Lowe v. Hamilton County Department of Job & Family Services

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0192p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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UNEEK VIRGINIA LOWE,

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Plaintiff-Appellee,

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No. 09-3432

v.

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HAMILTON COUNTY DEPARTMENT OF JOB &

Defendants-Appellants. N-

FAMILY SERVICES, et al.,

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 05-00117—Susan J. Dlott, Chief District Judge.

Argued: January 13, 2010

Decided and Filed: July 1, 2010

Before: SUHRHEINRICH, COLE, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Michael G. Florez, HAMILTON COUNTY PROSECUTOR’S OFFICE,

Cincinnati, Ohio, for Appellants. Randolph H. Freking, FREKING & BETZ, LLC,

Cincinnati, Ohio, for Appellee. ON BRIEF: Michael G. Florez, Kathleen H. Bailey,

HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellants.

Randolph H. Freking, FREKING & BETZ, LLC, Cincinnati, Ohio, for Appellee.

COLE, J., delivered the opinion of the court, in which GILMAN, J., joined.

SUHRHEINRICH, J. (pp. 17-20), delivered a separate opinion concurring with the

judgment.

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OPINION

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COLE, Circuit Judge. Plaintiff-Appellee Uneek Lowe instituted this employment

discrimination case against Defendant-Appellant Hamilton County Department of Job and

Family Services (“HCJFS”) alleging race, age, and disability discrimination, as well as

1

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retaliation. The district court granted HCJFS summary judgment on Lowe’s race and age

discrimination claims, but denied HCJFS summary judgment on Lowe’s disability

discrimination and retaliation claims. HCJFS appeals the denial of summary judgment on

these claims. For the following reasons, we AFFIRM the district court’s denial of summary

judgment.

I. BACKGROUND

Uneek Lowe was hired by HCJFS as a Medicaid eligibility technician on January 20,

2000. Her main job duty was to determine the ongoing eligibility of Medicaid beneficiaries.

Lowe has a history of depression and, in 2002, was diagnosed with Attention Deficit

Hyperactivity Disorder. In May 2003, Lowe requested that HCJFS grant her reasonable

accommodations for her disability. Over the next two years, the relationship between Lowe

and HCJFS deteriorated as Lowe clashed with her supervisors, received her first unfavorable

performance review, took several leaves of absence pursuant to the Family and Medical

Leave Act (“FMLA”), was twice transferred to new (but similar) positions, and became the

subject of HCJFS disciplinary proceedings. Finally, in a letter dated July 6, 2005, HCJFS

terminated Lowe while she was on FMLA leave.

Prior to her termination, on June 10, 2004, Lowe filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”), alleging race and disability

discrimination and retaliation. On November 4, 2004, the EEOC issued Lowe a “right-to-

sue” letter based on her complaint. On December 15, 2004, Lowe filed an additional charge

of discrimination with the EEOC, alleging retaliation following her initial complaint. She

also filed an identical charge with the Ohio Civil Rights Commission, which she later

withdrew. On February 23, 2005, Lowe commenced this action pro se in federal district

court based on her initial EEOC complaint and “right-to-sue” letter. On June 3, 2005, the

EEOC issued a second “right-to-sue” letter to Lowe, based on her second charge of

discrimination. Following her termination, Lowe amended her complaint to include

allegations regarding her termination and a number of additional claims.

HCJFS filed a motion to dismiss, or alternatively for summary judgment, arguing,

in part, that it was an arm of the State of Ohio entitled to Eleventh Amendment sovereign

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immunity on all of Lowe’s claims. Although the district court granted HCJFS summary

judgment on a number of Lowe’s claims, it concluded that HCJFS was not entitled to

sovereign immunity and denied summary judgment on Lowe’s disability discrimination and

retaliation claims. HCJFS appeals the district court’s denial of summary judgment on these

claims. HCJFS argues that it is entitled to summary judgment because (1) it enjoys

sovereign immunity under the Eleventh Amendment; (2) Lowe failed to exhaust the required

administrative remedies; and (3) the district court erred in finding that Lowe was qualified

for her job as part of its determination that Lowe had set forth a prima facie case of disability

discrimination.

II. ANALYSIS

A. Subject Matter Jurisdiction

Generally, the denial of a motion for summary judgment is not immediately

appealable. However, we have jurisdiction over the district court’s denial of sovereign

immunity to HCJFS under the collateral order doctrine. “Because ‘sovereign immunity is

an immunity from trial, not just a defense to liability on the merits, the denial of a claim of

sovereign immunity is immediately appealable under the collateral order doctrine as a final

decision, pursuant to 28 U.S.C. § 1291.’” O’Bryan v. Holy See, 556 F.3d 361, 372 (6th Cir.

