(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GOMEZ-PEREZ v. POTTER, POSTMASTER GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 06–1321. Argued February 19, 2008—Decided May 27, 2008
Petitioner, a 45-year-old postal worker, filed suit claiming that her em-
ployer had violated the federal-sector provision of the Age Discrimi-
nation in Employment Act of 1967 (ADEA), 29 U. S. C. §633a(a)—
which requires that “[a]ll personnel actions affecting employees . . . at
least 40 years of age . . . be made free from any discrimination based
on age”—by subjecting her to various forms of retaliation after she
filed an administrative ADEA complaint. The District Court granted
respondent summary judgment. The First Circuit affirmed on the
ground that §633a(a)’s prohibition of “discrimination based on age”
does not cover retaliation.
Held: Section 633a(a) prohibits retaliation against a federal employee
who complains of age discrimination. Pp. 3–16.
(a) In so concluding, the Court follows the reasoning of two prior
decisions ruling that retaliation is covered by similar language in
other antidiscrimination statutes. First, in Sullivan v. Little Hunting
Park, Inc., 396 U. S. 229, 237, the Court held that a retaliation claim
could be brought under 42 U. S. C. §1982, which provides that “[a]ll
citizens . . . shall have the same right . . . as is enjoyed by white citi-
zens . . . to inherit, purchase, lease, sell, hold, and convey real and
personal property.” While §1982 does not use the phrase “discrimi-
nation based on race,” that is its plain meaning. See, e.g., Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167, 177. Second, the Jackson
Court, id., at 173–174, relied on Sullivan in holding that Title IX of
the Education Amendments of 1972, 20 U. S. C. §1681(a), which pro-
hibits “discrimination” “on the basis of sex” in educational programs
receiving federal aid, reached retaliation against a public school
teacher for complaining about sex discrimination in his school’s ath-
letic program. 544 U. S., at 176–177. The ADEA language at issue
2 GOMEZ-PEREZ v. POTTER
Syllabus
(“discrimination based on age”) is not materially different from the
language at issue in Jackson and is the functional equivalent of the
language at issue in Sullivan, see Jackson, supra, at 177. And the
context in which the statutory language appears is the same in all
three cases: remedial provisions aimed at prohibiting discrimination.
Respondent neither asks the Court to overrule Sullivan or Jackson
nor questions those decisions’ reasoning, and the Government, both
in Jackson and in CBOCS West, Inc. v. Humphries, ante, p. ___, has
specifically urged the Court to follow Sullivan’s reasoning. Pp. 3–6.
(b) The three grounds on which the First Circuit sought to distin-
guish Jackson in support of the Circuit’s perception that there is a
clear difference between causes of action for discrimination and for
retaliation are not persuasive. Pp. 6–9.
(1) The Circuit places too much reliance on the fact that the
ADEA expressly creates a private right of action, whereas the right of
action under Title IX, the statute at issue in Jackson, is implied and
not express, see Cannon v. University of Chicago, 441 U. S. 677. The
assertion that this distinction allowed the Jackson Court greater
leeway to adopt an expansive interpretation of Title IX improperly
conflates the analytically distinct questions whether a statute confers
a private right of action and whether the statute’s substantive prohi-
bition reaches a particular form of conduct. Moreover, confusing
these questions would lead to exceedingly strange results. For exam-
ple, Title IX’s prohibition of “ discrimination” “on the basis of sex” ei-
ther does or does not reach retaliation, and the presence or absence of
another statutory provision expressly creating a private right of ac-
tion cannot alter §1681(a)’s scope. Pp. 6–7.
(2) Also unavailing is the Circuit’s attempt to distinguish Jack
son on the ground that retaliation claims play a more important role
under Title IX than under the ADEA. This argument ignores the ba-
sis for Jackson, which did not hold that Title IX prohibits retaliation
because such claims are important as a policy matter, but, instead,
relied on an interpretation of the “text of Title IX.” 544 U. S., at 173,
178. Jackson’s statement that “teachers . . . are often in the best po-
sition to vindicate [student] rights,” id., at 181, did not address the
question whether the statutory term “discrimination” encompasses
retaliation, but was made in response to the school board’s argument
that only a “victim of the discrimination,” not third parties, should be
allowed to assert a retaliation claim, id., at 179–182. P. 8.
(3) Finally, the Circuit’s attempt to distinguish Jackson on the
ground that Title IX was adopted in response to Sullivan, whereas
there is no evidence in the ADEA’s legislative history that §633a was
adopted in a similar context, is rejected. Jackson did not identify any
legislative history evidence, but merely observed that because “Con-
Cite as: 553 U. S. ____ (2008) 3
Syllabus
gress enacted Title IX just three years after Sullivan,” it was “ ‘realis-
tic to presume that Congress was thoroughly familiar with [Sullivan]
and . . . expected [Title IX] to be interpreted in conformity with [it].”
544 U. S., at 176. What Jackson said about the relationship between
Sullivan and Title IX’s enactment can also be said about the relation-
ship between Sullivan and §633a’s enactment, since the latter provi-
sion was enacted just five years after Sullivan was decided and two
years after Title IX was enacted. Pp. 8–9.
(c) Respondent’s other arguments supporting the contention that
§633a(a) does not encompass retaliation claims are rejected. Pp. 10–
16.
(1) Respondent places too much reliance on the presence of an
ADEA provision specifically prohibiting retaliation against individu-
als complaining about private-sector age discrimination, §623(d), and
the absence of a similar provision in §633a. Because §§623 and 633a
were enacted seven years apart rather than simultaneously, see
Lindh v. Murphy, 521 U. S. 320, 330, and because they are couched
in very different terms—with §§623(a)(1)–(3) listing specific forbid-
den employer practices in contrast to §633a(a)’s broad prohibition of
“discrimination”—the absence of a federal-sector provision similar to
§623(d) does not provide a sufficient reason to depart from Sullivan
and Jackson. Pp. 10–12.
(2) There is even less merit in respondent’s reliance on §633a(f),
which provides that personnel actions by a federal entity covered by
§633a “shall not be subject to, or affected by, any provision of this
chapter” other than §633a and §631(b), which restricts ADEA cover-
age to persons at least 40 years old. Respondent’s contention that
recognizing federal-sector retaliation claims would make §623(d) ap-
plicable to federal-sector employers in contravention of §633a(f) is
unsound because the Court’s holding today is not based on §623(d)
but on §633a(a) itself, “unaffected by other [ADEA] sections,” Lehman
v. Nakshian, 453 U. S. 156, 168. P. 13.
(3) Also unavailing is respondent’s argument that the history of
congressional and Executive Branch responses to discrimination in
federal employment demonstrates that when Congress enacted
§633a, it anticipated that the pre-existing reprisal regulations of the
Civil Service Commission (CSC) would be extended to cover federal-
sector age discrimination and be the exclusive avenue for asserting
retaliation claims. This argument is not supported by direct evi-
dence, but rests on unsupported speculation, and, in any event, is
self-contradictory in that, if §633a(a) does not confer an antiretalia-
tion right, there is no reason to assume that Congress expected the
CSC to issue new regulations prohibiting retaliation. Pp. 13–14.
(4) Respondent’s final argument—that sovereign immunity prin-
4 GOMEZ-PEREZ v. POTTER
Syllabus
ciples require that §633a(a) be read narrowly as prohibiting substan-
tive age discrimination but not retaliation—is unpersuasive. The
rule of construction requiring that “[a] waiver of the Federal Gov-
ernment’s sovereign immunity . . . be unequivocally expressed in
statutory text” and “strictly construed . . . in favor of the sovereign,”
Lane v. Peña, 518 U. S. 187, 192, is satisfied here by §633a(c), which
unequivocally waives sovereign immunity for a claim brought by
“[a]ny person aggrieved” by a §633a violation. Unlike §663a(c),
§633a(a) is not a waiver of sovereign immunity; it is a substantive
provision outlawing “discrimination.” That the §633a(c) waiver ap-
plies to §633a(a) claims does not mean that §633a(a) must surmount
the same high hurdle as §633a(c). Pp. 15–16.
