclude imparting a ban on retaliation into ? 633a.

The USPS also rejects Gomez-Perez's assertion that without a right of action for retaliation, federal employees would be left without a remedy. Rather, employees receive protection from retaliation under the Civil Service Reform Act, which provides for administrative hearings and for appeals to the Merit Systems Protection Board. ? In 1980, the Comptroller General issued an administrative decision in which he discussed the effect of the 1978 Amendments to the ADEA on the remedies available to federal employees for workplace discrimination. The Comptroller stated that a literal reading of the exclusionary rule in ? 633a(f) would limit the enforcement of the section to the guidelines set forth in ? 633a(a). The Comptroller agreed, however, with a federal district court's interpretation of ? 633a(f) that Congress did not intend to establish separate procedures for federal employees to assert their rights, but rather intended to alter their substantive rights. The Comptroller believes the procedure for employees to assert their ADEA rights should be the same for both federal and private-sector employees, but that Congress intended to alter substantive rights by restricting federal government employees from asserting certain defenses.

Congress modeled ? 633a(a) on Title VII's ban on discrimination based on "race, color, religion, sex or national origin." See 5 C.F.R. ? 713.201 (1968); Brief for the Petitioner at 2.?Gomez-Perez argues that since the ADEA provision was based on Title VII discrimination ban which encompasses retaliation, the court should find a prohibition on retaliation in the ADEA. Brief for the Petitionerat 19. Title VII included a provision prohibiting retaliation against employees who exercised their rights under the EEO, and a provision permitting court ordered remedies for victims of retaliation. Id. at 20, quoting 42 U.S.C. ? 2000e-16(d). Since Congress drafted remedies into Title VII for retaliation, Gomez-Perez contends, Congress intended the ban on federal-sector age discrimination also to prohibit retaliation. Id. at 20.


In Marbury v. Madison, 5 U.S. 137, 163 (1803), Chief Justice Marshall said, "every right, when withheld, must have a remedy, and every injury, its proper redress." Gomez-Perez seems to echo Marshall, asserting that federal workers without protection from reprisal for bringing discrimination charges would not truly be protected by discrimination bans because federal employers would be free to retaliate. Gomez-Perez also contends that Congress intended to prohibit retaliation because ? 633a was modeled after Title VII's discrimination ban, which had already been construed to proscribe retaliation. The AARP, in support of Gomez-Perez, argues that Congress drafted ? 633a, which bans federal age discrimination, because the previously existing remedies for discrimination were inadequate. Therefore, ? 633a should be read to include a right of action against retaliation. However, the USPS claims that a holding for Gomez-Perez would disrupt the balance achieved by Congress in providing administrative review of discrimination claims and judicial review of retaliatory personnel actions. USPS also asserts that since Congress demonstrated its knowledge of anti-retaliation provisions by including a right of action for retaliation in ? 623 of the ADEA which applies to private-sector employers and State governments, Congress intended to exclude such a provision in ? 633a.

Bringing a lawsuit against the federal government is generally more difficult than suing a person or a private corporation because the federal government has sovereign immunity. Sovereign immunity is a doctrine that protects the federal government from lawsuits, unless the government consents to them. The application of sovereign immunity can be difficult because the federal government has waived immunity in many different contexts, but not in others. In this case, the First Circuit Court of Appeals decided that the USPS was not immune to suit because immunity was waived through the Postal Reorganization Act. 476 F.3d at 57.

The Court has often been called on to clarify the scope of rights under the ADEA. In 1995, the Court expanded federal employees' rights under the ADEA in Smith v. Jackson. In that case, the Court held that employees protected by the ADEA could sue the federal government for any business practice that had an adverse impact on persons age 40 and over, whether or not the practice was motivated by age discrimination. Earlier this term, the Supreme Court heard Federal Express Corp. v. Holowecki, a private-sector ADEA case, to settle a discrepancy among circuits over what constitutes an official EEOC discrimination "complaint." The Holowecki case will give the Court the opportunity to weigh in on the importance of workers' right to sue for workplace discrimination versus the employer's interest in the cost savings achieved by investigating only the EEOC claims that employees choose to pursue.

These cases reflect the fact that age discrimination has become a problem in both the public and the private sectors. In 2006, the Equal Employment Opportunity Commission received over 16,500 age discrimination complaints. The federal workforce in particular is relatively old. Nearly 300,000 federal employees, 16.2% of total federal employment, are projected to retire before 2010. From 1995-2004, the average retiree was 58 years old with over 26 years of service, and with a salary of $54,353. The federal government increases pay with each year of service, making older employees much costlier than younger employees in the same position. The United States also offers a pension package to federal employees, with the amount of money paid tied directly to the years of service. Some older employees are concerned that age discrimination will be used to alleviate the burden of tightening budgets. For example, in March of 2005, nearly 800 federal employees sued the government to prevent the Federal Aviation Administration from contracting out their jobs. The employees asserted that the contracting decision was based partly on age, in violation of the ADEA, because over 92% of flight service controllers were over 40 years old.

The AARP is concerned that denying the right to challenge reprisal in the workplace would deter many federal employees from lodging discrimination claims in the first place for fear of retaliation. The USPS responds that federal employees are not left without a remedy for retaliation. Federal employees are protected from retaliation under the Civil Service Reform Act, which provides a comprehensive framework of administrative and judicial review of retaliation claims. It remains to be seen whether the Court will respect the plain words of the statute, or the policy considerations presented by Gomez-Perez and the AARP.


The Supreme Court's decision in Gomez-Perez v. Potter will determine whether federal employees can sue for retaliation after exercising their right to complain of workplace discrimination under the EEO. A decision for Gomez-Perez would assure federal employees the same level of security when filing workplace discrimination claims with the Equal Opportunity Employment Commission as their private-sector counterparts. A decision for the USPS could diminish federal employee participation in EEO activities based on fear of retaliation. Regardless of the outcome, the decision will affect federal employees' rights to equality and to be free from workplace discrimination.Written by:

Debra Faulkner

Cecelia Sander Cannon