2009) (quoting Keller v. Cent. Bank of Nig., 277 F.3d 811, 815 (6th Cir. 2002)); see also

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) (“We hold

that States and state entities that claim to be ‘arms of the State’ may take advantage of the

collateral order doctrine to appeal a district court order denying a claim of Eleventh

Amendment immunity.”).

We do not have jurisdiction over the other two issues raised by HCJFS on appeal

because they do not fall under the collateral order doctrine nor are they inextricably

intertwined with the issue of sovereign immunity. The “small category” of decisions that fall

under the collateral order doctrine “includes only decisions that are conclusive, that resolve

important questions separate from the merits, and that are effectively unreviewable on appeal

from the final judgment in the underlying action.” Swint v. Chambers County Comm’n, 514

U.S. 35, 42 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

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HCJFS’s arguments that Lowe did not exhaust the required administrative remedies nor

make out a prima facie case of disability discrimination do not meet these requirements and

thus do not qualify for appellate review under the collateral order doctrine. Therefore, we

can review those issues at this interlocutory stage only if we exercise pendent appellate

jurisdiction.

We decline to exercise pendent appellate jurisdiction over these two issues because

(1) they are not “inextricably intertwined” with the district court’s denial of sovereign

immunity, and (2) a review of these issues is not “necessary to ensure meaningful review”

of the denial of sovereign immunity. See Swint, 514 U.S. at 51. “This circuit has interpreted

‘inextricably intertwined’ to mean that the resolution of the appealable issue ‘necessarily and

unavoidably’ decides the nonappealable issue.” Summers v. Leis, 368 F.3d 881, 889 (6th

Cir. 2004) (quoting Vakilian v. Shaw, 335 F.3d 509, 521 (6th Cir. 2003)); see O’Bryan, 556

F.3d at 377 n.7 (exercising pendent appellate jurisdiction because the non-reviewable issue

turned on the same determination of whether a Foreign Sovereign Immunities Act exception

applied); Davenport v. Causey, 521 F.3d 544, 554 (6th Cir. 2008) (finding that the issue of

municipal liability was inextricably intertwined with a qualified-immunity determination

because the municipality could be liable only if its employees committed a constitutional

violation). But see Mich. Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862, 867 (6th Cir. 2000)

(exercising pendent appellate jurisdiction because “it would be a waste of judicial resources

not to hear the other claims now” even though “the Eleventh Amendment claim can be

resolved without resolving either of the other claims”). Whether HCJFS is an arm of the

state has no bearing on the merits of the other issues raised by HCJFS, and we can

meaningfully review HCJFS’s claim of sovereign immunity without addressing these issues.

Therefore, we do not exercise pendent appellate jurisdiction over these issues and decline

to address them further on appeal. See Brotherton v. Cleveland, 173 F.3d 552, 568 (6th Cir.

1999) (declining to exercise pendent appellate jurisdiction over issue of liability when

reviewing denial of Eleventh Amendment sovereign immunity).

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B. Standard of Review

“Whether an action is barred by the Eleventh Amendment is a question of law, and

is reviewed de novo.” Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002) (citing Timmer

v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th Cir. 1997)). However, we “accept any

pertinent factual findings by the district court unless they are clearly erroneous.” S.J. v.

Hamilton County, Ohio, 374 F.3d 416, 418 (6th Cir. 2004) (citing Keller, 277 F.3d at 815).

“[T]he entity asserting Eleventh Amendment immunity has the burden to show that it is

entitled to immunity, i.e., that it is an arm of the state.” Gragg v. Ky. Cabinet for Workforce

Dev., 289 F.3d 958, 963 (6th Cir. 2002).

C. Eleventh Amendment Sovereign Immunity

The desire to protect the solvency and dignity of the states motivates the doctrine of

Eleventh Amendment sovereign immunity. See Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 52 (1994); Ernst v. Rising, 427 F.3d 351, 364-65 (6th Cir. 2005) (en banc); S.J., 374

F.3d at 421. The doctrine “flows from the nature of sovereignty itself as well as the Tenth

and Eleventh Amendments to the United States Constitution.” Ernst, 427 F.3d at 358.

However, it “comes with a host of exceptions.” Id. One of the more prominent exceptions

to the doctrine is that state instrumentalities that properly are characterized as political

subdivisions, rather than arms of the state, are not entitled to sovereign immunity. See id.

at 358-59.

Lowe’s disability discrimination claims arise under Title I of the Americans with

Disabilities Act (“ADA”), which prohibits certain employers from discriminating on the

basis of disability. See 42 U.S.C. §§ 12111-12117. States are immune to suits for money

damages under Title I because Congress exceeded its Fourteenth Amendment enforcement

powers in enacting those provisions and therefore did not properly abrogate the states’

sovereign immunity from such suits. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.

