205 F.3d 428 (D.C. Cir. 2000)
Judy J. Jones, Appelleev.Washington Metropolitan Area Transit Authority, AppellantUnited States of America, Intervenor
No. 97-7186
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1998Decided March 17, 2000

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 Department 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:


1
The Washington Metropolitan Area Transit Authority (WMATA) appeals  judgments rendered against it in a suit brought by Judy J.  Jones alleging discriminatory and retaliatory refusal to promote, discharge and failure to reinstate in violation of the Age  Discrimination in Employment Act (ADEA), 29 U.S.C.    621  et seq., and of Title VII of the Civil Rights Act of 1964, 42  U.S.C.    2000e et seq.  The district court awarded Jones  compensatory and liquidated damages under the ADEA, pursuant to a jury verdict, and reinstatement, back pay (including 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 United States Constitution.  We affirm the Title VII award in  toto.


2
Jones began working for WMATA as a bus driver in 1974  and in 1984 rose to the position of first-line TS-3 rail operations 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 Bassily'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.


3
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.


4
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 "marginal" score on a written exam and (2) her failure to follow  WMATA policies and procedure, specifically by "transmit[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


5
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.


6
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.


7
On March 1, 1989 Jones filed this lawsuit alleging discriminatory 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).


8
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, pressing 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 Superintendent 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 reinstatement in a letter to WMATA's Office of General Counsel,  Jones amended her complaint to claim retaliatory discharge  and failure to reinstate.


9
On August 6, 1993 the district court granted partial summary 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.


10
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 retaliation 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.


11
In an opinion and order filed October 15, 1996 the court  also found for Jones on three of her Title VII claims:  retaliatory 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 following relief:  (1) reinstatement and retroactive promotion to TS4 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.  626(b) (equal to the back pay owed after  February 2, 1989, the date the jury found Jones was "willfully" deprived of the TS-4 promotion);  (4) a permanent injunction 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.

12
WMATA has challenged the district court's judgments on  various grounds but, in light of the posture of the case and of our disposition, we need address only three of them.  We  discuss each separately.

A. Sovereign Immunity

13
We first consider WMATA's contention that state entities  (including WMATA) are immune under the Eleventh Amendment from ADEA liability.  Because the United States Supreme Court recently resolved this question in favor of  immunity,3 we agree that the ADEA damages awards must  be vacated.


14
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 Planning 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, 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" immunity 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 liability.  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 Amendment immunity, the attempted abrogation exceeds the Congress's authority under5 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 WMATA Compact, Pub. L. No. 89-774,  80, 80 Stat. 1324, 1350  (1966).

B. Title VII Judgment

15
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 PullmanStandard v. Swint, 456 U.S. 273, 290 (1982).  We perceive no  clear error here.


16
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 a showing raises a "rebuttable presumption of unlawful discrimination" 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 defendant 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.


17
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 pretextual WMATA's proffered legitimate reasons for not promoting Jones.  We conclude the evidence supports the district  court's finding of pretext.  Of the three reasons Miller offered 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 instance 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 discrimination.  Because the court's findings of pretext and of retaliation as to the promotion claim are supported by the evidence, they are not clearly erroneous.


18
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 reinvigorating her dormant lawsuit and prompting a retaliatory discharge.  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.


19
Finally, it was not clearly erroneous for the court to find  pretextual  WMATA's claim it fired Jones for "insubordination" in violation of Department procedure, namely for refusing 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

20
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 prejudgment interest, they retain their Eleventh Amendment immunity 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.  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 prejudgment 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 nointerest 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.") (footnote omitted).8  We therefore affirm the district court's award of prejudgment interest on the Title VII back pay  award.9


21
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.  Accordingly, we remand for further proceedings consistent with this  decision.


22
So ordered.



Notes:


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.


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.  1981a(c), which first authorized jury trials  for such claims.  See Landgraf v. USI Film Prods., 511 U.S. 244  (1994).


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 tortsand those of its Directors, officers, employees and agents 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 WMATA Compact, Pub.L. No. 89-774,  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 admissibility of certain evidence (namely evidence of the entry of partial  summary judgment, of the discrimination judgment against WMATA in Townsend v. WMATA, 746 F. Supp. 178 (D.D.C. 1990), and of  WMATA's alleged discrimination against several witnesses), or its  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 determination."  946 F. Supp. at 1030.


7
 Since Shaw was decided, the Congress has added to Title VII an  express waiver of immunity from interest.  42 U.S.C.  2000e16(d).


8
 Because we vacate the ADEA liquidated damages award, we  need not address WMATA's argument that awarding both liquidated damages and prejudgment interest provides a "double recovery."


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.