476 F. 3d 54, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which STEVENS, KEN-
NEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed
a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to all
but Part I. THOMAS, J., filed a dissenting opinion, in which SCALIA, J.,
joined.
Cite as: 553 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1321
_________________
MYRNA GOMEZ-PEREZ, PETITIONER v. JOHN E.
POTTER, POSTMASTER GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 27, 2008]
JUSTICE ALITO delivered the opinion of the Court.
The question before us is whether a federal employee
who is a victim of retaliation due to the filing of a com
plaint of age discrimination may assert a claim under the
federal-sector provision of the Age Discrimination in Em
ployment Act of 1967 (ADEA), as added, 88 Stat. 74, and
amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We
hold that such a claim is authorized.
I
Petitioner Myrna Gómez-Pérez was a window distribu
tion clerk for the United States Postal Service. In October
2002, petitioner, then 45 years of age, was working full
time at the Post Office in Dorado, Puerto Rico. She re
quested a transfer to the Post Office in Moca, Puerto Rico,
in order to be closer to her mother, who was ill. The trans
fer was approved, and in November 2002, petitioner began
working at the Moca Post Office in a part-time position.
Later that month, petitioner requested a transfer back to
her old job at the Dorado Post Office, but her supervisor
converted the Dorado position to part-time, filled it with
2 GOMEZ-PEREZ v. POTTER
Opinion of the Court
another employee, and denied petitioner’s application.
After first filing an unsuccessful union grievance seek
ing a transfer back to her old job, petitioner filed a Postal
Service equal employment opportunity age discrimination
complaint. According to petitioner, she was then sub
jected to various forms of retaliation. Specifically, peti
tioner alleges that her supervisor called her into meetings
during which groundless complaints were leveled at her,
that her name was written on antisexual harassment
posters, that she was falsely accused of sexual harass
ment, that her co-workers told her to “ ‘go back’ ” to where
she “ ‘belong[ed],’ ” and that her work hours were drasti
cally reduced. 476 F. 3d 54, 56 (CA1 2007).
Petitioner responded by filing this action in the United
States District Court for the District of Puerto Rico, claim
ing, among other things, that respondent had violated the
federal-sector provision of the ADEA, 29 U. S. C. §633a(a)
(2000 ed., Supp. V), by retaliating against her for filing her
equal employment opportunity age discrimination com
plaint. Respondent moved for summary judgment, argu
ing that the United States has not waived sovereign im
munity for ADEA retaliation claims and that the ADEA
federal-sector provision does not reach retaliation. The
District Court granted summary judgment in favor of
respondent on the basis of sovereign immunity.
On appeal, the United States Court of Appeals for the
First Circuit held that the Postal Reorganization Act, 39
U. S. C. §401(1), unequivocally waived the Postal Service’s
sovereign immunity, see 476 F. 3d, at 54, 57, but the
Court affirmed the decision of the District Court on the
alternative ground that the federal-sector provision’s
prohibition of “discrimination based on age,” §633a(a)
(2000 ed., Supp. V), does not cover retaliation, id., at 60,
creating a split among the Courts of Appeals. Compare
Forman v. Small, 271 F. 3d 285, 296 (CADC 2001) (ADEA
federal-sector provision covers retaliation). We granted
Cite as: 553 U. S. ____ (2008) 3
Opinion of the Court
certiorari. 552 U. S. ___ (2007).
II
The federal-sector provision of the ADEA provides that
“[a]ll personnel actions affecting employees or applicants
for employment who are at least 40 years of age . . . shall
be made free from any discrimination based on age.”
§633a(a) (2000 ed., Supp. V). The key question in this case
is whether the statutory phrase “discrimination based on
age” includes retaliation based on the filing of an age
discrimination complaint. We hold that it does.
In reaching this conclusion, we are guided by our prior
decisions interpreting similar language in other antidis
crimination statutes. In Sullivan v. Little Hunting Park,
Inc., 396 U. S. 229 (1969), we considered whether a claim
of retaliation could be brought under Rev. Stat. §1978, 42
U. S. C. §1982, which provides that “[a]ll citizens of the
United States shall have the same right . . . as is enjoyed
by white citizens . . . to inherit, purchase, lease, sell, hold,
and convey real and personal property.” While §1982 does
not use the phrase “discrimination based on race,” that is
its plain meaning. See Tennessee v. Lane, 541 U. S. 509,
561 (2004) (SCALIA, J., dissenting) (describing §1982 as
“banning public or private racial discrimination in the sale
and rental of property”); Jones v. Alfred H. Mayer Co., 392
U. S. 409 (1968).
In Sullivan, a white man (Sullivan) held membership
shares in a nonstock corporation that operated a park and
playground for residents of the area in which he owned a
home. Under the bylaws of the corporation, a member
who leased a home in the area could assign a membership
share in the corporation. But when Sullivan rented his
house and attempted to assign a membership share to an
African-American (Freeman), the corporation disallowed
the assignment because of Freeman’s race and subse
quently expelled Sullivan from the corporation for protest
4 GOMEZ-PEREZ v. POTTER
Opinion of the Court
ing that decision. Sullivan sued the corporation, and we
held that his claim that he had been expelled “for the
advocacy of Freeman’s cause” was cognizable under §1982.
396 U. S., at 237. A contrary holding, we reasoned, would
have allowed Sullivan to be “punished for trying to vindi
cate the rights of minorities” and would have given “impe
tus to the perpetuation of racial restrictions on property.”
Ibid.
More recently, in Jackson v. Birmingham Bd. of Ed.,
544 U. S. 167 (2005), we relied on Sullivan in interpreting
Title IX of the Education Amendments of 1972, 86 Stat.
373, as amended, 20 U. S. C. §1681 et seq. (2000 ed. and
Supp. V). Jackson, a public school teacher, sued his school
board under Title IX, “alleging that the Board retaliated
against him because he had complained about sex dis
crimination in the high school’s athletic program.” 544
U. S., at 171. Title IX provides in relevant part that “[n]o
person in the United States shall, on the basis of sex, . . .
be subjected to discrimination under any education pro
gram or activity receiving Federal financial assistance.”
§1681(a) (2000 ed.) (emphasis added). Holding that this
provision prohibits retaliation, we wrote:
“Retaliation against a person because that person has
complained of sex discrimination is another form of
intentional sex discrimination . . . . Retaliation is, by
definition, an intentional act. It is a form of ‘discrimi
nation’ because the complainant is being subjected to
differential treatment. Moreover, retaliation is dis
crimination ‘on the basis of sex’ because it is an inten
tional response to the nature of the complaint: an al
legation of sex discrimination. We conclude that when
a funding recipient retaliates against a person because
he complains of sex discrimination, this constitutes
intentional ‘discrimination’ ‘on the basis of sex,’ in vio
lation of Title IX.” Id., at 173–174 (citations omitted).
Cite as: 553 U. S. ____ (2008) 5
Opinion of the Court
This interpretation, we found, flowed naturally from
Sullivan: “Retaliation for Jackson’s advocacy of the rights
of the girls’ basketball team in this case is ‘discrimination’
‘on the basis of sex,’ just as retaliation for advocacy on
behalf of a black lessee in Sullivan was discrimination on
the basis of race.” 544 U. S., at 176–177.
Following the reasoning of Sullivan and Jackson, we
interpret the ADEA federal-sector provision’s prohibition
of “discrimination based on age” as likewise proscribing
retaliation. The statutory language at issue here (“dis
crimination based on age”) is not materially different from
the language at issue in Jackson (“ ‘discrimination’ ” “ ‘on
the basis of sex’ ”) and is the functional equivalent of the
language at issue in Sullivan, see Jackson, supra, at 177
(describing Sullivan as involving “discrimination on the
basis of race”). And the context in which the statutory
language appears is the same in all three cases; that is, all
three cases involve remedial provisions aimed at prohibit
ing discrimination.