356, 374 (2001); see also Robinson v. Univ. of Akron Sch. of Law, 307 F.3d 409, 411 (6th

Cir. 2002). However, political subdivisions of the states are not entitled to sovereign

immunity from such suits. See Garrett, 531 U.S. at 369 (“[T]he Eleventh Amendment does

not extend its immunity to units of local government. These entities are subject to private

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claims for damages under the ADA without Congress’ ever having to rely on § 5 of the

Fourteenth Amendment to render them so.” (citation omitted)).

Whether HCJFS is immune from suit thus turns on whether it is properly

characterized as a political subdivision (and thus not immune) or an arm of the state (and

thus immune). In order to make this determination, we must evaluate four factors: (1) the

State of Ohio’s potential legal liability for a judgment against HCJFS; (2) the language

employed by state courts and state statutes to describe HCJFS, as well as the degree of

control and veto power which the state has over HCJFS; (3) whether state or local officials

appoint HCJFS board members; and (4) whether HCJFS’s functions fall under the traditional

purview of state or local government. See Ernst, 427 F.3d at 359 (citing Hess, 513 U.S. at

44-45, 51). We conclude that HCJFS has not met its burden to show that it is entitled to

Eleventh Amendment sovereign immunity.

1. State’s potential legal liability for judgment against the entity

The state’s potential legal liability for a judgment against the defendant “is the

foremost factor” to consider in our sovereign immunity analysis. Ernst, 427 F.3d at 359.

In analyzing this factor, we focus our inquiry on “the state treasury’s potential legal liability

for the judgment, not whether the state treasury will pay for the judgment in that case.” Id.

(citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997)). HCJFS concedes that

it will pay directly any judgment awarded to Lowe. However, it contends that the state will

reimburse it for any such damages because Lowe’s primary job duties were to help

administer state and federal benefits programs and her wages were funded largely through

a system of state and federal reimbursement. HCJFS argues that this factor weighs in its

favor based on this reimbursement theory. This argument is unavailing in two regards. First,

it misconstrues the relevant inquiry, which is whether the state is potentially legally liable

for a judgment against the entity seeking immunity, not whether the state or another party

is obligated to reimburse or indemnify the entity for damages incurred. Second, even if we

were to accept HCJFS’s reimbursement theory as determinative, HCJFS has not met its

burden to show that the state necessarily will reimburse it for damages awarded to Lowe.

Thus, this factor weighs against a finding that HCJFS is an arm of the state.

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HCJFS’s argument misses the analytic focus of this factor, which is the state’s

potential legal liability for a judgment against the entity, not the state’s willingness or

obligation to reimburse the entity for damages paid as a result of the judgment. HCJFS

concedes that it would pay directly any judgment awarded to Lowe, so its entire argument

rests on a reimbursement theory. However, this line of argument is foreclosed by the

Supreme Court’s analysis in Doe. There, an employee brought a breach-of-contract claim

against the University of California, alleging that the university reneged on its promise to

hire him to work at the Lawrence Livermore National Laboratory, which the university

operated pursuant to a contract with the federal government. Doe, 519 U.S. at 426-27. The

Ninth Circuit denied the university Eleventh Amendment sovereign immunity because, under

that contract, the federal government had indemnified the university from paying any

damages that would have resulted from the suit. Id. at 427-28. The Supreme Court reversed,

emphasizing that it was a state’s “legal liability for judgments against a state agency” that

was the important consideration, not “the presence or absence of a third party’s undertaking

to indemnify the agency.” Id. at 430-31. Likening the federal government’s reimbursement

of the university’s damages to liability insurance purchased by the university, the Court

found that “it is the entity’s potential legal liability, rather than its ability or inability to

require a third party to reimburse it, or to discharge the liability in the first instance, that is

relevant.” Id. at 431.

The Court’s determination that potential reimbursement from a third party was

irrelevant to its sovereign immunity analysis cut in favor of granting sovereign immunity in

Doe, but it cuts against HCJFS here. In Doe, the judgment would have been directly

enforceable against the state, and the Court held that reimbursement by the federal

government did not change the fact that the state was the entity which was legally liable for

damages. Here, any judgment will be enforceable only against HCJFS, not the State of Ohio.

Consistent with Doe, that the state may reimburse HCJFS for these damages does not change

the fact that HCJFS is the party legally liable for the judgment. The question of legal

liability is paramount because it is “an indicator of the relationship” between the state and

the entity asserting sovereign immunity. Id. Indeed, the Doe Court warned against

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1

“convert[ing] the inquiry into a formalistic question of ultimate financial liability.” Id.

Because HCJFS is the entity that will pay directly any judgment awarded to Lowe, this

factor weighs against a finding that HCJFS enjoys state sovereign immunity.2 See S.J.,

374 F.3d at 422 (denying single-county juvenile-training facility sovereign immunity

and noting that because county, not state, would directly pay judgment against the entity,

“this ‘important’ factor weighs against sovereign immunity”).

