Fouche v. Jekyll Island-State Park Authority

• Decision Date: 09 September 1983
• Docket Number: ISLAND-STATE,No. 82-8528,82-8528
• Citation: 713 F.2d 1518
• Parties: 33 Fair Empl.Prac.Cas. (BNA) 303, 32 Empl. Prac. Dec. P 33,807 Diane FOUCHE, Plaintiff-Appellant, v. The JEKYLLPARK AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1518

713 F.2d 1518

33 Fair Empl.Prac.Cas. (BNA) 303,

32 Empl. Prac. Dec. P 33,807

Diane FOUCHE, Plaintiff-Appellant, v. The JEKYLL ISLAND-STATE PARK AUTHORITY, Defendant-Appellee.

No. 82-8528.

United States Court of Appeals,

Eleventh Circuit.

Sept. 9, 1983.

Amanda F. Williams, Brunswick, Ga., Fletcher Farrington, Savannah, Ga., for plaintiff-appellant.

Gary R. Hurst, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE ^*, District Judge.

JOHNSON, Circuit Judge:

Diane Fouche filed suit against the Jekyll Island-State Park Authority ["the Park Authority"], ¹ alleging that she had been discriminated against on the basis of her sex, in violation of 42 U.S.C.A. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. She also asserted a pendent state claim under O.C.G.A. § 51-12-6. Her complaint sought damages and injunctive relief. The district court dismissed the suit, holding that the Eleventh Amendment barred the Section 1983 claim, and that it did not have jurisdiction of the Title VII claim because Fouche had not received a right to sue letter from the United States Attorney General. We affirm the ruling as to the Section 1983 claim but reverse and remand for further proceedings on the Title VII claim.

I. § 1983

A. Eleventh Amendment Immunity

Eleventh Amendment immunity to suit in federal court applies to states and state officials but not to municipal corporations, counties, or other political subdivisions of the state. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Whether the Park Authority is an arm of the state protected by the Eleventh Amendment "turns on its function and character as determined by state law." Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir.1981). Factors that bear on this determination include the definition of "state" and "political subdivision," the state's degree of control over the entity, and the fiscal autonomy of the entity. See Mt. Healthy, supra, 429 U.S. at 280, 97 S.Ct. at 572; United Carolina Bank v. Board of Regents, 665 F.2d 553 (5th Cir.1982).

In Mt. Healthy the Supreme Court observed that "[u]nder Ohio law the 'State' does not include 'political subdivisions,' and 'political subdivisions' do include local school districts." 429 U.S. at 280, 97 S.Ct. at 572. Georgia law does not define "state" or "political subdivision." However, Chapter 4 of Title 50 of the Official Code of Georgia Annotated discusses the organization of the executive branch. Section 50-4-3(c) provides that, when authorities are assigned to a department of the state for administrative purposes only, the "authority created by state law shall retain its separate identity as an instrumentality of the state and a public corporation." Similarly, the statute creating the Park Authority states that it "shall be deemed to be an instrumentality ² of the state and a public corporation." O.C.G.A. § 12-3-232(a). Those provisions illustrate the dual nature of authorities under Georgia law, in that they are both instrumentalities of the state and public corporations. ³ Yet the inclusion of authorities in Chapter 4, entitled "Organization of Executive Branch Generally," suggests that an authority should be considered as an arm of the state rather than as a municipal corporation or political subdivision.

The state's degree of control over the Park Authority also demonstrates that it is an arm of the state. The Park Authority is attached to the Georgia Department of Natural Resources for administrative purposes only. O.C.G.A. § 12-3-232(b). Its budget is reviewed by the Office of Planning and Budget and submitted to the General Assembly as part of the Department of Natural Resources' budget. O.C.G.A. § 50-4-3. Three members of the Park Authority are state officials and the other four members are appointed by the Governor. O.C.G.A. § 12-3-233(a). In addition, the Park Authority's employees are members of the state employees' retirement system. O.C.G.A. § 47-2-313.

Even though the Park Authority can raise money through the issuance of bonds and from the operation of Jekyll Island State Park, its fiscal life is controlled by the state. As noted above, its budget is submitted to the General Assembly. All of its financial records must be submitted annually to the state auditor for inspection. O.C.G.A. § 12-3-234. All leases granted by the Park Authority are deemed to be contracts between the individual lessee, the Authority, and the state of Georgia. O.C.G.A. § 12-3-249(d). The General Assembly must approve the sale of specified lands on Jekyll Island. O.C.G.A. § 12-3-248.

