1 (Slip Opinion) OCTOBER TERM, 2007

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


## SUPREME COURT OF THE UNITED STATES

Syllabus

GOMEZ-PEREZ v . POTTER, POSTMASTER GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT

No. 06–1321. Argued February 19, 2008—Decided May 27, 2008

Petitioner, a 45-year-old postal worker, filed suit claiming that her em

ployer had violated the federal-sect or provision of the Age Discrimi

nation in Employment Act of 1967 (ADEA), 29 U. S. C. §633a(a)— which requires that “[a]ll personnel actions affecting employees . . . at least 40 years of age . . . be made free from any discrimination based on age”—by subjecting her to vari ous forms of retaliation after she filed an administrative ADEA complaint. The District Court granted respondent summary judgment. The First Circuit affirmed on the ground that §633a(a)’s prohibition of “discrimination based on age”
does not cover retaliation.

Held: Section 633a(a) prohibits retaliation against a federal employee

who complains of age discrimination. Pp. 3–16.

(a) In so concluding, the Court follows the reasoning of two prior decisions ruling that retaliation is covered by similar language in other antidiscrimination statutes. First, in Sullivan v. Little Hunting Park, Inc. , 396 U. S. 229, 237, the Court held that a retaliation claim could be brought under 42 U. S. C. §1982, which provides that “[a]ll citizens . . . shall have the same right . . . as is enjoyed by white citi

zens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property.” While §1982 does not use the phrase “discrimi

nation based on race,” that is its plain meaning. See, e.g., Jackson v. Birmingham Bd. of Ed. , 544 U. S. 167, 177. Second, the Jackson Court, id., at 173–174, relied on Sullivan in holding that Title IX of the Education Amendments of 1972, 20 U. S. C. §1681(a), which pro

hibits “discrimination” “on the basis of sex” in educational programs receiving federal aid, reached reta liation against a public school teacher for complaining about sex di scrimination in his school’s ath

letic program. 544 U. S., at 176–177. The ADEA language at issue2 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 ai med at prohibiting discrimination. Respondent neither asks the Court to overrule Sullivan or Jackson nor questions those decisions’ reas oning, 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 th e First Circuit sought to distin

guish Jackson in support of the Circuit’s perception that there is a
clear difference between causes of action for discrimination and for retaliation are not persuasive. Pp. 6–9. (1) The Circuit places too much reliance on the fact that the ADEA expressly creates a private righ t 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 interp retation of Title IX improperly conflates the analytically distinct questions whether a statute confers a private right of action and whet her the statute’s substantive prohi

bition reaches a particular form of conduct. Moreover, confusing these questions would lead to exceed ingly strange results. For exam

ple, Title IX’s prohibition of “ dis crimination” “on the basis of sex” ei

ther does or does not reach retaliat ion, and the presence or absence of another statutory provision expressly creating a private right of ac

tion cannot alter §1681(a)’s scope. Pp. 6–7. (2) Also unavailing is the Circuit’s attempt to distinguish Jackson on the ground that retaliation claims play a more important role
under Title IX than under the ADEA. This argument ignores the ba

sis for Jackson , which did not hold that Ti tle IX prohibits retaliation because such claims are important as a policy matter, but, instead, relied on an interpretation of the “text of Title IX.” 544 U. S., at 173,

178. Jackson ’s statement that “teachers . . . are often in the best po

sition to vindicate [student] rights,” id., at 181, did not address the question whether the statutory te rm “discrimination” encompasses retaliation, but was made in response to the school board’s argument that only a “victim of the discrimina tion,” 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 me rely observed that because “Con

-3 Cite as: 553 U. S. ____ (2008)

Syllabus

gress enacted Title IX just three years after Sullivan,” it was “ ‘realis

tic to presume that Congress was thoroughly familiar with [Sullivan] and . . . expected [Title IX] to be interpreted in conformity with [it].” 544 U. S., at 176. What Jackson said about the relationship between
Sullivan and Title IX’s enactment can also be said about the relation

ship between Sullivan and §633a’s enactment, since the latter provi

sion was enacted just five years after Sullivan was decided and two years after Title IX was enacted. Pp. 8–9.

