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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14258
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-02142-JHH
SHERRY ROSS,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
JEFFERSON COUNTY DEPARTMENT OF HEALTH,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 17, 2012)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
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The main issue presented in this appeal is whether the Jefferson County
Department of Health is a state agency entitled to sovereign immunity, under the
Eleventh Amendment, from a complaint of discrimination by a former employee.
Sherry Ross appeals the summary judgment in favor of her former employer, the
Department, and against her complaint of discrimination in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101, and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, 1983. The district court ruled that the
Department is entitled to immunity, under the Eleventh Amendment, from Ross’s
complaint of disability discrimination and, alternatively, that Ross failed to request
a reasonable accommodation for her disability. The district court also ruled that
Ross waived her complaint of racial discrimination and, alternatively, that Ross
failed to establish a prima facie case of racial discrimination. We conclude that
the Department is immune from Ross’s complaint of disability discrimination and
that Ross waived her complaint of racial discrimination. We affirm.
I. BACKGROUND
Ross, a former dental assistant with the Department, filed a complaint of
discrimination based on her alleged disability of fibromyalgia, 42 U.S.C. § 12101,
and based on her race,
id. §§ 2000e, 1983. Ross alleged that the Department
approved her request to take medical leave under the Family and Medical Leave
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Act, 29 U.S.C. § 2612, but that the Department later refused her a reasonable
accommodation when it denied her light duty and fired her for using leave under
the Act. Ross alleged that a similarly-situated dental assistant who is white,
Jennifer Glover, was not terminated after exhausting her leave under the Act.
The Department moved for summary judgment. The Department argued
that, as a state entity, it enjoyed immunity, under the Eleventh Amendment, from
Ross’s complaint of disability discrimination. In the alternative, the Department
argued that Ross failed to request an accommodation for her fibromyalgia. The
Department also argued that Ross had withdrawn her complaint of racial
discrimination by admitting during her deposition that race was not related to her
termination and, alternatively, that the Department had proffered legitimate non-
discriminatory reasons for Ross’s termination.
Ross responded that the Department was not entitled to summary judgment.
Ross argued that the Department was not entitled to immunity and that she had
established a prima facie case of disability and racial discrimination. Ross
submitted several exhibits in support of her response, including her termination
letter from the Department and her affidavit. The termination letter stated that
Ross was fired “for failure to return from approved medical leave” and that “the
Department [was] no longer able to approve additional leave” because of the
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“critical nature of the position” that she occupied. The letter explained that Ross’s
“approved leave of absence ended on February 16, 2009”; her doctor’s note
“stated [she] [was] able to return to work on February 19, 2009”; and “[o]n
February 11, 2009, [she] [had] exhausted [her] rights granted under the . . . Act.”
Ross’s affidavit recounted the events that led to her termination. In paragraph 32
of her affidavit, Ross said she “[had] personal knowledge” that, in 2006, Glover
had exhausted her leave under the Act without being disciplined.
The Department moved to strike Ross’s statements in her affidavit about
Glover. The Department argued that Ross’s statement about having personal
knowledge of Glover’s leave under the Act contradicted Ross’s deposition
testimony. The Department also argued that Ross had failed to explain the source
of her information and that knowledge about Glover’s leave could have been
acquired only through inadmissible hearsay.
The district court granted the motions of the Department to strike paragraph
32 of Ross’s affidavit and for summary judgment. The district court ruled that the
Department was immune from Ross’s complaint of disability discrimination. In
the alternative, the district court ruled that the Department was entitled to
summary judgment because Ross failed to request an accommodation for her
disability. The district court also ruled that Ross waived her complaint of racial
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discrimination and, alternatively, that Ross failed to establish a prima facie case of
racial discrimination.
II. STANDARD OF REVIEW
We review a summary judgment de novo and view the evidence in the light
most favorable to the nonmoving party. Univ. of Ala. Bd. of Trs. v. New Life Art,
Inc.,
683 F.3d 1266, 1271 (11th Cir. 2012). Summary judgment should be entered
when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
III. DISCUSSION
We divide our discussion of this appeal in two parts. First, we address
whether the Department is entitled to immunity, under the Eleventh Amendment,
from Ross’s complaint of discrimination based on her disability. Second, we
address whether Ross waived her complaint of racial discrimination.
A. The Department Is a State Agency Immune From Ross’s Complaint of
Disability Discrimination.
The Eleventh Amendment guarantees that nonconsenting states cannot be
sued by private individuals in federal court. Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 363,
121 S. Ct. 955, 961–62 (2001). Although Congress may
sometimes abrogate the immunity of the states, under the Eleventh Amendment,
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Congress did not validly abrogate that immunity under Title I of the Act.
Id. at
360, 374 &
n.9, 121 S. Ct. at 960, 967–68 & n.9. Because immunity from suit
under the Eleventh Amendment “is in the nature of a jurisdictional bar,” it “should
be decided at an early stage” to protect the sovereignty of states and state agents
by sparing them “the indignity of being haled into federal court by private
litigants.” Bouchard Transp. Co. v. Fla. Dep’t of Envtl. Prot.,
91 F.3d 1445, 1448
(11th Cir. 1996).
The Eleventh Amendment protects the immunity of not only the states, but
of state agencies and entities that function as an “arm of the state.” Manders v.
Lee,
338 F.3d 1304, 1308 (11th Cir. 2003) (en banc). Whether an entity functions
as an “arm of the state” is a federal question that we resolve by reviewing how the
state courts treat the entity. Versiglio v. Bd. of Dental Exam’rs of Ala.,
686 F.3d
1290, 1291 (11th Cir. 2012) (on petition for reh’g) (citing Regents of the Univ. of
Calif. v. Doe,
519 U.S. 425, 429 n.5,
117 S. Ct. 900, 904 n.5 (1997)). “In
conducting our analysis, this court ‘has stated the most important factor is how the
entity has been treated by the state courts.’”
