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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
Edelmiro A. Salas-González, with whom José L. Ramírez-de León
were 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.
February 9, 2007
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Myrna Gómez-Pérez ("Gómez")
was a window distribution clerk for the United States Postal
Service ("USPS"). Gómez alleges that she was subject to
retaliatory treatment after filing an age discrimination complaint
against her supervisors. She then filed suit against the USPS and
John Potter ("Potter") in his capacity as Postmaster General,
alleging, inter alia, violations of Section 15 of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a. The
district court granted summary judgment to the USPS and Potter on
Gómez's ADEA claim on the ground that the United States had not
waived sovereign immunity as to retaliation claims under the ADEA.
Gómez appeals from this decision. After careful consideration, we
conclude that the USPS and Potter have waived sovereign immunity
with respect to ADEA suits, but that Section 15 of the ADEA does
not provide a cause of action for retaliation by federal employers.
I. Background
We briefly recount the facts relevant to Gómez's claim.
Gómez began working for the USPS in New York in 1987. In 1995,
Gómez was transferred to the Caribbean District, and began working
in Puerto Rico. Gómez was working at the Dorado Post Office in
October 2002 as a full-time window distribution clerk when she
requested a transfer to the Moca Post Office in order to be closer
to her mother, who was ill. Gómez's supervisor approved the
transfer, and Gómez began working at the Moca Post Office as a
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part-time window distribution clerk. Approximately one month
later, in November 2002, Gómez requested a transfer back to the
Dorado Post Office as a full-time window distribution clerk. On
the same day, Gómez's supervisor converted the Dorado window
distribution clerk position to a part-time position and filled it
with another employee. Gómez's supervisor denied Gómez's transfer
request.
After filing a grievance (which was denied), Gómez filed
an equal employment opportunity complaint with the USPS, alleging
that she had been discriminated against on the basis of her age.
Gómez was forty-five years old at the time. After Gómez filed her
complaint, she alleges that she was subject to various forms of
retaliation. Gómez alleges that her supervisor called her to
meetings during which groundless complaints were leveled against
her. In addition, Gómez alleges that USPS posters related to
sexual harassment were defaced and that her name was written on the
posters. Gómez also alleges that her supervisors complained that
she was sexually harassing her co-workers, when in fact she was
not. Gómez states that her co-workers began to harass her and tell
her to "go back where you belong." Finally, Gómez states that her
work hours were drastically reduced after she filed the complaint.
Gómez filed suit against the USPS and Potter (in his
official capacity) in the United States District Court for the
District of Puerto Rico on November 11, 2003, alleging, inter alia,
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that she had been retaliated against for filing her EEO Complaint,
and that this retaliation constituted a violation of the ADEA, 29
U.S.C. § 633a. On July 7, 2005, the USPS and Potter filed a motion
for summary judgment. The court referred the matter to a
magistrate judge, and on January 30, 2006, the magistrate judge
issued a report and recommendation that the motion for summary
judgment be granted on the grounds that the United States had not
waived sovereign immunity for retaliation suits under the ADEA.
Gómez filed an objection to the report and recommendation, but the
district court adopted it and granted summary judgment to the USPS
and Potter on February 28, 2006. Gómez now appeals from the grant
of summary judgment.
II. Discussion
We review a grant of summary judgment de novo, construing
the evidence in the light most favorable to the non-movants.
Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).
Summary judgment is appropriate only if there is no genuine issue
of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c).
A. Sovereign Immunity
The United States is entitled to immunity from suit
without its consent. Muirhead v. Mecham, 427 F.3d 14, 17 (1st Cir.
2005); see also United States v. Horn, 29 F.3d 754, 761-62 (1st
Cir. 1994) (discussing the historical background of sovereign
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immunity). Although the USPS is independent from the executive
branch, the Supreme Court has held that the Postal Service enjoys
the federal government's immunity from suit because of its
significant government powers. Dolan v. U.S. Postal Serv., 126 S.
Ct. 1252, 1255-56 (2006). Potter, in his official capacity as
Postmaster General, enjoys similar immunity. See Loeffler v.
Frank, 486 U.S. 549, 562 n.8 (1988) ("Whenever the head of the
Postal Service acts in his official capacity, he is acting in the
name of the Postal Service. Thus, here . . . the acts of the named
defendant are always chargeable as acts of the person or entity
subject to the [waiver of immunity]."). Therefore, in order for
Gómez to bring suit against the USPS and Potter, we need to find an
"unequivocal" waiver of immunity that is expressed in "specific"
statutory language. United States v. Mitchell, 445 U.S. 535, 538
(1980); United States v. King, 395 U.S. 1, 4 (1969). The Postal
Reorganization Act, however, generally "waives the immunity of the
Postal Service from suit by giving it the power 'to sue and be
sued' in its official name." U.S. Postal Serv. v. Flamingo Indus.
