UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

ERNEST A. THOMAS,

Plaintiff,

v.

WASHINGTON METROPOLITAN AREA 

TRANSIT AUTHORITY, et al.,

Defendants.

No. 17-cv-1508 (DLF)

MEMORANDUM OPINION

Pro se plaintiff Ernest Thomas brings this action against his employer, the Washington 

Metropolitan Area Transit Authority (WMATA), under Title VII of the Civil Rights Act of 1964 

and the Age Discrimination in Employment Act of 1967 (ADEA). Thomas alleges that 

WMATA rejected his application to serve as Deputy Chief Vehicle Engineer because of his 

national origin and age, and in retaliation for his previous discrimination complaints. Before the 

Court are Thomas’s and WMATA’s cross-motions for summary judgment. WMATA’s Mot., 

Dkt. 23; Thomas’s Cross-Mot. (Apr. 12, 2019), Dkt. 27; Thomas’s Cross-Mot. (May 13, 2019), 

Dkt. 28. For the reasons that follow, the Court will grant WMATA’s motion and deny Thomas’s 

cross-motions. 

I. BACKGROUND

Thomas, a 64-year-old of Liberian nationality, works for WMATA as a Senior Vehicle

Engineer. WMATA’s Statement of Material Facts ¶¶ 2–3, Dkt. 23-1; Thomas’s Resp. ¶¶ 1–2, 

Dkt. 26. In January 2017, Thomas applied for the position of Deputy Chief Vehicle Engineer. 

WMATA’s Statement of Material Facts ¶ 6; Thomas’s Resp. ¶ 2. The job description previously
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required a bachelor’s degree in engineering and at least ten years of “progressively responsible 

and diversified engineering management, analysis, and contract oversight experience . . . for a 

large transit organization.” Nov. 26, 2013 Position Description at 3, Dkt. 23-5. When Thomas 

applied for the position in January 2017, however, the description had been revised to require a 

bachelor’s degree in engineering and at least ten years of experience “for a large transit 

organization or other engineering firm business experience within the private sector (e.g., 

consultant, car builder, sub-supplier[,] or major contractor).” Jan. 10, 2017 Position Description 

at 4, Dkt. 23-6. 

Although Thomas’s resume was forwarded to Chief Vehicle Engineer Sachit Kakkar for 

review, Thomas was not selected for an interview. WMATA’s Statement of Material Facts ¶¶ 5, 

7; Thomas’s Resp. ¶ 2. Instead, Kakkar and two other WMATA employees interviewed 

Anthony Johnson and Curtis Moses, and on March 7, 2017, Johnson was named as Deputy Chief 

Vehicle Engineer. Selection Memo at 1–2, Dkt. 23-7. According to WMATA, Johnson was 

selected for an interview (and ultimately for the position) because he had over 17 years of transit 

experience and ten years of engineering management experience in a rail-oriented firm. 

WMATA’s Mot. at 2, 6. Thomas, by contrast, had substantial experience in the 

telecommunications industry but did not have ten years of transit or rail-oriented engineering 

management experience. Id.; see also Thomas’s Dep. at 13, Dkt. 23-3. 

Relevant here, Thomas filed two other complaints alleging discrimination by WMATA in 

2014 and 2015. Thomas’s Aff. ¶¶ 12, 17, Dkt. 26-1. He also filed a third complaint in June 

2017 following Johnson’s selection for the position of Deputy Chief Vehicle Engineer. Id. ¶ 19.

In July 2017, Thomas sued WMATA, Kakkar, WMATA General Manager and Chief 

Executive Officer Paul Weidefeld, and WMATA Chief of Internal Business Operations John 
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Kuo, alleging national origin and age discrimination as well as retaliation under Title VII and the 

ADEA. Compl., Dkt. 1. The Court later granted in part and denied in part a motion to dismiss. 

Apr. 9, 2018 Order, Dkt. 8. It dismissed several of Thomas’s claims, but it permitted his Title 

VII claims against WMATA and his ADEA claims for prospective injunctive relief against the 

individual defendants in their official capacities to proceed. Id. at 1. The parties have now 

cross-moved for summary judgment. WMATA’s Mot.; Thomas’s Cross-Mots.

