The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court on the motion for summary judgment filed by Defendants Montclair State University ("MSU"), John Vitiello, Joseph Marzullo, Walter Watkins, Dr. Timothy Carey, Walter Eddy, Theresa Geordino, Keesha Chavis, Joseph Fornarotto, Evrin Aya, and Robert Caputo (collectively "Defendants") [docket item no. 30]. Plaintiff has opposed this motion [docket item no. 37]. The Court requested, and the parties provided, supplemental briefing relating to whether MSU should be treated as an arm of the state for Eleventh Amendment immunity purposes. After consideration of the parties' briefing, the Court has determined that it will grant in part and deny in part Defendants' motion for summary judgment. In the following discussion, the Court gives its reasons for the decision.
The case arises from an employment dispute. Plaintiff, Zoilo Ventura is a 58 year old Hispanic male who has worked as a Senior Repairer at MSU. Mr. Ventura sought, and was denied, several promotions during his time at MSU. Plaintiff alleges that such denials were based on age and race/national origin discrimination. Plaintiff also alleges that after filing complaints both internally and to the Equal Employment Opportunity Commission ("EEOC") he faced retaliation from his co-workers.
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the non-moving party. See Boyle v. Cnty. Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita, 475 U.S. at 586; see also Anderson, 477 U.S. at 247-48. Pursuant to Federal Rule of Civil Procedure 56(e), the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("to raise a genuine issue of material fact . . . the [non-moving party] need not match, item for item, each piece of evidence proffered by the movant," but rather "must exceed the 'mere scintilla' threshold"), cert. denied, 507 U.S. 912 (1993)).
B. Eleventh Amendment Immunity
Defendants claim that Plaintiff's NJLAD, 42 U.S.C. § 1983, breach of contract, and intentional infliction of emotional distress claims against MSU are barred by the Eleventh Amendment. "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).
This particular issue turns on the question of whether MSU 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). MSU has notpersuaded 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 MSU. Significantly, MSU does not claim that the State is obligated to pay a judgment against MSU. Rather, MSU contends that it does not have sufficient funds to pay any judgment and such funds would come from the State whether directly or though MSU's State appropriation. (Def's. Supp. Br. at 2-3.) 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 MSU would be enforceable against the State of New Jersey.
The Third Circuit has consistently rejected arguments similar to that made by MSU: 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). MSU has failed to show that the State of New Jersey bears an obligation to pay a judgment against it. Accordingly, the first factor does not weigh in favor of finding that MSU 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, MSU argues: 1) MSU has been established and named pursuant to state statutory authority; 2) MSU 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 MSU the authority to sue and be sued; 4) MSU is not separately incorporated under state law; and 5) MSU is "exempt from real property taxes and sales to the same extent as any other agency of the State of New Jersey" as well as being exempt from federal income tax.
As to MSU's citation of N.J.S.A. § 18A:3B-27, that section, read in its entirety, works more against a finding of Eleventh Amendment immunity than for it:
For the purposes of complying with the provisions of Article V, Section IV, Paragraph 1 of the New Jersey Constitution, any State institution of higher education which was allocated to the Department of Higher Education or other department of State government shall be allocated to the Department of State upon the effective date of this act. Notwithstanding this allocation, any such institution shall be independent of any supervision or control of the Department of State or any board, commission or officer thereof and the allocation shall not in any way affect the principles of institutional autonomy established in this act.
Thus, the statute makes clear that MSU is not a typical state agency, like the Department of Agriculture, for example. The statute expressly states that, notwithstanding the allocation of these institutions to the Department of State, the institution is not under the supervision or control of the State. Whether viewed in connection with the second Fitchik factor or the third, this weighs against finding that MSU is entitled to Eleventh Amendment immunity.
While MSU contends that it is not separately incorporated under state law, this is inconsistent with N.J.S.A. § 18A:64-6(a), which gives the board of trustees of a state college "the power and duty to: . . . Adopt and use a corporate seal." The power to adopt and use a corporate seal necessarily implies independent corporate status -- otherwise, it makes no sense.
Viewing these factors as a whole, it appears that MSU does have a special status as an entity affiliated with the State of New Jersey. It is true that MSU was created by the State of New Jersey, that it is recognized as a state university in N.J.S.A. § 18A:64-45, that no statutory provision expressly gives it the authority to sue and be sued in its own name, and that it is immune from state ...