Id. at 1292 (quoting Tuveson v. Fla.
Governor’s Council on Indian Affairs, Inc.,
734 F.2d 730, 732 (11th Cir. 1984)).
Alabama courts have uniformly treated county boards of health as state
agencies. See Williams v. Madison Cnty. Bd. of Health,
523 So. 2d 453, 455 (Ala.
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Civ. App. 1988) (holding that the Madison County Board of Health is a state
agency entitled to sovereign immunity); Pack v. Blankenship,
612 So. 2d 399, 400
n.1 (Ala. 1992) (adopting Williams and holding that an employee of the Morgan
County Health Department is a state employee); Bathgate v. Mobile Cnty. Bd. of
Sch. Comm’rs,
689 So. 2d 109, 112–13 (Ala. Civ. App. 1996) (affirming summary
judgment in favor of employees of the Mobile County Health Department under
the reasoning employed in Pack). The Court of Civil Appeals has held, in the
context of determining the immunity of an employee, that the Jefferson County
Board of Health is a state agency. Smith v. Smith,
778 So. 2d 189, 191 (Ala. Civ.
App. 1999). We must defer to that determination “absent some persuasive
indication that the state’s highest court would decide the issue otherwise.”
Silverberg v. Paine, Webber, Jackson & Curtis, Inc.,
710 F.2d 678, 690 (11th Cir.
1983).
Ross argues that the Department is not immune from a complaint for
monetary damages under the Act because the Department serves as an agent of the
county, instead of the state, in performing personnel functions, but this argument
fails. “In Eleventh Amendment cases, this Court uses four factors to determine
whether an entity is [a state agent] in carrying out a particular function: (1) how
state law defines the entity; (2) what degree of control the State maintains over the
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entity; (3) where the entity derives its funds; and (4) who is responsible for
judgments against the entity.”
Manders, 338 F.3d at 1309. The first and second
factors weigh in favor of immunity because the authority and duties of the
Department “are derived directly from the State.”
Id. at 1310–11. The
Department is charged by the state to “supervise the enforcement of the health
laws of the state”; to investigate and prevent diseases and “nuisances to public
health”; and to ensure that all institutions accessed by the public or used to supply
the public with goods are sanitary. Ala. Code § 22-3-2(1)–(4). Although state law
vests the county with authority to hire and remove employees subject to its merit
system instead of the state merit system, see
id. §§ 22-3-4, 36-26-83, the
Department operates under the supervision of the state. The state board of health
supervises and controls the county boards of health, county health officers, and all
public health work,
id. §§ 22-1-3, 22-2-2(7), 22-3-1; the state health officer
approves and may remove from office the county health officer,
id. § 22-3-2(5);
and the state health officer must approve any leave taken by the county health
officer exceeding 30 days,
id. § 22-3-5(7). As to the third factor, “state
involvement is sufficient” to find that its funds are involved in the personnel
decisions of the Department.
Manders, 338 F.3d at 1324. State statutes mandate
that the county provide an office and pay the salary for the county health officer,
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furnish and staff the county health office, and give the county discretion to levy a
tax that is used exclusively to fund the office. Ala. Code §§ 22-3-5(11), 22-3-6,
22-3-10; see also Op. Ala. Att’y Gen. 2007-087 (2007) (opining that the
“Jefferson County Board of Health is a state agency receiving state funds that is
subject to the Relationship Disclosure Law”). As to the fourth factor, the
Department is responsible for paying any monetary judgment “out of [its] budget,”
and state law exempts the county from any claim against the Department. Ala.
Code § 22-3-12. “[T]he liability-for-adverse-judgment factor does not defeat . . .
immunity” for the Department.
Manders, 338 F.3d at 1328.
Ross also argues that the Eleventh Amendment does not bar her claim for
injunctive relief, but Ross failed to file a complaint against a state officer. Ross
named only the Department as a defendant, but an injunction can issue only
against an individual officer. See Seminole Tribe of Fla. v. Florida,
517 U.S. 44,
74,
116 S. Ct. 1114, 1132 (1996) (“The Eleventh Amendment bar [may] be lifted,
as it was in Ex parte Young, [
209 U.S. 123,
28 S. Ct. 441 (1908)], to allow a suit
against a state officer.”). Ross argues that she could not list an official of the
Department as a party because the Department was her employer, but Ross could
have sought injunctive relief against the county health officer who is vested with
the authority to hire and terminate employees. See Ala. Code § 22-3-4.
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The district court correctly granted summary judgment in favor of the
Department and against Ross’s complaint of discrimination based on her
disability. The Department is a state agency entitled to immunity under the
Eleventh Amendment, and the Department is immune from a complaint of
employment discrimination under Title I of the Americans with Disabilities Act.
B. The District Court Correctly Granted Summary Judgment Against Ross’s
Complaint of Racial Discrimination.
Ross waived her complaint of racial discrimination. Under Title VII, it is
unlawful for an employer “to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). “The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.” Springer v. Convergys Customer Mgmt. Grp., Inc.,
509 F.3d 1344,
1347 (11th Cir. 2007). When asked during her deposition whether she “[felt] like
[her] termination had anything to do [with] . . . [her] race,” Ross responded, “no.”
Based on Ross’s unequivocal concession, the district court was entitled to grant
summary judgment in favor of the Department.
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IV. CONCLUSION
We AFFIRM the summary judgment in favor of the Department.
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