II. LEGAL STANDARD

Summary judgment is appropriate if the moving party “shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247–48 (1986). A 

“material” fact is one that could affect the outcome of the lawsuit. See Liberty Lobby, 477 U.S. 

at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if a 

reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. 

See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. In reviewing the record, the 

court “must draw all reasonable inferences in favor of the nonmoving party, and it may not make 

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 

U.S. 133, 150 (2000). 

It is well established, however, that “a plaintiff opposing summary judgment” must 

“substantiate [his allegations] with evidence” that “a reasonable jury could credit in support of 

each essential element of h[is] claims.” Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. 

Cir. 2015). The moving party is entitled to summary judgment if the nonmoving party “fails to 

make a showing sufficient to establish the existence of an element essential to that party’s case, 
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and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986). 

Because Thomas is proceeding pro se, the Court will construe his various filings together, 

see, e.g., Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), and it will hold him 

“to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 

U.S. 519, 520 (1972) (per curiam). 

III. ANALYSIS

A. Thomas’s National Origin and Age Discrimination Claims

Title VII bars employers from “discriminat[ing] against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s . . . national origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly, the ADEA bars 

employers from “discriminat[ing] against any individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. 

§ 623(a)(1). 

Where a plaintiff offers only circumstantial, rather than direct, evidence of 

discrimination, courts evaluate claims under both statutes using the familiar burden-shifting 

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972); see Gaujacq v. 

EDF, Inc., 601 F.3d 565, 576 (D.C. Cir. 2010) (Title VII); Ford v. Mabus, 629 F.3d 198, 201 

(D.C. Cir. 2010) (ADEA). Under that framework, the employee “must first make out a prima 

facie case” of discrimination. Iyoha v. Architect of the Capitol, 927 F.3d 561, 566 (D.C. Cir. 

2019). The burden then shifts to the employer to “come forward with a legitimate reason for the 

challenged action.” Id. If it satisfies that burden, the court “must conduct one central inquiry in 

deciding an employer’s motion for summary judgment: whether the plaintiff produced sufficient 

evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was 
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not the actual reason and that the employer intentionally discriminated against the plaintiff on a 

prohibited basis.” Id. (internal quotation marks omitted). The D.C. Circuit has emphasized that 

“the issue is not the correctness or desirability of the reasons offered but whether the employer 

honestly believes in the reasons it offers.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 

(D.C. Cir. 1996) (alterations adopted and internal quotations marks omitted).

Because WMATA has offered a non-discriminatory reason—that Johnson, unlike 

Thomas, had ten years of engineering management experience in a rail-oriented firm, WMATA’s 

Mot. at 2—the Court considers only “whether the plaintiff produced sufficient evidence for a 

reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual 

reason and that the employer intentionally discriminated against the plaintiff on a prohibited 

basis,” Iyoha, 927 F.3d at 566 (internal quotation marks omitted). Thomas acknowledges that he 

did not have “ten years of progressively responsible engineering management” experience in the 

transit industry. Thomas’s Dep. at 13. Still, he argues that summary judgment is inappropriate 

because Johnson was not minimally qualified, Thomas was more qualified than Johnson, and 

Kakkar deliberately revised the position description to favor Johnson over Thomas. Thomas’s 

Opp’n (Apr. 12, 2019) at 1–2, 7–9, Dkt. 26. Thomas also complains that Kakkar has taken a 

number of other diverse actions that suggest discriminatory animus. See, e.g., id. at 8–9. The 

Court is unpersuaded.

First, Thomas has failed to substantiate his allegations about Johnson’s experience with 

“evidence that a reasonable jury could credit.” Grimes, 794 F.3d at 94. To support his argument

that Johnson lacked any engineering management experience, Thomas offers Johnson’s previous 

resumes, which referred to one of Johnson’s job titles as “Sr. Systems Engineer,” “Sr. Systems 

Engineer (Technical Project Manager),” and “Systems Engineer.” Thomas’s Opp’n (Apr. 12, 
6

2019) Ex. 2, at 2, 5, 9, Dkt. 26-2. Thomas also points to two meeting sign-in sheets on which 

Johnson indicated that he was a “Sys[tems] Eng[ineer]” and a “Project Eng[ineer].” Id. at 11, 14. 

