Melvin J. Kelly v. Washington State Department of Transportation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN J. KELLY,
Plaintiff-Appellant,
v.
WASHINGTON STATE DEPARTMENT
OF TRANSPORTATION; et al.,
Defendants-Appellees.
No. 18-35961
D.C. No. 2:16-cv-00522-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ and HURWITZ, Circuit Judges.
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
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 (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 (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

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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

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(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.

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