Jones v. Washington Metropolitan Area Transit Authority

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.

__________

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.

__________

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.