Gomez-Perez v. Potter and Retaliation in ADEA

This age discrimination in employment case seems to have 5-4 written all over it. As you know, the Court is now hopelessly divided on many issues, and this term will see, in my judgment, a restriction on plaintiff's ability to bring certain kinds of work-related claims. This case gives the Court an opportunity to restrict age-discrimination claims in a workplace environment yet further. This restriction will happen, however, under the guise of reading the "text" of the statute, even though a similar 2005 Supreme Court case dealing with sexual harassment went the opposite way. Well, in order to understand all these things, we need a few facts.

Facts of Gomez-Perez

Gomez-Perez (GP) has worked for the United States Postal Service ("USPS") since 1987. In Oct. 2002, while working FT at the Dorado Post Office in Puerto Rico, she requested a transfer to the Moca P.O. to be closer to her mother, who was ill. The request was approved, and she began working part-time at Moca. The next month, however, she reqested a transfer back to Dorado to get her FT position. This request was denied. The Dorado position formerly held by GP was then converted to a PT position. GP filed a grievance which was denied. Then she filed an equal opportunity complaint, alleging she had been discriminated against by age. She was 45 at the time. After filing her complaint, she alleged she was subject to various forms of retaliation, including groundless sexual harassment complaints against her. She complained also of verbal harassment. In short, she complained that she had been discriminated against by reason of age because people retailiated against her.

The Legal Question

The legal question presented for the Court to consider is whether a federal employee has a cause of action for retaliation under the Age Discrimination in Employment Act ("ADEA"; 29 USC sec. 633a). On the one hand you might say, "Of course she ought to have such a claim! Why wouldn't she?" But, as with many technical legal questions, the answer is just not that easy. Here is why.

The ADEA has two provisions relating to discrimination, one a general one and one related specifically to private-sector employees. The reason why there is a difference between the private and public sector employees relates to the doctrine of sovereign immunity--where the state/federal government is immune to suit except in cases where it has waived that immunity. Actually, sovereign immunity was an issue in the courts below. The issue there was whether the USPS, an "arm" of the federal goverment, had actually waived its sovereign immunity--and thus permitted itself to be sued in this instance. The magistrate judge at the District Court said "no," but the 1st Circuit panel of three judges reversed this determination on appeal (476 F3d 54 (2007)). This issue isn't before the US Supreme Court; the only issue relates to whether GP can bring a discrimination suit for retaliation under the ADEA.

Here is the language of the relevant section, 633(a), of the ADEA:

"(a) Federal agencies affected

All personnel actions affecting employees or applicants for employment who are at least 40 years of age...in the United States Postal Service....shall be made free from any discrimination based on age."

Does retaliation constitute an act of discrimination under this section?

In 2005 the US Supreme Court considered a similar provision of Title IX, the gender discrimination law. Here are the brief facts, statutory provision and holding of that case, where Justice Sandra Day O'Connor (no longer on the Court) wrote for a 5-4 majority. It was the Jackson case (citation below).

Facts and Law of the 2005 Jackson Case

After petitioner, Jackson, the girls' basketball coach at a public high school, discovered that his team was not receiving equal funding and equal access to athletic equipment and facilities, he complained unsuccessfully to his supervisors. He then received negative work evaluations and ultimately was removed as the girls' coach. He brought this suit alleging that respondent school board (Board) had retaliated against him because he had complained about sex discrimination in the high school's athletic program.

The statute under which he brought suit was Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), which provides that “[n]o person ... shall, on the basis of sex, be ... subjected to discrimination under any education program ... receiving Federal financial assistance.” Writing for a 5-4 majority, Justice O'Connor wrote:

"When a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX." Jackson v. Birmingham Bd. of Educ. 544 US 167 (2005).

So, the argument by GP in bringing this suit is that since "discrimination" in a comparable federal discrimination statute has been interpreted to include a claim for retaliation, that the same should happen here. Retaliation by bosses for bringing a claim is itself discrimination. The DC Circuit had so held, also, with respect to the ADEA in a case earlier in this decade.

The Case Below

However, the 1st Circuit Court of Appeals, which has authority over Puerto Rico, decided that the reasoning of Jackson didn't apply to this case. The appeals court instead looked at sec. 623(d) of the ADEA, relating to employees in the private sector, which provides as follows:

"It shall be unlawful for an employer to discriminate against any of his employees ... because such individual ... has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Chapter."

Clearly retaliation against private sector employees is an act of discrimination prohibited by the statute. But when 633(a) was written (text above) no mention was made of retaliation. Therefore, the 1st Circuit took a hard-headed approach to reading 633(a). Since it doesn't mention retaliation in the "federal employee" part of the statute, retaliation isn't intended. Thus, no cause of action for a federal employee under the ADEA for retaliation.

Conclusion

It seems pretty logical that such a retaliation claim ought to be permitted, but this Supreme Court, I venture to guess, will foreclose the claim. GP doesn't have the best facts supporting her case (i.e., there are no really bad "smoking guns"), and O'Connor, for whom sexual harassment was a central issue, is no longer on the Court.

3236