The Jackson dissent strenuously argued that a claim of
retaliation is conceptually different from a claim of dis
crimination, see 544 U. S., at 184–185 (opinion of THOMAS,
J.), but that view did not prevail.1 And respondent in this
case does not ask us to overrule Sullivan or Jackson. Nor
does respondent question the reasoning of those decisions.
——————
1 Suggesting that we have retreated from the reasoning of Sullivan
and Jackson, THE CHIEF JUSTICE, citing Burlington N. & S. F. R. Co. v.
White, 548 U. S. 53, 63–65 (2006), states that “we have since explained
that antidiscrimination and antiretaliation provisions are indeed
conceptually distinct, and serve distinct purposes.” Post, at 4 (dissent
ing opinion). But as the Court explains today in CBOCS West, Inc. v.
Humphries, ante, at 13, “[i]n Burlington . . . we used the status/conduct
distinction to help explain why Congress might have wanted its explicit
Title VII antiretaliation provision to sweep more broadly (i.e., to include
conduct outside the workplace) than its substantive Title VII (status
based ) antidiscrimination provision. Burlington did not suggest that
Congress must separate the two in all events.”
6 GOMEZ-PEREZ v. POTTER
Opinion of the Court
Indeed, in Jackson, the Government contended that “[t]he
text . . . of Title IX demonstrate[s] that it encompasses
protection against retaliation” since “retaliation against a
person because that person has filed a sex discrimination
complaint is a form of intentional sex discrimination.”
Brief for United States as Amicus Curiae 8, in Jackson v.
Birmingham Bd. of Ed., O. T. 2004, No. 02–1672. Simi
larly, in another case this Term, the Government has
urged us to follow the reasoning of Sullivan and to hold
that a claim of retaliation may be brought under Rev.
Stat. §1977, 42 U. S. C. §1981. In that case, the Govern
ment argues that §1981’s prohibition of “ ‘discrimination’
. . . quite naturally includes discrimination on account of
having complained about discrimination.” Brief for United
States as Amicus Curiae 10, in CBOCS West, Inc. v.
Humphries, O. T. 2007, No. 06–1431.
III
The decision of the Court of Appeals, which respondent
defends, perceived a “clear difference between a cause of
action for discrimination and a cause of action for retalia
tion” and sought to distinguish Jackson on three grounds.
476 F. 3d, at 58–59. We are not persuaded, however, by
any of these attempted distinctions.
A
The Court of Appeals first relied on the fact that the
ADEA expressly creates a private right of action whereas
Title IX, the statute at issue in Jackson, does not. See 476
F. 3d, at 58. The Court of Appeals appears to have rea
soned that, because the private right of action under Title
IX is implied and not express, see Cannon v. University of
Chicago, 441 U. S. 677 (1979), the Jackson Court had
greater leeway to adopt an expansive interpretation of
Title IX’s prohibition of discrimination on the basis of sex.
This reasoning improperly conflates the question
Cite as: 553 U. S. ____ (2008) 7
Opinion of the Court
whether a statute confers a private right of action with the
question whether the statute’s substantive prohibition
reaches a particular form of conduct. These questions are
analytically distinct, and confusing them would lead to
exceedingly strange results.
For example, under the Court of Appeals’ reasoning,
Title IX’s prohibition of “discrimination” “on the basis of
sex,” in 20 U. S. C. §1681(a), might have a narrower scope
and might not reach retaliation if Title IX contained a
provision expressly authorizing an aggrieved private party
to bring suit to remedy a violation of §1681(a). We do not
see how such a conclusion could be defended. Section
1681(a)’s prohibition of “discrimination” either does or
does not reach retaliation, and the presence or absence of
another statutory provision expressly creating a private
right of action cannot alter §1681(a)’s scope. In addition,
it would be perverse if the enactment of a provision explic
itly creating a private right of action—a provision that, if
anything, would tend to suggest that Congress perceived a
need for a strong remedy—were taken as a justification for
narrowing the scope of the underlying prohibition.
The Court of Appeals’ reasoning also seems to lead to
the strange conclusion that, despite Jackson’s holding that
a private party may assert a retaliation claim under Title
IX, the Federal Government might not be authorized to
impose upon an entity that engages in retaliation the
administrative remedies, including the termination of
funding, that are expressly sanctioned under §1682. It
would be extremely odd, however, if §1681(a) had a
broader scope when enforced by a means not expressly
sanctioned by statute than it does when enforced by the
means that the statute explicitly provides. For these
reasons, we reject the proposition that Jackson may be
distinguished from the present case on the ground that
Title IX’s private right of action is implied.
8 GOMEZ-PEREZ v. POTTER
Opinion of the Court
B
The Court of Appeals next attempted to distinguish
Jackson on the ground that retaliation claims play a more
important role under Title IX than they do under the
ADEA. The Court of Appeals pointed to our statement in
Jackson that “ ‘teachers and coaches . . . are often in the
best position to vindicate the rights of their students
because they are better able to identify discrimination and
bring it to the attention of administrators.’ ” 476 F. 3d, at
58 (quoting Jackson, 544 U. S., at 181). The Court of
Appeals suggested that third parties are not needed to
“identify instances of age discrimination and bring it to
the attention of supervisors” and that, consequently, there
is no need to extend §633a(a) (2000 ed., Supp. V) to reach
retaliation. 476 F. 3d, at 58.
This argument ignores the basis for the decision in
Jackson. Jackson did not hold that Title IX prohibits
retaliation because the Court concluded as a policy matter
that such claims are important. Instead, the holding in
Jackson was based on an interpretation of the “text of
Title IX.” 544 U. S., at 173, 178.
Moreover, the statements in Jackson on which the Court
of Appeals relied did not address the question whether the
statutory term “discrimination” encompasses retaliation.
Instead, those statements addressed the school board’s
argument that, even if Title IX was held to permit some
retaliation claims, only a “victim of the discrimination”—
and not third parties—should be allowed to assert such a
claim. Id., at 179–182. It was in response to this argu
ment that the Court noted the particular importance of
reports of Title IX violations by third parties such as
teachers and coaches. Id., at 181.
C
Finally, the Court of Appeals attempted to distinguish
Jackson on the ground that “Title IX was adopted in re
Cite as: 553 U. S. ____ (2008) 9
Opinion of the Court
sponse to the Court’s holding in Sullivan,” whereas “there
is no evidence in the legislative history that the ADEA’s
federal sector provisions were adopted in a similar con
text.” 476 F. 3d, at 58–59. Jackson’s reliance on Sullivan,
however, did not stem from “evidence in the legislative
history” of Title IX. Jackson did not identify any such
evidence but merely observed that “Congress enacted Title
IX just three years after Sullivan was decided.” 544 U. S.,
at 176. Due to this chronology, the Court concluded, it
was “ ‘not only appropriate but also realistic to presume
that Congress was thoroughly familiar with [Sullivan] and
that it expected its enactment [of Title IX] to be inter
preted in conformity with [it].” Ibid. (quoting Cannon, 441
U. S., at 699). See also 544 U. S., at 176 (“Title IX was
enacted in 1972, three years after [Sullivan]”); id., at 179–
180 (“Sullivan . . . formed an important part of the back
drop against which Congress enacted Title IX”).
What Jackson said about the relationship between
Sullivan and the enactment of Title IX can be said as well
about the relationship between Sullivan and the enact
ment of the ADEA’s federal-sector provision, 29 U. S. C.
§633a (2000 ed. and Supp. V). Sullivan was decided in
1969 and §633a was enacted in 1974—five years after the
decision in Sullivan and two years after the enactment of
Title IX. We see no reason to think that Congress forgot
about Sullivan during the two years that passed between
the enactment of Title IX in 1972 and the enactment of
§633a in 1974. And if, as Jackson presumed, Congress
had Sullivan in mind when it enacted Title IX in 1972, it
is “appropriate” and “realistic” to presume that Congress
expected its prohibition of “discrimination based on age” in
§633a(a) “ ‘to be interpreted in conformity with’ ” its simi
larly worded prohibition of “discrimination” “on the basis
of sex” in 20 U. S. C. §1681(a), which it had enacted just
two years earlier. 544 U. S., at 176 (quoting Cannon,
supra, at 699).
