UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ERNEST A. THOMAS,

Plaintiff,

v. Civil Action No. 17-1508 (DLF) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al.,

Defendants.

MEMORANDUM OPINION

Before the Court is the Washington Metropolitan Area Transit Authority’s (WMATA)

Motion to Dismiss. Dkt. 3. For the following reasons, the motion will be granted in part and

denied in part.

I. BACKGROUND

In this action, pro se plaintiff Ernest A. Thomas asserts age- and national origin-based

employment discrimination claims against his employer, WMATA, and against his direct

supervisor Sachit Kakkar and senior WMATA managers Paul J. Weidefeld and John T. Kuo

(collectively, the Individual Defendants). See Compl. at 2–4, Dkt. 1; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17; Age Discrimination in Employment Act of

1967 (ADEA), 29 U.S.C. §§ 621–634. Thomas also asserts a retaliation claim. Compl. at 4.

Thomas is a 62-year-old U.S. citizen of Liberian national origin. Id. ¶ 1. He currently

works for WMATA, id., and he has a history of filing EEOC complaints against his employer for

discrimination based on race, age, and national origin, and for retaliating against him because of those claims, see id. ¶¶ 14, 20–24. The past complaints include at least three formal complaints

to the EEOC during a span of about fifteen months beginning in early 2014. Id. ¶¶ 21–24.

In February 2017, Thomas applied for a promotion to the open position of Deputy Chief

Vehicle Engineer. Id. ¶ 3. The next month, WMATA rejected Thomas’s application,

purportedly because he lacked the requisite ten years of management experience in transit

engineering, which was part of the job description. Id. ¶ 4. This case arises from WMATA’s

decision not to promote Thomas.

Thomas asserts that his supervisor, Defendant Kakkar, made two revisions to the Deputy

Chief Vehicle Engineer job requirements on January 11, 2017 before posting an opening for the

job. Id. ¶ 2. Under the revisions, the Deputy Chief Vehicle Engineer position (1) now required

ten years of transit-engineering-management experience, even though the more senior Chief

Vehicle Engineer position required only five years; and (2) no longer required Professional

Engineering qualifications. Id. ¶¶ 6, 11. Both changes allegedly disadvantaged Thomas, who

has a Professional Engineering license but lacked ten years of experience. See id. Citing

Thomas’s failure to meet the ten-years requirement, WMATA ultimately rejected Thomas’s bid

for the promotion. Id. ¶ 4. WMATA later hired Anthony Johnson, a man of unspecified national

origin who is allegedly about fifteen years younger than Thomas. Id. ¶¶ 5, 37. WMATA

indicated that Johnson had the required ten-years’ experience, but Thomas alleges that Johnson

did not meet this requirement. Id. ¶¶ 5, 8–9.

On April 13, 2017, Thomas filed employment discrimination claims with the EEOC

based on national origin and age, as well as a retaliation claim. Thomas received a Dismissal

and Notice of Rights letter from the EEOC on April 28, 2017. See Dkt. 7 at 2. Thomas then

2 filed his complaint on July 27, 2017, seeking monetary and punitive damages and injunctive

relief. Compl. at 9. The case was reassigned to the undersigned judge on December 4, 2017.

WMATA now moves for dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure, arguing that (1) Thomas failed to exhaust administrative remedies

under Title VII before bringing this action; (2) WMATA is immune from ADEA claims due to

sovereign immunity; (3) the Individual Defendants must be dismissed because they acted in their

official capacities; (4) Thomas failed to state a claim for national-origin discrimination under

Title VII; and (5) WMATA is immune from punitive damages. See Mem. at 7–13, Dkt. 3.1 The

Court discusses each in turn.

II. LEGAL STANDARDS

Under Rule 12(b)(1), a party may move to dismiss a claim over which the court lacks

subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for dismissal under Rule 12(b)(1)

“presents a threshold challenge to the court’s jurisdiction.” Haase v. Sessions,

(D.C. Cir. 1987). Federal district courts are courts of limited jurisdiction, and it is “presumed

that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co.,

(1994). Thus, to survive a Rule 12(b)(1) motion, a plaintiff must demonstrate that the

court has jurisdiction by a preponderance of the evidence. Lujan v. Defs. of Wildlife,

(1992).

