United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1998 Decided March 17, 2000
No. 97-7186
Judy J. Jones,
Appellee
v.
Washington Metropolitan Area Transit Authority,
Appellant
United States of America,
Intervenor
Appeal from the United States District Court
for the District of Columbia
(No. 89cv00552)
Bruce P. Heppen argued the cause for the appellant.
Robert L. Polk and Robert J. Kniaz were on brief. Gerard J.
Stief entered an appearance.
Douglas B. Huron argued the cause for the appellee.
Richard A. Salzman was on brief.
Seth M. Galanter, Attorney, United States Department of
Justice, argued the cause for the intervenor. Bill Lann Lee,
Acting Assistant Attorney General, United States Depart-
ment of Justice, was on brief.
Before: Silberman, Henderson and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The Washing-
ton Metropolitan Area Transit Authority (WMATA) appeals
judgments rendered against it in a suit brought by Judy J.
Jones alleging discriminatory and retaliatory refusal to pro-
mote, discharge and failure to reinstate in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. ss 621
et seq., and of Title VII of the Civil Rights Act of 1964, 42
U.S.C. ss 2000e et seq. The district court awarded Jones
compensatory and liquidated damages under the ADEA, pur-
suant to a jury verdict, and reinstatement, back pay (includ-
ing prejudgment interest) and retroactive promotion under
Title VII. In addition, the court awarded attorney's fees and
injunctive relief under each statute. WMATA challenges the
both the ADEA and the Title VII judgments. We vacate the
ADEA damage award because WMATA is immune from
liability therefor under the Eleventh Amendment to the Unit-
ed States Constitution. We affirm the Title VII award in
toto.
Jones began working for WMATA as a bus driver in 1974
and in 1984 rose to the position of first-line TS-3 rail opera-
tions supervisor (TS-3) in WMATA's Department of Rail
Service (Department). This dispute began on June 18, 1985
when Jones and four subordinates wrote a letter to Fady
Bassily, WMATA assistant general manager in charge of the
Department, complaining of employment discrimination
against "white women." Joint Appendix (JA) 254. At Bassi-
ly's direction, Mark Miller, then his general deputy, and John
Kirin, the Department's third ranking employee, met with
Jones on August 6, 1985. According to Jones, during their
meeting Miller told her that her job was "in jeopardy" and
asked her to resign. JA 400.
In 1986 the Department promoted several other TS-3
supervisors to a newly created TS-4 position. According to
WMATA personnel records, Jones was "disqualified" from
consideration because of a "recent disciplinary action." JA
293.
In January 1987 a screening panel recommended Jones and
thirteen other employees for promotion to TS-4. Kirin, who
had switched positions with Miller, rejected the panel's list of
candidates and asked Miller to draft a new one, taking into
account factors he believed the panel had not adequately
considered. Jones's name did not appear on Miller's list. In
a letter to Jones dated October 30, 1987 Miller cited as
reasons for not recommending her promotion: (1) her "mar-
ginal" score on a written exam and (2) her failure to follow
WMATA policies and procedure, specifically by "trans-
mit[ting] [her] personal views to [her] subordinates, (when in
conflict with those of the Authority)," which he characterized
as "unprofessional," and by giving a customer a cash refund
from a farecard machine "contrary to station policy." JA
305.1
Meanwhile, on September 11, 1987 Jones filed a complaint
with the Equal Opportunity Employment Commission
(EEOC) alleging unlawful discrimination on the basis of race,
age and sex and retaliation.
In September 1988 Jones again applied for a TS-4 position.
The panel, headed by Miller, who was aware of Jones's
pending EEOC claim, again rejected her despite her high
ratings on objective job criteria. At trial, Miller indicated she
was not recommended because she did "very, very poorly"
during her interview. JA 558.
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1 Also in 1987 Jones applied unsuccessfully for promotion to a
TS-5 position as Quality Assurance Inspector. She claimed below
that her rejection resulted from gender discrimination. This claim
is not at issue on appeal.