Further, even if we accepted HCJFS’s reimbursement argument, HCJFS has not

carried its burden to show that the state actually will reimburse it for damages awarded

to Lowe. HCJFS’s argument rests heavily on the fact that Lowe’s job duties related to

the administration of state and federal public benefits programs. Based on this, HCJFS

contends that the state statutes related to the provision of these benefits require the state

to reimburse it for any damages awarded to Lowe, and points to two statutes in

particular.

Despite HCJFS’s strong assertions, however, it has not pointed to anything that

demonstrates conclusively that a judgment in an employment discrimination suit would

be reimbursable as either an administrative expense or public assistance expenditure

under the Ohio statutory scheme. HCJFS relies chiefly on two statutes to support its

1

We believe that the concurring opinion, like HCJFS, fails to heed this warning. As the Third

Circuit has stated, “Doe makes clear[] [that] the state’s potential legal liability is the ‘key factor’ under this

prong of analysis and ‘merits far greater weight’ than [the] practical consequences” of who will bear the

ultimate financial responsibility for a lawsuit. Cooper v. Se. Penn. Transp. Auth., 548 F.3d 296, 306 (3d

Cir. 2008) (quoting Febres v. Camden Bd. of Educ., 445 F.3d 227, 236 (3d Cir. 2006)). Moreover, as the

concurring opinion seems to agree, HCJFS fails even to show that the state would bear financial liability

for a judgment at some point further down the road.

2

In fact, a closer examination of Cash v. Granville County Board of Education, 242 F.3d 219 (4th

Cir. 2001), cited by the concurring opinion for its analysis of Doe, is illustrative. In that case, the Fourth

Circuit held that a county board of education was not entitled to sovereign immunity in a Fair Labor

Standards Act lawsuit brought by one of its employees, in large part because “the State would not be

legally obligated to pay any judgment rendered against” the board. Id. at 224. In reaching this conclusion,

the court relied on the fact that “no State law indicates that a judgment against [the board] can be enforced

against the State,” and although the board received state funds, it was “unable to identify a provision in

State law that would authorize it . . . to use[] [those funds] for the purposes of satisfying an adverse

judgment.” Id. Moreover, the court determined that the possibility that the state would pay for an increase

in the plaintiff’s salary based on a judgment against the board was not dispositive. Id. at 225. Like the

board in Cash, HCJFS has demonstrated, at best, only a “speculative, indirect, and ancillary impact” on

the state’s treasury. Id. That the state provides funding for Lowe’s position does not change the fact that

a judgment against HCJFS would not be enforceable against the state.

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argument. First, HCJFS directs us to a statute which vests the authority to establish

eligibility for medical assistance programs in county job and family services

departments. See Ohio Rev. Code § 5111.012. This statute also establishes that “[t]he

county shall be reimbursed for administrative expenditures” and “[e]xpenditures for

medical assistance shall be made from funds appropriated to the department of job and

family services for public assistance subsidies.” Id.

However, this reimbursement provision is subject to several other statutory

provisions that HCJFS fails to address and which undermine its position. For example,

HCJFS’s claim that these programs are funded fully by federal and state monies is

undermined by a provision specifically providing for county contributions for these

public benefits programs. See id. § 5101.16(B). Similarly, its claim that the state would

be obligated to reimburse it is undermined by a provision providing a mechanism for the

state to reject reimbursement claims that exceed a predetermined maximum amount. See

id. § 5101.161. HCJFS next cites to a statute that states that “[a]ll moneys received by

each county from the state, or from the federal government” for public benefits programs

“shall be considered appropriated for the purposes for which such moneys were

received.” Id. § 329.09. However, nothing in this statute indicates that such funds could

be used by HCJFS for damages paid in an employment discrimination suit. Indeed,

HCJFS has provided no factual or statutory support for its contention that damages paid

to Lowe would qualify as either administrative expenses or public benefits

expenditures.3 Thus, even if we were to accept the flawed reimbursement argument,

HCJFS still would have failed to carry its burden on this factor.4

3

In its opening brief, HCJFS relied on its assertion that Lowe’s only claim for relief was for back

wages, and thus argued that HCJFS could request reimbursement for the damages coded as wages.

However, it conceded in its reply brief that if Lowe is successful on her claims, she may be entitled to other

types of damages.

4

We do not share the concurring opinion’s concerns about this statutory analysis. Indeed, under

Doe, such considerations are tangential to our analysis. See Cooper, 548 F.3d at 303-04 (noting that Doe

requires courts to focus on a state’s potential legal liability for a judgment, such that a showing that an

entity received the vast majority of its funding from the state would not necessarily weigh in favor of an

immunity finding). We cite to these statutes simply to refute HCJFS’s argument that any damages awarded

to Lowe would be reimbursed by the state as a matter of course under the statutory scheme.

