MEMORANDUM OPINION

ALEXANDER WILLIAMS, District Judge

This employment discrimination action arises from Plaintiff Danilo Miranda ("Plaintiff" or "Miranda"), a former employee of Defendant University of Maryland, College Park ("Defendant" or "University"), alleging discrimination on the basis of race, national origin, and age in violation of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination and Employment Act of 1967 ("ADEA"), 29 U.S.C. § et seq. Currently before the Court is Defendant's Motion to Dismiss Count III of Plaintiff's complaint [5]. The Motion has been fully briefed by the parties and is ripe for consideration. No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2004). For the reasons to follow, the Court grants Defendant's Motion to Dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken in the light most favorable to the non-movant. Miranda, a 52 year-old resident alien of Filipino national origin, was hired by the University on October 26, 1998 to serve as a cook in the University's Department of Dining Services. In July 1999, Miranda the University promoted Miranda to the position of "sous chef," a managerial position, in the University's Department of Dining Services. On July 13, 2003, Miranda was terminated from his employment as part of layoff action. At the time of Miranda's layoff, six supervisory positions were eliminated, while six new supervisory positions were created and offered to persons not of Miranda's age, race, or national origin. While the facts are not yet fully developed in this action, Miranda also asserts that the University's Department of Dining Services, the division where he was employed, is entirely self-supporting in that it operates on the fees for services paid by the patrons of the University's dining facilities.

On August 10, 2004, Miranda filed a complaint alleging that his layoff was the result of discrimination in violation of Title VII and the ADEA. On September 24, 2004, Defendant filed a Motion to Dismiss Count III (ADEA claim) of Plaintiff's complaint pursuant to Rule 12(b)(6). Defendant's Motion to Dismiss is ripe, and a judgment is now issued.

STANDARD OF REVIEW

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6) is to test the sufficiency of plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Accordingly, a Rule 12(B)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A Rule 12(b)(6) challenge requires a court to accept all well-pled allegations of the complaint as true and to construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 473 (1997). The Court need not, however, accept: (1) unsupported legal allegations, (2) legal conclusions couched as factual allegations, or (3) conclusory factual allegations devoid of any reference to actual events. Jaguar Tech. Inc. v. Cable-LA, Inc., et al., 229 F.Supp.2d 453, 455 (D. Md. 2002) (citations omitted).

DISCUSSION

I. Eleventh Amendment "First Principles"

Before the Court addresses the merits, it may be helpful to elucidate the bedrock principles of sovereign immunity. The Eleventh Amendment renders the States immune from "any suit in law or equity, commenced or prosecuted . . . by citizens of another state, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. Even though the amendment by its literal terms applies "only to suits against a State brought by citizens of another state," the Supreme Court has held that sovereign immunity barred unconsented suits brought by a State's own citizens. Tennessee v. Lane, 541 U.S. 509, ___, 124 S. Ct. 1978, 1985 (2004); see also Hans v. Louisiana, 134 U.S. 1, 21 (1990). The rationale is that sovereign immunity derives not just from the Eleventh Amendment, but from the structure and background principles of the Constitution. South Carolina State Ports Authority v. Federal Maritime Comm., 243 F.3d 165, 168 (4th Cir. 2001) (citing Hans, 134 U.S. at 11-12).

Particularly, the Supreme Court has stated that Eleventh Amendment does not stand "so much for what it says, but for the presupposition . . . which it confirms." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). The presupposition or first principle is that "each State is a sovereign entity in our federal system" and that "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual" without consent. Id. This constitutional "first principle" of state sovereign immunity is rooted in the historical intent of "the [framers] of our federal system [that] considered immunity from suit central to sovereign dignity," Alden, 527 U.S. at 715; as well as based on the "logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Nevada v. Hall, 440 U.S. 410, 416 (1979) (internal quotations omitted).

The first principles of sovereign immunity while broad, are not absolute. Sovereign immunity does not bar a suit where, for example, a state has consented to suit, or where Congress has retained the power to abrogate the sovereign immunity of the states pursuant to the enforcement power of Section 5 of the Fourteenth Amendment. See South Carolina State, 243 F.3d at 170. Sovereign immunity also does not extend to "mere political subdivisions of a State such as counties or municipalities." Mt. Healy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (citations omitted).

