Gomez-Perez v. Potter

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Authorship: Justin McNabey

Contents

[edit] Briefs and Documents

Docket: 06-1321

Argument Transcript

Merits Briefs

Amicus briefs

[edit] Pre-Argument Articles

[edit] Grant write-up

This section originally appeared as a post on SCOTUSblog. It was written by Anna Molpus, a labor and employment associate at Akin Gump.

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.

[edit] Argument Preview

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.


[edit] Background

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.

[edit] 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.

[edit] 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.”

[edit] Oral Argument Recap

[edit] Opinion Analysis

Kevin Russell wrote the following analysis of the Gomez-Perez decision in a post for SCOTUSblog, in which he also discussed a second case, CBOCS v. Humphries, which also pertained to retaliation in the workplace.

I don’t really know of anyone (with the possible exception of defendants and their lawyers in particular cases) who thinks that it should be legal for someone to retaliate against an individual who seeks to enforce their federal civil rights. Congress often expressly proscribes such conduct in modern civil rights (and other) statutes. But sometimes it doesn’t. And it didn’t do so in some of the seminal civil rights statutes passed in the wake of the Civil War. Why not? In all honesty, it is probably (at least with respect to modern statutes) because Congress didn’t think about it. But that nonetheless leaves courts with a tricky question - do the statutes not mentioning retaliation nonetheless proscribe it?

The Court confronted that question in two cases decided yesterday: CBOCS v. Humphries, No. 06-1431, which construed the Civil War-era 42 U.S.C. § 1981, and Gomez-Perez v. Potter, No. 06-1321. which interpreted the federal-sector provision of the Age Discrimination in Employment Act, passed in 1974. (Disclosure: I consulted with respondent’s counsel in CBOCS).

[edit] I. Introduction

There was a time when courts would have felt free to judicially imply an anti-retaliation right in order to make a statutory regime effective, in the same way that they implied private rights of actions and damages remedies. But no more. At the oral argument in CBOCS, Justice Scalia referred to those times as the “bad old days” and asked his former law clerk, Solicitor General Paul Clement, when those days ended; ever quick on his feet, Clement answered “when you got on the Court, Mr. Justice Scalia.”

Whatever the exact date, there is no question that the current Court has no appetite for openly inventing rights and implying remedies. Indeed, in his opinion for the Court in Gomez-Perez case, Justice Alito rejected the argument that a prior case - Jackson v. City of Birmingham - had found an anti-retaliation right under Title IX only because it was construing a previously-implied private right action (i.e., one created back in the “bad old days”) and, therefore, had greater leeway to base its decision on its own policy views of what made sense.

So the right against retaliation under Section 1981 and the ADEA had to be found in the text of their respective statutes. But the statutes themselves, in slightly different terms, address only discrimination, not retaliation per se. The question in both cases thus became whether prohibiting discrimination on the basis of age or race should be read to include a prohibition against retaliating against those who complain about age or race discrimination. The answer to that question, it turns out, was derived in both cases chiefly from prior decisions construing other antidiscrimination statutes, decisions that I will wager (and the defendant in CBOCS did wager its case on) that a majority of the present Court would have decided differently today. Thus the critical importance of stare decisis in yesterday’s decisions.

The second axis of disagreement - which is responsible for the different line-ups in the two cases - was over what to make of the fact that Congress has expressly forbidden both discrimination and retaliation in related statutes. The short answer, it turns out, is “not much.”

[edit] II. Cracker Barrel and the Scope of Stare Decisis

For Kevin's discussion of CBOCS see here.

[edit] III. Gomez-Perez and the Meaning of Silence

The plaintiff in Gomez-Perez alleged that after she complained about age discrimination at a federal agency, she was subject to various forms of retaliation. She challenged that retaliation under the Age Discrimination in Employment Act (ADEA). As originally enacted, the ADEA applied only to private employers and included a list of prohibited conduct, including retaliation. In 1974, Congress amended the statute to cover federal employees as well. But rather than simply subjecting federal employers to the existing list of prohibited conduct, Congress enacted an entirely separate, and more broadly worded provision that provides that “[a]ll personnel actions affecting [federal] employees … who are at least 40 years of age … shall be made free from any discrimination based on age.” Congress did not include a separate provision prohibiting retaliation. Thus, the same basic question arose as in the CBOCS case: did the prohibition against age discrimination include within it protection against retaliation?

With one exception, the same majority that decided CBOCS in the employee’s favor reached the same conclusion with respect to the ADEA. In fact, the two decisions begin almost identically, rehearsing the history of the Court’s prior construction of other antidiscrimination statutes in Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (construing 42 U.S.C. § 1982), and Jackson v. City of Birmingham, 544 U.S. 167 (2005) (construing Title IX). And like the majority in CBOCS, the majority in Gomez-Perez concluded that the similarities in language and general purpose between the ADEA and these prior antidiscrimination statutes supported giving the general federal sector provision the same reading.

There is, however, a significant difference between the Section 1981, as construed in CBOCS, and the federal sector ADEA provision, one that led the Chief Justice to jump from the majority in CBOCS to the dissent in Gomez-Perez: unlike the Civil Rights Act of 1866 (from which Section 1981 is derived), the ADEA has a separate express anti-retaliation provision, but one that was included in the private-sector provisions, not the public-sector provisions. To the Chief Justice - and to the United States, which had supported the employee’s reading of Section 1981 in CBOCS, and the plaintiff’s reading of Title IX in Jackson - that made all the difference.

