MEMORANDUM AND ORDER

FRANKLIN VAN ANTWERPEN, District Judge

Plaintiffs, faculty members of Kutztown University ("Kutztown"), have filed a six-count complaint alleging that Defendants, Kutztown and Goldberg, denied them promotions to either Associate Professor or Full Professor, in violation of 42 U.S.C. § 1983, and failed to afford them due process of law. As to Counts I, III, IV, V, and VI, Defendants have filed a Partial Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), on grounds that this Court lacks subject matter jurisdiction, and pursuant to Fed.R.Civ.P. 12(b)(6), on grounds that Plaintiffs fail to state legally cognizable claims. For the reasons discussed below, we deny Defendants' Partial Motion to Dismiss on jurisdictional grounds (as to Count I), but grant the Partial Motion to Dismiss Counts III, IV, V, and VI, for failure to state a claim for which relief can be granted.

I. FACTUAL BACKGROUND

In the fall of 2000, Plaintiffs were either Assistant Professors or Associate Professors. Plaintiffs each submitted an application for promotion to the appropriate department chairperson. (See Compl. ¶¶ 17-37). Pursuant to the University Faculty Promotion Guidelines, after reviewing Plaintiffs' applications, the chairpersons sent them to the appropriate departmental committees for evaluation. The departmental committees then recommended that Plaintiffs be promoted and sent their recommendations to the university-wide promotion committee. (Compl. ¶¶ 19-39).

In the spring of 2001, the University Promotion Committee ("UPC") reviewed the applications for promotion received from the departments (including but not limited to those of the plaintiffs), and recommended that Plaintiffs not be promoted. (Compl. ¶ 40). The UPC sent these recommendations to Defendant Goldberg (Compl. ¶ 40), who evaluated them (Compl. ¶ 42) and, in letters dated July 13, 2001, notified Plaintiffs that the UPC had recommended that they not be promoted and that she had accepted the UPC's recommendations. (Compl. ¶ 41).

Of the completed applications for promotion, Plaintiffs allege that more males than females were promoted and that those chosen for promotion were younger than those denied. (Compl. ¶¶ 43-50). Plaintiffs also allege that the UPC and Defendant Goldberg violated the procedures in the Promotion Guidelines. (Compl. ¶¶ 49-50).

On July 14, 2003, pursuant to 28 U.S.C. § 1331 and 1343(3), Plaintiffs filed a Complaint alleging that Defendants violated 42 U.S.C. § 1983 by denying them promotions due to their sex and/or age, and without affording them due process of law. In response, on September 10, 2003, Defendants filed the instant Partial Motion to Dismiss. We now deny Defendants' Partial Motion for lack of subject matter jurisdiction, but grant the Motion to Dismiss for failure to state a claim.

II. DISCUSSION

A. Rule 12(b)(1) Challenge for Lack of Subject Matter Jurisdiction

In Counts I, III, and V, Plaintiffs allege that Defendant Kutztown violated 42 U.S.C. § 1983 by denying them promotions due to their sex and/or age, and without affording them due process of law. Defendants have filed a Partial Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), challenging this Court's subject matter jurisdiction, on grounds that Kutztown is not a "person" under § 1983 and that Kutztown has Eleventh Amendment immunity from suit. Because Defendant fails to provide any information showing that Kutztown is a state agency, and thus neither a "person" under § 1983 nor an entity not protected from suit by the Eleventh Amendment, we deny Defendants' motion to dismiss Counts I, III, and V. However, we will allow Defendant to refile its Motion to Dismiss with the appropriate supporting documents.

Pursuant to Fed.R.Civ.P. 12(b)(1), when "considering a motion to dismiss for lack of subject matter jurisdiction, the person asserting jurisdiction bears the burden of showing that the case is properly before the court at all stages of the litigation." Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). We may treat a Rule 12(b)(1) challenge as either a factual or facial attack to subject matter jurisdiction. See Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Because Defendant has offered no supplemental information relating to subject matter jurisdiction, we will treat this motion as a facial attack, which requires that we accept as true all allegations set forth in the Complaint. See Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (discussing the distinction between facial and factual challenges to subject matter jurisdiction); Mortensen, 549 F.2d at 891 (same). We further will "draw all reasonable inferences in the plaintiff's favor. . . ." Lexington Ins. Co. v. Forrest, 263 F. Supp.2d 986, 996 (E.D. Pa. 2003).

The Supreme Court has held that the Eleventh Amendment bars any action brought by a citizen against one's own state in federal court when "the state is the real, substantial party at interest" and the relief sought will operate against the state. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), rev'g 673 F.2d 647 (3d Cir. 1982) (en banc). Additionally, sovereign immunity protects state entities against § 1983 claims. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, we must determine whether Kutztown is a state entity.

