Fuchilla v. Layman

Decision Date08 February 1988
Citation109 N.J. 319,537 A.2d 652
Parties, 52 Fair Empl.Prac.Cas. (BNA) 1596, 47 Empl. Prac. Dec. P 38,250, 45 Ed. Law Rep. 147 Anne FUCHILLA, Respondent, v. William A. LAYMAN, M.D.; University of Medicine and Dentistry of New Jersey and the Board of Trustees of the University of Medicine and Dentistry of New Jersey, Appellants.
CourtNew Jersey Supreme Court

Barbara A. Harned, Deputy Atty. Gen., for appellants (W. Cary Edwards, Atty. Gen. of New Jersey, attorney; Andrea M. Silkowitz, Deputy Atty. Gen., of counsel).

Maureen S. Binetti, Woodbridge, for respondent (Wilentz, Goldman & Spitzer, attorneys; James M. Burns, of counsel and on the brief).

The opinion of the Court was delivered by

POLLOCK, Justice.

This appeal concerns the applicability of the notice provisions of the Tort Claims Act (the Act), N.J.S.A. 59:8-8, 9, to discrimination claims brought pursuant to the Civil Rights Act, 42 U.S.C.A. § 1983 (section 1983), and the New Jersey Law Against Discrimination (the Law), N.J.S.A. 10:5-1 to -42. Plaintiff, Anne Fuchilla, sued under both statutes, and the University of Medicine and Dentistry of New Jersey and its Board of Trustees (UMDNJ) moved to dismiss the complaint because of her failure to satisfy the notice provisions of the Act. The Law Division granted summary judgment in favor of UMDNJ, and the Appellate Division reversed and remanded, 210 N.J.Super. 574, 510 A.2d 281. We granted certification, 105 N.J. 563, 523 A.2d 196 (1986), and now affirm the judgment of the Appellate Division.

We hold that UMDNJ is a "person" within the meaning of section 1983 and, therefore, may be liable for Civil Rights violations under that statute. We hold further that sexual harassment does not constitute an "injury" within the meaning of the Act. Consistent with that conclusion, the notice provisions of the Act, N.J.S.A. 59:8-8, 9, do not apply either to injuries arising from violations of the Law or to a violation of federal rights protected by section 1983. Consequently, Fuchilla may maintain her causes of action under section 1983 and under the Law.


This matter is presented on UMDNJ's motion for summary judgment. Consequently, we assume that the facts as alleged by Fuchilla are true, and give her the benefit of all inferences that may be drawn in her favor. R. 4:46-2; Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 65, 417 A.2d 505 (1980). Because the matter is presented on review of an order for summary judgment, our decision does not reflect any view of the appropriate disposition at trial.

Fuchilla was employed as a secretary at UMDNJ from January 1965 until June 1983, when UMDNJ terminated her employment. For most of the period of her employment, she was assigned to Dr. William A. Layman, but in July 1982, she began working for Dr. Darwin Prockop. While they were working together, Fuchilla and Dr. Layman engaged in an intimate relationship, which lasted until 1981. Between that date and the date of her transfer to Dr. Prockop, Fuchilla alleges that "Layman sexually harassed and intimidated plaintiff in the performance of her job functions and responsibilities, and retaliated against her for having terminated their intimate relations." She contends that the alleged acts of discrimination began on November 3, 1981, and lasted until either August or November of 1982.

On September 3, 1982, while still employed by UMDNJ, Fuchilla instituted this action against UMDNJ, its trustees, and Dr. Layman. Insofar as UMDNJ is concerned, Fuchilla alleges that "[d]efendant UMDNJ has supported Layman in his continual sexual harassment actions and has failed to take any action or remedy to stop the discriminatory acts of defendant Layman." She claims that in November 1982 Dr. Prockop asked her to resign and that in June 1983 UMDNJ fired her. Fuchilla settled her claim against Dr. Layman for $25,000, and on August 4, 1983, she filed a notice of claim with UMDNJ. She filed the notice, however, beyond the ninety-day period permitted by the Act, N.J.S.A. 59:8-8, 9, and the Law Division granted UMDNJ's motion to dismiss her complaint. In reversing, the Appellate Division ruled that the notice provisions of the Act did not apply to Fuchilla's claims under either the Law or 42 U.S.C.A. section 1983. The court also ruled that Fuchilla's claim for injunctive relief was not subject to the provisions of the Act, a ruling that UMDNJ does not challenge on this appeal.

