United States Court of Appeals
For the First Circuit
No. 06-1614
MYRNA GÓMEZ-PÉREZ,
Plaintiff, Appellant,
v.
JOHN E. POTTER, Postmaster General,
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before
Torruella, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
Edelmiro A. Salas-González, with whom José L. Ramírez-de León
was on brief, for appellant.
August E. Flentje, Attorney, Appellate Staff, Civil Division,
with whom Leonard Schaitman, Peter D. Keisler, Assistant Attorney
General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
David G. Karro, Attorney, United States Postal Service, were on
brief, for appellee.
July 10, 2008
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Myrna Gómez-Pérez ("Gómez"),
a former window distribution clerk at the United States Postal
Service ("USPS") in Dorado and Moca, Puerto Rico, sued the USPS and
the Postmaster General, John Potter, in his official capacity. She
alleged, inter alia, that her supervisors retaliated against her
for filing an equal opportunity employment complaint with the USPS,
and that this retaliation constituted a violation of the federal-
sector provision of the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 633a. The district court granted summary
judgment for the USPS and Potter on the ground that they were
entitled to sovereign immunity. Gómez-Pérez v. Potter, 2006 WL
488060 (D.P.R. Feb. 28, 2006).
On appeal, we held that the district court had erred in
finding sovereign immunity applicable, as Congress has waived
sovereign immunity for the USPS. Gómez-Pérez v. Potter, 476 F.3d
54, 56-57 (1st Cir. 2007). We affirmed summary judgment for the
USPS and Potter, however, upon deciding that Congress did not
intend for § 633a to include a cause of action for retaliation for
filing an age-discrimination complaint. Id. at 60. The Supreme
Court granted certiorari and reversed, holding that Congress did
indeed intend such a cause of action in § 633a, and remanded to us
for further proceedings. Gómez-Pérez v. Potter, 128 S. Ct. 1931,
1943 (2008). The Court expressed no disapproval of our holding on
sovereign immunity.
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In light of the Supreme Court's unequivocal conclusion
that § 633a includes a cause of action for retaliation, and the
continued viability of our holding on sovereign immunity, we vacate
the district court's grant of summary judgment in favor of the USPS
and Potter. We also vacate Part II(B) of our opinion, 476 F.3d at
57-60, and remand the case to the district court for further
proceedings consistent with the opinion of the Supreme Court and
Part II(A) of our opinion.
Reversed and remanded.
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