The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court on the motion to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), by Defendant New Jersey City University ("NJCU"). For the reasons that follow, the motion to dismiss, now converted to a motion for summary judgment, will be denied.
Very briefly, this case arises from an employment dispute. The Complaint alleges that Plaintiff had been employed by NJCU, and that NJCU harassed, retaliated, and discharged him on account of his age. On August 29, 2008, Plaintiff filed the Complaint in this action, asserting eight counts of discharge, retaliation, and harassment in violation of the New Jersey Law Against Discrimination ("LAD"), the Age Discrimination in Employment Act ("ADEA"), and Title VII of the Civil Rights Act of 1964 ("Title VII"). On August 11, 2009, this Court dismissed the claims under Title VII. Defendant now moves to dismiss the remaining claims in the Complaint.
Defendant moves to dismiss solely on the ground that NJCU is immune from suit due to sovereign immunity. "Whether a public university is entitled to Eleventh Amendment immunity is a fact-intensive review that calls for individualized determinations." Bowers v. NCAA, 475 F.3d 524, 546 (3d Cir. 2007). The parties' briefs on the motion to dismiss relied on factual matters outside the pleadings. Because of this, on October 10, 2010, this Court Ordered that the motion to dismiss be converted to a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 12(b), and provided for additional briefing. Thus, this Court now has before it a motion for summary judgment.
The motion for summary judgment turns on the question of whether NJCU is a state entity, immune from suit in federal court. The Third Circuit applies the following test to this issue:
We have adopted a three-part test to apply in order to determine whether an entity is an arm of the state for Eleventh Amendment purposes. That test examines the following three elements: (1) whether the payment of the judgment would come from the state; (2) what status the entity has under state law; and (3) what degree of autonomy the entity has.
Id. at 546. These are referred to as the Fitchik factors. Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). The Court decides questions of Eleventh Amendment immunity as a matter of law. Skehan v. State System of Higher Education, 815 F.2d 244, 246 (3d Cir. 1987). "[T]he party asserting Eleventh Amendment immunity bears the burden of proving entitlement to it." Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995). NJCU has not persuaded this Court that it is entitled to the immunity that attaches to state entities.
As to the first Fitchik factor, the question is whether the State of New Jersey is obligated to pay a judgment against NJCU. Significantly, NJCU does not claim that the State is obligated to pay a judgment against NJCU. Rather, NJCU contends that "defendant does not have the ability to satisfy a judgment from these funds and any judgment would in fact come from the State of New Jersey." (Def.'s Supp. Br. 13.) This assertion misses the point. The Supreme Court has stated that the question at issue is "whether a money judgment against a state instrumentality or official would be enforceable against the State." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997). Even if it is true that the funds for any judgment would, one way or the other, end up coming from the State of New Jersey, that does not mean that a money judgment against NJCU would be enforceable against the State of New Jersey.
The Third Circuit has consistently rejected arguments similar to that made by NJCU: The University argues that it will be required to pay indirectly any judgment against it because the State of Iowa will be required to increase appropriations to the University to compensate for the judgment. The appropriate question to ask, however, is whether the State is obligated to pay or reimburse the University for its debts. As we recently explained in Febres in rejecting a similar indirect liability argument, if a State is not under a legal obligation to satisfy a judgment, then any increase in expenditures in the face of an adverse judgment is considered a voluntary or discretionary subsidy not entitled to Eleventh Amendment protections.
Bowers, 475 F.3d at 547 (citation omitted). NJCU has failed to show that the State of New Jersey bears an obligation to pay a judgment against it.*fn1 The first factor does not weigh in favor of finding that NJCU is entitled to Eleventh Amendment immunity.
As to the second Fitchik factor, the Third Circuit has stated: The second Fitchik factor requires that we focus on whether the State itself considers the entity an arm of the state. Under the second factor, we look to how state law treats the entity generally; whether the entity can sue or be sued in its own right, whether the entity is separately incorporated, and whether the entity is immune from state taxation.
Id. at 548. As to these points, NJCU argues: 1) NJCU has been established and named pursuant to state statutory authority; 2) NJCU is a state agency allocated to the Department of State, pursuant to N.J.S.A. § 18A:3B-27; 3) the State has not given NJCU the authority to sue and be sued; 4) NJCU is not separately incorporated under state law; and 5) NJCU is immune from state taxation.
As to NJCU's citation of N.J.S.A. § 18A:3B-27, that section, read in its entirety, works more against a finding of ...