However, the Eleventh Amendment does confer sovereign immunity on an arm of the state. Id. Stated differently, a particular state entity may be entitled to immunity, if, in its operations, the State is the real party in interest. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974) (stating that it is "well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment"). The Fourth Circuit has held that a State is the real party in interest, even if not named as a defendant, if the named party can be considered the alter ego of the State. Ram Ditta v. Maryland Nat'l Capital Park Planning Comm., 822 F.2d 456, 457 (4th Cir. 1987).

In sum, the precedent is clear that "embedded in the structure of the Constitution is the principle that a private party may not file a complaint against an unconsenting state [or its instrumentalities]." South Carolina State, 243 F.3d at 170. With these principles in mind, the Court now turns to the merits of the arguments presently before the Court.

II. The University as an "Arm" of the State

The essential question before this Court is whether the University of Maryland can be considered a state instrumentality, i.e., an "alter ego" of the State, and therefore take shelter under the state sovereign immunity doctrine. Although not unanimous, several courts in this district have specifically held that the University of Maryland is an arm of the State for Eleventh Amendment purposes. See Middlebrooks v. Univ. of Maryland at College Park, 980 F.Supp. 824, 827 (D. Md. 1997); Palotai v. Univ. of Maryland, College Park, 959 F.Supp. 714, 716 (D. Md. 1997); Bickley v. Univ. of Maryland, 527 F.Supp.174, 181 (D. Md. 1981), but see Maryland Stadium Auth. v. Beckett, Inc., No. 03-3456 (D. Md. May 13, 2004) (unpublished) (stating that "the nature of the operations of the University in recent times may have materially varied from what some courts assumed in . . . treat[ing] the University as an arm of the State).

Miranda alleges that the University is not an arm of the State for purposes of the ADEA. Specifically, to bolster his claim Miranda points to the University's relative degree of financial independence from the State as well as its autonomous operations. This Court cannot agree.

The Fourth Circuit has emphasized that there is "no clear line separating those state instrumentalities that are entitled to sovereign immunity from those that are not," and has cautioned district courts to

follow the Supreme Court's admonition that courts should seek guidance in the twin purposes of the Eleventh Amendment, namely: (1) the State's fears that `federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin,' and (2) `the integrity retained by each State in our federal system.

Although the Fourth Circuit has emphasized that an affirmative finding of the first prong renders "consideration of any other factor unnecessary," if a court proceeds to the second prong, it must also apply three additional factors to its determination: "(1) the degree of control that the State exercises over the entity; (2) whether the entity deals with local rather than statewide concerns; and (3) the manner in which State law treats the entity." Id.

i. Principal Factor — Impact on State Treasury

The vulnerability of the State's purse renders the State treasury factor as "the most salient factor in Eleventh Amendment determinations" upon which courts may rely. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39 (1994). Indeed, the Fourth Circuit has emphasized that "if the State treasury will be called upon to pay a judgment against a governmental entity, then Eleventh Amendment immunity applies to that entity, and consideration of any other factor becomes unnecessary." Cash v. Granville County Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 2001). Thus, if the State treasury will pay the judgment, the University is entitled to immunity.

Applying the State treasury factor here, it is undoubtably clear that the State Legislature has designated that the University was established

to foster the development of a consolidated system of public higher education, to improve the quality of education, to extend its benefits and to encourage the economical use of the State's resources . . .

Md. Code Ann., Educ. § 12-101(b) (2005). More specifically, the text of the State statute emphasizes that University funds are either deposited in the State treasury or controlled by the State. Id. § 12-105(d) ("All income of the University shall be deposited (i) [i]n the State Treasury; or (ii) [a]s the State Treasurer directs."). The plain language of § 12-105 clearly indicates that any action for damages filed against the University will burden the State as well as the economical use of its treasury. Stated differently, because the University's funds are formally held in the State treasury or subject to the will of the State Treasurer, this section indicates that a judgment against the University can also be enforced against the State. Based on the impact of this action on the State Treasury alone, the Court finds that the State of Maryland is the real party in interest. Miranda's claims are therefore barred by the Eleventh Amendment.

ii. Secondary Factor — Operational Autonomy from the State

Even assuming the State treasury factor is not dispositive, the close nexus between the University and the State implicates Eleventh Amendment immunity. The University's nexus with the State stems in large part from the structure of its governing body, i.e., the Board of Regents, as well as the State's oversight of the University's operations.