Plaintiffs' Complaint, the averments within which we must accept as true, alleges that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1343(3) (Compl. ¶ 2), and that Defendant Kutztown is a "person" for purposes of § 1983, capable of being held liable for its constitutional violations (Compl. ¶ 10). Defendant offers no evidence showing otherwise. As such, we have no choice but to accept the allegation that Kutztown is a "person" capable of being sued under § 1983 and to deny Defendants' motion.

Moreover, the cases that Defendants cite do not assist us in determining whether, as a matter of law, Kutztown is a state entity immune to suit or a "person" under § 1983. Skehan v. State System of Higher Educ., 815 F.2d 244 (3d Cir. 1987) involves the umbrella state entity of which Kutztown is a part but which is not being sued here, and O'Hara v. Indiana Univ. of Penn., 171 F. Supp.2d 490 (W.D. Pa. 2001) does not hold expressly that the individual universities within the State System of Higher Education are state agencies. In fact, O'Hara seems to recognize the absence of a clear finding as to whether individual schools are state entities. Thus, without more evidence, we are bound to reject Defendants' arguments.

According to the Third Circuit, "[a] claim may be dismissed under Rule 12(b)(1) only if it `clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction' or is `wholly insubstantial and frivolous.'" Gould Electronics, 220 F.3d at 178 (quoting Kehr Packages, Inc. v. Fidelcor, 926 F.2d 1406, 1409 (3d Cir. 1991)) (internal quotations omitted). At this stage of the proceedings, we cannot find Plaintiffs' claim of jurisdiction to be immaterial or insubstantial and frivolous. Thus, we deny the Partial Motion to Dismiss under Rule 12(b)(1).

B. Rule 12(b)(6) Challenge for Failure to State a Legally Cognizable Claim

Defendants also argue that Counts III, IV, V, and VI should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. We agree with Defendant's arguments and thus grant the motion as to these counts.

We must grant a Rule 12(b)(6) motion, "if it appears to a certainty that no relief could be granted under any set of facts which could be proved." D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). When considering a motion to dismiss, "we are required to accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). However, "we are not required to accept legal conclusions either alleged or inferred from the pleaded facts." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In a § 1983 action, a motion to dismiss will be granted if the plaintiffs fail to sufficiently allege in their complaint the deprivation of a constitutional right. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

Counts III and IV: Age Discrimination

Counts III and IV of Plaintiffs' Complaint allege that the University and Defendant Goldberg violated the Fourteenth Amendment's Equal Protection Clause by failing to promote Plaintiffs because of their age. Plaintiffs claim that age was a substantial factor in Defendants' decision to deny their applications for promotion, such that their applications would have been granted had they been younger than forty years of age. (Compl. ¶¶ 68, 69). Additionally, they allege that Defendants' purported acts of age discrimination were an official policy, practice or custom of the University, and that no reasonable public official could have assumed that she could treat applicants for promotion differently based on age. (Compl. ¶¶ 71, 75).

Contrarily, Defendants argue that Counts III and IV fall within the province of the Age Discrimination in Employment Act (ADEA) and thus cannot be enforced through § 1983 because the ADEA requires that Plaintiffs first exhaust all administrative remedies.

As Plaintiffs correctly contend, neither the Supreme Court nor the Third Circuit has addressed squarely whether an equal protection claim for age discrimination exists independent of an ADEA claim. However, within the context of federal employment, the Third Circuit has held that the ADEA preempts other jurisdictional remedies for age discrimination. Purtill v. Harris, 658 F.2d 134, 137 (3d Cir. 1981).

This holding is consistent with those of other circuits that have found that substantive rights secured by the ADEA may not be used as the basis for an action under § 1983 brought, as is here, by non-federal employees. See e.g.,; Lafleur v. Texas Dep't of Health, 126 F.3d 758, 760 (5th Cir. 1997) (holding that, absent facts supporting an independent § 1983 claim, the ADEA preempted a non-federal employee's age discrimination claim brought under § 1983); Zombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1369 (4th Cir. 1989) (holding that a police officer's action against a police department for allegedly transferring him because of his age came within the exclusive remedies of the ADEA); see also Migneault v. Peck, 158 F.3d 1131, 1140 (10th Cir. 1998), vacated on other grounds, Board of Regents of Univ. of New Mexico v. Migneault, 528 U.S. 1110, 120 S.Ct. 928, 145 L.Ed.2d 806 (2000) (citing Zombro and adopting the Fifth Circuit's holding and rationale in Lefleur as Tenth Circuit law)).