“When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff’s factual

allegations as true and afford the plaintiff the benefit of all inferences that can be derived from

the facts alleged.” Jeong Seon Han v. Lynch,

(D.D.C. 2016) (quotation

1 After WMATA filed its motion to dismiss, the Court issued an order pursuant to Fox v. Strickland,

(D.C. Cir. 1988), directing the pro se plaintiff to respond. See Order of Aug. 21, 2017, Dkt. 4.

3 marks and citation omitted). Because Rule 12(b)(1) concerns a court’s ability to hear a particular

claim, “the court must scrutinize the plaintiff’s allegations more closely when considering a

motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to

Rule 12(b)(6).” Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011). Also,

unlike when evaluating a Rule 12(b)(6) motion, a court may consider documents outside the

pleadings to evaluate whether it has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005). If the court determines that it lacks jurisdiction, the court

must dismiss the claim or action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

Under Rule 12(b)(6), a party may move to dismiss for failure to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint

“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

(2007)). A plausible claim allows the court to “draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

The standard does not

amount to a “probability requirement,” but it does require more than a “sheer possibility that a

defendant has acted unlawfully.”

When evaluating a Rule 12(b)(6) motion, the court “must construe the complaint in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from the

facts alleged.” Hettinga v. United States,

(D.C. Cir. 2012) (quotation marks

omitted). While a “pro se complaint is entitled to liberal construction,” Washington v. Geren,

(D.D.C. 2009) (citing Haines v. Kerner,

(1972)),

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” are not sufficient to state a claim, Iqbal,

. “In determining whether a

4 complaint states a claim, the court may consider the facts alleged in the complaint, documents

attached thereto or incorporated therein, and matters of which it may take judicial notice.” Abhe

& Svoboda, Inc. v. Chao,

(D.C. Cir. 2007) (internal quotation marks

omitted). Finally, Rule 12(b)(6) dismissal for failure to state a claim “is a resolution on the

merits and is ordinarily prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc.,

,

1066 (D.C. Cir. 1992).

III. ANALYSIS

A. Thomas properly exhausted administrative remedies.

WMATA argues that Thomas failed to exhaust administrative remedies under Title VII

before suing in federal court, see Mem. at 10, but the Court disagrees.

Title VII provides that a plaintiff may bring a claim in federal court within ninety days of

an EEOC dismissal. See 42 U.S.C. § 2000e-5(f)(1) (“If a charge filed with the [EEOC under

Title VII] is dismissed by the Commission, . . . the Commission . . . shall so notify the person

aggrieved and within ninety days after the giving of such notice a civil action may be brought

against the respondent named in the charge . . . by the person claiming to be aggrieved.”). The

EEOC issued Thomas a Dismissal and Notice of Rights letter on April 28, 2017. Dkt. 7 at 2.

Thomas then filed his complaint on July 27, 2017, exactly 90 days after his EEOC dismissal.

Dkt. 1. In doing so, he complied with Title VII’s requirements for administrative exhaustion.

WMATA climbs uphill in asking the Court to ignore Title VII’s plain meaning.

WMATA’s attempt to circumvent the statutory text reads out of context a single statement from

Martini v. Federal National Mortgage Ass’n,

(D.C. Cir. 1999). Namely, “Title

VII complainants must wait 180 days after filing charges with the EEOC before they may sue in

federal court.”

. But Martini is properly read to require a 180-day wait only for

plaintiffs whose cases have not been dismissed by the EEOC. The Martini plaintiff received a 5 premature right-to-sue letter based on the assumption that the EEOC would be unable to process

the complaint within 180 days, and the EEOC did not actually dismiss the Martini plaintiff’s

administrative action.