At the outset, the Court acknowledges that state law confers expansive powers on the University to direct its own operations.See Id. § 12-104(b) (stating that the University may "exercise all the corporate powers granted Maryland corporations under the Maryland General Corporation Law"). Specifically, state law empowers the University to contract, locate facilities, acquire property, and borrow money without debt or obligation to the State. Id. §§ 12-104(b), 12-102(c). Additionally, the University may promulgate plans for its own administration and to promote educational opportunities, and pursuant thereto, it may appoint institution presidents, faculty, and administrators.Id. §§ 12-106, 12-107, 12-109, 12-110.

Nevertheless, while afforded a certain degree of autonomy over its daily operations, the most fundamental attributes of the University's governance, such as spending and contracting, are subject to the control of the Governor, the Legislature, and the Board of Public Works. With the sole exception of the Secretary of Agriculture (who serves ex officio), the University is governed by a Board of Regents, which includes seventeen members appointed by the Governor with the advice and consent of the state Senate. Id. § 12-102(c). Since the University's funds must be deposited in the State treasury, or as the Treasurer directs, the University's spending from the State Treasury requires a legislative appropriation. Md. Const. Art. II, § 32, Art. VI, § 2; Md. Code Ann., State Fin. Proc. §§ 7-205, 7-216 -223 (2005). The University's autonomy from the State is also diminished by state law requiring the Board of Regents to submit "appropriations organized by constituent institutions to the [Maryland Higher Education] Commission, the Governor, and the General Assembly." Md. Code Ann., Educ. § 12-105(a)(1). Thus, the University is subject to the appropriations process, and its Board of Regents members are appointed largely by the State.

The State Legislature has also given the Board of Public Works oversight over the University. State law requires any purchase or exchange of real estate, the sale of such real property, and the revenue from property sales must all muster the Board of Public Works's approval. Md. Code Ann., Educ. § 12-104(h), § 12-104(g); Md. Code Ann. State Fin. Proc. § 10-305(b)(2). Additionally, the University's procurement policies and procedures, as well as University procurement contracts over $500,000, must be approved by the Board of Public Works. Md. Code Ann., State Fin. Proc. §§ 11-203(e)(3)(i), (ii). Thus, the University is unable to enter into contracts and purchase and sell real property without State involvement.

Finally, state law requires the University to "provide the Board of Public Works, and any member of the General assembly, with any information on any phase of operation of the University that may be requested." Md. Code Ann., Educ. § 12-105(e). The University is also subject to audit by the Legislative Auditor,id., at § 12-105(f), and must justify its hiring and salaries each year to the Department of Budget and Management, the Department of Legislative Services, the Maryland Higher Education Commission, and the General Assembly. Id. at § 12-104(1). Thus, the University is subjected to substantial oversight by agencies of the State.

In short, while the University may exhibit a fair amount of direction over its own operations, the overall control of its spending, contracting, hiring, and land acquisition, combined with oversight by State agencies, illustrates a nexus with the State sufficient to render the University an "arm of the State."

iii. Statewide versus Local Concerns

A third factor given weight in this equation is whether a political entity is involved primarily with local or statewide concerns. Kitchen, 286 F.3d at 184. Although the State Legislature designated the University as "body corporate and politic." Md. Code Ann., Educ. § 12-102(a), it clearly stated that the "University is an instrumentality of the State and a public corporation." Id. More specifically, the University engages in statewide concerns by furthering its chief mandate to provide higher education by operating institutions or campuses throughout Maryland, including the Baltimore area, the Washington suburbs, and the Eastern Shore. Id. at § 12-101(b)(4). Hence, this Court has little trouble in concluding that the University is a governmental entity engaged in statewide concerns.

iv. Treatment Under State Law

A fourth factor given weight in this equation is an entity's treatment under state law. Here, Maryland law plainly labels the University as a governmental entity. As previously mentioned, State law treats the University as both "an instrumentality of the State" and a "public corporation." Id. § 102(a)(2). Also, state law recognizes the status of the University as a state agency by expressly providing that the Maryland Tort Claims Act applies to claims or actions against the [University] and its employees. Id. at § 12-104(i)(1). Perhaps most telling, state law expresses a clear statement that Eleventh Amendment immunity applies to the University and is not waived. Id. at § 12-104(i)(4). Thus, Maryland law treats the University as an arm of the State.

v. Resolution in Balance

In sum, the Court finds that University has fully satisfied each factor articulated by the Fourth Circuit under Ram Ditta. As a constituent institution of the University of Maryland system, the above referenced factors demonstrate that the University is an "arm of the state" sufficient to implicate the dignity of the State as a sovereign. Accordingly, even under the secondary factors, the University is entitled to immunity under the Eleventh Amendment.

