Tuesday, October 2, 2007
Retaliation for Reporting Age Discrimination in Federal Employment: The Supreme Court Case of Gomez-Perez v. Potter
One of the cert grants issued last week was in the case of Gomez-Perez v. Potter, a case concerning whether the age discrimination provisions for federal employees implicitly includes anti-retaliation protections for reporting such conduct.
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.
The issue in this case, as well as the Section 1981 race discrimination case of Humphries is whether retaliation protection can be read into a statute that only talks about discrimination. In the Title IX Smith case from 2005, the Court did just that and it will be interesting to see how the Court will potentially distinguish the Smith case from the federal employee ADEA case and the Section 1981 race case.
It may have something to do with the difference in legislation enacted under the spending clause (Title IX) and legislation enacted under the Commerce Clause (ADEA) or Section 5 of the 14th Amdt (Section 1981), but I'm not sure how the exact reasoning would go, except that Spending Clause legislation has been found to be more contractual in nature (see the Title IX sex harassment cases of Gebser and Davis) and maybe it is easier to imply a retaliation provision in such circumstances.
This is all speculation, but my gut tells me this conservative Court only took these cases to find that no retaliation claims exist in these circumstances. This Court is not big on implying statutory causes of action and the swing-vote in the Title IX Smith case, Justice O'Connor, has been replaced by the far more employer-friendly Justice Alito.
Oral argument is expected in January. My prediction: judgment for the employers, 5-4, for in both Gomez-Perez and Humphries.