(c) Respondent’s other argument s 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 specifica lly prohibiting retaliation against individu

als complaining about private-sector age discrimination, §623(d), and the absence of a similar provision in §633a. Because §§623 and 633a were enacted seven years apart rather than simultaneously, see
Lindh v. Murphy , 521 U. S. 320, 330, and because they are couched in very different terms—with §§623(a)(1)–(3) listing specific forbid

den employer practices in contrast to §633a(a)’s broad prohibition of “discrimination”—the absence of a federal-sector provision similar to §623(d) does not provide a sufficient reason to depart from Sullivan
and Jackson . Pp. 10–12. (2) There is even less merit in respondent’s reliance on §633a(f), which provides that personnel actions by a federal entity covered by §633a “shall not be subject to, or affected by, any provision of this chapter” other than §633a and §631(b), which restricts ADEA cover

age to persons at least 40 years ol d. Respondent’s contention that recognizing federal-sector retaliation claims would make §623(d) ap

plicable to federal-sector employer s 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-ex isting reprisal regulations of theCivil 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 evi

dence, but rests on unsupported spec ulation, and, in any event, is self-contradictory in that, if §633a(a) does not confer an antiretalia

tion right, there is no reason to assume that Congress expected the CSC to issue new regulations prohib iting retaliation. Pp. 13–14. (4) Respondent’s final argume nt—that sovereign immunity prin

-4 GOMEZ-PEREZ v. POTTER

Syllabus

ciples require that §633a(a) be read narrowly as prohibiting substan

tive age discrimination but not retaliation—is unper suasive. The rule of construction requiring that “[a] waiver of the Federal Gov

ernment’s sovereign immunity . . . be unequivocally expressed in statutory text” and “strictly construed . . . in favor of the sovereign,”

Lane v. Peña , 518 U. S. 187, 192, is satisfied here by §633a(c), which unequivocally waives sovereign immunity for a claim brought by “[a]ny person aggrieved” by a §633a violation. Unlike §663a(c), §633a(a) is not a waiver of sovere ign immunity; it is a substantive provision outlawing “discrimination.” That the §633a(c) waiver ap

plies to §633a(a) claims does not mean that §633a(a) must surmount the same high hurdle as §633a(c). Pp. 15–16.

476 F. 3d 54, reversed and remanded.

A LITO

, J., delivered the opinion of the Court, in which S TEVENS , K EN

NEDY , S OUTER , G INSBURG

, and B REYER

, JJ., joined. R OBERTS

, C. J., filed a dissenting opinion, in which S CALIA and T HOMAS

, JJ., joined as to all
but Part I. T HOMAS

, J., filed a dissenting opinion, in which S CALIA

, J., joined._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

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 tonotify 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]

J USTICE A LITO delivered the opinion of the Court.
The question before us is whether a federal employeewho is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under thefederal-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 Offi ce 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 with2 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 discriminationcomplaint. According to petitioner, she was then subjected to various forms of reta liation. 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 harassmentposters, 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 Di strict of Puerto Rico, claiming, among other things, that respondent had violated the federal-sector provision of th e ADEA, 29 U. S. C. §633a(a) (2000 ed., Supp. V), by retaliating against her for filing herequal 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 granted3 Cite as: 553 U. S. ____ (2008)

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 priordecisions 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) (S CALIA , 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 corporat ion that operated a park and playground for residents of th e 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 disallowedthe assignment because of Freeman’s race and subsequently expelled Sullivan from the corporation for protest­4 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, wouldhave 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 retaliatedagainst 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, bydefinition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subjected todifferential 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 constitutesintentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” Id. , at 173–174 (citations omitted).5 Cite as: 553 U. S. ____ (2008)

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 proscribingretaliation. 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, allthree cases involve remedial provisions aimed at prohibiting discrimination.
The Jackson dissent strenuously argued that a claim ofretaliation is conceptually different from a claim of discrimination, see 544 U. S., at 184–185 (opinion of T HOMAS

, J.), but that view did not prevail. 1 And respondent in this

case does not ask us to overrule Sullivan or Jackson. Nor does respondent question the reasoning of those decisions.