As did the Tenth Circuit in Migneault, supra, we too find the rationales of the Fourth and Fifth Circuits to be persuasive. For example, in the Fourth Circuit case, the plaintiff filed an action pursuant to §§ 1983 and 1985, claiming that he was denied equal protection based on his age in connection with his transfer to a different departmental division. Zombro, 868 F.2d at 1365. In affirming the district court's rejection of the plaintiff's claims, the Court of Appeals held that the specific and comprehensive remedies provided by the ADEA foreclosed claims of age discrimination under § 1983. Id. at 1366. The Fourth Circuit reasoned that permitting § 1983 age discrimination actions would allow alleged victims to circumvent the conciliatory and mitigating plan that Congress designed in the ADEA. In other words, to allow alleged victims to file age discrimination claims under § 1983 would undermine and render meaningless the "comprehensive statutory scheme to prohibit discrimination in employment on the basis of age" that ADEA provides. Id. Thus, the Fourth Circuit concluded that the ADEA is the exclusive remedy for claims based on age discrimination in employment. Id. at 1364, 1369.

Although not bound by the courts who have decided this particular issue, we find the reasoning therein persuasive and consistent with the Third Circuit's similar holding with respect to federal employees in Purtill, supra. Thus, we find that, at the very least, the ADEA preempts other judicial remedies for age discrimination in employment and, as such, Plaintiffs must first seek administrative remedies provided for by the ADEA and through the EEOC before filing a private action with this Court. Accordingly, we grant Defendants' motion to dismiss Counts III and IV of Plaintiffs' Complaint for failure to state a claim upon which relief can be granted.

Counts V and VI: Property Interest Deprivation

Counts V and VI of Plaintiffs' Complaint allege that the University and Defendant Goldberg deprived Plaintiffs of a property interest without due process of law by refusing to promote them. To support this claim, Plaintiffs contend that the Union Contract and Promotion Guidelines created a constitutionally-protected property interest in being promoted. (Compl. ¶¶ 78, 84-85). As legal conclusions, however, these contentions are not required to be viewed in a light most favorable to Plaintiffs. Kost, 1 F.3d at 183.

A § 1983 claim is predicated on two indispensable elements: "(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Counts V and VI lack the second component of a valid § 1983 action and must be dismissed. In other words, Plaintiffs have failed to plead that they have been deprived of a valid property or liberty interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1977).

In Roth, a teacher employed by Wisconsin State University alleged that the school's failure to provide a hearing in connection with its decision not to rehire him denied him due process. Id. at 578. The Supreme Court held that the contract failed to create a property interest because it did not provide the teacher with a reasonable expectation that he would be rehired. Id.

The Court reasoned that to have a valid property interest, the plaintiff must "have a legitimate claim of entitlement to it."Id. A plaintiff's desire for, or unilateral expectation of, a property interest is not sufficient. Id. The Court further explained that "[p]roperty interests . . . are not created by the Constitution. Rather they are created and . . . defined by existing rules or understandings that stem from an independent source. . . ." Id.

Here, the "independent source" that would create such a property interest would be the Kutztown University Promotion Guidelines ("Promotion Guidelines"). However, these guidelines do not present a teacher with a reasonable expectation that s/he would be promoted merely because s/he followed the correct application procedures. The Promotion Guidelines clearly indicate that the decision to promote is entirely discretionary. (Compl., Ex. 3). The discretionary nature of the promotion process eliminates any reasonable expectation that Plaintiffs would have been granted promotions pursuant to the Promotion Guidelines. Accordingly, the Promotion Guidelines do not provide Plaintiffs with a constitutionally protected property interest.

Furthermore, Plaintiffs concede that most courts have found that there is no constitutionally protected property interest in a promotion. (See Pls.' Resp. at 4). As such, because Plaintiffs do not have a valid property interest, Defendants' Motion to Dismiss Counts V and VI for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is therefore granted.

IV. CONCLUSION

ORDER

1. Defendants' Motion to Dismiss Plaintiffs' Complaint is:

i. DENIED as to Count I of Plaintiffs' gender discrimination claim.

ii. GRANTED as to Count III of Plaintiffs' age discrimination claim.

iii. GRANTED as to Count IV of Plaintiffs' age discrimination claim.

iv. GRANTED as to Count V of Plaintiffs' deprivation of property interest claim.

v. GRANTED as to Count VI of Plaintiffs' deprivation of property interest claim.

2. Counts III through VI are DISMISSED in their entirety WITH PREJUDICE.

3. As to Count I, Defendants are GRANTED leave to re-file their Motion to Dismiss, with the appropriate supporting documentation, under Rule 12(b)(1) for lack of subject matter jurisdiction.