Gomez-Perez v. Potter

The Supreme Court has accepted a case calling into question whether the federal government is immune from liability for retaliating against workers who bring age discrimination claims.

Myrna Gomez-Perez began working for the United States Postal Service in 1987. In 1995, she was transferred from New York to the Dorado Post Office in Puerto Rico. In October 2002, Gomez-Perez, a full-time window distribution clerk, requested a transfer to the Moca Post Office so she could be near her sick mother. The following month, she asked to be transfered back to her full-time position at the Dorado office. On the same day, Gomez-Perez's supervisor converted the Dorado clerk opening to a part-time position and filled it with another employee.

Gomez-Perez, who was 45 at the time, filed an equal employment opportunity complaint with the postal service, contending that she had been discriminated against on the basis of her age. As a result of the complaint, Gomez-Perez alleged that postal supervisors retaliated against her by making groundless accusations and reducing her work hours.

She then filed suit against the postal service and Postmaster General John Potter, alleging violations of Section 15 of the Age Discrimination in Employment Act, which applies to federal employees and states that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age...shall be made free from any discrimination based on age."

The U.S. District Court for the District of Puerto Rico granted summary judgment to the postal service and Potter on the ground that the United States had not waived sovereign immunity as to retaliation claims under the Act. On appeal, the First Circuit Court of Appeals affirmed the lower court's grant of summary judgment, finding that while Section 15 of the Act (29 U.S.C. §633a) does prohibit "discrimination based on age," it does not subject federal employers to liability for retaliation.

"The clear difference between a cause of action for discrimination and a cause of action for retaliation leads to the conclusion that if Congress had meant to provide for both causes of action, it would have said so explicitly in Sect. 633a," the court reasoned.

The court found further support for this conclusion in the fact that Sec. 623(d), the parallel provision of the Act that governs private employers, expressly authorizes retaliation claims.

"The absence of statutory language providing a claim for retaliation in Sec. 633a, when compared with the explicit prohibition on retaliation in Sec. 623(d), further supports the conclusion that Congress intended for the ADEA to prohibit retaliation by private employers, but not by federal employers," the court noted.

The decision is in conflict with other federal appeals court opinions that have held that the Act does prohibit retaliation in the federal government. In 2001, the D.C. Circuit Court of Appeals held in Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), that it would be "difficult to imagine how a workplace could be 'free from any discrimination based upon age' if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee."

The federal government is not immune from liability for retaliating against workers who bring age discrimination claims, a closely-divided Supreme Court held.

Myrna Gomez-Perez began working for the United States Postal Service in 1987. In 1995, she was transferred from New York to the Dorado Post Office in Puerto Rico. In October 2002, Gomez-Perez, a full-time window distribution clerk, requested a transfer to the Moca Post Office so she could be near her sick mother. The following month, she asked to be transfered back to her full-time position at the Dorado office. On the same day, Gomez-Perez's supervisor converted the Dorado clerk opening to a part-time position and filled it with another employee.

Gomez-Perez, who was 45 at the time, filed an equal employment opportunity complaint with the postal service, contending that she had been discriminated against on the basis of her age. As a result of the complaint, Gomez-Perez alleged that postal supervisors retaliated against her by making groundless accusations and reducing her work hours.

She then filed suit against the postal service and Postmaster General John Potter, alleging violations of Section 15 of the Age Discrimination in Employment Act, which applies to federal employees and states that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age...shall be made free from any discrimination based on age."

The U.S. District Court for the District of Puerto Rico granted summary judgment to the postal service and Potter on the ground that the United States had not waived sovereign immunity as to retaliation claims under the Act. On appeal, the First Circuit Court of Appeals affirmed the lower court's grant of summary judgment, finding that while Section 15 of the Act (29 U.S.C. §633a) does prohibit "discrimination based on age," it does not subject federal employers to liability for retaliation.

"The clear difference between a cause of action for discrimination and a cause of action for retaliation leads to the conclusion that if Congress had meant to provide for both causes of action, it would have said so explicitly in Sect. 633a," the court reasoned.

The court found further support for this conclusion in the fact that Sec. 623(d), the parallel provision of the Act that governs private employers, expressly authorizes retaliation claims.

"The absence of statutory language providing a claim for retaliation in Sec. 633a, when compared with the explicit prohibition on retaliation in Sec. 623(d), further supports the conclusion that Congress intended for the ADEA to prohibit retaliation by private employers, but not by federal employers," the court noted.

The decision is in conflict with other federal appeals court opinions that have held that the Act does prohibit retaliation in the federal government. In 2001, the D.C. Circuit Court of Appeals held in Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), that it would be "difficult to imagine how a workplace could be 'free from any discrimination based upon age' if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee."

On May 27, a divided Supreme Court overturned the appeals court decision, holding that the law does apply to federal workers.

Citing two prior cases as precedent, Justice Samuel A. Alito Jr. wrote for the majority: "we interpret the ADEA federal-sector provision's prohibition of 'discrimination based on age' as likewise proscribing retaliation."

Chief Justice John G. Roberts Jr. filed a dissenting opinion in which Justices Antonin Scalia and Clarence Thomas joined as to all but Part I. Justice Thomas, joined by Justice Scalia, also filed a separate dissent.