In contrast, the EEOC dismissed Thomas’s administrative action. See Dismissal and

Notice of Rights Letter, Dkt. 7 at 2. The EEOC dismissal triggered Thomas’s statutory right to

file a like civil action within ninety days. See 42 U.S.C. § 2000e-5(f)(1); Dismissal and Notice

of Rights Letter, Dkt. 7 at 2 (“Your lawsuit must be filed WITHIN 90 DAYS of your receipt

of this notice” (emphasis in original)). To extend Martini to block Thomas’s lawsuit would cut

his statutory right out of the statute. Had Thomas not brought his civil action until 180 days after

he filed his administrative action, his civil action would have been barred by the ninety-day

statutory window. To require plaintiffs to wait more than 180 days after filing an administrative

action but no more than ninety days after dismissal of that action would place plaintiffs like

Thomas in a Catch-22: file now and lose on failure to exhaust, or file later and lose on lack of

jurisdiction.

Further, the Court’s reading of Martini comports with subsequent discussions of the case,

which have consistently read Martini to apply only when the EEOC has not dismissed a charge.

In Carr Park, Inc. v. Tesfaye, the D.C. Circuit observed that “Martini struck down an EEOC

regulation asserting authority to authorize a private party to sue before 180 days even if a charge

had not been dismissed.”

, 1193 n.1 (D.C. Cir. 2000) (second emphasis added).

While Carr Park is not controlling because it merely dismissed an attempted interlocutory

appeal as untimely, the Carr Park Court said that the district judge in that case—by limiting

Martini to cases that the EEOC has not yet dismissed—“read Martini in harmony with the

statutory wording . . . .”

. The Court today reads Martini in the same way—namely,

6 plaintiffs like Thomas need not wait 180 days after filing with the EEOC when the EEOC has

already dismissed their administrative actions. See Quarles v. Gen. Inv. & Dev. Co.,

, 16–17 (D.D.C. 2003) (denying a motion to dismiss for failure to exhaust where the

plaintiff filed a civil action within ninety days of receiving a Dismissal and Notice of Rights

letter); Tesfaye v. Carr Park, Inc.,

(D.D.C. 2000) (same); see also Fennell

v. AARP,

, 126 n.4 (D.D.C. 2011) (distinguishing cases involving a final

EEOC determination from those, like Martini, without a final determination); McAlister v.

Potter,

(D.D.C. 2010) (distinguishing the ninety-day deadline after a

final EEOC determination from the 180-day window in cases like Martini). Therefore, the Court

will deny WMATA’s motion to dismiss for failure to exhaust administrative remedies.

B. WMATA is immune from ADEA claims.

WMATA asserts that it is immune from ADEA suits; the Court agrees. A state is

immune from federal suits brought by the state’s own citizens or the citizens of another state

unless the state waives its sovereign immunity or Congress validly abrogates that immunity. See

Jones v. WMATA,

, 431–32 (D.C. Cir. 2000). WMATA originates in a compact

signed by Maryland, Virginia, and the District of Columbia, and it enjoys the sovereign

immunity of those signatories.

The signatories to the WMATA compact have not waived

sovereign immunity for discretionary employment functions such as hiring and promotion, see

Beebe v. WMATA,

, 1287–88 (D.C. Cir. 1997), and the ADEA does not abrogate

state sovereign immunity, Kimel v. Fla. Bd. of Regents,

, 91–92 (2000). “[S]overeign

immunity applies regardless of whether a private plaintiff’s suit is for monetary damages or some

other type of relief.” Fed. Mar. Comm’n v. S.C. State Ports Auth.,

(2002).

Therefore, sovereign immunity forecloses Thomas’s claims against WMATA for both monetary

damages and injunctive relief under the ADEA. See Bailey v. WMATA,

, 72 7 (D.D.C. 2010) (dismissing ADEA claims against WMATA for both damages and injunctive

relief).

Thomas offers two arguments to contest WMATA’s assertion of sovereign immunity:

(1) that WMATA waived sovereign immunity by participating in “private corporate activities”;

and (2) that “[a]ny award of financial damages will not have to be paid out of funds provided by

tax payers.” Opp. at 7–8, Dkt. 5. Both arguments fail.

