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October 13, 1987

Anne Fuchilla, Plaintiff,
Dr. Darwin Prockop, Individually and as Chair, Department of Biochemistry, University of Medicine and Dentistry of New Jersey, and the University of Medicine and Dentistry of New Jersey, Defendants

Ackerman, District Judge.

The opinion of the court was delivered by: ACKERMAN


 At the outset, I note that summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial," or it will be defeated on the motion. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original). Utilizing this standard, I find the following facts.


 In February of 1965, plaintiff was hired as a secretary in the Department of Preventive Medicine by the predecessor of defendant UMDNJ, the College of Medicine and Dentistry of New Jersey. A few months later, plaintiff transferred to the Personnel Department and then shortly thereafter to the Psychiatry Department, where she worked with Dr. William Layman, department chairman. Plaintiff had become a patient of Dr. Layman's in 1964. In 1965, she commenced a romantic relationship with Dr. Layman which was to last until plaintiff ended it in 1981.

 Plaintiff worked continuously for Dr. Layman from 1965 to 1981 with the exception of a three year lay-off period (September, 1975 to December, 1978) and a thirteen month medical leave (October, 1980 to November, 1981). Soon after returning from medical leave, plaintiff requested a transfer to the Rutgers Medical School at Piscataway. Following another medical leave from March 29, 1982 until May 17, 1982, plaintiff transferred from Newark to the Biochemistry Department at Piscataway. In July, 1982, she started working in the position of Secretary I for defendant Prockop.

 On February 6, 1983, Fuchilla commenced another medical leave of absence which lasted until May 6, 1983. *fn1" University policy provides that a leave of absence does not guarantee an employee's reemployment in the position vacated. On May 4, 1983, the plaintiff advised Linda Groce of the UMDNJ Personnel Department that she was interested in returning to the university and requested notification of all available positions. Although Ms. Fuchilla interviewed for one secretarial position at the Secretary I level, it was not offered to her. By letter dated June 10, 1983, Ms. Groce informed the plaintiff that since she had turned down the secretarial position offered her and since her leave of absence had expired, she was being terminated effective June 15, 1983. Subsequently, by letters dated June 19 and June 20, 1983 respectively, the plaintiff and her attorney notified Ms. Groce that plaintiff had not rejected any offer because no offer was made.

 Against this background, the history of plaintiff's employment discrimination charges may be reviewed. Shortly after her transfer to the Piscataway campus, Ms. Fuchilla filed with the Equal Employment Opportunity Commission (EEOC) a letter dated August 30, 1982 which read in pertinent part:

I would like to file a sexual harassment complaint against my former boss, Dr. William A. Layman, M.D., University of Medicine and Dentistry of New Jersey - N. J. Medical School. I was told to send this letter and you would docket it until I can come in personally.

 Ms. Fuchilla also filed an employment discrimination action against Dr. Layman and UMDNJ in state court in October, 1982. On December 7, 1983, the plaintiff filed a sworn charge of sexual and retaliatory harassment and retaliatory discharge against the University of Medicine and Dentistry. The charge alleges that the University knew of and tolerated sexual harassment by one of its agents, Dr. William Layman, chairman of the psychiatry between July 1981 and July 1982. Moreover, the charge states that UMDNJ, through its agents Drs. Prockop and Layman, Linda Groce and others, retaliated through harassment, intimidation and discharge. The charge specifically referred to the transfer to the Biochemistry Department in Piscataway in July 1982 and her termination of June 15, 1983. Plaintiff charged that such retaliation was due to her protest over the harassment and retaliation allegedly caused by UMDNJ, Layman and Prockop. The EEOC determined that the plaintiff's sexual harassment charges were untimely and confined its investigation to the retaliation charges. A right to sue letter was issued November 9, 1984.

 This action was commenced by complaint filed February 12, 1985. The amended complaint filed March 22, 1985 alleges that after the termination in July 1981 of plaintiff's romantic relationship plaintiff had with Dr. Layman, Layman sexually harassed and intimidated her, retaliated against her for opposing the alleged sexual discrimination and forced her to transfer to the Department of Biochemistry. The complaint further alleges that due to her sex and her opposition to the alleged unlawful employment practices, her new supervisor, Dr. Prockop, intimidated and retaliated against her, which caused her to suffer additional harm and necessitated additional medical leaves of absence. Moreover, the complaint alleges that at all times, agents of the UMDNJ knew of the circumstances which allegedly culminated in her leaves and her transfer and unlawfully discharged her when her leave expired. The complaint asserts that these acts were in violation of 42 U.S.C. §§ 2000e-2(a)(1), 2000e-2(1)(2) and 2000e-3(a) as well as 42 U.S.C. § 1983. I will address each of defendants' grounds for summary judgment in turn.


 The defendants contend that the plaintiff's § 1983 claim against the University of Medicine and Dentistry of New Jersey must be dismissed as barred by the eleventh amendment. It is clear that a federal district court may not consider or dispose of a case on nonjurisdictional grounds until it first determines it has jurisdiction over the subject matter and the parties in a case. Pacific Intermountain Express Co. v. Hawaii Plastics Corp., 528 F.2d 911, 912 (3d Cir. 1976). I must therefore consider the defendant's eleventh amendment argument first.