According to Thomas, these documents show that Johnson was not a technical project manager

and did not have the requisite managerial experience, in part because “a Systems Engineer 

cannot be a Technical Project Manager on the same project at the same time.” Thomas’s Mot. 

(Nov. 6, 2018) at 7, Dkt. 19. But the conclusions Thomas draws are not supported by the limited 

evidence he cites. For example, Thomas has offered no evidence that “a Systems Engineer 

cannot be a Technical Project Manager on the same project at the same time.” Id. And even if 

he had, he has offered no evidence that Johnson could only have gained managerial experience if 

he was a technical project manager. Put differently, Thomas has not established that Johnson did 

not gain managerial experience at whatever position he held, regardless of his formal job title. 

Second, a reasonable jury could not find that WMATA’s nondiscriminatory reason was 

pretextual based on Thomas’s and Johnson’s relative qualifications. Although “[e]vidence 

indicating that an employer misjudged an employee’s performance or qualifications is, of course, 

relevant to the question whether its stated reason is a pretext masking prohibited discrimination,” 

liability under the anti-discrimination laws “cannot rest solely upon a judge’s determination that 

an employer misjudged the relative qualifications of admittedly qualified candidates.” 

Fischbach, 86 F.3d at 1183. To establish pretext, “the qualifications gap [must be] ‘great enough 

to be inherently indicative of discrimination’—that is, . . . the plaintiff [must be] ‘markedly more 

qualified,’ ‘substantially more qualified,’ or ‘significantly better qualified’ than the successful 

candidate.” Hamilton v. Geithner, 666 F.3d 1344, 1352 (D.C. Cir. 2012) (quoting Holcomb v. 

Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)). Thomas was not “markedly more qualified” than 

Johnson. Id. (internal quotation marks omitted). Thomas admits that he did not have ten years 
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of transit or rail-oriented engineering management experience. Thomas’s Dep. at 13. Instead, he 

had significant experience in the telecommunications industry. Thomas’s Resume at 1–2, Dkt. 

23-4. Johnson, on the other hand, had over 17 years of transit experience and ten years of 

engineering management experience in a rail-oriented firm. WMATA’s Mot. Ex. 7, at 23–24, 

Dkt. 23-7. 

True, Thomas, unlike Johnson, had a professional engineer license. Thomas’s 

Cross-Mot. (Apr. 12, 2019) at 6. But that license was not a necessary qualification for the 

Deputy Chief Vehicle Engineer position. Jan. 10, 2017 Position Description at 4. And although 

Thomas argues that it should be a necessary qualification, id. at 3; see also Thomas’s Cross-Mot. 

(May 13, 2019) at 2, 6, “courts must not second-guess an employer’s initial choice of appropriate 

qualifications; rather the courts defer to the employer’s decision of what nondiscriminatory 

qualities it will seek in filling a position,” Jackson v. Gonzales, 496 F.3d 703, 708 (D.C. Cir. 

2007) (alteration adopted and internal quotation marks omitted); see also Morris v. McCarthy, 

825 F.3d 658, 671 (D.C. Cir. 2016) (explaining that a discrimination plaintiff “cannot survive 

summary judgment merely by asserting that her employer made a bad decision”). On this 

record, the Court cannot conclude that Thomas was so substantially more qualified that a 

reasonable jury could infer discrimination.

Third, Thomas has not substantiated his allegation that Kakkar “insert[ed] the word 

‘sub-supplier[’] into the minimum qualifications for the position of Deputy Chief Vehicle 

Engineer to match the resume of . . . Johnson” and effectively place Thomas at a disadvantage.

Thomas’s Opp’n (Apr. 16, 2019) at 2. A party who bears the burden of production must “cit[e] 

to particular parts of materials in the record” to survive summary judgment, Fed. R. Civ. P. 