——————

1 Suggesting that we have retr eated from the reasoning of Sullivan

and Jackson , T HE C HIEF J USTICE , 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 Cong ress 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 priv ate 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 question7 Cite as: 553 U. S. ____ (2008)

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 authorizin g 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 re taliation claim under Title IX, the Federal Government might not be authorized to impose upon an entity that engages in retaliation the administrative remedies, in cluding 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 explic itly 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 addr ess 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 Appeal s attempted to distinguish
Jackson on the ground that “Title IX was adopted in re­9 Cite as: 553 U. S. ____ (2008)

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] andthat 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 “dis crimination 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 notencompass 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 complainabout 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 theAct 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 tworelevant provisions were not considered or enacted together. Section 623(d), which sp ecifically prohibits private sector retaliation, was enacted in 1967, see §4(d), 81 Stat. 603, but the federal-sector provision, §633a, was not added until 1974, see §28(b)(2), 88 Stat. 74. 2 Respondent’s argument is also undermined by the fact that the prohibitory language in the ADEA’s federal-sector provision differs sharply from that in the corresponding

——————

2 The situation here is quite differe nt from that which we faced in

Lehman v. Nakshian , 453 U. S. 156 (1981), where both the private and federal-sector provisions of the AD EA 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 fe deral-sector suits. See Age Discrimination in Employment Act Amen dments of 1978, §4(a)(2), 92 Stat.

189.11 Cite as: 553 U. S. ____ (2008)

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 fede ral-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 anydiscrimination 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 areat least 40 years of age “shall be made free from any discrimination based on age”). And like the ADEA’s federal­

——————

3 Section 623(a) provides:
“(a) Employer practices
“It shall be unlawful for an employer—

“(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privilege s of employment, because of such individual’s age;

“(2) to limit, segregate, or cla ssify his employees in any way which would deprive or tend to deprive an y individual of employment opportunities or otherwise adversely affe ct 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-secto r provisions but does not incorporate the provision prohibiting retaliation in theprivate 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 suffi cient reason to depart from the reasoning of Sullivan and Jackson

. 5

——————

4 While the federal-sector provision of Title VII does not incorporate §2000e–3(a), the federal-sector provis ion 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 Ti tle VII federal-sector provision’s broad prohibition of “discrimination based on race, color, religion, sex, or national origin” to reach retali ation because otherwise there would be no provision banning retaliation in the federal sector and thus noway 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 Ti tle VII bans retaliation in federal employment, see Tr. of Oral Arg. 31, and that issue is not before us in
this case.

5 The Government’s theory that the ab sence 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 age­13 Cite as: 553 U. S. ____ (2008)

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 provisionof this chapter” other than §§633a and 631(b), the provision that restricts the covera ge 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 theADEA 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 fo r Respondent 27. After Title VII was made applicable to federal employment in 1972, see Equal Employment Act, §11, 86 Stat. 111, the CivilService 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 fe deral-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 re taliation 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 reasonto 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 toprovide an antiretaliation right, then Congress presumably would have expected the Civil Service Commission to abide by that policy choice.

——————

6 Respondent asks us to infer that §633a(a) (2000 ed., Sup. V) does notproscribe retaliation because, when Congress made the ADEA applicable to the Federal Government, Congress did not simply subject the Federal Government to the ADEA’s pr ivate-employment provisions by amending the definition of “employe r” 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.15 Cite as: 553 U. S. ____ (2008)

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 thebroad 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 waiverprovision “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 sovere ign 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 sati sfied here. Subsection (c) of §633a unequivocally waives sovereign immunity for a claim brought by “[a]ny pers on 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 reasons16 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 isreversed, and this case is remanded for further proceedings consistent with this opinion.
It is so ordered._________________

_________________ Cite as: 553 U. S. ____ (2008) 1

R OBERTS

, 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]

C HIEF J USTICE R OBERTS , with whom J USTICE S CALIA and J USTICE T HOMAS join as to all but Part I, dissenting.
The Court today holds that the federal-sector provision of the Age Discrimination in Employment Act encom

passes not only claims of age discrimination—which its language expressly provides—but also claims of retaliation for complaining about age discrimination—which its lan

guage does not. Protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case. The separate treatment of each in the private-sector provision
of the ADEA makes that clear. In my view, the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil se rvice process, confirm that Congress did not intend those employees to have a sepa

rate judicial remedy for retaliation under the ADEA. I respectfully dissent.