10 GOMEZ-PEREZ v. POTTER
Opinion of the Court
IV
A
In arguing that §633a(a) (2000 ed., Supp. V) does not
encompass retaliation claims, respondent relies princi
pally on the presence of a provision in the ADEA specifi
cally prohibiting retaliation against individuals who com
plain about age discrimination in the private sector,
§623(d), and the absence of a similar provision specifically
prohibiting retaliation against individuals who complain
about age discrimination in federal employment. Accord
ing to respondent, “the strong presumption is that [the]
omission reflects that Congress acted intentionally and
purposely in including such language in Section 623 of the
Act and excluding it from Section 633a.” Brief for Respon
dent 17 (internal quotation marks omitted).
“[N]egative implications raised by disparate provisions
are strongest” in those instances in which the relevant
statutory provisions were “considered simultaneously
when the language raising the implication was inserted.”
Lindh v. Murphy, 521 U. S. 320, 330 (1997). Here, the two
relevant provisions were not considered or enacted to
gether. Section 623(d), which specifically prohibits private
sector retaliation, was enacted in 1967, see §4(d), 81 Stat.
603, but the federal-sector provision, §633a, was not added
until 1974, see §28(b)(2), 88 Stat. 74.2
Respondent’s argument is also undermined by the fact
that the prohibitory language in the ADEA’s federal-sector
provision differs sharply from that in the corresponding
——————
2 The situation here is quite different from that which we faced in
Lehman v. Nakshian, 453 U. S. 156 (1981), where both the private and
federal-sector provisions of the ADEA already existed and a single piece
of legislation—the 1978 amendments to the ADEA—added a provision
conferring a jury-trial right for private-sector ADEA suits but failed to
include any similar provision for federal-sector suits. See Age Dis
crimination in Employment Act Amendments of 1978, §4(a)(2), 92 Stat.
189.
Cite as: 553 U. S. ____ (2008) 11
Opinion of the Court
ADEA provision relating to private-sector employment. In
the private-sector provision, Congress set out a specific list
of forbidden employer practices. See 29 U. S. C. §623(a).3
The omission from such a list of a specific prohibition of
retaliation might have been interpreted as suggesting that
Congress did not want to reach retaliation, and therefore
Congress had reason to include a specific prohibition of
retaliation, §623(d), in order to dispel any such inference.
The ADEA federal-sector provision, however, was not
modeled after §623(d) and is couched in very different
terms. The ADEA federal-sector provision was patterned
“directly after” Title VII’s federal-sector discrimination
ban. Lehman v. Nakshian, 453 U. S. 156, 167, n. 15
(1981). Like the ADEA’s federal-sector provision, Title
VII’s federal-sector provision, contains a broad prohibition
of “discrimination,” rather than a list of specific prohibited
practices. Compare 118 Stat. 814, as amended, 42 U. S. C.
§2000(e)–16(a) (2000 ed., Supp. V) (personnel actions
affecting federal employees “shall be made free from any
discrimination based on race, color, religion, sex, or na
tional origin”) with 29 U. S. C. §633a(a) (2000 ed., Supp.
V) (personnel actions affecting federal employees who are
at least 40 years of age “shall be made free from any dis
crimination based on age”). And like the ADEA’s federal
——————
3 Section 623(a) provides:
“(a) Employer practices
“It shall be unlawful for an employer—
“(1) to fail or refuse to hire or to discharge any individual or other
wise discriminate against any individual with respect to his compensa
tion, terms, conditions, or privileges of employment, because of such
individual’s age;
“(2) to limit, segregate, or classify his employees in any way which
would deprive or tend to deprive any individual of employment oppor
tunities or otherwise adversely affect his status as an employee, be
cause of such individual’s age; or
“(3) to reduce the wage rate of any employee in order to comply with
this chapter.”
12 GOMEZ-PEREZ v. POTTER
Opinion of the Court
sector provision, Title VII’s federal-sector provision incor
porates certain private-sector provisions but does not
incorporate the provision prohibiting retaliation in the
private sector. See 42 U. S. C. §2000e–16(d) (incorporat
ing §§2000e–5(f) to (k) but not §2000e–3(a), which forbids
private-sector retaliation).4
When Congress decided not to pattern 29 U. S. C.
§633a(a) after §623(a) but instead to enact a broad, gen
eral ban on “discrimination based on age,” Congress was
presumably familiar with Sullivan and had reason to
expect that this ban would be interpreted “in conformity”
with that precedent. Jackson, 544 U. S., at 176. Under
the reasoning of Sullivan, retaliation for complaining
about age discrimination, is “discrimination based on age,”
“just as retaliation for advocacy on behalf of [the] black
lessee in Sullivan was discrimination on the basis of race.”
Id., at 176–177. Thus, because §§623(d) and 633a were
enacted separately and are couched in very different
terms, the absence of a federal-sector provision similar to
§623(d) does not provide a sufficient reason to depart from
the reasoning of Sullivan and Jackson.5
——————
4 While the federal-sector provision of Title VII does not incorporate
§2000e–3(a), the federal-sector provision of Title VII does incorporate a
remedial provision, §2000e–5(g)(2)(A), that authorizes relief for a
violation of §2000–3(a). Petitioner argues that this remedial provision
shows that Congress meant for the Title VII federal-sector provision’s
broad prohibition of “discrimination based on race, color, religion, sex,
or national origin” to reach retaliation because otherwise there would
be no provision banning retaliation in the federal sector and thus no
way in which relief for retaliation could be awarded. Brief for Peti
tioner 20. The Federal Government, however, has declined to take a
position on the question whether Title VII bans retaliation in federal
employment, see Tr. of Oral Arg. 31, and that issue is not before us in
this case.
5 The Government’s theory that the absence of a provision specifically
banning federal-sector retaliation gives rise to the inference that
§633a(a) (2000 ed., Supp. V) does not ban retaliation would lead logi
cally to the strange conclusion that §633a(a) also does not forbid age
Cite as: 553 U. S. ____ (2008) 13
Opinion of the Court
B
We see even less merit in respondent’s reliance on 29
U. S. C. §633a(f), which provides that personnel actions by
a federal department, agency, or other entity covered by
§633a “shall not be subject to, or affected by, any provision
of this chapter” other than §§633a and 631(b), the provi
sion that restricts the coverage of the ADEA to persons
who are at least 40 years of age. Respondent contends
that recognizing federal-sector retaliation claims would be
tantamount to making §623(d) applicable to federal-sector
employers and would thus contravene §633a(f).
This argument is unsound because our holding that the
ADEA prohibits retaliation against federal-sector employ
ees is not in any way based on §623(d). Our conclusion,
instead, is based squarely on §633a(a) (2000 ed., Supp. V)
itself, “unaffected by other sections” of the Act. Lehman,
supra, at 168.
C
Respondent next advances a complicated argument
concerning “[t]he history of congressional and executive
branch responses to the problem of discrimination in
federal employment.” Brief for Respondent 27. After Title
VII was made applicable to federal employment in 1972,
see Equal Employment Act, §11, 86 Stat. 111, the Civil
Service Commission issued new regulations that prohib
ited discrimination in federal employment based on race,
color, religion, sex, and national origin (but not age), see 5
CFR §713.211 (1973), as well as “reprisal[s]” prompted by
complaints about such discrimination, §713.262(a). When
Congress enacted the ADEA’s federal-sector provisions in
1974, respondent argues, Congress anticipated that the
enactment of §633a would prompt the Civil Service Com
——————
discriminatory job notices and advertisements because §633a(a), unlike
§623(e) (2000 ed.), fails to mention such practices expressly.