The Park Authority serves a public purpose and its profit making enterprises do not alter its public character. The Park Authority supports itself through the operation of a golf course, hotels, restaurants, and other park facilities. However, the statute creating the Authority specifically provides that all income resulting from these activities must be used "for the sole purpose of beautifying, improving, developing, enlarging, maintaining, administering, managing, and promoting Jekyll Island State Park at the lowest rates reasonable and possible for the benefit of the people of the State of Georgia." O.C.G.A. § 12-3-271. Confirming its public character is the fact that the Authority's property and income are exempt from taxation because "the carrying out of its corporate purpose [is] in all respects for the benefit of the people of this state and constitute[s] a public purpose and ... the authority will be performing an essential governmental function in the exercise of the power conferred on it by this part." O.C.G.A. § 12-3-274.

The Eleventh Amendment protects the sovereignty of the state by prohibiting suits when recovery would be paid from state funds. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Fouche points to two factors that allegedly show that any recovery here would not come from state funds. First, during the period relevant to this lawsuit, March 19, 1979, through March 19, 1981, the Park Authority was self-supporting and received no state funds appropriated by the Georgia Assembly. We do not consider this factor to be dispositive because a judgment would be paid out of current funds. The record is silent as to the extent of the appropriations the Authority has received during its lifetime. However, because the Park Authority's budget is submitted to the General Assembly, presumably the state would be responsible for any debts incurred by it that could not be paid out of its revenues.

Fouche also suggests that the state is not responsible for the Park Authority's debts because the authorizing statute provides that its revenue bonds are not deemed to constitute a debt of the state of Georgia. O.C.G.A. § 12-3-261. However, the authorizing statute does not specify whether the Authority's other debts are debts of the state. One of the main reasons for the creation of authorities is to permit them to issue bonds without violating state constitutional prohibitions against debt. ⁴ Therefore, the fact that the Park Authority's revenue bonds are not debts of the state does not mean that the state would not appropriate money to pay the Park Authority's other debts.

Fouche's contention that the provision relating to bond debts applies to all debts is primarily based on Georgia v. Regents of University System, 179 Ga. 210, 175 S.E. 567 (1934). Regents held that the University of Georgia could issue bonds without violating the state constitution's prohibition against debt because any debt resulting would be "a debt against a corporation governed by the Board of Regents, and not against the state...." 179 Ga. at 222; 175 S.E. at 573. Accord McLucas v. State Bridge Building Authority, 210 Ga. 1, 77 S.E.2d 531 (1953); Sheffield v. State School Building Authority, 208 Ga. 575, 68 S.E.2d 590 (1952). These three cases only hold that the state is not liable for a debt arising from the authority's issuance of bonds. Nevertheless, Regents also contains broad language about the independence of the university from the state:

The university corporation is not the state, or a part of the state, or an agency of the state. It is a mere creature of the state, and a debt of the creature does not stand upon a level with the creator and never can rise thereto. It is first, last and always a debt of the creature and in no sense a debt of the creator.

179 Ga. at 222; 175 S.E. at 574. However, in 1935 the Georgia Assembly enacted a law in response to Regents which provided that the " 'Regents of the University System of Georgia,' is hereby declared to be a governmental agency of the State of Georgia.... The members of the Board of Regents ... are hereby declared to be public officers of the State of Georgia...." Ga.L.1935 p. 171 at 172. See Busbee v. Georgia Conference, American Association of University Professors, 235 Ga. 752, 756, 221 S.E.2d 437, 441 (1975). In addition, two decisions by the Georgia Supreme Court demonstrate that the Board of Regents is a part of the state of Georgia for sovereign immunity purposes. In Busbee, supra, and McCafferty v. Medical College of Georgia, 249 Ga. 62, 287 S.E.2d 171 (1982), the court assumed that a suit against "the Board of Regents ... is a suit against the state." McCroan v. Bailey, 543 F.Supp. 1201, 1207 (S.D.Ga.1982) (discussing McCafferty ). In both cases the determination of whether the Board of Regents is protected by sovereign immunity hinged on whether its immunity was waived by its authorization to sue and be sued. The 1935 legislation, Busbee, and McCafferty effectively refute the broad language of Regents. Because Fouche asserts that the Board of Regents has the same legal status as Georgia authorities, Busbee...