CA1: The post office, sovereign immunity, and retaliation for age discrimination

Gomez-Perez v. Potter, No. 06-1614 holds that the post office has, indeed, waived sovereign immunity with regard to suits under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a.  Strangely, the First relies on a “‘to sue and be sued'” clause to come to this decision.  Some courts have rejected this view of sue and be sued clauses.  But, whatever the case, the First cites U.S. Postal Serv. v. Flamingo Indus. Ltd., 540 U.S. 736, 744 (2004) without much discussion.

But, this plaintiff is suing under a retaliation theory – that is, he filed a complaint and his supervisor and other retaliated against him.  The court looks at the language of § 633a and concludes that the word “retaliation” is missing (but discrimination is there).  The court realizes that it is splitting with the D.C. Circuit, which had found that the difference between a public and private actor not to be dispositive in Forman v. Small,  271 F.3d 285, 296 (D.C. Cir. 2001).  Commendably, the court did not rely on sovereign immunity in construing the statute after it found a waiver.

DotD comments here.