14 GOMEZ-PEREZ v. POTTER
Opinion of the Court
mission to “extend its existing reprisal regulations” to
cover age discrimination complaints and that Congress
intended for the civil service process to provide the exclu
sive avenue for asserting retaliation claims. Brief for
Respondent 27, 33, and n. 7. Respondent suggests that
Congress took this approach because it believed that the
Civil Service regulations “reflect[ed] a distinct set of public
policy concerns in the civil service sector.” Id., at 27.
Respondent cites no direct evidence that Congress actu
ally took this approach;6 respondent’s argument rests on
nothing more than unsupported speculation. And, in any
event, respondent’s argument contradicts itself. If, as
respondent maintains, “[s]ection 633a(a) does not confer
an anti-retaliation right,” id., at 9, then there is no reason
to assume that Congress expected the Civil Service Com
mission to respond to the enactment of §633a(a) by issuing
new regulations prohibiting retaliation. On the contrary,
if, as respondent maintains, Congress had declined to
provide an antiretaliation right, then Congress presuma
bly would have expected the Civil Service Commission to
abide by that policy choice.
——————
6 Respondent asks us to infer that §633a(a) (2000 ed., Sup. V) does not
proscribe retaliation because, when Congress made the ADEA applica
ble to the Federal Government, Congress did not simply subject the
Federal Government to the ADEA’s private-employment provisions by
amending the definition of “employer” to include the United States.
Respondent contends that a similar inference may be drawn from the
fact that in 1974 Congress added to the Fair Labor Standards Act of
1938 (FLSA) a provision specifically making it unlawful to retaliate
against an employee for attempting to vindicate FLSA rights. See
§215(a)(3). These arguments fail to appreciate the significance of
§633a(a)’s broad prohibition of “discrimination based on age.” Because
Congress had good reason to expect that this broad ban would be
interpreted in the same way that Sullivan v. Little Hunting Park, Inc.,
392 U. S. 657 (1968), had interpreted the broad ban on racial discrimi
nation in 42 U. S. C. §1982, the inference that respondent asks us to
draw is unfounded.
Cite as: 553 U. S. ____ (2008) 15
Opinion of the Court
D
Respondent’s final argument is that principles of sover
eign immunity “require that Section 633a(a) be read nar
rowly as prohibiting substantive age discrimination, but
not retaliation.” Id., at 44. Respondent contends that the
broad waiver of sovereign immunity in the Postal Reor
ganization Act, 39 U. S. C. §401(1), is beside the point for
present purposes because, for many federal agencies, the
only provision that waives sovereign immunity for ADEA
claims is contained in §633a, and therefore this waiver
provision “must be construed strictly in favor of the sover
eign.” Brief for Respondent 44 (quoting United States v.
Nordic Village, Inc., 503 U. S. 30, 34 (1992); internal
quotation marks omitted).
Respondent is of course correct that “[a] waiver of the
Federal Government’s sovereign immunity must be un
equivocally expressed in statutory text” and “will be
strictly construed, in terms of its scope, in favor of the
sovereign.” Lane v. Peña, 518 U. S. 187, 192 (1996). But
this rule of construction is satisfied here. Subsection (c) of
§633a unequivocally waives sovereign immunity for a
claim brought by “[a]ny person aggrieved” to remedy a
violation of §633a. Unlike §663a(c), §633a(a) (2000 ed.,
Supp. V) is not a waiver of sovereign immunity; it is a
substantive provision outlawing “discrimination.” That
the waiver in §633a(c) applies to §633a(a) claims does not
mean that §633a(a) must surmount the same high hurdle
as §633a(c). See United States v. White Mountain Apache
Tribe, 537 U. S. 465, 472–473 (2003) (where one statutory
provision unequivocally provides for a waiver of sovereign
immunity to enforce a separate statutory provision, that
latter provision “ ‘need not . . . be construed in the manner
appropriate to waivers of sovereign immunity’ ” (quoting
United States v. Mitchell, 463 U. S. 206, 218–219 (1983))).
But in any event, even if §633a(a) must be construed in
the same manner as §633a(c), we hold, for the reasons
16 GOMEZ-PEREZ v. POTTER
Opinion of the Court
previously explained, that §633a(a) prohibits retaliation
with the requisite clarity.
* * *
For these reasons, we hold that §633a(a) prohibits re
taliation against a federal employee who complains of age
discrimination. The judgment of the Court of Appeals is
reversed, and this case is remanded for further proceed
ings consistent with this opinion.
It is so ordered.
Cite as: 553 U. S. ____ (2008) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1321
_________________
MYRNA GOMEZ-PEREZ, PETITIONER v. JOHN E.
POTTER, POSTMASTER GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 27, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
and JUSTICE THOMAS join as to all but Part I, dissenting.
The Court today holds that the federal-sector provision
of the Age Discrimination in Employment Act encom-
passes not only claims of age discrimination—which its
language expressly provides—but also claims of retaliation
for complaining about age discrimination—which its lan-
guage does not. Protection against discrimination may
include protection against retaliation for complaining
about discrimination, but that is not always the case. The
separate treatment of each in the private-sector provision
of the ADEA makes that clear. In my view, the statutory
language and structure, as well as the fact that Congress
has always protected federal employees from retaliation
through the established civil service process, confirm that
Congress did not intend those employees to have a sepa-
rate judicial remedy for retaliation under the ADEA. I
respectfully dissent.
I
Congress enacted the Age Discrimination in Employ-
ment Act of 1967, 81 Stat. 602, which at the time applied
only to private employers, with the purpose of “pro-
mot[ing] employment of older persons based on their
ability rather than age; . . . [of] prohibit[ing] arbitrary age
2 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
discrimination in employment; [and of] help[ing] employ-
ers and workers find ways of meeting problems arising
from the impact of age on employment.” 29 U. S. C.
§621(b). The 1967 Act implemented this purpose in two
principal ways. First, the statute made it unlawful for an
employer to “discriminate against any individual . . .
because of such individual’s age.” §623(a)(1). Second,
Congress enacted a specific antiretaliation provision,
which made it “unlawful for an employer to discriminate
against any of his employees or applicants for employment
. . . 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 litiga-
tion under” the ADEA. §623(d).
In the Fair Labor Standards Amendments of 1974
(FLSA Amendments), §28(b)(2), 88 Stat. 74, Congress
(among other things) extended the ADEA to most Execu-
tive Branch employees by adopting 29 U. S. C. §633a.
Like its private-sector counterpart, this federal-sector
provision includes a ban on discrimination on the basis of
age. Unlike its private-sector counterpart, the federal-
sector provision does not include a separate ban on retalia-
tion. The federal-sector provision specifies only that “[a]ll
personnel actions affecting employees or applicants for
employment who are at least 40 years of age [in various
federal agencies] shall be made free from any discrimina-
tion based on age.” §633a(a).
Despite the absence of an express retaliation provision
in §633a(a), the Court finds that the statute encompasses
both discrimination and retaliation claims. To support
this proposition, the Court principally relies on our deci-
sions in Sullivan v. Little Hunting Park, Inc., 396 U. S.
229 (1969), and Jackson v. Birmingham Bd. of Ed., 544
U. S. 167 (2005). In my view, the majority reads these
cases for more than they are worth.
Cite as: 553 U. S. ____ (2008) 3
ROBERTS, C. J., dissenting
As the majority correctly states, we held in Sullivan
that 42 U. S. C. §1982, which prohibits race discrimination
in the sale or rental of property, also provides a cause of
action for retaliation.1 396 U. S., at 237. More recently,
we held in Jackson that Title IX of the Education Amend-
ments of 1972, 86 Stat. 373—which provides in relevant
part that “[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance,” 20 U. S. C. §1681(a)—encompasses claims of
retaliation for complaints about sex discrimination. 544
U. S., at 173–174.
To the extent the majority takes from these precedents
the principle that broad antidiscrimination provisions may
also encompass an antiretaliation component, I do not
disagree. That is why I am able to join today’s opinion in
CBOCS West, Inc. v. Humphries, ante, at 14 (holding that
a retaliation claim is cognizable under 42 U. S. C. §1981).