56(c)(1), and when his factual allegations are supported by an affidavit or declaration, that 
8

affidavit or declaration must be “made on personal knowledge, set out facts that would be 

admissible in evidence, and show that the affiant or declarant is competent to testify on the 

matters stated,” Fed. R. Civ. P. 56(c)(4). In other words, a plaintiff cannot rely on an 

“unsupported claim of conspiracy, derived only from [the plaintiff’s] speculation regarding the 

intentions of third parties of which []he has no personal knowledge.” Kilby-Robb v. Devos, 246 

F. Supp. 3d 182, 199 (D.D.C. 2017). Here, Thomas has offered no evidence to support his 

supposition about Kakkar’s intent. Moreover, the rest of the revision to the job description 

actually made Thomas’s selection more likely by permitting applicants to apply with ten years of 

management experience not only in “a large transit organization” but also in “[an]other 

engineering firm business . . . within the private sector (e.g., consultant, car builder, 

sub-supplier[,] or major contractor).” Jan. 10, 2017 Position Description at 4. Because of this 

revision, Thomas was minimally qualified for the position based on his experience in the 

telecommunications industry. 

Fourth, the Court is unpersuaded by Thomas’s remaining grievances. Thomas argues

that Kakkar “denied [Thomas] an interview” for another position “because [Thomas] did not 

meet the minimum qualification requirements,” Thomas’s Opp’n (Apr. 16, 2019) at 7, that 

Kakkar interviewed and hired other individuals for different positions when they did not meet the 

minimum qualifications, that Kakkar “is in the constant habit of utilizing the scheme of 

deliberately making the minimum requirements of positions stiff to illegally give him the 

opportunity to deny candidates that he disfavors and select candidates he favors,” id. at 7, that 

Kakkar removed him from a project several years ago, id. at 10, that Kakkar has not invited him 

to certain meetings and has otherwise acted impolitely, id. at 11, 14–15, and that Kakkar’s 
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“domineering and autocratic administrative practice has caused him to clash with most of the 

older employees of the Office of Chief Vehicle Engineer,” id. at 3. 

A reasonable jury could not find that WMATA’s non-discriminatory reason was 

pretextual on the basis of these allegations. As an initial matter, Thomas has failed to 

substantiate with evidence the majority of these allegations, including his speculation that 

Kakkar “has a predilection for employees to revere him,” “has an aversion to highly qualified 

and experienced employees,” and has previously forced older employees to resign or transfer. 

Thomas’s Cross-Mot. (May 13, 2019) at 10. Moreover, his allegations fail to establish “that the 

employer intentionally discriminated against the plaintiff on a prohibited basis.” Iyoha, 927 F.3d 

at 566 (internal quotation marks omitted); Walker v. Johnson, 798 F.3d 1085, 1093 (D.C. Cir. 

2015) (“The evidence of record must be such that a reasonable jury could not only disbelieve the 

employer’s reasons, but conclude that the real reason the employer took a challenged action was 

a prohibited one.”). Although Thomas alleges that Kakkar has generally acted impolitely, he has 

not argued, for example, that Kakkar commented on employees’ national origin or age, or that 

Kakkar otherwise suggested that he was motivated by an intention to discriminate on the basis of 

Thomas’s or any other employee’s national origin or age. Cf. Burlington N. & Santa Fe Ry. Co. 

v. White, 548 U.S. 53, 68 (2006) (“Title VII . . . does not set forth a general civility code for the 

American workplace.” (internal quotation marks omitted)). Viewed in its totality, the record 

here would not permit a reasonable jury to conclude that Thomas suffered discrimination on the 

basis of his national origin or age.1

 

 1 Thomas occasionally suggests that Kakkar created a hostile work environment by failing to 

invite him to meetings and otherwise acting impolitely. See, e.g., Thomas’s Cross-Mot. (May 

13, 2019) at 10. But Thomas did not allege a hostile work environment claim in his complaint, 

and even if he had, he would not prevail. To survive summary judgment, a plaintiff alleging a 
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B. Thomas’s Retaliation Claim

Courts evaluating retaliation claims based on circumstantial evidence use the same 

burden-shifting framework used to evaluate claims of discrimination on the basis of national 

origin and age. Walker, 798 F.3d at 1091. To establish a prima facie case, “the plaintiff must 

allege that []he engaged in activity protected by Title VII, the employer took adverse action 

against h[im], and the employer took that action because of the employee’s protected conduct.” 