Ltd., 540 U.S. 736, 744 (2004) (quoting 39 U.S.C. § 401(1)).
Accordingly, sovereign immunity does not present a bar to bringing
an ADEA suit against the USPS or Potter.
B. Substantive Cause of Action
Our inquiry does not end here. As the Supreme Court
stated in Flamingo Industries, once we have determined that
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sovereign immunity has been waived, we must proceed to determine
whether "the substantive law in question is . . . intended to reach
the federal entity." Id. Thus, we must determine whether Congress
intended for the ADEA's prohibition on "discrimination based on
age" to allow a plaintiff to bring a cause of action against the
federal government for retaliation.
We begin with the plain text of § 633a; we "presume that
a legislature says in a statute what it means and means in a
statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S.
249, 253-54 (1992). Section 633a(a) states: "All 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." The text of § 633a clearly prohibits discrimination
against federal employees (over forty years old) based on age, but
says nothing that indicates that Congress meant for this provision
to provide a cause of action for retaliation for filing an age-
discrimination related complaint. The question is, did Congress
mean "discrimination and retaliation" when it said
"discrimination"?
The difference between these two causes of action is
clear, and was recently explained in the context of Title VII by
the Supreme Court in Burlington N. & Santa Fe Ry. v. White:
The anti-discrimination provision seeks a
workplace where individuals are not
discriminated against because of their racial,
ethnic, religious, or gender-based status.
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The anti-retaliation provision seeks to secure
that primary objective by preventing an
employer from interfering (through
retaliation) with an employee's efforts to
secure or advance enforcement of the Act's
basic guarantees. The substantive provision
seeks to prevent injury to individuals based
on who they are, i.e., their status. The
anti-retaliation provision seeks to prevent
harm to individuals based on what they do,
i.e., their conduct.
126 S. Ct. 2405, 2412 (2006) (internal citations omitted). The
clear difference between a cause of action for discrimination and
a cause of action for retaliation leads to the conclusion that if
Congress had meant to provide for both causes of action, it would
have said so explicitly in § 633a.
Gómez responds that, notwithstanding the differences
between discrimination and retaliation, the Court also recently
held in Jackson v. Birmingham Bd. of Educ., 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 violation of Title IX." 544 U.S. 167, 174
(2005) (emphasis omitted). Gómez argues that the logic the Court
used in Jackson to find that a retaliation cause of action could be
implied from a statute which prohibited only "discrimination" is
equally applicable to the ADEA: retaliation is an intentional act,
it is discriminatory in that it treats the complainant differently
than others, and it is discrimination "based on" age because the
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nature of the complaint (for which the defendant is retaliating) is
age discrimination. Id. at 173-74.
We are not persuaded by this argument. First, we note
that in Jackson, the Court was interpreting a judicially-created
cause of action that was implied from Title IX of the Civil Rights
Act of 1964. Id. at 173 (citing Cannon v. University of Chicago,
441 U.S. 677, 690-93 (1979)). The Court is the primary entity
involved in "defin[ing] the contours of that right of action."
Jackson, 544 U.S. at 173. Here, we are constrained by the fact
that Congress explicitly created a statutory cause of action in
§ 633a, but did not include retaliation in that cause of action.
The Court specifically noted this difference in Jackson when
rejecting comparisons between Title IX and Title VII. Id. at 175
("Title IX is a broadly written general prohibition on
discrimination . . . . By contrast, Title VII spells out in
greater detail the conduct that constitutes discrimination."). In
addition, the Supreme Court premised its holding in Jackson
partially on the fact that Title IX prohibits discrimination in
educational institutions, and that a retaliation cause of action
would protect "teachers and coaches," who themselves were not the
targets of discrimination, but who "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." Jackson, 544 U.S. at 181. Outside of the
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educational context, this is not necessarily true; employees such
as Gómez can hardly argue that their co-workers are often in the
best position to identify instances of age discrimination and bring
it to the attention of supervisors. Finally, the Court stated in
Jackson that Title IX was adopted in response to the Court's
holding in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229
(1969), in which the Court upheld a cause of action for retaliation
for speaking out against race discrimination. Jackson, 544 U.S. at
179-80. Here, there is no evidence in the legislative history that
the ADEA's federal sector provisions were adopted in a similar
context of claims by federal employees for retaliation for speaking
out against age discrimination. See, e.g., H.R. Rep. 93-913
(1974), as reprinted in 1974 U.S.C.C.A.N. 2811, 2850 (stating only
that "[t]he committee expects that expanded coverage under the
[ADEA] will remove discriminatory barriers against employment of
older workers in government jobs"). Thus, neither the nature of
the statute interpreted nor the policies discussed in Jackson
justify extending its holding to the ADEA.
