United States Court of Appeals For the First Circuit

No. 06-1614

MYRNA GÓMEZ-PÉREZ,

Plaintiff, Appellant,

v.

JOHN E. POTTER, Postmaster General, UNITED STATES POSTAL SERVICE,

Defendant, Appellee.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before

Torruella, Circuit Judge, Baldock,* Senior Circuit Judge, and Howard, Circuit Judge.

Edelmiro A. Salas-González, with whom José L. Ramírez-de León was on brief, for appellant. August E. Flentje, Attorney, Appellate Staff, Civil Division, with whom Leonard Schaitman, Peter D. Keisler, Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and David G. Karro, Attorney, United States Postal Service, were on brief, for appellee.

July 10, 2008

* Of the Tenth Circuit, sitting by designation. TORRUELLA, Circuit Judge. Myrna Gómez-Pérez ("Gómez"),

a former window distribution clerk at the United States Postal

Service ("USPS") in Dorado and Moca, Puerto Rico, sued the USPS and

the Postmaster General, John Potter, in his official capacity. She

alleged, inter alia, that her supervisors retaliated against her

for filing an equal opportunity employment complaint with the USPS,

and that this retaliation constituted a violation of the federal-

sector provision of the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. § 633a. The district court granted summary

judgment for the USPS and Potter on the ground that they were

entitled to sovereign immunity. Gómez-Pérez v. Potter,

(D.P.R. Feb. 28, 2006).

On appeal, we held that the district court had erred in

finding sovereign immunity applicable, as Congress has waived

sovereign immunity for the USPS. Gómez-Pérez v. Potter,

(1st Cir. 2007). We affirmed summary judgment for the

USPS and Potter, however, upon deciding that Congress did not

intend for § 633a to include a cause of action for retaliation for

filing an age-discrimination complaint. Id. at 60. The Supreme

Court granted certiorari and reversed, holding that Congress did

indeed intend such a cause of action in § 633a, and remanded to us

for further proceedings. Gómez-Pérez v. Potter,

(2008). The Court expressed no disapproval of our holding on

sovereign immunity.

-2- In light of the Supreme Court's unequivocal conclusion

that § 633a includes a cause of action for retaliation, and the

continued viability of our holding on sovereign immunity, we vacate

the district court's grant of summary judgment in favor of the USPS

and Potter. We also vacate Part II(B) of our opinion,

, and remand the case to the district court for further

proceedings consistent with the opinion of the Supreme Court and

Part II(A) of our opinion.

Reversed and remanded.

-3-