The opinion of the court was delivered by: Irenas, Senior District Judge
This matter appears before the Court on a joint Motion to Dismiss by Defendants International Association of Fire Fighters Locals 788 and 2578, a joint Motion to Dismiss by the New Jersey Department of Personnel and John C. Kraus, and a Motion to Dismiss by Theodore Z. Davis. For the reasons set forth below, the Court will grant the aforementioned Motions.
Agripino Figueroa ("Figueroa"), Samuel Muñoz ("Muñoz"), and Gabriel Arroyo ("Arroyo") (collectively "Plaintiffs") are firefighters for the Camden Fire Department (the "Fire Department"). (Compl. at ¶ 18.) Plaintiff also claim to be members of both Defendants International Association of Fire Fighters Local #2578 ("Local 2578") and International Association of Fire Fighters Local #778 ("Local 778") (collectively "Unions"). (Id.) Defendant John C. Kraus ("Kraus") is the Director of Selection Services for the New Jersey Department of Personnel ("NJDOP"), also a Defendant. (Id. at 13.) Defendant Theodore Z. Davis ("Davis") is the Chief Operations Officer of the City of Camden. (Id. at 17.)*fn1
Plaintiffs are on the current list of firefighters eligible for promotion to the rank of Captain, however, Plaintiffs allege that Defendants have failed to utilize the existing list. (Id. at ¶¶ 19-20.) According to Plaintiffs, in early 2006, they arranged meetings with Camden officials to show how the City of Camden could save money by promoting from the current list. (Id. at ¶ 28.) Defendant Davis was appointed the Interim Chief Operating Officer of Camden on December 14, 2006, a position that was made permanent on September 17, 2007. (Davis Cert. at ¶¶ 2-3.) A hiring and promotion freeze was announced by Defendant Davis, effective March 1, 2007, which, Plaintiffs allege was in retaliation for their complaints. (Compl. at ¶ 29.)
Camden, along with the NJDOP, has announced the scheduling of "another test to establish a new eligibility list for said promotions, even though promotions . . . have not been awarded to Plaintiffs who are on the current list ." (Id. at ¶ 22.) The new test was scheduled to take place on January 26, 2008,*fn2 and would have affected future additions to the promotions list. (Id. at ¶¶ 33, 39.) Plaintiffs allege that the new test was announced with a "very short application deadline and a test scheduled prematurely," while appropriate study materials and a course offered by the NJDOP were not available. (Id. at ¶ 42.) In addition, the new promotions list would require firefighters, already on the existing list, to complete a new requirement of certification on National Incident Management System 700. (Id. at ¶ 39.)
The current promotions list, according to Plaintiffs, does not expire until December 2008. (Id. at ¶ 30.) They assert that it is "historical practice" for the lists to be extended for a period of "'three years plus one'," plus an additional year and half to account for the hiring and promotion freeze. (Id. at ¶¶ 31-32.)
Plaintiffs contend that Defendants have failed to meet their obligations under the 1980 Consent Decree, an agreement between the United States Government and various cities in the State, including Camden. (Id. at ¶ 25; Df. NJDOP Br. at 18.) The Consent Decree, the result of a previous employment discrimination lawsuit regarding firefighters and certain New Jersey cities, and a supplemental Consent Decree entered into in 1990, sought to insure the non-discriminatory selection of qualified firefighters. (Df. NJDOP Br. at 18.)
Plaintiff Figueroa asserts that the NJDOP has "repeatedly failed and refused to recognize and credit" him in his employee history file. (Compl. at ¶ 37.) He has not been, he claims, credited with "time in grade" since July 1, 2005, when he was appointed to the position of Fire Prevention Specialist-UFD. (Id.) At that time he began to serve in the Fire Marshall's office on a provisional basis, but was "told by a Camden personnel employee that he was in permanent status." (Id.) He further alleges he was promoted to the position of Fire Captain as a "Floater on a four month Pilot Program, the positions expected to be made permanent as of February 2007." (Id. at ¶ 38.) Presumably, his position has not yet been made permanent. Plaintiffs Munoz and Arroyo are qualified candidates for
promotion to Fire Captain who believe that they will be harmed by the implementation of the new test and the additional requirements for candidates. (Id. at ¶ 39.)