On March 1, 1989 Jones filed this lawsuit alleging discrimi-
natory and retaliatory failure to promote in violation of Title
VII and the ADEA. After her lawyer became ill the lawsuit
"stalled" until she retained new counsel in February 1991.
Jones v. WMATA, 946 F. Supp. 1023, 1029-30 (D.D.C. 1996).
On March 6, 1991 Jones was directed to meet with Allen
Brown, one of Bassily's deputies, who was investigating a
recent employee protest in which Jones had participated.
Brown had previously questioned Jackie Rhodes, one of
Jones's subordinates, at great length about the protest, press-
ing for information about Jones's role in it. Familiar with
Rhodes's experience, Jones refused to meet Brown without
her lawyer and subsequently refused a request from Miller as
well to meet in his office. After a confrontation with Miller in
the lunch room, Jones called her division superintendent, Al
Yorro, to tell him she was going home sick. Later that
afternoon Jones received a call at home from Yorro, directing
her to report for a medical examination by 6:00 p.m., which
she did. Following the exam, Aubrey Burton, General Super-
intendent of the Department's Rail Transportation office,
recommended to Bassily that Jones be fired, after consulting
with WMATA's personnel director and its Office of General
Counsel. Bassily approved the discharge and signed Jones's
termination form on March 7, 1991. In a certified letter to
Jones, Brown identified as the cause for Jones's discharge
"insubordination" in refusing orders to meet with Miller and
himself. JA 252-53. After unsuccessfully requesting rein-
statement in a letter to WMATA's Office of General Counsel,
Jones amended her complaint to claim retaliatory discharge
and failure to reinstate.
On August 6, 1993 the district court granted partial sum-
mary judgment in favor of Jones on her claim of retaliatory
failure to reinstate in violation of both Title VII and the
ADEA. The court reserved "[t]he issue of appropriate relief
for this claim" to "be tried together with the remaining claims
in this case." JA 74.
The ADEA claims were tried before a jury in October 1994.
On October 20, 1994 the jury returned a verdict awarding
Jones $50,000 in compensatory damages on the ADEA retali-
ation claims--$10,000 for the 1988 failure to promote to TS-4
and $20,000 each for the termination and failure to reinstate
in 1991. In addition, the jury found that the ADEA violations
were willful. Accordingly, the district court immediately
entered a judgment on the verdict in the amount of $50,000.
In an opinion and order filed October 15, 1996 the court
also found for Jones on three of her Title VII claims: retalia-
tory failure to promote both in 1987 (in retaliation for signing
the 1985 letter complaining of discrimination) and in 1988 (for
filing the 1987 EEOC complaint) and retaliatory discharge in
1991 (for filing and prosecuting the Title VII lawsuit).2 At
the same time, in accord with its own findings and with the
jury's, the court entered a final judgment ordering the follow-
ing relief: (1) reinstatement and retroactive promotion to TS-
4 effective October 1, 1987 under both the ADEA and Title
VII; (2) back pay under Title VII (consisting of the difference
between what Jones was actually paid after October 1, 1987
and what she would have been paid at the TS-4 level) plus
prejudgment interest; (3) liquidated damages under the
ADEA, 29 U.S.C. s 626(b) (equal to the back pay owed after
February 2, 1989, the date the jury found Jones was "willful-
ly" deprived of the TS-4 promotion); (4) a permanent injunc-
tion prohibiting WMATA "from taking any form of retaliatory
action against Jones for engaging in activity protected by
Title VII or the ADEA"; and (5) "reasonable" expenses and
attorney's fees. 946 F. Supp. at 1032-34.
II.
WMATA has challenged the district court's judgments on
various grounds but, in light of the posture of the case and of
__________
2 The court decided the Title VII claims, based on evidence
presented in a short bench trial as well as the evidence submitted
both during and before the jury trial, because the acts giving rise to
Jones's claims occurred before the effective date of the Civil Rights
Act of 1991, 42 U.S.C. s 1981a(c), which first authorized jury trials
for such claims. See Landgraf v. USI Film Prods., 511 U.S. 244
(1994).
our disposition, we need address only three of them. We
discuss each separately.
