(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 employer had violated the federal-sector provision of the Age Discrimination 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 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, 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 prohibits “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 athletic 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 distinguish 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 prohibition reaches a particular form of conduct. Moreover, confusing

these questions would lead to exceedingly strange results. For example, Title IX’s prohibition of “ discrimination” “on the basis of sex” 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. Pp. 6–7.

(2) Also unavailing is the Circuit’s attempt to distinguish Jackson on the ground that retaliation claims play a more important role

under Title IX than under the ADEA. This argument ignores the basis 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 position 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 “ ‘realistic 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 relationship between Sullivan and §633a’s enactment, since the latter provision 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 individuals 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 forbidden 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 coverage to persons at least 40 years old. Respondent’s contention that 

recognizing federal-sector retaliation claims would make §623(d) applicable 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 federalsector age discrimination and be the exclusive avenue for asserting

retaliation claims. This argument is not supported by direct evidence, but rests on unsupported speculation, and, in any event, is 

self-contradictory in that, if §633a(a) does not confer an antiretaliation 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 substantive age discrimination but not retaliation—is unpersuasive. The 

rule of construction requiring that “[a] waiver of the Federal Government’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 applies 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, KENNEDY, 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, Washington, 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 complaint of age discrimination may assert a claim under the 

federal-sector provision of the Age Discrimination in Employment 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 distribution 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 requested a transfer to the Post Office in Moca, Puerto Rico, 

in order to be closer to her mother, who was ill. The transfer 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 seeking a transfer back to her old job, petitioner filed a Postal

Service equal employment opportunity age discrimination 

complaint. According to petitioner, she was then subjected to various forms of retaliation. Specifically, petitioner 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 harassment, that her co-workers told her to “‘go back’” to where

she “‘belong[ed],’” and that her work hours were drastically 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, claiming, 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 complaint. Respondent moved for summary judgment, arguing that the United States has not waived sovereign immunity 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 antidiscrimination 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 subsequently 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 vindicate the rights of minorities” and would have given “impetus 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 discrimination 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 program 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 ‘discrimination’ because the complainant is being subjected to

differential treatment. Moreover, retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation 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 violation 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 (“discrimination 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 prohibiting discrimination.

The Jackson dissent strenuously argued that a claim of 

retaliation is conceptually different from a claim of discrimination, 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. 

—————— 

1Suggesting 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 (dissenting 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 (statusbased ) 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. Similarly, 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 Government 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 retaliation” 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 reasoned 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 explicitly 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 argument 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 context.” 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 interpreted 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 backdrop 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 enactment 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 similarly 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 principally on the presence of a provision in the ADEA specifically prohibiting retaliation against individuals who complain 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. According 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 Respondent 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 together. 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 

—————— 

2The 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 Discrimination 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 national 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 discrimination based on age”). And like the ADEA’s federal­

—————— 

3Section 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 otherwise discriminate against any individual with respect to his compensation, 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 opportunities or otherwise adversely affect his status as an employee, because 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 incorporates certain private-sector provisions but does not 

incorporate the provision prohibiting retaliation in the

private sector. See 42 U. S. C. §2000e–16(d) (incorporating §§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, general 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 

—————— 

4While 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 Petitioner 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. 5The 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 logically 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 provision 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 employees 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 prohibited 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 exclusive 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 actually 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 Commission 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 presumably would have expected the Civil Service Commission to

abide by that policy choice. 

—————— 

6Respondent asks us to infer that §633a(a) (2000 ed., Sup. V) does not

proscribe retaliation because, when Congress made the ADEA applicable 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 discrimination 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 sovereign immunity “require that Section 633a(a) be read narrowly as prohibiting substantive age discrimination, but 

not retaliation.” Id., at 44. Respondent contends that the

broad waiver of sovereign immunity in the Postal Reorganization 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 sovereign.” 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 unequivocally 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 retaliation 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 proceedings 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 encompasses not only claims of age discrimination—which its

language expressly provides—but also claims of retaliation 

for complaining about age discrimination—which its language 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 separate judicial remedy for retaliation under the ADEA. I 

respectfully dissent. 