First, WMATA’s business activities do not waive sovereign immunity. Decades ago, the

Supreme Court required lower courts to analyze whether business activities in interstate

commerce constituted a waiver of sovereign immunity. See Parden v. Terminal Ry. of Ala. State

Docks Dep’t,

(1964). But Parden has been explicitly overruled, and business

activities no longer constitute a waiver of sovereign immunity. Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd.,

(1999).

Second, Thomas argues that WMATA should not benefit from the signatories’ sovereign

immunity because taxpayers would not be responsible for any monetary award against WMATA.

The D.C. Circuit has foreclosed this argument. The practical result of damages against WMATA

“would be payment from the treasuries of Maryland and Virginia,” so WMATA benefits from

their sovereign immunity. Jones,

(quoting Morris v. WMATA,

(D.C. Cir. 1986)).

Therefore, WMATA is immune from Thomas’s ADEA claim, and the Court will dismiss

it with prejudice.

C. Thomas states a Title VII claim against WMATA for national-origin discrimination.

WMATA also seeks dismissal of Thomas’s Title VII claim of national-origin

discrimination. Title VII prohibits employers from “discriminat[ing] against any individual with

8 respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), and from

retaliating against an employee who seeks the statute’s protections, see 42 U.S.C. §§ 2000e-

3(a).2 Because Thomas has adequately pleaded a claim of national-origin discrimination against

WMATA, the Court will deny the motion to dismiss that claim.

To survive a Rule 12(b)(6) challenge, the complaint must “contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,

(internal quotation marks omitted). But addressing a Rule 12(b)(6) challenge to an

employment discrimination claim involves an extra wrinkle. Employment discrimination claims

for a failure to hire or promote follow the familiar burden-shifting framework from McDonnell

Douglas v. Green,

(1973). Under that framework, the plaintiff ultimately bears the

burden of establishing the specific requirements of a prima facie case of employment

discrimination,3 but that burden does not apply with full force at the motion to dismiss stage.

Indeed, the Supreme Court “has never indicated that the requirements for establishing a prima

facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must

satisfy in order to survive a motion to dismiss.” Swierkiewicz v. Sorema N.A.,

(2002). The appropriate standard for assessing a motion to dismiss thus resists a concise

summation.

2 WMATA addresses its Rule 12(b)(6) argument only to the national-origin discrimination claim, so the Court limits its review to that argument. 3 According to McDonnell Douglas’s specific requirements for a prima facie case of employment discrimination based on a failure to hire or promote, a plaintiff must show: “(i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas,

.

9 On one hand, before Twombly and Iqbal, the D.C. Circuit utilized a very permissive

standard for pleading employment discrimination. Under that standard, a plaintiff was only

required to say that “‘I was turned down for a job because of my race’ . . . to survive a motion to

dismiss under Rule 12(b)(6).” Sparrow v. United Air Lines, Inc.,

(D.C. Cir.

2000) (quoting Bennett v. Schmidt,

(7th Cir. 1998)). But that standard was

premised, at least in part, on the now-abrogated standard from Conley v. Gibson, which

permitted a complaint to survive unless “it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to relief.”

, 45–46

(1957), abrogated by Twombly,

. And the D.C. Circuit’s Sparrow articulation of

Conley’s pleading standard for employment discrimination complaints did not survive Twombly.

See McManus v. Kelly,

(D.D.C. 2017) (“[A]lthough the issue is not

entirely settled, the Court is convinced that the Sparrow pleading standard is no longer

controlling.”); Greer v. Bd. of Trs. of Univ. of D.C.,

(D.D.C. 2015)

(noting that “Twombly and Iqbal require more factual context” than the “multiple assumptions”

necessary to state a claim under the Sparrow standard); Jackson v. Acedo, No. 08-cv-1941,

, at *4 (D.D.C. Aug. 26, 2009) (“Sparrow is no longer binding authority in light of

the[] observations by the Supreme Court in Twombly.”).