We also consider the legislative structure in determining
congressional intent. See Doe v. Boston Pub. Schs., 358 F.3d 20,
26 (1st Cir. 2004). We begin by noting that 29 U.S.C. § 623(d),
the parallel ADEA provision governing private employers, does
provide an explicit cause of action for retaliation:
It shall be unlawful for an employer to
discriminate against any of his employees
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. . . 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 litigation under
this Chapter.
No equivalent provision exists for federal employees. We generally
presume that when "Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, . . . Congress acts intentionally and purposely in the
disparate inclusion or exclusion." Russello v. United States, 464
U.S. 16, 23 (1983) (internal citation and quotation marks omitted);
see also Nowd v. Rubin, 76 F.3d 25, 27-28 (1st Cir. 1996). The
absence of statutory language providing a claim for retaliation in
§ 633a, when compared with the explicit prohibition on retaliation
in § 623(d), further supports the conclusion that Congress intended
for the ADEA to prohibit retaliation by private employers, but not
by federal employers.
Gómez responds that the D.C. Circuit, in Forman v. Small,
found that the difference between the private and public sector
provisions was not dispositive.1 271 F.3d 285, 296 (D.C. Cir.
2001) The D.C. Circuit suggested that it would be "difficult to
1
The issue in Forman was not whether § 633a included a
substantive cause of action for retaliation, but rather whether
sovereign immunity had been waived. 271 F.3d at 296. However, as
a precursor to finding a waiver of sovereign immunity in § 633a,
the D.C. Circuit found that § 633a provided for a retaliation cause
of action.
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imagine how a workplace could be 'free from any discrimination
based on age' if, in response to an age discrimination claim, a
federal employer could fire or take other action that was adverse
to an employee." Id. at 297. As such, they concluded that
"[n]othing in the plain language of § 633a suggests that Congress
intended the federal workplace to be less free of age
discrimination than the private workplace." Id.
We must respectfully disagree with our brethren on the
D.C. Circuit. First, we note that the proper inquiry is not
whether the statute shows that Congress intended to limit the scope
of § 633a, but rather whether Congress intended to provide for a
retaliation cause of action in § 633a in the first place. See
Iverson v. City of Boston, 452 F.3d 94, 100 (1st Cir. 2006) ("[A]
private right of action may be conceived only by a statute that
clearly evinces congressional intent to bestow such a right.").
Furthermore, although Forman relied heavily on the Supreme Court's
holding in Lehman v. Nakshian, 453 U.S. 156 (1981), Lehman
expressly adopted the reasoning we apply here, that "Congress . . .
demonstrated that it knew how to provide a statutory right . . .
when it wished to do so elsewhere in the very 'legislation cited.'"
Id. at 162. Finally, we disagree with the D.C. Circuit's
conclusion in Forman that the similarities between the provisions
affecting federal employees in the ADEA and Title VII justify a
finding that § 633a contains a retaliation provision. Although we
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acknowledge that § 633a is "patterned directly after § 717 (a) and
(b) of the Civil Rights Act of 1964," Lehman, 453 U.S. at 167 n.15,
we see a significant difference between the two statutes. In Title
VII, Congress intended for 42 U.S.C. § 2000e-16, the provision
applicable to federal employees, to incorporate the provisions
applicable to the private sector, including the private-sector
anti-retaliation provision. See, e.g., Ayon v. Sampson, 547 F.2d
446, 450 (9th Cir. 1976) ("[I]t is clear that Congress incorporated
the [private-sector] protections against retaliation in its
enactment of § 2000e-16."). In stark contrast, the provisions of
the ADEA that apply to federal employees state that "[a]ny
personnel action of any department, agency, or other entity
referred to in subsection (a) of this section shall not be subject
to, or affected by, any provision of this Chapter." 29 U.S.C.
§ 633a(f). The court in Forman stated that § 633a(f) presents
"somewhat of a red herring." 271 F.3d at 298. However, we
generally engage the presumption that statutes do not contain
surplusage. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126
S. Ct. 2455, 2460 (2006). Here, it is quite easy to see why
Congress might have included § 633a(f) in the ADEA: it did not want
the expansive private-sector provisions of the ADEA extended to
federal employees. See, e.g., Lehman, 453 U.S. at 162 (finding
that Congress did not intend for § 626(c), which provides for jury
trials in private-sector age discrimination suits, to apply to
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federal employees); id. at 168 ("[Section 633a(f)] clearly
emphasized that [§ 633a] was self-contained and unaffected by other
sections, including those governing procedures applicable in
actions against private employers"); Nowd, 76 F.3d at 28 (deciding
that § 626(b), which provides for the recovery of attorneys fees in
private-sector age discrimination suits, does not apply to federal
employees).
Accordingly, we decide that Congress did not intend for
29 U.S.C. § 633a to include a cause of action for retaliation as
the result of having filed an age-discrimination related complaint.
Because Gómez had no cause of action under § 633a for retaliation
against the USPS or Potter, the district court properly dismissed
her complaint.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
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