But it cannot be—contrary to the majority’s apparent
view—that any time Congress proscribes “discrimination
based on X,” it means to proscribe retaliation as well.
That is clear from the private-sector provision of the
ADEA, which includes a ban on “discriminat[ion] against
any individual . . . because of such individual’s age,” 29
U. S. C. §623(a)(1), but also includes a separate (and
presumably not superfluous) ban on retaliation, §623(d).
Indeed, we made this precise observation in Jackson
——————
1 To the extent there was any disagreement about whether Sullivan
v. Little Hunting Park, Inc., 396 U. S. 229 (1969), was really a retalia-
tion case, or whether it dealt only with third-party standing, the view
put forth by the Court won the day in Jackson v. Birmingham Bd. of
Ed., 544 U. S. 167 (2005). Compare id., at 176, and n. 1, with id., at
194 (THOMAS, J., dissenting). Whatever the merits of this disagree-
ment, I accept Jackson’s (and the Court’s) interpretation as a matter of
stare decisis. See CBOCS West, Inc. v. Humphries, ante, at 3.
4 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
itself. The respondent in that case argued that Title IX’s
ban on discrimination could not include a cause of action
for retaliation because Title VII of the Civil Rights Act of
1964, like the private-sector provision of the ADEA, in-
cludes discrete discrimination and retaliation provisions.
See 42 U. S. C. §§2000e–2 (discrimination), 2000e–3 (re-
taliation). We distinguished Title VII on the ground that
“Title IX is a broadly written general prohibition on dis-
crimination,” while “Title VII spells out in greater detail
the conduct that constitutes discrimination in violation of
that statute.” 544 U. S., at 175. Thus, while we distin-
guished Title VII from Title IX in Jackson, we also ac-
knowledged that not every express ban on discrimination
must be read as a ban on retaliation as well.
What is more, although the majority asserts that Jack-
son rejected the view that “a claim of retaliation is concep-
tually different from a claim of discrimination,” ante, at 5,
we have since explained that antidiscrimination and
antiretaliation provisions are indeed conceptually distinct,
and serve distinct purposes. In Burlington N. & S. F. R.
Co. v. White, 548 U. S. 53 (2006), we considered whether
the antiretaliation provision in the Title VII private-sector
provision, 42 U. S. C. §2000e–3(a)—which is materially
indistinguishable from that in the ADEA—applies “only
[to] those employer actions and resulting harms that are
related to employment or the workplace.” 548 U. S., at 61.
In answering that question in the negative, we explained:
“The antidiscrimination provision seeks a workplace
where individuals are not discriminated against be-
cause of their [protected] status. The antiretaliation
provision seeks to secure that primary objective by
preventing an employer from interfering (through re-
taliation) with an employee’s efforts to secure or ad-
vance enforcement of the Act’s basic guarantees. The
substantive provision seeks to prevent injury to indi-
Cite as: 553 U. S. ____ (2008) 5
ROBERTS, C. J., dissenting
viduals based on who they are, i.e., their status. The
antiretaliation provision seeks to prevent harm to in-
dividuals based on what they do, i.e., their conduct.”
Id., at 63 (citation omitted).2
While I take from Sullivan and Jackson the proposition
that broad bans on discrimination, standing alone, may be
read to include a retaliation component, the provision at
issue here does not stand alone. And, as Jackson itself
makes clear, see 544 U. S., at 173, 175, “the words of a
statute must be read in their context and with a view to
their place in the overall statutory scheme.” Davis v.
Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989).
Here the text and structure of the statute, the broader
statutory scheme of which it is a part, and distinctions
between federal- and private-sector employment convince
me that §633a(a) does not provide a cause of action for
retaliation.
II
We have explained that “[w]here Congress includes
particular language in one section of a statute but omits it
in another section of the same Act, it is generally pre-
sumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Russello v. United
States, 464 U. S. 16, 23 (1983) (internal quotation marks
omitted). If, as the majority holds, the ban on “discrimina-
——————
2 The Court views this discussion of Burlington as “[s]uggesting that
[the Court has] retreated from the reasoning of Sullivan and Jackson.”
Ante, at 5, n. 1. Not a bit. The discussion simply points out what
Burlington plainly said: that there is a distinction between discrimina-
tion and retaliation claims. That does not mean Congress cannot
address both in the same provision, as we held it did in Sullivan and
Jackson and as we hold today it did in CBOCS West, Inc., ante, at 14.
But it does confirm that Congress may choose to separate the two, as
the private-sector provision of the ADEA, as well as the portion of Title
VII interpreted in Burlington, makes clear.
6 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
tion based on age” in §633a(a) encompasses both discrimi-
nation and retaliation claims, it is difficult to understand
why Congress would have felt the need to specify in §623
separate prohibitions against both “discriminat[ion]”
“because of [an] individual’s age,” and retaliation.
The majority responds by noting that “ ‘[n]egative impli-
cations raised by disparate provisions are strongest’ in
those instances in which the relevant statutory provisions
were ‘considered simultaneously when the language rais-
ing the implication was inserted.’ ” Ante, at 10 (quoting
Lindh v. Murphy, 521 U. S. 320, 330 (1997)). Here, the
majority notes that §623 was enacted in 1967, while §633a
was not passed until 1974. Ante, at 10. Fair enough, but
while I do not quarrel with this principle as a general
matter, I do not think it does the work the majority thinks
it does. Congress obviously had the private-sector ADEA
provision prominently before it when it enacted §633a,
because the same bill that included §633a also amended
the private-sector provision. See, e.g., §28(a)(2), 88 Stat.
74 (amending the definition of “employer” in 29 U. S. C.
§630(b) to include States and their political subdivisions).
Indeed, it is quite odd to assume, as the majority does, see
ante, at 9, 12, that the Congress that enacted §633a was
aware of and relied upon our decision in Sullivan—which
interpreted 42 U. S. C. §1982, a wholly unrelated provi-
sion—but was not attuned to its own work reflected in the
differences between 29 U. S. C. §§623 and 633a. Even if
the negative implication to be drawn from those differ-
ences may not be at its “strongest” under these circum-
stances, it is certainly strong enough.
Moreover, and more to the point, we have relied on the
differences in language between the federal- and private-
sector provisions of the ADEA specifically in our interpre-
tation of §633a. In Lehman v. Nakshian, 453 U. S. 156
(1981), we faced the question whether a person bringing
an action under §633a(c), alleging a violation of §633a(a),
Cite as: 553 U. S. ____ (2008) 7
ROBERTS, C. J., dissenting
was entitled to a trial by jury. In holding that there was
no jury-trial right available against the Federal Govern-
ment, we relied on the fact that while the ADEA’s federal-
sector provision did not include a provision for a jury trial,
the analogous grant of a right of action in the private-
sector provision, §626(c), “expressly provides for jury tri-
als.” Id., at 162. We reasoned that “Congress accordingly
demonstrated that it knew how to provide a statutory
right to a jury trial when it wished to do so elsewhere in
the very ‘legislation cited.’ . . . But in [§633a(c)] it failed
explicitly to do so.” Ibid. (quoting Galloway v. United
States, 319 U. S. 372, 389 (1943)). So too here. “Congress
. . . demonstrated that it knew how to” provide a retalia-
tion cause of action “when it wished to do so elsewhere in
the very ‘legislation cited,’ ” but “failed explicitly to do so”
in §633a(a).
The majority argues that this inference is weakened by
the fact that, in “the private-sector provision, Congress set
out a specific list of forbidden employer practices,” ante, at
11, while §633a(a) is a “broad, general ban on ‘discrimina-
tion based on age,’ ” ante, at 12. This point cuts against
the majority. Section 623 drew a distinction between
prohibited “employer practices” that discriminate based on
age, and retaliation. See §§623(a) (discriminatory “[e]m-
ployer practices”), 623(d) (retaliation). Section 633a(a)
phrased the prohibited discrimination in terms of “person-
nel actions.” Just as Congress did not regard retaliation
as included within “employer practices,” but dealt with it
separately in §623(d), the counterpart to “employer prac-
tices” in §633a—discriminatory “personnel actions”—
should similarly not be read to include retaliation.