Id. at 1091–92. “Where, as here, the plaintiff claims that the retaliation took the form of a failure 

to hire, the plaintiff must also show . . . that []he applied for an available job; and . . . that [h]e 

was qualified for that position.” Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. 

Cir. 2004) (alterations adopted and internal quotation marks omitted). The burden then shifts to 

the employer to “identify the legitimate, . . . non-retaliatory reason on which it relied in taking 

the complained-of action.” Walker, 798 F.3d at 1092. At that point, “the central question at 

summary judgment becomes whether the employee produced sufficient evidence for a 

reasonable jury to find that the employer’s asserted . . . non-retaliatory reason was not the actual 

reason and that the employer intentionally . . . retaliated against the employee.” Id.

No reasonable jury could conclude on this record that WMATA retaliated against 

Thomas. To support his retaliation claim, Thomas reiterates his previous arguments about his 

comparative qualifications. See Thomas’s Cross-Mot. (Apr. 12, 2019) at 13. But as discussed, 

 

hostile work environment must “show that []he was subjected to discriminatory intimidation, 

ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of h[is] 

employment and create an abusive working environment.” Brooks v. Grundmann, 748 F.3d 

1273, 1276 (D.C. Cir. 2014) (alterations adopted and internal quotation marks omitted). 

Thomas’s alleged grievances are not “sufficiently severe or pervasive to alter the conditions of 

h[is] employment and create an abusive working environment.” Id. (alteration adopted and 

internal quotation marks omitted). 
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those arguments do not establish pretext. Next, he argues that an inference of discrimination 

arises because he previously filed two discrimination complaints in 2014 and 2015.2 Thomas’s 

Aff. ¶¶ 12, 17; see also Thomas’s Dep. at 10–11. It is true that “[t]he temporal proximity 

between an employee’s protected activity and h[is] employer’s adverse action is a common and 

often probative form of evidence of retaliation.” Walker, 798 F.3d at 1092. However, an 

interval of almost two years between Thomas’s last protected activity and WMATA’s rejection 

of his application does not, without more, establish an inference of retaliation. Id. at 1093 (no 

inference of retaliation arose “based upon the mere proximity in time between an employee filing 

a lawsuit” and an adverse action less than three months later); Taylor v. Solis, 571 F.3d 1313, 

1322 (D.C. Cir. 2009) (collecting cases holding that an interval of only a few months is 

insufficient to raise an inference of retaliatory motive). Thus, the Court must conclude that no 

reasonable jury could find that WMATA rejected Thomas’s application in retaliation for his 

previous complaints. 

 2 Thomas also argues that he filed a discrimination complaint in June 2017, Thomas’s CrossMot. (Apr. 12, 2019) at 14, but that complaint is irrelevant because it was filed after WMATA 

rejected his application for Deputy Chief Vehicle Engineer. WMATA could not have retaliated 

against Thomas because of this complaint because it had already rejected his application at the 

time he filed the complaint. 
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CONCLUSION

For these reasons, the Court grants WMATA’s motion for summary judgment and denies 

Thomas’s cross-motions for summary judgment.

3

 A separate order accompanies this 

memorandum opinion. 

________________________

DABNEY L. FRIEDRICH

United States District Judge

September 5, 2019

 3 The Court also sua sponte modifies its April 9, 2018 Memorandum Opinion, Dkt. 9, and April 

9, 2018 Order, which dismissed several of Thomas’s claims with prejudice on sovereign 

immunity grounds. “Because sovereign immunity deprives the court of jurisdiction, . . . claims 

barred by sovereign immunity can be dismissed only under [Federal Rule of Civil Procedure]

12(b)(1) and not with prejudice.” Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996); see 

also Havens v. Mabus, 759 F.3d 91, 98 (D.C. Cir. 2014) (similar); Rural Water Sewer & Solid 

Waste Mgmt. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011)) (similar). The Court 

therefore dismisses those claims without prejudice.