III. Activity Traditionally Viewed as Ministerial

Miranda alleges that even if the University engages in governmental functions, the Eleventh Amendment has no application to the specifics of his case. Particularly, Miranda claims that the aspects of the University's operations in which he was engaged — providing services as a sous chef in the University Food Service program self-supported by non-public fees — were purely ministerial. The Court finds this argument unavailing. Miranda has cited no legal authority in support of his argument. Moreover, even if such limitations were applicable, the Department from which Miranda was terminated provides dining services to students and other members of the University community, a function closely and traditionally related to its governmental function as a State university educating citizens statewide.

IV. Injunctive Relief Claims Barred by Eleventh Amendment

Miranda argues that his claims for injunctive relief are not barred by the Eleventh Amendment. Specifically, Miranda contends that Kimel does not prevent him from obtaining injunctive relief against a state based upon the ADEA, and thus his request for injunctive relief should not be dismissed. This Court cannot agree.

It is well-established that the sovereign immunity doctrine does not confer upon the states total immunity from suit. The long standing doctrine of Ex Parte Young "allows private citizens, in proper cases, to petition a federal court to enjoin State officials in their official capacities from engaging in future conduct that would violate the Constitution or a federal statute." Franks v. Ross, 313 F.3d 184, 197 (4th Cir. 2002);see also Ex Parte Young, 209 U.S. 123 (1908) (allowing for suit seeking injunctive or declaratory relief against state officials). The Fourth Circuit has characterized this exception to sovereign immunity as embodying a legal "fiction," in which "a State officer who acts in violation of the Constitution is stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct." Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002) (quotations omitted). Therefore, Ex Parte Young authorizes "suits against state officers for prospective equitable relief from ongoing violations of federal law." Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir. 2001) (emphasis added). Here, however, the only defendant Miranda sued was the University of Maryland, College Park. Consequently, the Ex Parte Young exception is inapplicable.

Miranda attempts to salvage his claim by relying upon the persuasive authority of the First Circuit in State Police for Automatic Retirement Association v. Difava, 317 F.3d 6 (1st Cir. 2003). Miranda alleges that Difava supports his assertion thatKimel does not prevent a plaintiff from obtaining injunctive relief against a state based upon the ADEA.

In Difava, the appellant collaterally attacked an injunction, preliminarily issued by the district court, which prevented the Commonwealth of Massachusetts from enforcing a state law requiring members of its police force to retire upon reaching the age of 55. Id. at 7. The appellant contended that, in the wake of the Supreme Court's decision in Kimel, the ADEA was inapplicable to the states. Id. at 11. The Third Circuit rejected appellant's challenge, and held that "neitherKimel nor Eleventh Amendment jurisprudence, prevents individuals from obtaining injunctive relief against a state based upon the ADEA pursuant to Ex Parte Young." Id. at 12. The Third Circuit explained that "Kimel did not declare the standards of the ADEA invalid nor inapplicable as they pertained to the states, but simply endorsed the rights of the states and political subdivisions to enforce against ADEA lawsuits the immunity conferred by the Eleventh Amendment." Id.

However, this Court cannot find this authority persuasive. First, the Court notes that the Third Circuit in Difava did not address the issue presented here — whether an individual may obtain injunctive relief against a state or its agencies. Second, even assuming this issue was addressed by the Third Circuit, inDifava the plaintiffs included, inter alia, the Equal Employment Opportunity Commission, an agency of the United States government. The Third Circuit expressly stated that, "even though private individuals are precluded by the Eleventh Amendment from suing the Commonwealth for money damages for violations of the ADEA, the provisions of the ADEA remain fully applicable against the Commonwealth [because States consented to suits brought by other States or by the Federal Government]." Id. at 12. As applied here, the present action can be distinguished fromDifava on the grounds that an actual private individual has brought suit against a State agency, and therefore such suit is precluded by the Eleventh Amendment. Therefore, the Court rejects Miranda's argument that his injunctive relief claims should not be dismissed.

CONCLUSION