I
Congress enacted the Age Discrimination in Employ

ment Act of 1967, 81 Stat. 602, which at the time applied only to private employers, with the purpose of “pro

mot[ing] employment of older persons based on their ability rather than age; . . . [o f] prohibit[ing] arbitrary age2 GOMEZ-PEREZ v. POTTER

R OBERTS

, C. J., dissenting

discrimination in employment; [and of] help[ing] employ

ers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. §621(b). The 1967 Act implemented this purpose in two principal ways. First, the statute made it unlawful for an employer to “discriminate against any individual . . . because of such individual’s age.” §623(a)(1). Second, Congress enacted a specific antiretaliation provision, which made it “unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investig ation, proceeding, or litiga

tion under” the ADEA. §623(d).
In the Fair Labor Standards Amendments of 1974 (FLSA Amendments), §28(b)(2), 88 Stat. 74, Congress (among other things) extended the ADEA to most Execu

tive Branch employees by adopting 29 U. S. C. §633a. Like its private-sector count erpart, this federal-sector provision includes a ban on discrimination on the basis ofage. Unlike its private-sector counterpart, the federalsector provision does not include a separate ban on retalia

tion. The federal-sector provision specifies only that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age [in various federal agencies] shall be made free from any discrimina

tion based on age.” §633a(a). Despite the absence of an express retaliation provision in §633a(a), the Court finds that the statute encompasses both discrimination and retaliation claims. To support this proposition, the Court principally relies on our deci

sions in Sullivan v. Little Hunting Park, Inc. , 396 U. S. 229 (1969), and Jackson v. Birmingham Bd. of Ed. , 544
U. S. 167 (2005). In my view, the majority reads these cases for more than they are worth.3 Cite as: 553 U. S. ____ (2008)

R OBERTS

, 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 prop erty, also provides a cause of
action for retaliation. 1 396 U. S., at 237. More recently,

we held in Jackson that Title IX of the Education Amend

ments of 1972, 86 Stat. 373—which provides in relevant part that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U. S. C. §1681(a)—encompasses claims of retaliation for complaints about sex discrimination. 544

U. S., at 173–174. To the extent the majority takes from these precedents the principle that broad antidiscrimination provisions may also encompass an antiretaliation component, I do not disagree. That is why I am able to join today’s opinion in CBOCS West, Inc. v. Humphries, ante , at 14 (holding that a retaliation claim is cognizable under 42 U. S. C. §1981). But it cannot be—contrary to the majority’s apparent
view—that any time Congress proscribes “discrimination based on X,” it means to proscribe retaliation as well. That is clear from the private-sector provision of the ADEA, which includes a ban on “discriminat[ion] against any individual . . . because of such individual’s age,” 29

U. S. C. §623(a)(1), but also includes a separate (and presumably not superfluous) ban on retaliation, §623(d). Indeed, we made this precise observation in Jackson

——————

1 To the extent there was an y disagreement about whether Sullivan

v. Little Hunting Park, Inc. , 396 U. S. 229 (1969), was really a retalia

tion case, or whether it dealt only with third-party standing, the view put forth by the Court won the day in Jackson v. Birmingham Bd. of
Ed. , 544 U. S. 167 (2005). Compare id. , at 176, and n. 1, with id. , at 194 (T HOMAS , J., dissenting). Whatever the merits of this disagree

ment, I accept Jackson ’s (and the Court’s) interpretation as a matter of

stare decisis . See CBOCS West, Inc. v. Humphries, ante , at 3.4 GOMEZ-PEREZ v. POTTER

R OBERTS

, C. J., dissenting

itself. The respondent in that case argued that Title IX’s
ban on discrimination could not include a cause of action for retaliation because Title VII of the Civil Rights Act of 1964, like the private-sector provision of the ADEA, in

cludes discrete discrimination and retaliation provisions. See 42 U. S. C. §§2000e–2 (discrimination), 2000e–3 (re

taliation). We distinguished Title VII on the ground that “Title IX is a broadly written general prohibition on dis

crimination,” while “Title VII spells out in greater detail
the conduct that constitutes discrimination in violation of that statute.” 544 U. S., at 175. Thus, while we distin

guished Title VII from Title IX in Jackson , we also ac

knowledged that not every express ban on discrimination
must be read as a ban on retaliation as well. What is more, although the majority asserts that Jack

son rejected the view that “a claim of retaliation is concep

tually different from a claim of discrimination,” ante , at 5, we have since explained t hat 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 prov ision seeks a workplace where individuals are not discriminated against be

cause of their [protected] status. The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through re

taliation) with an employee’s efforts to secure or ad

vance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to indi

-5 Cite as: 553 U. S. ____ (2008)

R OBERTS

, C. J., dissenting

viduals based on who they are, i.e. , their status. The antiretaliation provision seeks to prevent harm to in

dividuals based on what they do, i.e. , their conduct.”
Id. , at 63 (citation omitted). 2

While I take from Sullivan and Jackson the proposition that broad bans on discrimination, standing alone, may be read to include a retaliation component, the provision at issue here does not stand alone. And, as Jackson itself makes clear, see 544 U. S., at 173, 175, “the words of a

statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury , 489 U. S. 803, 809 (1989). Here the text and structure of the statute, the broader statutory scheme of which it is a part, and distinctions between federal- and private- sector employment convince me that §633a(a) does not provide a cause of action for
retaliation.

