The U.S. Court of Appeals for the First Circuit held in a recent decision that federal employees are not protected from retaliation for bringing claims under the Age Discrimination in Employment Act (ADEA). Gomez-Perez v. Potter, 1st Cir., No. 06-1614. The court noted that while the ADEA bars retaliation by private employers, Congress's wording of the ADEA fails to provide similar protection for federal employees.
In so ruling, the court denied the plaintiff recovery for retaliation after complaining of alleged age discrimination. The plaintiff had filed an age discrimination suit against her employer, the U.S. Postal Service (USPS), for denying her request to transfer to a different post office. After filing the claim, the plaintiff was subjected to retaliation such as groundless complaints by her supervisor, accusations that she was sexually harassing other employees, and reducing her work hours, according to the opinion.
The USPS filed for summary judgment, claiming that the USPS had not waived sovereign immunity for ADEA claims. The district court granted the motion, and the Court of Appeals affirmed but on different grounds. It held that the USPS had in fact waived sovereign immunity under the ADEA but the ADEA only prohibits "discrimination based on age" for federal employees.
The court distinguished the sections of the ADEA which relate to private employees and those which relate to federal employees. It pointed out that the Supreme Court has recognized that claims for discrimination and retaliation are two separate causes of action. The opinion went on to discuss that in looking at the congressional intent in the ADEA, if Congress meant to allow both discrimination and retaliation claims under the ADEA by federal employees, it would have said so explicitly.
The plaintiff cited Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167, (2005), arguing that Title IX does not expressly forbid retaliation, therefore the same analysis should apply to the ADEA. The court rejected this argument though stating that there was nothing in the legislative history to indicate that the ADEA should be given the same interpretation. The plaintiff also cited Forman v. Small, 271 F.3d 285 (D.C. Cir 2001), where the D.C. Circuit held that section 15 of the ADEA provides a cause of action for retaliation as it was analogous to Title VII. The First Circuit declined to follow the D.C. Circuit, stating that there is a stark contrast between Title VII and federal age bias law.
The Title VII provisions regarding federal employees make it clear that federal employees are protected against discrimination and retaliation. The federal employee provisions of the ADEA do not contain similar language. The First Circuit stated that the age bias statute indicates that Congress "did not want the expansive private sector provisions of the ADEA extended to federal employees." This decision creates a split in the circuits which can either be remedied by the Supreme Court or legislation.
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