 The eleventh amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 The significance of this amendment "lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Article III" of the Constitution. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171, reh. denied, 473 U.S. 926, 106 S. Ct. 18, 87 L. Ed. 2d 696 (1985) (quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984)).

 Although the eleventh amendment does not explicitly so state, it has been held to prohibit suits brought by a citizen of a state against his own state. Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890). A state may be subject to suit in the federal courts if it expressly consents. 465 U.S. at 99.

 When the suit is against state officials, a state agency or an entity other than the state, the eleventh amendment will operate to bar the action when "the state is the real, substantial party in interest." Ford Motor Co. v. Dept. of Treas., 323 U.S. 459, 89 L. Ed. 389, 65 S. Ct. 347 (1945). "The general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be 'to restrain the government from acting, or to compel it to act.'" 465 U.S. at 101, n.11 (quoting Dugan v. Rank, 372 U.S. 609, 620, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963)).

 When acting under § 5 of the fourteenth amendment, Congress can abrogate eleventh amendment immunity without state consent, as it did in the Title VII of the Civil Rights Act of 1964. Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). However, § 1983 does not override a state's eleventh amendment immunity. Quern v. Jordan, 440 U.S. 332, 342, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979).

 The question of whether an agency is the alter ego of the state and thereby not amenable to federal jurisdiction is ultimately a question of federal, not state law, although state decisions about the relationship between an agency and the state are instructive. See Blake v. Kline, 612 F.2d 718, 722 (3d Cir. 1979), cert. denied, 447 U.S. 921, 65 L. Ed. 2d 1112, 100 S. Ct. 3011 (1980). The Third Circuit sets forth nine factors to be considered in determining whether an "alter ego" status attaches to an instrumentality of the state:

Local law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance.
Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations.

 Urbano v. Board of Managers of the New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir. 1969), cert. denied, 397 U.S. 948, 25 L. Ed. 2d 128, 90 S. Ct. 967 (1970); see also Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir. 1987).

 I need not laboriously apply the nine factors to the facts of this case because I agree with the well reasoned, exhaustive analyses of my colleagues Judges Barry and Debevoise, as well as former Judges Stern and Lacey in recent opinions concluding that eleventh amendment immunity does not protect UMDNJ. See Gona v. University of Medicine and Dentistry of New Jersey, Civ. No. 83-3828, slip op. (D.N.J. Aug. 15, 1986) (Debevoise, J.); Cohen v. Board of Trustees of the University of Medicine and Dentistry, Civ. No. 85-3841, slip op. (D.N.J. June 27, 1986) (Barry, J.), appeal docket, No. 87-5121 (3d Cir. February 13, 1987); see also Khalil v. University of Medicine and Dentistry, Civ. No. 86-1066, letter op., (D.N.J. Nov. 30, 1986) (Stern, J.), appeal docket, No. 87-5309 and 87-5443 (3d Cir. May 1, 1987 and July 7, 1987); Mauriello v. University of Medicine and Dentistry, Civ. No. 83-1569 (D.N.J. Aug. 10, 1984), rev'd on other grounds, 781 F.2d 46 (3d Cir. 1986). *fn2" In denying defendant UMDNJ's motions for summary judgment, Judges Barry and Debevoise relied primarily on findings that UMDNJ could not establish that judgments against it would be satisfied exclusively from state funds. Cohen, slip op. at 18; Gona, slip op. at 9-10. Moreover, although it is dispositive here, I note that the Appellate Division of New Jersey Superior Court has found that UMDNJ is not an alter-ego of the state in a state court action brought by Ms. Fuchilla. See Fuchilla v. Layman, 210 N.J. Super. 574, 581-82, 510 A.2d 281 (App. Div), certif. granted, 105 N.J. 563, 523 A.2d 196 (1986).

 Accordingly, based on the foregoing authorities, I reject this ground for summary judgment. This holding that UMDNJ is not immune also disposes of defendants' next argument that the individual defendant, Dr. Prockop, enjoys eleventh amendment immunity. Defendants contend that any judgment against him would be paid out of the state treasury. However, immunity of employees is derivative of any immunity possessed by the institution. See Kovats, 822 F.2d at 1306. As I have found that UMDNJ is not immune, Dr. Prockop may also not be immune.


 The defendants claim they are entitled to the defense of qualified immunity. The defendants bear the burden of showing that they are entitled to this defense. Butz v. Economou, 438 U.S. 478, 506, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). "Although the Court has recognized that in enacting § 1983, Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending wholesale revocation of the common-law immunity afforded government officials." Procunier v. Navarette, 434 U.S. 555, 561, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978).

 Prior to Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), the Supreme Court endorsed a test for qualified immunity which had subjective and objective components. Thus, an official was denied qualified immunity if:

he knew or should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the (complainant) or if (the official) took the action with malicious intention to ...

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