KELLY v. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION (2019)

MEMORANDUM **

Melvin Kelly appeals pro se from the district court’s summary judgment in his employment discrimination action against his former employer, the Washington State Department of Transportation (“WSDOT”), and his former supervisors, alleging claims for race, age, and disability discrimination and retaliation arising out of his termination. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). We affirm.

The district court properly granted summary judgment on Kelly’s claims for race, age, and disability discrimination against defendants Eng, McCormick, Blomber, and Morris because individuals cannot be held liable for damages under Title VII, the Age Discrimination in Employment Act (“ADEA”), and Title I of the Americans with Disabilities Act (“ADA”). See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993) (Congress imposed liability only on employers under Title VII and the ADEA, not individuals); see also Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037-38 (9th Cir. 2006) (individuals cannot be held liable for damages under the ADA).

The district court properly granted summary judgment on Kelly’s age and disability discrimination claims against defendant WSDOT because the Eleventh Amendment bars such claims against states. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 66-67, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (the Eleventh Amendment bars ADEA claims against states); see also Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (the Eleventh Amendment bars ADA claims against states).

The district court properly granted summary judgment on Kelly’s race discrimination and retaliation claims against defendant WSDOT because Kelly failed to establish a prima facie case of race discrimination or retaliation. See Hawn, 615 F.3d at 1156 (requirements for a prima facie case of race discrimination under Title VII); Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1021 (9th Cir. 2018) (requirements for a prima facie case of retaliation under Title VII).

The district court properly dismissed Kelly’s non-support claims against defendants Washington Federation of State Employees Labor Union (“WFSELU”) and Tole for lack of federal subject matter jurisdiction because Kelly failed to allege a federal question or jurisdiction based on diversity of citizenship. See 28 U.S.C. § 1331 (district courts have jurisdiction in “civil actions arising under the Constitution, laws, or treaties of the United States”); 28 U.S.C. § 1332(a)(1) (district courts have jurisdiction where there is a diversity of citizenship and the amount in controversy exceeds $75,000). Because the judgment does not specify whether the district court dismissed these claims with or without prejudice, we treat the judgment as a dismissal without prejudice of these claims only. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (dismissal for lack of federal subject matter jurisdiction should be without prejudice).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We do not consider documents attached to the reply brief that were not filed with the district court. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (“Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.”).

AFFIRMED.