II
We have explained that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally pre

sumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United
States , 464 U. S. 16, 23 (1983) (internal quotation marks omitted). If, as the majority holds, the ban on “discrimina

-

——————

2 The Court views this discussion of Burlington as “[s]uggesting that [the Court has] retreated from the reasoning of Sullivan and Jackson .”

Ante , at 5, n. 1. Not a bit. The discussion simply points out what Burlington plainly said: that there is a distinction between discrimina

tion and retaliation claims. That does not mean Congress cannot address both in the same provis ion, 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 ma y choose to separate the two, as the private-sector provis ion of the ADEA, as well as the portion of Title VII interpreted in Burlington , makes clear.6 GOMEZ-PEREZ v. POTTER

R OBERTS

, C. J., dissenting

tion based on age” in §633a(a) encompasses both discrimi

nation and retaliation claims, it is difficult to understand why Congress would have felt the need to specify in §623 separate prohibitions against both “discriminat[ion]” “because of [an] individual’s age,” and retaliation. The majority responds by noting that “ ‘[n]egative impli

cations raised by disparate provisions are strongest’ in
those instances in which the re levant statutory provisions
were ‘considered simultaneou sly when the language rais

ing the implication was inserted.’ ” Ante , at 10 (quoting
Lindh v. Murphy , 521 U. S. 320, 330 (1997)). Here, the majority notes that §623 was enacted in 1967, while §633a was not passed until 1974. Ante , at 10. Fair enough, but while I do not quarrel with this principle as a general matter, I do not think it does the work the majority thinks it does. Congress obviously had the private-sector ADEA provision prominently before it when it enacted §633a, because the same bill that included §633a also amended the private-sector provision. See, e.g., §28(a)(2), 88 Stat. 74 (amending the definition of “employer” in 29 U. S. C. §630(b) to include States and their political subdivisions). Indeed, it is quite odd to assume, as the majority does, see

ante , at 9, 12, that the Congress that enacted §633a was aware of and relied upon our decision in Sullivan —which interpreted 42 U. S. C. §1982, a wholly unrelated provi

sion—but was not attuned to its own work reflected in the differences between 29 U. S. C. §§623 and 633a. Even if the negative implication to be drawn from those differ

ences may not be at its “strongest” under these circum

stances, it is certainly strong enough. Moreover, and more to the point, we have relied on thedifferences in language between the federal- and privatesector provisions of the ADEA specifically in our interpre

tation of §633a. In Lehman v. Nakshian , 453 U. S. 156 (1981), we faced the question whether a person bringing an action under §633a(c), alleging a violation of §633a(a),7 Cite as: 553 U. S. ____ (2008)

R OBERTS

, C. J., dissenting

was entitled to a trial by jury. In holding that there was no jury-trial right available against the Federal Govern

ment, we relied on the fact that while the ADEA’s 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 tri

als.” Id., at 162. We reasoned that “Congress accordingly demonstrated that it knew how to provide a statutory right to a jury trial when it wished to do so elsewhere in the very ‘legislation cited.’ . . . But in [§633a(c)] it failed explicitly to do so.” Ibid. (quoting Galloway v. United
States , 319 U. S. 372, 389 (1943)). So too here. “Congress . . . demonstrated that it knew how to” provide a retalia

tion cause of action “when it wished to do so elsewhere in the very ‘legislation cited,’ ” but “failed explicitly to do so” in §633a(a). The majority argues that th is inference is weakened by the fact that, in “the private-sector provision, Congress set out a specific list of forbidden employer practices,” ante , at 11, while §633a(a) is a “broad, general ban on ‘discrimina

tion based on age,’ ” ante , at 12. This point cuts against the majority. Section 623 drew a distinction between prohibited “employer practices” that discriminate based on age, and retaliation. See §§623(a) (discriminatory “[e]m