A. Sovereign Immunity
We first consider WMATA's contention that state entities
(including WMATA) are immune under the Eleventh Amend-
ment from ADEA liability. Because the United States Su-
preme Court recently resolved this question in favor of
immunity,3 we agree that the ADEA damages awards must
be vacated.
Under the Eleventh Amendment, " 'an unconsenting State
is immune from suits brought in federal courts by her own
citizens as well as by citizens of another State.' " Morris v.
WMATA, 781 F.2d 218, 222-23 (D.C. Cir. 1986) (quoting
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). "Moreover,
though the immunity is that of the state, 'some agencies
exercising state power have been permitted to invoke the
Amendment in order to protect the state treasury from
liability that would have had essentially the same practical
consequences as a judgment against the State itself.' " Id. at
223 (quoting Lake Country Estates v. Tahoe Regional Plan-
ning Agency, 440 U.S. 391, 400-01 (1979)). WMATA was
created by a compact enacted by the Congress and to which
the Commonwealth of Virginia, the State of Maryland and the
District cf Columbia are signatories. We have consistently
recognized that in signing the WMATA Compact, Virginia
and Maryland each conferred its immunity upon WMATA,
which therefore enjoys, to the same extent as each state,
immunity from suit in federal court based on its performance
of governmental functions.4 See, e.g., Morris v. WMATA,
__________
3 After oral argument we ordered this appeal held in abeyance
pending the Supreme Court's decision in Kimel v. Florida Bd. of
Regents, which issued on January 11, 2000 and which we discuss
infra.
4 The WMATA Compact provides:
The Authority shall be liable for its contracts and for its torts
and those of its Directors, officers, employees and agents
supra; Souders v. WMATA, 48 F.3d 546, 548 (D.C. Cir.
1995); Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir.
1997); see also Hess v. Port Auth. Trans-Hudson Corp., 513
U.S. 30, 52, 50 n.20 (1994) (noting "decision in Morris is
compatible with our approach" to determining multi-state
authority's Eleventh Amendment immunity vel non). We
have also held that WMATA's "governmental function" immu-
nity encompasses "the hiring, training, and supervision of
WMATA personnel," which is the kind of conduct for which
Jones seeks to hold WMATA liable under the ADEA. See
Burkhart v. WMATA, 112 F.3d 1207, 1217 (D.C. Cir. 1997);
accord Beebe v. WMATA, supra. The determinative question
therefore is whether, as Jones has argued, in enacting the
ADEA the Congress abrogated the states' (and consequently
WMATA's) Eleventh Amendment immunity from ADEA lia-
bility. Since oral argument, the United States Supreme
Court has definitively answered this question in the negative.
In Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000), the
Court held that, although the ADEA contains a statement of
congressional intent to abrogate the states' Eleventh Amend-
ment immunity, the attempted abrogation exceeds the Con-
gress's authority under s 5 of the Fourteenth Amendment.
Under Kimel, therefore, we conclude the ADEA award of
compensatory and liquidated damages against WMATA must
be vacated because its "practical result ... would be payment
from the treasuries of Maryland and Virginia." Morris, 781
F.2d at 225.5
__________
committed in the conduct of any proprietary function, in accor-
dance with the law of the applicable signatory (including rules
on conflict of laws), but shall not be liable for any torts
occurring in the performance of a governmental function.
WMATA Compact, Pub. L. No. 89-774, s 80, 80 Stat. 1324, 1350
(1966).
5 Because we vacate the ADEA awards based on the jury's
verdict, we need not address WMATA's objections to the admissibil-
ity of certain evidence (namely evidence of the entry of partial
summary judgment, of the discrimination judgment against WMA-
TA in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), and of
WMATA's alleged discrimination against several witnesses), or its
B. Title VII Judgment
We next address WMATA's challenge to the district court's
Title VII judgment. WMATA contends that the evidence
does not support the court's findings that WMATA unlawfully
retaliated against Jones in 1987 and in 1988 when it failed to
promote her and in 1991 when it discharged her.6 We must
uphold the district court's factual findings unless they are
clearly erroneous. Fed. R. Civ. P. 52(a); see also Pullman-
Standard v. Swint, 456 U.S. 273, 290 (1982). We perceive no
clear error here.