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Indeed, in cases where a state instrumentality has been found to be entitled to

sovereign immunity based on state liability for a judgment, much more concrete

evidence of liability has been provided. In Ernst, where a group of state-court judges

sued a state retirement system set up for judges and other statewide officials, this Court

found that Michigan would be liable for a judgment against the retirement system

because of a state statute that required the legislature to fund the retirement system with

“‘the amount [of money needed] . . . to reconcile the estimated appropriation made in the

previous fiscal year with the actual appropriation needed to adequately fund the

retirement system for the previous fiscal year.’” Ernst, 427 F.3d at 360 (alterations in

original) (quoting Mich. Comp. Laws § 38.2302(1)). The state constitution also treated

this duty as a “‘contractual obligation’ owed by the State to each retiree.” Id. (quoting

Mich. Const. Art. 9, § 24). In Holmes v. Marion County Office of Family & Children,

349 F.3d 914 (7th Cir. 2003), an employment-discrimination case cited favorably by

HCJFS, the Seventh Circuit held that an Indiana county social-services office was part

of state government, rather than local government, and therefore entitled to state

sovereign immunity. Id. at 918-19. But in doing so, the court relied on state statutes that

excepted personnel and administrative costs from the definition of “child services” and

required all personnel and administrative costs for such offices to “come exclusively

from the state treasury.” Id. at 919. (The court also relied on a state supreme court case

that held that such offices were arms of the state. See id. at 918-19.) In contrast, HCJFS

has not demonstrated that Ohio’s “state treasury would be subject to ‘potential legal

liability’ if [HCJFS] did not have the money to cover the judgment.” Ernst, 427 F.3d at

362 (quoting Doe, 519 U.S. at 431).5

5

We respectfully disagree with the concurring opinion’s suggestion that this analysis runs afoul

of our holding in Ernst. Contrary to the concurring opinion’s assertion, this case does not involve “a

statutorily-mandated indemnification agreement.” Rather, it deals with a statutory scheme that permits

HCJFS to be reimbursed by the state for a portion of its expenses. This scheme is clearly distinguishable

from the statutory scheme considered in Ernst. There, a state statute and a provision of the state

constitution specifically required state treasury funds to be used to make up any financial shortcoming that

the retirement system encountered. See Ernst, 427 F.3d at 360. Thus, if the retirement system could not

satisfy a judgment against it with its own funds, “it is clear . . . that the state treasury would have to pay

the bill.” Ernst, 427 F.3d at 360. In other words, the state was legally liable for a judgment in the event

that the retirement system was unable to pay. In contrast, the statutory scheme at issue in this case does

not shift direct legal liability to the state, it simply provides a mechanism for HCJFS to be reimbursed by

the state for a portion of its expenses—and HCJFS fails even to show that any damages paid to Lowe

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HCJFS has not met its burden to show that the state is potentially legally liable

for a judgment against it, the foremost factor in determining whether it is entitled to

Eleventh Amendment sovereign immunity. Furthermore, as discussed below, the other

three factors we must consider similarly weigh against finding that HCJFS is an arm of

the state.

2. Language referencing the entity and degree of state control over the

entity

This factor also weighs against HCJFS because county job and family services

departments are referred to and treated as local entities in Ohio statutes and case law and

are controlled primarily by county boards of commissioners. In arguing that this factor

weighs in its favor, HCJFS again focuses on the fact that the substance of Lowe’s job

duties dealt with state and federal statutes and regulations. However, HCJFS has not

demonstrated how this translates into state control of HCJFS. Indeed, HCJFS concedes

that Hamilton County controlled the time and place of Lowe’s work and a page from

HCJFS’s own website in the record refers to HCJFS as a department of Hamilton County

government. Even more importantly, Ohio statutes and case law consistently refer to

and treat county job and family services departments as local bodies and do not

demonstrate “extensive and detailed control” of these departments by the state. Ernst,

427 F.3d at 360.

The statutory framework clearly demonstrates that HCJFS and other such

departments are treated as local entities and are controlled primarily by county

governments. The statutes that establish and govern the county departments of job and

family services fall under Title III of the Ohio legislative code, entitled “Counties.” See

Ohio Rev. Code § 329.01-.051; cf. Hutsell v. Sayre, 5 F.3d 996, 999-1000 (6th Cir.

1993) (noting that the University of Kentucky was created under a chapter of the state

legislative code entitled, in part, “State Universities and Colleges,” in support of finding

that university enjoyed sovereign immunity). State law requires that “[i]n each county

would qualify for reimbursement.

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there shall be a county department of job and family services,” but grants the local board

of county commissioners the authority to appoint the county director of job and family

services. Ohio Rev. Code § 329.01. Although state law prescribes a range of duties to

the county departments, “[t]he powers and duties of a county department of job and

family services are, and shall be exercised and performed, under the control and

direction of the board of county commissioners.” Id. § 329.04(B).