ployer practices”), 623(d) (retaliation). Section 633a(a) phrased the prohibited discrimination in terms of “person

nel actions.” Just as Congre ss did not regard retaliation as included within “employer practices,” but dealt with it separately in §623(d), the co unterpart to “employer prac

tices” in §633a—discriminatory “personnel actions”— should similarly not be read to include retaliation. The argument that some meaning ought to attach to Congress’s inclusion of an antiretaliation provision in §623 but not in §633a is further supported by several other factors. To begin with, Congress expressly made clear that the ADEA’s private-sector prov isions should not apply to8 GOMEZ-PEREZ v. POTTER

R OBERTS

, 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 notprovide a right to a jury trial, even though the privatesector provision does. In short, Congress was aware thatthere 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 sug

gests, dealt for the most part not with the ADEA, but with the Fair Labor Standards Act of 1938, extending that statute’s protections to fe deral employees. See FLSA Amendments, §6(a)(2), 88 Stat. 58. In doing so, Congress explicitly subjected federal employers to the FLSA’s ex

press antiretaliation provision, 29 U. S. C. §215(a)(3). Congress did not similarly subject the Federal Govern

ment to the express antiretaliation provision in the ADEA, strongly suggesting that this was a conscious choice. The majority responds that this “inference . . . is un

founded” because “Congress had good reason to expect that this broad ban would be interpreted in the same way
that Sullivan . . . had interpreted the broad ban on racial discrimination in 42 U. S. C. §1982.” Ante , at 14, n. 6.9 Cite as: 553 U. S. ____ (2008)

R OBERTS

, 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 re spect to the ADEA itself. It subjected the former to the ADEA’s private-sector provi

sion, see FLSA Amendments, §28(a)(2), 88 Stat. 74— including the express prohibition against retaliation in §623(d)—while creating §633a as a stand-alone prohibi

tion against discrimination in federal employment, with

out an antiretaliation provision, see §28(b)(2), ibid. This
decision evinces a delibe rate legislative choice not to ex

tend those portions of the ADEA’s private-sector provi

sions that are not expressly included in §633a, as of course Congress specified in §633a(f). Given all this, it seems safe to say that the text and structure of the statute strongly support the proposition that Congress did not intend to include a cause of action for retaliation against federal employees in §633a(a).

III

But why would Congress allow retaliation suits against private-sector and state employers, but not against the
Federal Government? The answe r 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 estab lished civil service system, with its comprehensive prote ction for Government work

ers. Congress was quite familiar with that detailed ad

ministrative system—one that already existed for most federal employees, but not for private ones. This ap

proach, unlike the Court’s, is consistent with the fact that10 GOMEZ-PEREZ v. POTTER

R OBERTS

, C. J., dissenting

Congress has recognized that regulation of the civil service is a complex issue, requiring “careful attention to conflict

ing policy considerations” and “balancing governmental efficiency and the rights of employees,” Bush v. Lucas , 462
U. S. 367, 388, 389 (1983). The resulting system often requires remedies different from those found to be appro

priate for the private sector (or even for the States).

A
Before Title VII was extended to federal employees in 1972, discrimination in federal employment on the basis of race, color, religion, sex, or national origin was prohibited by executive order. See Exec. Order No. 11478, 34 Fed. Reg. 12985 (1969). Civil service regulations implemented this policy by authorizing Ex ecutive Branch employees to bring administrative compla ints for allegedly dis

criminatory 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 fromrestraint, interference, coercion, discrimination, or reprisal” for their involvement in the complaint proc

ess. §§713.214(b) (complainants and representatives), 713.218(e) (witnesses). The Civil Service Commission (CSC) promulgated a detailed scheme through which federal employees could vindicate these rights, including the express antiretalia

tion protections. More seri ous personnel actions, known as “adverse actions,” could be challenged before the em

ploying agency and appealed to the CSC, see §§713.219(a) and (b), 752.203, 771.202, 771.208, 771.222, while less serious personnel actions and “any [other] matter of con

cern or dissatisfaction” could be challenged under alterna

tive procedures that were also appealable to the CSC, see §§713.217(b), 713.218, 713.219(a) and (c), 713.231(a), 771.302(a). Retaliation was proscribed in all events. See,11 Cite as: 553 U. S. ____ (2008)