On the other hand, it remains true that courts must not demand that plaintiffs plead the

specific requirements of a prima facie case under McDonnell Douglas. Swierkiewicz,

(“[I]t is not appropriate to require a plaintiff to plead facts establishing a prima facie case

because the McDonnell Douglas framework does not apply in every employment discrimination

case.”); Twombly, 550 U.S. at 569–70 (rejecting arguments that it should abrogate Swierkiewicz).

Courts must therefore strike a balance between the rigidity of applying the specific requirements

10 of a prima facie case from McDonnell Douglas, as rejected in Swierkiewicz, and the

permissiveness of the Conley-Sparrow pleading regime, as rejected in Twombly.

The most straightforward way to read Twombly, Swierkiewicz, and the law of this Circuit

may be to refer to the Circuit’s general formulation of a prima facie case of employment

discrimination (as opposed to the specific requirements for a prima facie case in the failure to

hire context, per McDonnell Douglas). In general, “[t]o state a prima facie case of

discrimination, a plaintiff must allege she is part of a protected class under Title VII, she suffered

a cognizable adverse employment action, and the action gives rise to an inference of

discrimination.” Walker v. Johnson,

(D.C. Cir. 2015). If applied at the

motion to dismiss stage, the general standard’s third prong, an “inference of discrimination,”

could be plausibly pleaded with allegations of either direct or indirect discrimination. This

standard would avoid running astray of Swierkiewicz without returning to Sparrow. And the

standard would hew closely to Twombly because it is difficult to conceive of a case that would be

plausible under Twombly without at least raising an “inference of discrimination” under the

general test.

Regardless, the Court need not map the precise contours of the appropriate pleading

standard at this time. For pleading each element of the general prima facie case is sufficient,

even if not necessary, to survive a Rule 12(b)(6) motion to dismiss. See Harris v. D.C. Water &

Sewer Auth.,

(D.C. Cir. 2015). And Thomas has cleared that bar.

Thomas pleads that he is a member of a protected class because he of Liberian national

origin. Compl. ¶ 1. And he adequately alleges an adverse employment action, i.e., WMATA’s

refusal to promote him. Id. ¶ 4. As a result, this dispute boils down to whether the defendants’

“action[s] give[] rise to an inference of discrimination.” Walker v. Johnson,

, 1091

11 (D.C. Cir. 2015). Most commonly, in the context of a failure to promote, “an inference of

discrimination can be established by a plaintiff’s elimination of ‘the two most common

legitimate reasons . . . to reject a job applicant: an absolute or relative lack of qualifications or

the absence of a vacancy in the job sought.’” Martin v. D.C.,

(D.D.C.

2015) (quoting Stella v. Mineta,

(D.C. Cir. 2002)); see Int’l Bhd. of Teamsters

v. United States,

, 358 n.44 (1977) (a plaintiff’s elimination of an “absolute or

relative lack of qualification” is generally “sufficient” to establish an inference of

discrimination).

Here, Thomas pleads sufficient facts, if accepted as true, to create a plausible inference of

discrimination. Thomas alleges that Defendant Kakkar “revised the job description” of the

sought-after position “to disqualify Plaintiff.” Compl. ¶ 2. According to Thomas, the new job

requirements were more stringent than any similar job in the organization, and they demanded

more experience than required of the job’s direct supervisor. Id. ¶ 6. But they did not require

Professional Engineering registration, a qualification uniquely possessed by Thomas and

required for similar positions throughout WMATA. Id. ¶ 11. WMATA proceeded to hire

another candidate, even though that candidate allegedly did not meet the posted job requirements

and was allegedly less qualified than Thomas. See id. ¶¶ 5, 8–11. According to Thomas,

WMATA then incorrectly asserted that its chosen candidate met the job’s experience

requirement by double-counting a single piece of that individual’s work history. Id. ¶ 9.