The argument that some meaning ought to attach to
Congress’s inclusion of an antiretaliation provision in §623
but not in §633a is further supported by several other
factors. To begin with, Congress expressly made clear that
the ADEA’s private-sector provisions should not apply to
8 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
their federal-sector counterpart, by providing that “[a]ny
personnel action . . . referred to in subsection (a) of this
section shall not be subject to, or affected by, any provision
of” the ADEA, except for one provision not relevant here.
§633a(f). The majority sees no “merit in respondent’s
reliance on 29 U. S. C. §633a(f).” Ante, at 13. But again,
we relied on this very provision in Lehman. We explained
that this subsection “clearly emphasize[s] that [§633a] was
self-contained and unaffected by other sections” of the
ADEA, 453 U. S., at 168, a fact that we used to support
our holding that the federal-sector provision does not
provide a right to a jury trial, even though the private-
sector provision does. In short, Congress was aware that
there were significant differences between the private-
and federal-sector portions of the ADEA, and specified
that no part of the former should be understood to have
been implicitly imported into the latter.
Other actions Congress took at the same time that it
enacted §633a in 1974 further underscore the point that
Congress deliberately chose to exclude retaliation claims
from the ADEA’s federal-sector provision. The Fair Labor
Standards Amendments of 1974, as the Act’s name sug-
gests, dealt for the most part not with the ADEA, but with
the Fair Labor Standards Act of 1938, extending that
statute’s protections to federal employees. See FLSA
Amendments, §6(a)(2), 88 Stat. 58. In doing so, Congress
explicitly subjected federal employers to the FLSA’s ex-
press antiretaliation provision, 29 U. S. C. §215(a)(3).
Congress did not similarly subject the Federal Govern-
ment to the express antiretaliation provision in the ADEA,
strongly suggesting that this was a conscious choice.
The majority responds that this “inference . . . is un-
founded” because “Congress had good reason to expect
that this broad ban would be interpreted in the same way
that Sullivan . . . had interpreted the broad ban on racial
discrimination in 42 U. S. C. §1982.” Ante, at 14, n. 6.
Cite as: 553 U. S. ____ (2008) 9
ROBERTS, C. J., dissenting
Anything is possible, but again, it seems far more likely
that Congress had its eye on the private-sector provision of
the ADEA in crafting the federal one, rather than on one
of our precedents on a different statute. See supra, at 6.
But whatever the merits of this argument, it does not
rebut the import of other probative provisions of the FLSA
Amendments. In particular, Congress specifically chose in
the FLSA Amendments to treat States and the Federal
Government differently with respect to the ADEA itself.
It subjected the former to the ADEA’s private-sector provi-
sion, see FLSA Amendments, §28(a)(2), 88 Stat. 74—
including the express prohibition against retaliation in
§623(d)—while creating §633a as a stand-alone prohibi-
tion against discrimination in federal employment, with-
out an antiretaliation provision, see §28(b)(2), ibid. This
decision evinces a deliberate legislative choice not to ex-
tend those portions of the ADEA’s private-sector provi-
sions that are not expressly included in §633a, as of course
Congress specified in §633a(f).
Given all this, it seems safe to say that the text and
structure of the statute strongly support the proposition
that Congress did not intend to include a cause of action
for retaliation against federal employees in §633a(a).
III
But why would Congress allow retaliation suits against
private-sector and state employers, but not against the
Federal Government? The answer is that such retaliation
was dealt with not through a judicial remedy, but rather
the way retaliation in the federal workplace was typically
addressed—through the established civil service system,
with its comprehensive protection for Government work-
ers. Congress was quite familiar with that detailed ad-
ministrative system—one that already existed for most
federal employees, but not for private ones. This ap-
proach, unlike the Court’s, is consistent with the fact that
10 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
Congress has recognized that regulation of the civil service
is a complex issue, requiring “careful attention to conflict-
ing policy considerations” and “balancing governmental
efficiency and the rights of employees,” Bush v. Lucas, 462
U. S. 367, 388, 389 (1983). The resulting system often
requires remedies different from those found to be appro-
priate for the private sector (or even for the States).
A
Before Title VII was extended to federal employees in
1972, discrimination in federal employment on the basis of
race, color, religion, sex, or national origin was prohibited
by executive order. See Exec. Order No. 11478, 34 Fed.
Reg. 12985 (1969). Civil service regulations implemented
this policy by authorizing Executive Branch employees to
bring administrative complaints for allegedly dis-
criminatory acts, including “personnel action[s],” 5 CFR
§§713.211, 713.214(a)(1)(i) (1972). These regula-
tions further provided that such complainants, their
representatives, and witnesses “shall be free from
restraint, interference, coercion, discrimination, or re-
prisal” for their involvement in the complaint proc-
ess. §§713.214(b) (complainants and representatives),
713.218(e) (witnesses).
The Civil Service Commission (CSC) promulgated a
detailed scheme through which federal employees could
vindicate these rights, including the express antiretalia-
tion protections. More serious personnel actions, known
as “adverse actions,” could be challenged before the em-
ploying agency and appealed to the CSC, see §§713.219(a)
and (b), 752.203, 771.202, 771.208, 771.222, while less
serious personnel actions and “any [other] matter of con-
cern or dissatisfaction” could be challenged under alterna-
tive procedures that were also appealable to the CSC, see
§§713.217(b), 713.218, 713.219(a) and (c), 713.231(a),
771.302(a). Retaliation was proscribed in all events. See,
Cite as: 553 U. S. ____ (2008) 11
ROBERTS, C. J., dissenting
e.g., §§713.219(a) and (c) (incorporating Part 771 antire-
taliation provisions to complaint procedures except certain
appeals to CSC); §§771.105(a)(1) and (b)(1), 771.211(e)
(antiretaliation provisions for CSC appeals).
In 1972, Congress applied Title VII to the federal-sector,
Equal Employment Opportunity Act of 1972 (EEO Act),
§11, 86 Stat. 111, mandating that “[a]ll personnel actions”
with respect to federal employees “shall be made free from
any discrimination based on race, color, religion, sex, or
national origin.” 42 U. S. C. §2000e–16(a). Congress
empowered the CSC “to enforce the provisions of subsec-
tion (a) through appropriate remedies,” and to “issue such
rules, regulations, orders and instructions as it deems
necessary and appropriate to carry out its responsibilities
under this section.” §2000e–16(b).
Under this grant of authority, as well as its prior au-
thority under statute and executive order, the CSC revised
its regulations both “to implement the [EEO Act] and to
strengthen the system of complaint processing.” 37 Fed.
Reg. 22717 (1972) (Part 713 Subpart B). As with its prior
system of administrative enforcement, the CSC distin-
guished between “complaints of discrimination on grounds
of race, color, religion, sex, or national origin,” 5 CFR
§713.211 (1973), on the one hand, and charges by a “com-
plainant, his representative, or a witness who alleges
restraint, interference, coercion, discrimination, or repri-
sal in connection with the presentation of a complaint,”
§713.262(a), on the other. The regulations imposed upon
employing agencies the obligation of “timely investigation
and resolution of complaints including complaints of coer-
cion and reprisal,” 37 Fed. Reg. 22717; see also 5 CFR
§713.220, and made clear the procedures for processing
retaliation claims, §§713.261, 713.262. The regulations
further mandated that the CSC “require the [employing]
agency to take whatever action is appropriate” with re-
spect to allegations of retaliation if the agency itself has
12 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
“not completed an appropriate inquiry,” §713.262(b)(1).