Plaintiffs allege that Defendants failed to "promote from applicable promotions lists and/or . . . give 'time in grade' seniority to the Plaintiffs in the same time and manner as to other ethnic/racial groups." (Id. at ¶ 19.) Plaintiffs claim that the current Captains Promotion List has a higher percentage of minority representatives than usual. (Id. at ¶¶ 20, 23.) While, twenty-eight candidates were promoted from the previous list in its first week and a half of use, the current list contains more minority candidates, and only six of those candidates have been promoted from that list in a year and a half. (Id. at ¶ 28.) Plaintiffs further allege that Fire Department Chief Marino uses racial and ethnic slurs regularly in their place of employment and over county radio. (Id. at ¶ 27.)
Plaintiffs' Complaint contains five Counts. Count I alleges that the City Defendants and Davis discriminated against Plaintiff with respect to their "compensation, terms, conditions, or privileges of employment" because of their race in violation of Title VII of the Civil Rights Act of 1964. (Id. at ¶ 45.) They further allege that the Unions aided and abetted in the discrimination by failing to prevent it. (Id.) Furthermore, Defendant Kraus and the NJDOP aided and abetted and directly discriminated by promulgating the new promotions list. (Id.)
Count II alleges that all Defendants have, "acting under color of state law, intentionally deprived Plaintiffs of" rights secured by the Constitution and by the Consent Decree in violation of 42 U.S.C. § 1983. (Id. at ¶ 50.) Plaintiffs allege that Defendants deprived them of rights secured by the "First, Fifth, and Fourteenth Amendments . . . by depriving them of property rights without due process of law" for failing to promote Plaintiffs and by retaliating against them. (Id.)
Count III alleges intentional discrimination by failing to timely promote Defendants and creating a hostile work environment due to their race in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. § 10:5-1 et seq. (Compl. at ¶¶ 55-57.)
Count IV alleges that the discriminatory practices increased in retaliation for complaints and writing letters reporting the aforementioned conduct in violation of the New Jersey Conscientious Employee Protection Act ("CEPA") N.J.S.A. 34:19-1 et seq. (Compl. at ¶ 61.)
Count V alleges the employment contract between the firefighters and Camden and the Employee Manual were breached due to failure to follow prescribed procedures for granting promotions and "time in grade."*fn3
Before the Court are three Motions to Dismiss Plaintiffs' claims: (1) a joint Motion by the Unions; (2) a joint Motion by the NJDOP and Defendant Kraus; and, (3) a Motion by Defendant Davis. For the reasons explained herein, the Court will grant the aforementioned Motions.
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007); see also Fed. R. Civ. P. 8(a)(2). While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. Furthermore, "a naked assertion of conspiracy . . . gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of entitlement to relief." Twombly, 127 S.Ct. at 1966 (internal quotations omitted).
The NJDOP, Defendant Kraus, and Defendant Davis have asserted immunity from the entire suit on the basis of the Eleventh Amendment.*fn4 The Eleventh Amendment provides that "[t]he 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." U.S. Const. amend. XI. This immunity has been broadly interpreted and extended to prohibit nearly all suits by private individuals, regardless of that individual's citizenship. See, e.g., Bd. of Tr. of Univ. of Ala. v. Garret, 531 U.S. 356, 363 (2001); Employees of the Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 280 (1973) ("[I]t is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state."). Furthermore, the immunity "applies regardless of whether a private plaintiff's suit is for money damages or some other type of relief." Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 765 (2002).
The protections of the Eleventh Amendment also extend to protect entities and persons when "the state is the real, substantial party in interest." Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945). Specifically, state agencies and officials acting in their official capacity are generally afforded this protection. Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.") (internal citations omitted); Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989) ("A state agency is entitled to immunity from a suit in ...