Myrna Gómez-Pérez, a window distribution clerk from Puerto Rico, filed a lawsuit in District Court claiming that the U.S. Postal Service retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age.
The District Court ruled in favor of USPS holding that “the United States had not waived its immunity from suit for retaliation claims.”
The First Circuit Court of Appeals held that the Age Discrimination in Employment Act (ADEA) does not provide a cause of action for retaliation by federal employees.
Applying ADEA Section 15 (29 USC Section 633a), the First Circuit reasoned that the statutory prohibition against “discrimination” does not include a prohibition against retaliation.
The attorneys for the USPS argued (in its petition against certifying this case to the Supreme Court)
The CSRA excludes many USPS employees from its protections. But those employees are protected against retaliation by USPS regulations and collective bargaining agreements. The Postal Service ELM prohibits “any action, event, or course of conduct that * * * subjects any person to reprisal for prior involvement in EEO ac tivity.” ELM § 665.23, at 688. That prohibition applies to employees who work under a collective bargaining agreement as well as those who do not. See, e.g., Agreement Between the USPS and the National Postal Mail Handlers Union art. 19 (2000) (Mail Handlers Agreement) <http://www.npmhu.org/Resource/Agreement/ USPSNPMHU2000NationalAgreement.pdf>; Harrell v. USPS, 445 F.3d 913, 922-923 (7th Cir), cert. denied, 127 S. Ct. 845 (2006). Employees who work under a collective bargaining agreement also are protected from discipline that is not “for just cause,” and retaliation for filing an ADEA claim would not constitute just cause. See Mail Handlers Agreement art. 16; USPS & American Postal Workers Union, National Collective Bargaining Agreement art. XVI (July 20, 1971) <http://www.apwu.org/dept/ind-rel/sc/oldcbas/ APWU%20Contract%201971-1973.pdf>.
In granting certiorari, the United States Supreme Court has agreed to address whether the federal-sector provision of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. 633a, prohibits retaliation against employees who complain of age discrimination.
Myrna Gomez-Perez was a window distribution clerk for the USPS. In November 2002, she requested a transfer from a position at the Moca, Puerto Rico Post Office to a position at the Dorado, Puerto Rico Post Office–but Gomez-Perez’s supervisor denied that request. She filed an equal employment opportunity complaint with the USPS, alleging that she had been discriminated against on the basis of age. Gomez-Perez alleged that after she filed that complaint, she was subjected to various forms of retaliation.
Related link: Postal Employees Know Your Rights –
From Don Cheney: the clerk asked for a transfer to another post office 69 miles away (about a 1 hour 15 minute drive according to my Microsoft Streets & Trips) to be closer to her mother. The mother was ill and needed help. Apparently this clerk had never heard of FMLA leave! To her surprise the former post office wouldn’t take her back one month later. In fact her FTR duty assignment was reverted and filled with a PTF. This happens everywhere and is not unusual.
What IS surprising to me is that her attorney failed to cite the agency’s own regulations in her appeal and instead relied solely on the ADEA statute itself. Big mistake! ELM 665.23, 666.12b, 666.17 and 672.1d all prohibit reprisal in the USPS for protected activities. ELM 672.1d specifically includes the ADEA! The lesson here is that employees should become more informed and take the time to read their union magazine, the ELM or even the posters on their bulletin boards.
Note: Gomez-Perez’s attorney, Sidley Austin also represented former Postal Official Azeezaly Jaffer.