The inclusion of an anti-retaliation provision in one part of the ADEA, but not another, posed a common interpretive question: how to construe congressional silence upon a question upon which Congress has spoken in another context. The question arose in CBOCS, when the employer pointed out that Congress has spoken specifically and directly about retaliation in some modern-day civil rights statutes, but not in Section 1981. That gave rise, the defendant argued, to the presumption that Congress’s failure to specifically include one in Section 1981 (either as enacted, or more plausibly, when amended in 1991) signaled its intent that retaliation should not be prohibited under Section 1981.

A stronger version of the same argument arose in Gomez-Perez. Here, Congress included an anti-retaliation provision not in some completely separate statute passed at a different time; Congress included it within the very same statute, but limited it to private sector suits.

While acknowledging that the argument had some force, Justice Alito and the majority concluded that it was not enough to overcome the other reasons for concluding that the general proscription against discrimination contained within it a prohibition against retaliation. Justice Alito noted that although the private sector anti-retaliation provision is codified within the same statute, Congress actually passed the private and federal sector provision at different times (the federal provision was added some seven years later). Moreover, the negative inference would have been stronger, the Court concluded, if Congress has modeled the federal sector provision on the private sector provision, setting our a list of prohibited conduct but excluding retaliation from the list. But Congress didn’t do that. Instead, it modeled the federal sector provision on a prior statute that had extended Title VI’s prohibition against employment discrimination to the federal government. And both provisions simple proscribed, in broad terms, discrimination writ large.

As mentioned before, the Chief Justice took a different view. While he was willing to acknowledge that sometimes a general prohibition against discrimination should be read to prohibit retaliation (hence, his vote with the majority in CBOCS), he viewed this as a presumption that could be overcome by other indicia of legislative intent, including, as here, the inclusion of an anti-retaliation provision in one part of a statute, but not anther.

Why, one might ask, would Congress intend to permit retaliation in the federal employment context? It didn’t, in the Chief Justice’s view. Instead, he concluded, Congress intended for federal employment retaliation claims to be dealt with administratively, not judicially, through the executive orders prohibiting retaliation that are subject to enforcement through the civil service system.

Sticking to their guns, Justices Thomas and Scalia also dissented, finding the Chief Justice’s contextual argument persuasive but also reiterating their disagreement with the basic premise that an anti-discrimination provision can be read to prohibit retaliation.

[edit] IV. Concluding Thoughts

What to take away from these decisions?

First, I think that the Court has more or less established a general presumption that federal civil rights statutes prohibit retaliation whether they say so explicitly or not. Defendants hoping to avoid such liability will have to show some pretty clear indication of a contrary legislative intent; the fact that Congress elsewhere (or even in the same statute) prohibited retaliation explicitly, is unlikely to carry the day.

Second, I find the comparison between the tenor of Justice Breyer and Justice Alito’s opinions quite interesting. Breyer bends over backwards to emphasize that his opinion is grounded principally in stare decisis, even to the extent of almost seeming apologetic for having to follow questionable prior precedent. Justice Alito, on the other hand, mentions stare decisis only once, in a footnote. His opinion, in contrast, reads as if convinced that the decisions in Sullivan and Jackson were rightly decided and would be followed even setting aside respect for prior precedent.

I seriously doubt that Justice Breyer has greater doubts about those cases than Justice Alito - after all, Breyer signed on to the majority opinion in Jackson. Instead, I wonder whether in writing his opinion, Breyer was worried that straying too far from a stare decisis rationale might lose him votes, particularly the votes of Justice Kennedy, who dissented in Jackson, and the Chief, who by that time had presumably voted in favor of reversal in Gomez-Perez.

Even more interesting to me is the question of whether Justice Alito actually thinks that Jackson and Sullivan were rightly decided. It is hard to say. Perhaps so, which would be heartening to the civil rights community. But the tenor of the opinion could also simply be a stylistic choice or might reflect that Alito knew that the CBOCS opinion was already addressing stare decisis in detail.

Third, these opinions have to be a real disappointment to conservatives who thought that the recent changes in the Court would call into question many of the Court’s 5-4 decisions in which Justice O’Connor cast the deciding vote. Indeed, many (including myself) thought that the Court had likely granted certiorari in CBOCS to circumscribe Jackson, given that the Court took the case in the absence of any asserted circuit split.

But not only did the new members decline to find a way to circumscribe O’Connor’s Jackson decision - a decision that offended many conservatives not only for its pro-plaintiff result, but also for what they perceived as its failure to adhere to core textualist principles - they extended that decision to another context and, in the case of Justice Alito, seemingly used the decision to establish a broad principle of implied anti-retaliation protection across-the-board in civil rights statutes.

To be sure, there are important counter-examples in the area of affirmative action and abortion in which the Chief and Justice Alito have been less reticent to depart from prior 5-4 decisions of the recent past. But the decisions this week add support to the view that on issues they care less deeply about, the Chief Justice and Justice Alito are more amenable to stare decisis arguments than some had hoped and others had feared.

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