WMATA disputes Thomas’s account and identifies a number of potentially countervailing

factors. See, e.g., Reply at 3–5, Dkt. 6; WMATA OIG Report, Dkt. 6-3. But at this stage, the

Court accepts Thomas’s factual allegations as true and concludes that the complaint at least

12 raises a plausible inference of discrimination. Therefore, the Court will deny WMATA’s motion

to dismiss the Title VII claim against WMATA for national-origin discrimination.

D. Thomas fails to state Title VII claims and ADEA damages claims against the Individual Defendants, but Thomas states an ADEA claim for prospective injunctive relief against the Individual Defendants.

WMATA next argues that Thomas’s Title VII and ADEA claims against the Individual

Defendants must be dismissed. The following sections will address both in turn.

1. Title VII

Turning first to the Title VII claims against the Individual Defendants, “a supervisory

employee may be joined as a party defendant in a Title VII action, [but] that employee must be

viewed as being sued in his capacity as the agent of the employer, who is alone liable for a

violation of Title VII.” Gary v. Long,

(D.C. Cir. 1995). In such cases, the

claims against a supervisory employee “essentially merge[]” with the claims against the

employer, so the former may be dismissed.

In Gary, for example, the D.C. Circuit affirmed

the dismissal of a redundant Title VII claim.

And other courts in this district have dismissed

merged claims because they are “redundant and inefficient use[s] of judicial resources.” Cruz-

Packer v. D.C.,

(D.D.C. 2008) (quotation omitted); see Ndzerre v.

WMATA,

, 64–65 (D.D.C. 2016). Here, Thomas’s Title VII claims against the

Individual Defendants in their official capacities merge with his claims against WMATA, which

alone is liable for any violations of Title VII. Therefore, the Court will dismiss with prejudice

Thomas’s Title VII claims against the Individual Defendants. 4

4 Title VII does not allow for suits against individuals in their personal capacities. See Gary,

. To the extent that Thomas attempted to name the Individual Defendants in their personal capacities, those claims are dismissed with prejudice.

13 2. ADEA

Thomas also asserts ADEA claims against the Individual Defendants, seeking both

damages and injunctive relief. Like the Title VII claims, the ADEA damages claims against the

Individual Defendants function solely as damages claims against WMATA. See Atchinson v.

District of Columbia,

(D.C. Cir. 1996) (“When sued in their official capacities,

government officials are not personally liable for damages.”). WMATA is immune from ADEA

damages. See supra Section III.B. The Court will therefore dismiss with prejudice the ADEA

damages claims against the Individual Defendants in their official capacities.

Thomas also seeks injunctive relief. In particular, he seeks to be prospectively awarded

the promotion for which he was rejected. See Compl. at 9. Although WMATA itself is immune

from such claims, see supra Section III.B, the Individual Defendants are not. Under the Ex parte

Young doctrine, “[a] federal court is not barred by the Eleventh Amendment from enjoining state

officers from acting unconstitutionally, either because their action is alleged to violate the

Constitution directly or because it is contrary to a federal statute or regulation that is the supreme

law of the land.” Vann v. Kempthorne,

(D.C. Cir. 2008); see also Ex parte

Young,

(1908). The doctrine “rest[s] upon the fiction that the suit went against the

officer and not the State, thereby avoiding sovereign immunity’s bar.” Vann,

.

“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to

suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as prospective.”

at

750 (quoting Verizon Md. Inc. v. Pub. Serv. Comm’n,

(2002)).

The Court finds no case in this Circuit directly addressing the availability of Ex parte

Young claims under the ADEA. But the Supreme Court has allowed for such relief under the

Americans with Disabilities Act. Bd. of Trs. of the Univ. of Ala. v. Garrett,

, 374 14 n.9 (2001) (private individuals may sue for injunctive relief to enforce the standards of the ADA

under Ex parte Young). And other circuit courts have persuasively applied Ex parte Young to the

ADEA. See State Police for Automatic Ret. Ass’n v. DiFava,

(1st Cir. 2003)

(Young applies to the ADEA); Meekison v. Voinovich,

(6th Cir. 2003)

(unpublished opinion) (same); see also Chhim v. Univ. of Texas at Austin,

, 470 n.2

(5th Cir. 2016) (implying that Young applies to the ADEA); Peirick v. Indiana Univ.-Purdue

Univ. Indianapolis Athletics Dep’t,

, 695–97 (7th Cir. 2007) (same); Duva v. Bd. of

Regents of the Univ. Sys. of Georgia,

(11th Cir. 2016) (unpublished

opinion) (same); Shahin v. Delaware,

(3d Cir. 2014) (unpublished

opinion) (same).