R OBERTS

, C. J., dissenting

e.g. , §§713.219(a) and (c) (incorporating Part 771 antire

taliation provisions to complaint procedures except certain appeals to CSC); §§771.105(a)(1) and (b)(1), 771.211(e) (antiretaliation provisions for CSC appeals). In 1972, Congress applied Title VII to the federal-sector, Equal Employment Opportunity Act of 1972 (EEO Act), §11, 86 Stat. 111, mandating that “[a]ll personnel actions” with respect to federal employ ees “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–16(a). Congress empowered the CSC “to enforce the provisions of subsec

tion (a) through appropriate remedies,” and to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section.” §2000e–16(b). Under this grant of authority, as well as its prior au

thority under statute and exec utive order, the CSC revised its regulations both “to implement the [EEO Act] and to strengthen the system of complaint processing.” 37 Fed. Reg. 22717 (1972) (Part 713 Subpart B). As with its prior system of administrative enforcement, the CSC distin

guished between “complaints of discrimination on grounds of race, color, religion, sex, or national origin,” 5 CFR §713.211 (1973), on the one hand, and charges by a “com

plainant, his representative, or a witness who alleges restraint, interference, coerci on, discrimination, or repri

sal in connection with the presentation of a complaint,” §713.262(a), on the other. The regulations imposed upon employing agencies the obligation of “timely investigation and resolution of complaints including complaints of coer

cion and reprisal,” 37 Fed. Reg. 22717; see also 5 CFR §713.220, and made clear the procedures for processing retaliation claims, §§713.261, 713.262. The regulations further mandated that the CSC “require the [employing] agency to take whatever action is appropriate” with re

spect to allegations of retaliation if the agency itself has12 GOMEZ-PEREZ v. POTTER

R OBERTS

, C. J., dissenting

“not completed an appropriate inquiry,” §713.262(b)(1). Thus, leading up to the enactment of 29 U. S. C. §633a in 1974, the CSC’s comprehensive regulatory scheme set forth a broadly applicable remedy for retaliation against federal employees for filing complaints or otherwise par

ticipating in the EEO process. And when Congress em

powered the CSC in 1974 to “e nforce the provisions of [§633a(a)] through appropriate remedies,” and to “issue such rules, regulations, orders, and instructions as it deems necessary and appropriat e to carry out its respon

sibilities” under that statute, §28(b)(2), 88 Stat. 75, the assumption that Congress expected the CSC to create an administrative antiretaliation remedy, just as it had for complaints of discrimination under Title VII, is compel

ling. And sure enough, the CSC did just that promptly after §633a was enacted. See 39 Fed. Reg. 24351 (1974); 5 CFR §713.511 (1975). Given this history of addressing retaliation through administrative means, combined with the complicated nature (relative to the private sector) of federal personnel practices, it is therefore by no means anomalous that Congress would have dealt with the “primary objective” of combating age discrimination through a judicial remedy, Burlington , 548 U. S., at 63, but left it to expert adminis

trators used to dealing with personnel matters in the federal work force to “secure that primary objective by preventing an employer from interfering (through retalia

tion) with an employee’s efforts to secure or advance en

forcement of the Act’s basic guarantees,” ibid.

B
The majority discounts the above argument as “unsup

ported speculation.” Ante , at 14. It seems to me that the fact that the Executive Branch had always treated dis

crimination and retaliation as distinct, and that it enacted
administrative remedies for retaliation almost immedi

-13 Cite as: 553 U. S. ____ (2008)

R OBERTS

, 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 prim arily 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, wh ich generally makes it unlaw

ful for Executive Branch employers to

“take or fail to take, or threat en to take or fail to take, any personnel action against any employee or appli

cant for employment because of . . . (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation [or] (B) testifying for or otherwise lawfully assisting any individual in the ex

ercise of any right referred to in subparagraph (A).” 5

U. S. C. §2302(b)(9). 3

This antiretaliation provision, which plainly applies to retaliation for exercising rights under the civil rights statutes, including the ADEA, is supported by a host of administrative remedies. If the alleged retaliation results in adverse actions such as removal, suspension for more than 14 days, or reduction in pay, see §7512, an appeal can be taken directly to th e Merit Systems Protection Board (MSPB), §§7513(d), 7701, with judicial review in the United States Court of Appeals for the Federal Circuit,