Under the framework laid out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), Jones was required first to
establish a prima facie case of retaliation by demonstrating
that "(1) [she] engaged in protected activity, (2) [she] was
subjected to adverse action by the employer and (3) there
existed a causal link between the adverse action and the
protected activity." Thomas v. National Football League
Players Ass'n, 131 F.3d 198, 202 (D.C. Cir. 1997) (citing
Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)). Such
__________
challenges to the court's failure to instruct the jury that Jones was
not entitled to have her lawyer present during attempted interviews
preceding her discharge and that as a supervisor Jones did not
engage in protected activity when she signed the 1985 letter to
Bassily.
6 Although the court expressly made the latter two findings "in
reliance upon the verdict of the jury on Jones' ADEA claim," in
each case the court also "note[d] that it would have reached the
same conclusion independent of the jury, based upon the filings and
oral argument of counsel, and the testimony and other evidence in
the record." 946 F. Supp. at 1029, 1030. On the 1987 promotion
claim, the court "ma[de] its findings under Title VII independent of
the jury's determinations under the ADEA." Id. at 1028. On
Jones's claim of failure to reinstate, we need not resolve WMATA's
challenge to the district court's summary judgment since the only
relief it supports--reinstatement and back pay--would have been
awarded in any event under the court's wrongful discharge finding,
which we uphold and which the district court made clear "would be
the same even in the absence of the summary judgment determina-
tion." 946 F. Supp. at 1030.
a showing raises a "rebuttable presumption of unlawful dis-
crimination" and shifts to the defendant the burden to "rebut
the presumption by asserting a legitimate, non-discriminatory
reason for its actions." Id. (citing Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the defen-
dant meets this burden of production, "the presumption of
discrimination dissolves" and the plaintiff assumes the burden
"to persuade the trier of fact that the defendant's proffered
reason was not the actual or sole basis for the disputed
action." Id.
On the 1987 promotion claim, WMATA does not dispute
that Jones established a prima facie case, as the district court
found, but does contend that Jones failed to rebut as pretex-
tual WMATA's proffered legitimate reasons for not promot-
ing Jones. We conclude the evidence supports the district
court's finding of pretext. Of the three reasons Miller of-
fered in his October 30, 1987 letter for not promoting Jones,
the district court reasonably rejected as pretextual two:
Jones's "marginal" test score, because it was higher than the
score of another employee who was promoted, and the in-
stance when she gave a cash refund to a customer, because
the court found her action consistent both with the Metrorail
Handbook and with a Department directive. 946 F. Supp. at
1028. In contrast, the court accepted Miller's third reason,
that Jones had "transmit[ted] [her] personal views to [her]
subordinates," as "more plausible--but violative of Title VII"
because it reflected retaliation for protected activity, namely,
the 1985 letter to Bassily complaining of Department discrim-
ination. Because the court's findings of pretext and of retali-
ation as to the promotion claim are supported by the evi-
dence, they are not clearly erroneous.
We also reject WMATA's contention that there is no record
evidence that those responsible for firing Jones were aware
she had hired new counsel in January 1991, thereby reinvigo-
rating her dormant lawsuit and prompting a retaliatory dis-
charge. See JA 138-39. In its opinion denying WMATA's
post-trial motion for judgment as a matter of law, the district
court noted the undisputed fact that Department members,
including Bassily, knew that the lawsuit was pending and that
WMATA's Office of General Counsel was aware she had
retained new counsel who had successfully had the suit
restored to the court's active docket. Jones v. WMATA, 946
F. Supp. 1011, 1022 (D.D.C. 1996); see also JA 581-87.
Further, Rhodes testified that Brown asked her about Jones's
lawyers when he questioned her one week before the firing,
JA 477, and Bassily testified that before recommending
Jones's discharge Burton consulted with WMATA's Office of
General Counsel, which "concurred" in the dismissal. JA 628.