The county director [of job and family services] is given “full charge” of

the department, “[u]nder the control and direction of the board of county

commissioners.” [Ohio Rev. Code §] 329.02. The county director is

empowered, with the approval of the board of county commissioners, to

appoint various assistants, superintendents, and employees and fix their

compensation.

2004 Ohio Op. Att’y Gen. 2004-031, 2004 WL 1960137, at *5 (Ohio A.G. Aug. 25,

2004) (second alteration in original) (holding that a board of county commissioners can

authorize the county department of job and family services to enter into contracts

relating to its family services duties and workforce development activities). Indeed, the

statutes establishing state funding of these county departments repeatedly reference the

transfer of money directly to individual counties, rather than the departments themselves,

which suggests that each of these entities is considered a part of the government of the

county in which it operates. See Ohio Rev. Code § 329.09 (“[a]ll moneys received by

each county from the state”); id. § 5111.012 (“[t]he county shall be reimbursed”).

The fact that Ohio statutes refer to entities like HCJFS as part of county

government strongly weighs against affording HCJFS sovereign immunity. Counties are

quintessentially local bodies, not entitled to state sovereign immunity almost by

definition. See Doe, 519 U.S. at 429 n.5 (“Ultimately, . . . the question whether a

particular state agency has the same kind of independent status as a county or is instead

an arm of the State . . . is a question of federal law.” (emphasis added)). The Supreme

Court “has repeatedly refused to extend sovereign immunity to counties. This is true

even when . . . ‘such entities exercise a ‘slice of state power.’’” N. Ins. Co. of N.Y. v.

Chatham County, Ga., 547 U.S. 189, 193-94 (2006) (citations omitted) (quoting Lake

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Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979)); see

also Garrett, 531 U.S. at 369 (“[T]he Eleventh Amendment does not extend its immunity

to units of local government.”); S.J., 374 F.3d at 419-20 (holding that sovereign

immunity “‘does not extend to counties and similar municipal corporations’” (quoting

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977))).

Moreover, in two different circumstances, the state supreme court has found that

agencies like HCJFS should be treated as county, not state, agencies. In Rankin v.

Cuyahoga County Department of Children and Family Services, 889 N.E.2d 521 (Ohio

2008), the plaintiff sued a county department, its director, and one of its employees after

a child was sexually abused while in the department’s custody. The state supreme court

found that the department was entitled to governmental immunity under Ohio’s political-

subdivision immunity statute, not under the Eleventh Amendment. Id. at 526 (citing

Ohio Rev. Code § 2744.02). The court specifically found that the department was a

political subdivision. Id. at 524. The court also noted that “‘[t]he manifest statutory

purpose of [Ohio’s political-subdivision immunity statute] is the preservation of the

fiscal integrity of political subdivisions.’” Id. at 526 (first alteration in original) (quoting

Wilson v. Stark County Dep’t of Human Servs., 639 N.E.2d 105, 108 (Ohio 1994)); see

also Brenner v. Cuyahoga County Dep’t of Children & Family Servs., No. 91712, 2009

WL 713014, at *2 (Ohio Ct. App. Mar. 19, 2009) (applying Rankin to reverse denial of

statutory governmental immunity). Indeed, HCJFS seems to fall squarely under the

definition of “political subdivision” given in the immunity statute: “a municipal

corporation, township, county, school district, or other body corporate and politic

responsible for governmental activities in a geographic area smaller than that of the

state.” Ohio Rev. Code § 2744.01(F). Although county departments of job and family

services are not contained in the list of political subdivisions included in the statute, see

id., that list is non-exhaustive and the statute includes in its list of “governmental

functions” of political subdivisions “[t]he operation of a job and family services

department or agency, including, but not limited to, the provision of assistance to aged

and infirm persons and to persons who are indigent,” id. § 2744.01(C)(2)(m).

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Similarly, in Crawford-Cole v. Lucas County Department of Job & Family

Services, 906 N.E.2d 409 (Ohio 2009), the state supreme court addressed conflicting

deadlines for filing an appeal of an agency decision. The court ruled that a county

department of job and family services was a county agency, and not a state agency, and

thus the shorter deadline applicable to county agencies applied to the department. Id. at

412-14. In doing so, the court distinguished one statute that applied to entities

considered “arms of ‘the government of the state,’” id. at 414 (quoting Ohio Rev. Code

§ 119.01(A)(1)), and another statute that applied to “political subdivisions such as

counties,” id. (citing Ohio Rev. Code § 2506.01). The court determined that the

“political subdivision” statute was the law applicable to the county department.

It is clear that Ohio law treats entities like HCJFS as local bodies, not arms of the

state. Moreover, local officials exercise greater direct control over HCJFS than does the

State of Ohio. Accordingly, this factor weighs against a finding that HCJFS is entitled

to state sovereign immunity.

3. Whether state or local officials appoint the entity’s board members

HCJFS concedes that its officials are appointed at the local level and that this

factor therefore weighs against a finding that it is an arm of the state. Indeed, as noted

above, state law specifically requires that the Hamilton County Board of County

Commissioners appoint the HCJFS director. See Ohio Rev. Code § 329.01.