——————

3 Neither 29 U. S. C. §633a nor the CSRA cover employees of Con

gress or of the Executive Office of the President and Executive Resi

dence of the White House. See §633a( a); 5 U. S. C. §2302(a)(2)(B). But Congress has expressly extended the protections of th e ADEA to such employees, 2 U. S. C. §1311(a)(2) (C ongress); 3 U. S. C. §411(a)(2) (White House), and provided them wi th an express retaliation remedy, 2 U. S. C. §1317; 3 U. S. C. §417(a).14 GOMEZ-PEREZ v. POTTER

R OBERTS

, C. J., dissenting

§7703(b)(1). Retaliation claims based on less serious allegations are first investigated by the Office of Special
Counsel. If the Office finds that there are reasonable grounds supporting the retaliation charge, it must report its determination to, and may seek corrective action from, the MSPB. §§1214(a)(1)(A), (b)(2)(B), (C), and 1214(c). Again, judicial review in the Federal Circuit is available. §7703(b)(1). In all events, upon a finding that retaliation has in fact occurred, the MSPB has the authority to order corrective action, §§1214(b)(4), 7701(b)(2), to order attor

ney’s fees on appeal, §7701(g), and to discipline federal employees responsible for retaliatory acts, §1215. 4 To be sure, the CSRA was e nacted after §633a. Never

theless, we have explained, in the same context of federal employee remedies, that the “classic judicial task of recon

ciling many laws enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implica

tions of a later statute.” United States v. Fausto , 484 U. S. 439, 453 (1988). That is precisely the situation here. Indeed, this is particularly true with respect to Con

gress’s regulation of federal employment. We have ex

plained that the CSRA is an “integrated scheme of admin

istrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient admini

stration.” Id. , at 445. Perhaps the CSRA’s “civil service remedies [are] not as effecti ve as an individual damages remedy” that can be obtained in federal court, Bush , 462
U. S., at 372, or perhaps a quicker and more familiar administrative remedy is more effective as a practical

——————

4 The Postal Service—Gomez-Perez’s employer—operates under its own personnel system. But the Po stal 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).15 Cite as: 553 U. S. ____ (2008)

R OBERTS

, C. J., dissenting

matter. That is not the issue. Cf. id. , at 388 (the question whether a judicial remedy against a federal employer for a First Amendment violation should be implied “obviously cannot be answered simply by noting that existing reme

dies do not provide complete relief for the plaintiff”). The CSRA establishes an “elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures— administrative and judicial—by which improper action may be redressed.” Id. , at 385. Retaliation as a general matter was already addressed for federal employees. I would not read into §633a a judi cial remedy for retaliation when Congress—which has “developed considerable fa

miliarity with balancing govern mental efficiency and the rights of employees,” id. , at 389—chose to provide a de

tailed administrative one.

* * * The question whether a ban against “discrimination based on” a protected status such as age can also be read to encompass a ban on retalia tion can be answered only after careful scrutiny of the particular provision in ques

tion. In this case, an analysis of the statutory language of §633a and the broader scheme of which it is a part con

firms that Congress did not intend implicitly to create a judicial remedy for retaliation against federal employees, when it did so expressly for private-sector employees. Congress was not sloppy in creating this distinction; it did so for good reason: because the federal workplace is gov

erned by comprehensive regulation, of which Congress was well aware, while the private sector is not. For these reasons, I would affirm the judgment of the Court of Appeals._________________

_________________ Cite as: 553 U. S. ____ (2008) 1

T HOMAS

, 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]

J USTICE T HOMAS , with whom J USTICE S CALIA joins, dissenting.
I join all but Part I of THE C HIEF J USTICE ’s dissent. I write separately to re iterate my view that Jackson v. Birmingham Bd. of Ed. , 544 U. S. 167 (2005), incorrectly conflated the concepts of retaliation and discrimination. The text of the federal-sector provision of the Age Dis

crimination in Employment Act of 1967 is clear: It prohib

its only “discrimination based on age.” 29 U. S. C. §633a(a) (2000 ed., Supp. V). If retaliation is not “dis

crimination on the basis of sex,” Jackson

, supra, at 185 (T HOMAS , J., dissenting), or “discrimination based on race,” CBOCS West, Inc. v. Humphries

, ante, at 4 (T HOMAS , J., dissenting), it is ce rtainly 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 R OBERTS , C. J.), I would affirm the judgment below.