Thus, leading up to the enactment of 29 U. S. C. §633a
in 1974, the CSC’s comprehensive regulatory scheme set
forth a broadly applicable remedy for retaliation against
federal employees for filing complaints or otherwise par-
ticipating in the EEO process. And when Congress em-
powered the CSC in 1974 to “enforce the provisions of
[§633a(a)] through appropriate remedies,” and to “issue
such rules, regulations, orders, and instructions as it
deems necessary and appropriate to carry out its respon-
sibilities” under that statute, §28(b)(2), 88 Stat. 75, the
assumption that Congress expected the CSC to create an
administrative antiretaliation remedy, just as it had for
complaints of discrimination under Title VII, is compel-
ling. And sure enough, the CSC did just that promptly
after §633a was enacted. See 39 Fed. Reg. 24351 (1974); 5
CFR §713.511 (1975).
Given this history of addressing retaliation through
administrative means, combined with the complicated
nature (relative to the private sector) of federal personnel
practices, it is therefore by no means anomalous that
Congress would have dealt with the “primary objective” of
combating age discrimination through a judicial remedy,
Burlington, 548 U. S., at 63, but left it to expert adminis-
trators used to dealing with personnel matters in the
federal work force to “secure that primary objective by
preventing an employer from interfering (through retalia-
tion) with an employee’s efforts to secure or advance en-
forcement of the Act’s basic guarantees,” ibid.
B
The majority discounts the above argument as “unsup-
ported speculation.” Ante, at 14. It seems to me that the
fact that the Executive Branch had always treated dis-
crimination and retaliation as distinct, and that it enacted
administrative remedies for retaliation almost immedi-
Cite as: 553 U. S. ____ (2008) 13
ROBERTS, C. J., dissenting
ately after the passage of the Title VII and ADEA federal-
sector provisions, provide plenty of support. But even if
the majority is right, the view that Congress intended to
treat retaliation for age discrimination complaints as a
problem to be dealt with primarily through administrative
procedures, rather than through the judicial process in the
first instance, is confirmed by Congress’s passage of the
Civil Service Reform Act of 1978 (CSRA), 92 Stat. 1111.
The CSRA, as amended, has a detailed comprehensive
antiretaliation provision, which generally makes it unlaw-
ful for Executive Branch employers to
“take or fail to take, or threaten to take or fail to take,
any personnel action against any employee or appli-
cant for employment because of . . . (A) the exercise of
any appeal, complaint, or grievance right granted by
any law, rule, or regulation [or] (B) testifying for or
otherwise lawfully assisting any individual in the ex-
ercise of any right referred to in subparagraph (A).” 5
U. S. C. §2302(b)(9).3
This antiretaliation provision, which plainly applies to
retaliation for exercising rights under the civil rights
statutes, including the ADEA, is supported by a host of
administrative remedies. If the alleged retaliation results
in adverse actions such as removal, suspension for more
than 14 days, or reduction in pay, see §7512, an appeal
can be taken directly to the Merit Systems Protection
Board (MSPB), §§7513(d), 7701, with judicial review in the
United States Court of Appeals for the Federal Circuit,
——————
3 Neither 29 U. S. C. §633a nor the CSRA cover employees of Con-
gress or of the Executive Office of the President and Executive Resi-
dence of the White House. See §633a(a); 5 U. S. C. §2302(a)(2)(B). But
Congress has expressly extended the protections of the ADEA to such
employees, 2 U. S. C. §1311(a)(2) (Congress); 3 U. S. C. §411(a)(2)
(White House), and provided them with an express retaliation remedy,
2 U. S. C. §1317; 3 U. S. C. §417(a).
14 GOMEZ-PEREZ v. POTTER
ROBERTS, C. J., dissenting
§7703(b)(1). Retaliation claims based on less serious
allegations are first investigated by the Office of Special
Counsel. If the Office finds that there are reasonable
grounds supporting the retaliation charge, it must report
its determination to, and may seek corrective action from,
the MSPB. §§1214(a)(1)(A), (b)(2)(B), (C), and 1214(c).
Again, judicial review in the Federal Circuit is available.
§7703(b)(1). In all events, upon a finding that retaliation
has in fact occurred, the MSPB has the authority to order
corrective action, §§1214(b)(4), 7701(b)(2), to order attor-
ney’s fees on appeal, §7701(g), and to discipline federal
employees responsible for retaliatory acts, §1215.4
To be sure, the CSRA was enacted after §633a. Never-
theless, we have explained, in the same context of federal
employee remedies, that the “classic judicial task of recon-
ciling many laws enacted over time, and getting them to
‘make sense’ in combination, necessarily assumes that the
implications of a statute may be altered by the implica-
tions of a later statute.” United States v. Fausto, 484 U. S.
439, 453 (1988). That is precisely the situation here.
Indeed, this is particularly true with respect to Con-
gress’s regulation of federal employment. We have ex-
plained that the CSRA is an “integrated scheme of admin-
istrative and judicial review, designed to balance the
legitimate interests of the various categories of federal
employees with the needs of sound and efficient admini-
stration.” Id., at 445. Perhaps the CSRA’s “civil service
remedies [are] not as effective as an individual damages
remedy” that can be obtained in federal court, Bush, 462
U. S., at 372, or perhaps a quicker and more familiar
administrative remedy is more effective as a practical
——————
4 The Postal Service—Gomez-Perez’s employer—operates under its
own personnel system. But the Postal Service’s Employee and Labor
Relations Manual (ELM) prohibits “any action, event, or course of
conduct that . . . subjects any person to reprisal for prior involvement in
EEO activity.” ELM §665.23, pp. 681–682 (June 2007).
Cite as: 553 U. S. ____ (2008) 15
ROBERTS, C. J., dissenting
matter. That is not the issue. Cf. id., at 388 (the question
whether a judicial remedy against a federal employer for a
First Amendment violation should be implied “obviously
cannot be answered simply by noting that existing reme-
dies do not provide complete relief for the plaintiff”). The
CSRA establishes an “elaborate, comprehensive scheme
that encompasses substantive provisions forbidding
arbitrary action by supervisors and procedures—
administrative and judicial—by which improper action
may be redressed.” Id., at 385. Retaliation as a general
matter was already addressed for federal employees. I
would not read into §633a a judicial remedy for retaliation
when Congress—which has “developed considerable fa-
miliarity with balancing governmental efficiency and the
rights of employees,” id., at 389—chose to provide a de-
tailed administrative one.
* * *
The question whether a ban against “discrimination
based on” a protected status such as age can also be read
to encompass a ban on retaliation can be answered only
after careful scrutiny of the particular provision in ques-
tion. In this case, an analysis of the statutory language of
§633a and the broader scheme of which it is a part con-
firms that Congress did not intend implicitly to create a
judicial remedy for retaliation against federal employees,
when it did so expressly for private-sector employees.
Congress was not sloppy in creating this distinction; it did
so for good reason: because the federal workplace is gov-
erned by comprehensive regulation, of which Congress
was well aware, while the private sector is not.
For these reasons, I would affirm the judgment of the
Court of Appeals.
Cite as: 553 U. S. ____ (2008) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1321
_________________
MYRNA GOMEZ-PEREZ, PETITIONER v. JOHN E.
POTTER, POSTMASTER GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 27, 2008]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting.
I join all but Part I of THE CHIEF JUSTICE’s dissent. I
write separately to reiterate my view that Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167 (2005), incorrectly
conflated the concepts of retaliation and discrimination.
The text of the federal-sector provision of the Age Dis-
crimination in Employment Act of 1967 is clear: It prohib-
its only “discrimination based on age.” 29 U. S. C.
§633a(a) (2000 ed., Supp. V). If retaliation is not “dis-
crimination on the basis of sex,” Jackson, supra, at 185
(THOMAS, J., dissenting), or “discrimination based on
race,” CBOCS West, Inc. v. Humphries, ante, at 4
(THOMAS, J., dissenting), it is certainly not “discrimination
based on age.” Because §633a(a) provides no basis for
implying a private right of action for retaliation claims,
and its context only reaffirms its plain meaning, see ante,
at 5–9 (opinion of ROBERTS, C. J.), I would affirm the
judgment below.