4. Whether the entity’s functions are within the traditional purview of state

or local government

Although HCJFS is responsible for administering state and federal programs, its

basic function is to provide services to local residents. While this factor is the closest

of the four, it also weighs against a finding that HCJFS is entitled to sovereign immunity.

HCJFS argues that it “stands as the state’s agent with respect to Lowe’s position”

because Hamilton County is required by state law to establish a county department to

carry out federal benefits programs. See Ohio Rev. Code § 329.04(A). But as Lowe

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points out, HCJFS is required to distribute these benefits to local Hamilton County

residents, not on a statewide basis. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir.

2003) (noting that “an assessment of whether the entity is concerned with state-wide or

local issues” may be relevant). HCJFS argues that it acts as an arm of the state in

administering these programs because Ohio has no state-wide distribution system for

these benefits. However, this feature of the Ohio system actually cuts against HCJFS

because it demonstrates that Ohio law treats the distribution of these benefits as a local

function. Moreover, our analysis need not be limited to the HCJFS programs in which

Lowe was involved.6 Although Lowe’s job duties dealt directly with federal and state

benefits programs, HCJFS carries out many other functions, including child-support

enforcement, child-protection services, workforce development, and child care. See

Ohio Rev. Code § 329.04 (listing powers and duties applicable to county job and family

services departments); see also In re D.C., No. C-090466, 2009 WL 3400930 (Ohio Ct.

App. Oct. 23, 2009) (slip opinion) (demonstrating that HCJFS acts as a permanent

custodian for children); State v. Ellison, 900 N.E.2d 228, 229 (Ohio Ct. App. 2008)

(demonstrating that HCJFS investigates claims of child abuse).

HCJFS’s functions cannot be characterized neatly as completely within the

traditional purview of either local or state government. Cf. Hess, 513 U.S. at 45 (finding

that because “[s]tates and municipalities alike” carried out the functions of the entity in

question, “[t]his consideration . . . does not advance our Eleventh Amendment inquiry”).

However, the fact that its programs are designed to serve a specific local community

weighs against characterizing it as an arm of the state, rather than a political subdivision.

Cf. Ernst, 427 F.3d at 361 (noting that both local and state governments operate

retirement systems, but that the entity in question had “far more in common with a

traditional state function than a local one” because it was operated through the state

treasury, operated on a statewide basis, and served statewide officials).

6

In Doe, the Supreme Court specifically declined “to decide whether there may be some state

instrumentalities that qualify as ‘arms of the State’ for some purposes but not others.” Doe, 519 U.S. at

427 n.2.

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Moreover, because the other three relevant factors decidedly weigh against

HCJFS, it is clear that HCJFS is properly characterized as a political subdivision, rather

than as an arm of the state. Therefore HCJFS is not entitled to Eleventh Amendment

sovereign immunity from Lowe’s claims.

III. CONCLUSION

Based on the foregoing reasons, we AFFIRM the district court’s denial of

summary judgment as requested by HCJFS.

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________________________________________

CONCURRING WITH THE JUDGMENT

________________________________________

SUHRHEINRICH, Circuit Judge, concurring. Although I concur with the

judgment, I cannot join the majority’s reasoning for three reasons: (1) its extension of

Regents of the University of California v. Doe, 519 U.S. 425 (1997), (2) its focus on

Ohio Rev. Code § 5101.16, and (3) its reliance on Ohio Rev. Code § 5101.161.

First, I have substantive concerns with applying and extending Doe to this case.

Unlike Doe, which involved extinguishing a state’s immunity because of a voluntary

third-party indemnification agreement, this case involves exposing the state to liability

via a statutorily-mandated indemnification agreement. See generally Cash v. Granville

County Bd. of Educ., 242 F.3d 219, 221 n.1 (4th Cir. 2001) (“And in Regents, the Court

held that the fact that a judgment against the State would be covered by the voluntary

indemnification agreement of a third party did not strip away the State’s Eleventh

Amendment immunity because the State still bore the legal ‘risk of an [sic] adverse

judgment.’”) (quoting Doe, 519 U.S. at 431). Rather than focus on the method of

payment, the majority should have focused on whether a judgment “‘would have the

practical effect of requiring payments from [Ohio].’” McGinty v. New York, 251 F.3d

84, 99 (2d Cir. 2001) (quoting Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289, 296

(2d Cir. 1996) (emphasis added). Using this approach, if “the vulnerability of the State’s

purse is the most salient factor’” then it makes little difference to the state if it pays for

a judgment directly or is statutorily required to reimburse the Hamilton County

Department of Job & Family Services (“HCJFS”) for the same amount. Id. at 100

(quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994)). Either way

the state is required by law to distribute money from its treasury.