This evidence supports the court's finding that WMATA
decision makers fired Jones with knowledge she had retained
new counsel.
Finally, it was not clearly erroneous for the court to find
pretextual WMATA's claim it fired Jones for "insubordina-
tion" in violation of Department procedure, namely for refus-
ing orders to meet with Brown and Miller. As evidence of
pretext, the court cited Jones's willingness to meet with
Yorro, WMATA's own violation of its procedures in firing her
without affording her an opportunity to explain her behavior
and other instances of unlawful retaliation by Department
management, both against Jones in connection with her 1987
and 1988 promotion denials and against other employees who
had complained of discrimination, see 946 F. Supp. at 1026.
This evidence suffices.
C. Prejudgment Interest
Finally, WMATA claims Eleventh Amendment immunity
from the court's award of prejudgment interest on the back
pay award. Relying on Library of Congress v. Shaw, 478
U.S. 310 (1986), WMATA maintains that, because Title VII
does not expressly waive the states' immunity from prejudg-
ment interest, they retain their Eleventh Amendment immu-
nity from such awards. WMATA's reliance is misplaced. In
Shaw the Supreme Court held that the "no-interest rule,"
under which interest can be awarded against the United
States only pursuant to an express waiver of immunity from
interest, forecloses recovery of an enhanced attorney fee
award in a Title VII action against the United States.7 The
Court has since made clear that abrogation of the states'
Eleventh Amendment immunity does not require the same
level of specificity. In Missouri v. Jenkins, 491 U.S. 274
(1989), the Court held that the Eleventh Amendment does not
bar enhancement of an attorney's fees award against states
under 42 U.S.C. s 1988 to compensate for delay, noting that
Shaw had "equated compensation for delay with prejudgment
interest." Id. at 282 n.3. Shaw's "observations" about pre-
judgment interest, the Court explained, "cannot be divorced
from the context of the special 'no-interest rule' that was at
issue in Shaw" and "[t]hat rule, which is applicable to the
immunity of the United States and is therefore not at issue
here, provides an 'added gloss of strictness' only where the
United States' liability for interest is at issue." 491 U.S. at
282 n.3 (quoting Shaw, 478 U.S. at 318). Because the no-
interest rule does not apply to state liability, we see no bar to
awarding pre-judgment interest on back pay assessed against
a state under Title VII, as to which the Congress expressly
and effectively abrogated Eleventh Amendment immunity, see
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and which has long
been recognized, in the absence of immunity, to authorize
prejudgment interest as part of its back pay remedy, see
Loeffler v. Frank, 486 U.S. 549, 557 (1988). Accord Pegues v.
Mississippi State Employment Serv., 899 F.2d 1449 (5th Cir.
1990) ("Congress has the power under section 5 of the
Fourteenth Amendment to abrogate the state's immunity to
enforce the Amendment's protections. Congress exercised
this power in enacting the Civil Rights Act of 1964.") (foot-
note omitted).8 We therefore affirm the district court's
__________
7 Since Shaw was decided, the Congress has added to Title VII an
express waiver of immunity from interest. 42 U.S.C. s 2000e-
16(d).
8 Because we vacate the ADEA liquidated damages award, we
need not address WMATA's argument that awarding both liqui-
dated damages and prejudgment interest provides a "double recov-
ery."
award of prejudgment interest on the Title VII back pay
award.9
For the preceding reasons, we vacate the plaintiff's awards
of compensatory, and liquidated damages under the ADEA
and affirm the relief awarded under Title VII--including
reinstatement, promotion, back pay, prejudgment interest,
injunctive relief and expenses and attorneys fees. According-
ly, we remand for further proceedings consistent with this
decision.
So ordered.
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9 Jones claims entitlement only to prejudgment interest accruing
after November 21, 1991, the effective date of the Civil Rights Act
of 1991, supra note 6. See Appellee's Br. at 36.