During the pendency of this action, Fuchilla instituted a suit in the United States District Court for the District of New Jersey against Dr. Prockop and UMDNJ, Fuchilla v. Prockop, No. 85-0693 (D.N.J. Oct. 13, 1987). That court granted summary judgment dismissing the complete complaint against Prockop and granting partial summary judgment on Fuchilla's claims against UMDNJ based on substantive due process and equal protection, but not on her claims based on her free speech and liberty rights under the fourteenth amendment to the United States Constitution. The effect of that judgment on this action is not before us.


To be liable under 42 U.S.C.A. section 1983, 1 the defendant must be a "person" within the meaning of that section. The statute does not define "person," and in defining the term, the United States Supreme Court has looked to the eleventh amendment, 2 under which the individual states are not subject to the jurisdiction of the federal courts. Quern v. Jordan, 440 U.S. 332, 350-51, 99 S.Ct. 1139, 1150, 59 L.Ed.2d 358, 373 (1979) (Brennan, J., concurring). In Quern v. Jordan, according to Justice Brennan's concurring opinion, the Supreme Court impliedly held that a state is not a "person" within the meaning of section 1983. Id. at 350, 99 S.Ct. at 1150, 59 L.Ed.2d at 372; Bailey v. Ohio, 487 F.Supp. 601, 603 (S.D.Ohio 1980) ("[t]he fact that Congress did not intend to abrogate eleventh amendment immunity for the states means, necessarily, that a state is not a 'person' under § 1983 and no suit for any relief may be maintained against the state under § 1983"). Following that interpretation, a majority of state courts have held that an entity considered to be a state or its alter ego for eleventh amendment purposes is not a "person" under section 1983. See State v. Green, 633 P.2d 1381 (Alaska 1981); Pyne v. Meese, 172 Cal.App.3d 392, 218 Cal.Rptr. 87 (1985); Merritt for Merritt v. State, 108 Idaho 20, 696 P.2d 871 (1985); Hampton v. Michigan, 144 Mich.App. 794, 377 N.W.2d 920 (1985); DeVargas v. State ex rel. N.M. Dep't of Corrections, 97 N.M. 447, 640 P.2d 1327 (Ct.App.1981), cert. quashed 97 N.M. 563, 642 P.2d 166 (1982); Edgar v. State, 92 Wash.2d 217, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1026, 62 L.Ed.2d 760 (1980); Boldt v. State, 101 Wis.2d 566, 305 N.W.2d 133, cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393 (1981); but see Gumbhir v. Kansas State Bd. of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 724, 74 L.Ed.2d 950 (1983); Lowery v. Department of Corrections, 146 Mich.App. 342, 380 N.W.2d 99 (1985); Ramah Navajo School Bd. v. Bureau of Revenue, 104 N.M. 302, 720 P.2d 1243 (Ct.App.), cert. quashed, 104 N.M. 201, 718 P.2d 1349, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). In the ten years that have elapsed since Quern v. Jordan, supra, the United States Supreme Court has not rejected Justice Brennan's interpretation. Furthermore, the parties rely upon that interpretation in the present case. In sum, if a governmental entity enjoys immunity as the state or its alter ego under the eleventh amendment, it cannot be liable as a "person" under section 1983. See Kovats v. Rutgers, 633 F.Supp. 1469, 1477 (D.N.J.1986). Otherwise, section 1983, in effect, would abrogate the eleventh amendment. If, however, a governmental entity is not considered to be the "state" for eleventh amendment purposes, it is not immune from federal court jurisdiction, and a federal action may be maintained against it as a "person" under section 1983.

In the federal courts, a section 1983 action is subject to constraints not present in state courts. For example, the eleventh amendment limits the jurisdiction of federal, but not state, courts. Maine v. Thibotout, 448 U.S. 1, 9 n. 7, 100 S.Ct. 2502, 2507 n. 7, 65 L.Ed.2d 555, 562 n. 7 (1980), One effect of the eleventh amendment is to subject a state in a federal court to prospective injunctive relief, but not to a claim for damages. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Because the present matter is pending in a state court, we are not concerned with eleventh amendment immunity as a defense or with the direct effect of that amendment on the proceedings. The determination whether UMDNJ may be considered to be the State under the eleventh amendment, however, is necessary to determine whether UMDNJ is a "person" within the meaning of section 1983. In urging us not to remand the matter but to resolve that issue, the Attorney General has supplemented the record with part of the appropriations handbook for fiscal year 1985-86. Resolution of the issue requires us to determine whether UMDNJ would be considered the alter ego of the State under the eleventh amendment. If so, it is not a "person" and, therefore, not liable under section 1983.

In determining whether an entity is an "alter ego" of the state for eleventh amendment purposes, the Third Circuit has adopted the following criteria:

[L]ocal 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...

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