Extending Doe to the case at hand is unsupported by any case law, and at least

one district court has rejected the majority’s interpretation of Doe. See Treasurer of

State of Conn. v. Fortsmann Little & Co., No. 3:02CV519(JBA), 2002 WL 31455245,

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at *5 (D. Conn. Oct 15, 2002). Even the Court’s opinion in Doe itself suggests that its

holding was not intended to be employed this broadly: “The narrow question presented

by this case is whether the fact that the Federal Government has agreed to indemnify a

state instrumentality against the costs of litigation, including adverse judgments, divests

the state agency of Eleventh Amendment immunity. We hold that it does not.” Doe,

519 U.S. at 426 (emphasis added); see also Kirchmann v. Lake Elsinore Unified Sch.

Dist., 100 Cal. Rptr. 2d 289, 298 (Cal. Ct. App. 2000) (emphasizing Doe’s reference to

the question presented as “‘narrow’” and concluding that “Doe thus stands merely for

the proposition that the fact state funds are not actually used to pay a judgment for which

the state is legally liable does not preclude immunity”). Similarly, this application of

Doe conflicts with our decision in Ernst v. Rising, 427 F.3d 351, 355 (6th Cir. 2005) (en

banc). In Ernst, we noted: “[The retirement system] is funded by the state treasury as

well as by contributions from state officials. And if the retirement system faces a

monetary shortfall, state legislation requires the state treasurer to make up the difference

with state funds.” Id. (emphasis added). Likewise, in this case “state legislation

requires” the state to reimburse HCJFS if the lawsuit is an administrative cost. Id. The

majority neither explains how the reimbursement relationship in Ernst is any different

than the one in this case, nor cites a single case to support its interpretation of Doe,

despite the fact that it has been law for over a decade.

From a practical standpoint, I am concerned that expanding Doe will have

unintended consequences regarding the way states structure their financial relationships

with other state entities because we do not know how many state entities have similar

payment relationships. This concern is compounded by the fact that the state is not a

party in this suit and thus has not had a chance to weigh in on this issue. Notably, the

majority opinion explicitly acknowledges that it does need to use Doe to reach its result:

“even if we were to accept HCJFS’s reimbursement theory as determinative, HCJFS has

not met its burden to show that the state necessarily will reimburse it for the damages

awarded to Lowe.”

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Second, the majority’s focus on Ohio Rev. Code § 5101.16 is misguided. This

section establishes that the county must pay for a portion of HCJFS’s costs that are

submitted for reimbursement, but the potential amount that must be paid appears to be

no more than 10%, depending on certain financial criteria such as the income level of

the county’s constituents. The majority cites no case law to support the conclusion that

an entity must be “fully funded” to be an arm of the state, rather than receiving 90% of

its funds from the state. On the contrary, persuasive authority indicates this factor is not

relevant. See Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d 1437, 1440-41 (8th Cir.

1996) (“The relevant funding inquiry cannot be whether NACTC enjoys some non-state

funding, such as user fees (tuition), because then most state departments and agencies,

and all state universities, would be denied Eleventh Amendment immunity.”).

Furthermore, it is unclear why being “fully funded” is determinative since, depending

on the judgment amounts, Ohio’s treasury can be more financially exposed even if it has

to pay a lower percentage of the overall judgment.

Third, I am concerned about the majority’s reliance on Ohio Rev. Code

§ 5101.161, which may establish a threshold above which the state can deny

reimbursement. The record reveals little about HCJFS’s reimbursement relationship

with the state, and the majority has not established that this threshold exists in a material

way, that it is enforced, that HCJFS would be in danger of surpassing this threshold if

it loses this case, or that the state would not reimburse HCJFS if it surpassed the

threshold because of a damages award in this case or for another reason. These factors

indicate that HCJFS has failed to meet its burden of proof on this issue, but § 5101.161

itself should not preclude HCJFS from obtaining immunity without more information

about how the state enforces the statute or some case law supporting the majority’s

conclusion. See generally Hadley, 76 F.3d at 1441 (“The district’s never-exercised

authority to supplement NACTC’s operating budget with limited local tax revenues does

not change the fact that the State has created an institution of higher learning ‘that is

dependent upon and functionally integrated with the state treasury.’”) (quoting Kashani

v. Purdue Univ., 813 F.2d 843, 846 (7th Cir. 1987) (emphasis added)).

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Instead, the opinion should have focused on its conclusion that HCJFS failed to

meet its burden of proof regarding whether the damages would be reimbursable as an

administrative cost. HCJFS has not put forward sufficient evidence that the state would

reimburse any litigation costs, let alone the costs that would be imposed if the plaintiff

prevails in this case. By narrowly disposing of this case on the issue of what constitutes

an administrative cost, this court could have avoided the unnecessary risk of sweeping

too broadly with its interpretation of Doe, § 5101.161, and § 5101.16.