The Court will follow this course by applying the Ex parte Young doctrine to Thomas’s

ADEA claims against the Individual Defendants. Thomas’s complaint alleges an ongoing

violation of the ADEA and seeks prospective relief, namely the promotion for which he was

rejected, which is sufficient to state a claim against the Individual Defendants. See Compl. at 9;

Vann,

. Therefore, the Court will deny the motion to dismiss the ADEA claims

against the Individual Defendants for prospective injunctive relief. 5

5 The ADEA does not allow for suits against individuals in their personal capacities. See Jones v. The Wash. Times,

(D.D.C. 2009) (dismissing ADEA claims against individual defendants because the statute does not provide for liability against individual defendants in their personal capacities); Cruz–Packer,

(same). To the extent that Thomas attempted to name the Individual Defendants in their personal capacities, those claims are dismissed with prejudice.

Also, the Court notes that the parties briefly discuss whether the Individual Defendants were properly served, see Mem. at 8, 11–12; Opp. at 5–6, but WMATA did not move to dismiss for failure to serve the Individual Defendants. Therefore, the Court does not address this possible issue.

15 E. Thomas is not authorized to seek punitive damages against WMATA.

Finally, WMATA moves to dismiss Thomas’s claims for punitive damages. As a general

matter, municipalities are not subject to punitive damages absent express statutory authorization.

See City of Newport v. Fact Concerts, Inc.,

, 259–66 (1981); Daskalea v. D.C.,

, 446–47 (D.C. Cir. 2000); Smith v. D.C.,

(D.C. 1975) (per curiam); see

also Coates v. WMATA, No. 15-cv-2006,

, at *6 (D.D.C. Aug. 31, 2016) (“As

a general rule, WMATA’s sovereign immunity bars claims against it for punitive damages.”).

Thomas does not identify any statutory basis for a punitive damages award against WMATA,

nor does he cite to any supportive case law. Instead, Thomas repeats the arguments he raised

against WMATA’s general assertion of sovereign immunity. See Opp. at 21–22. Those

arguments are beside the point and, at any rate, rejected for the same reasons articulated in

Section III.B.

Moreover, the Court’s own inquiry does not reveal any statutory authorization for

punitive damages against WMATA for the remaining Title VII claims. In Title VII cases

involving intentional discrimination in employment, punitive damages are not recoverable

against “a government, government agency or political subdivision,” such as WMATA. 42

U.S.C. § 1981a(b)(1).6

6 In full, the provision reads: “A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1) (emphasis added).

16 Further, the signatories to WMATA’s governing compact did not waive WMATA’s

immunity with respect to punitive damages. See

, ¶ 80.7 “[T]here is

no express waiver of immunity for punitive damages in the WMATA Compact and we will not

imply one, given the settled state of District of Columbia law.” Lucero-Nelson v. WMATA,

(D.D.C. 1998) (quoting Petticolas v. WMATA, No. 87-cv-2516,

,

at *3 (D.D.C. Mar. 22, 1988)); see also Wainwright v. WMATA,

(D.D.C.

1997) (“[I]t seems clear, as a matter of law, logic, and public policy, that punitive damages are

unavailable against WMATA, even for torts arising out of its proprietary functions.”).

Therefore, punitive damages are not available here, and Thomas’s claims to that effect will be

dismissed with prejudice.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part WMATA’s Motion

to Dismiss. Dkt. 3. A separate order consistent with this decision accompanies this

memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge Date: April 9, 2018

7 In full, the paragraph reads: “The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance 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. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.”

, ¶ 80.

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