I 

Congress enacted the Age Discrimination in Employment Act of 1967, 81 Stat. 602, which at the time applied 

only to private employers, with the purpose of “promot[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] employers 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 litigation 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 Executive 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 federalsector provision does not include a separate ban on retaliation. 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 discrimination 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 decisions 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 Amendments 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 

—————— 

1To the extent there was any disagreement about whether Sullivan 

v. Little Hunting Park, Inc., 396 U. S. 229 (1969), was really a retaliation 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 disagreement, 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, includes discrete discrimination and retaliation provisions. 

See 42 U. S. C. §§2000e–2 (discrimination), 2000e–3 (retaliation). We distinguished Title VII on the ground that

“Title IX is a broadly written general prohibition on discrimination,” 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 distinguished Title VII from Title IX in Jackson, we also acknowledged 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 Jackson rejected the view that “a claim of retaliation is conceptually 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 because of their [protected] status. The antiretaliation 

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 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 individuals 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 presumed 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-

—————— 

2The 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 discrimination 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 discrimination 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 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.’” 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 provision—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 differences may not be at its “strongest” under these circumstances, it is certainly strong enough.

Moreover, and more to the point, we have relied on the

differences in language between the federal- and privatesector provisions of the ADEA specifically in our interpretation 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 Government, we relied on the fact that while the ADEA’s federalsector provision did not include a provision for a jury trial,

the analogous grant of a right of action in the privatesector provision, §626(c), “expressly provides for jury trials.” 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 retaliation 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 ‘discrimination 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]mployer practices”), 623(d) (retaliation). Section 633a(a)

phrased the prohibited discrimination in terms of “personnel 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 practices” 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 privatesector provision does. In short, Congress was aware that

there were significant differences between the privateand 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 suggests, 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 express antiretaliation provision, 29 U. S. C. §215(a)(3).

Congress did not similarly subject the Federal Government to the express antiretaliation provision in the ADEA, 

strongly suggesting that this was a conscious choice. 

The majority responds that this “inference . . . is unfounded” 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 provision, 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 prohibition against discrimination in federal employment, without an antiretaliation provision, see §28(b)(2), ibid. This 

decision evinces a deliberate legislative choice not to extend those portions of the ADEA’s private-sector provisions 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 workers. Congress was quite familiar with that detailed administrative system—one that already existed for most

federal employees, but not for private ones. This approach, 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 conflicting 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 appropriate 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 discriminatory acts, including “personnel action[s],” 5 CFR

§§713.211, 713.214(a)(1)(i) (1972). These regulations further provided that such complainants, their 

representatives, and witnesses “shall be free from 

restraint, interference, coercion, discrimination, or reprisal” for their involvement in the complaint process. §§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 antiretaliation protections. More serious personnel actions, known 

as “adverse actions,” could be challenged before the employing 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 concern or dissatisfaction” could be challenged under alternative 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 antiretaliation 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 subsection (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 authority 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 distinguished 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 “complainant, his representative, or a witness who alleges

restraint, interference, coercion, discrimination, or reprisal 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 coercion 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 respect 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 participating in the EEO process. And when Congress empowered 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 responsibilities” 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 compelling. 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 administrators used to dealing with personnel matters in the

federal work force 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,” ibid. 

B 

The majority discounts the above argument as “unsupported speculation.” Ante, at 14. It seems to me that the 

fact that the Executive Branch had always treated discrimination 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 federalsector 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 unlawful 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 applicant 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 exercise 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, 

—————— 

3Neither 29 U. S. C. §633a nor the CSRA cover employees of Congress or of the Executive Office of the President and Executive Residence 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 attorney’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. Nevertheless, we have explained, in the same context of federal 

employee remedies, that the “classic judicial task of reconciling 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 implications 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 Congress’s regulation of federal employment. We have explained that the CSRA is an “integrated scheme of administrative and judicial review, designed to balance the

legitimate interests of the various categories of federal 

employees with the needs of sound and efficient administration.” 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 

—————— 

4The 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 remedies 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 familiarity with balancing governmental efficiency and the

rights of employees,” id., at 389—chose to provide a detailed 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 question. In this case, an analysis of the statutory language of

§633a and the broader scheme of which it is a part confirms 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 governed 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 Discrimination in Employment Act of 1967 is clear: It prohibits only “discrimination based on age.” 29 U. S. C. 

§633a(a) (2000 ed., Supp. V). If retaliation is not “discrimination 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.