Kicklighter v. McIntosh County Board of Commissioners

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14869
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-00088-JRH-RSB
DAWN M. KICKLIGHTER,
Plaintiff-Appellant,
versus
MCINTOSH COUNTY BOARD OF
COMMISSIONERS,
Defendant,
SAUNDRA " BOOTIE" GOODRICH,
In her official capacity as Clerk of Court
for McIntosh County,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(June 9, 2017)
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Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Dawn Kicklighter appeals the district court’s grant of summary judgment in
favor of defendants McIntosh County Board of Commissioners (the County) and
Saundra Goodrich, in her official and individual capacities as Clerk of the Superior
Court of McIntosh County, Georgia. She contends that the district court erred in
granting summary judgment in favor of the County on her employment-based
claims on the ground that she was not an employee of the County. She also
asserts the district court erred in granting summary judgment in favor of Goodrich
in her official capacity because Goodrich was not entitled to Eleventh Amendment
immunity and reinstatement was an available remedy. After review,1 we affirm.
I. DISCUSSION
A. Claims Against the County
Kicklighter’s employment-based claims against the County fail if there was
no employer-employee relationship. See Peppers v. Cobb County, Ga., 835 F.3d
1289, 1295–96 (11th Cir. 2016) (noting, in the context of Title VII and the Equal
Pay Act, that Congress’ definition “intended to ‘describe the conventional master-
servant relationship as understood by common-law agency doctrine.’” (quoting
1
We review a grant or denial of summary judgment de novo. Young v. City of Augusta,
59 F.3d 1160, 1170 (11th Cir. 1995). We review dismissals based upon Eleventh Amendment
immunity de novo. Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F.3d 954, 956 (11th Cir.
2005).
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Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444–45
(2003)); Watson v. Drummond Co., 436 F.3d 1310, 1316 (11th Cir. 2006) (stating
that Eleventh Circuit case law uses the same test for the Fair Labor Standards Act,
the Equal Pay Act, and the Family and Medical Leave Act); Mason v. Stallings, 82
F.3d 1007, 1009 (11th Cir. 1996) (“The definition of ‘employer’ in the [Adults
with] Disabilities Act is like the definitions in Title VII of the 1994 Civil Rights
Act . . . .”).
In Peppers, a retired criminal investigator for a county district attorney’s
office filed employment-based claims against the county in which he served. 835
F.3d at 1292. The district court granted summary judgment in favor of the county
on the ground that it was not the plaintiff’s employer. See id. at 1292–95. On
appeal, we noted that, pursuant to the state constitution and statutes, the county
“lacked the authority to supervise, hire, or fire employees of the district attorney;”
rather, these functions were performed by the district attorney. Id. Thus, we held
that the county was not the plaintiff’s employer “even though it provided
paymaster, administrative, and budgetary functions for the district attorney’s
office.” Id. at 1301.
Goodrich, as clerk of the superior court, was a constitutionally-elected
officer. See Ga. Const. art. IX, § 1, para. III(a). The Georgia Supreme Court has
stated that employees of constitutionally-elected officers of a county are ordinarily
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considered employees of the elected officer, not the county. Boswell v. Bramlett,
549 S.E.2d 100, 102 (Ga. 2001). In addition, Goodrich had the power to appoint
Kicklighter as her deputy clerk, and the County did not have the authority to take
any action affecting Goodrich’s appointment or management of Kicklighter. See
O.C.G.A. § 15-6-59(b); see Ga. Const. art. IX, § 2, para. I(c)(1). Accordingly,
Kicklighter was an employee of Goodrich, not the County, and her employment-
based claims against the County must fail.2 See Boswell, 549 S.E.2d at 102;
Peppers, 835 F.3d at 1301.
In addition, because Kicklighter was not employed by the County, the
County could not be held liable for Kicklighter’s § 1983 claims unless she
identified some policy or custom that caused her alleged injury, which she has not.
See Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th Cir. 2003).
B. Claims Against Goodrich in Her Official Capacity
The Eleventh Amendment bars federal courts from entertaining suits against
a state without the state’s consent. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.
2003). The Eleventh Amendment applies not only to the state, but to a defendant
2
Kicklighter makes a collateral estoppel argument against the County based on
abbreviated references to her state court unemployment case. However, that unreported opinion
did not decide the question of whether the County was her employer under any federal statute.
Moreover, Kicklighter has not attempted to show any of the other elements of collateral estoppel
exist. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1264 (11th Cir. 2011) (“A party seeking to
assert collateral estoppel under Georgia law must demonstrate that (1) an identical issue, (2)
between identical parties, (3) was actually litigated and (4) necessarily decided, (5) on the merits,
(6) in a final judgment, (7) by a court of competent jurisdiction.”).
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who acts as an “arm of the state.” Id. The question here is whether Goodrich was
acting as an arm of the state in her official capacity when she exercised her power
to terminate Kicklighter.3 Id. In Manders, we set forth the following four-factor
test for determining whether an entity is an arm of the state: “(1) how state law
defines the entity; (2) what degree of control the State maintains over the entity;
(3) where the entity derives its funds; and (4) who is responsible for judgments
against the entity.” Id. at 1309. We look to state law to determine the relationship
of the entity to the state and the county. Id.
1. First factor: how state law defines the entity
The first Manders factor weighs in favor of immunity when the authority to
engage in the function at issue is derived from the state. Pellitteri v. Prine, 776
F.3d 777, 780 (11th Cir. 2015). The Georgia Constitution states that superior court
clerks “shall be elected by the qualified voters of their respective counties” and
gives the legislature the power to set the clerks’ “qualifications, powers, and
duties.” Ga. Const. art. IX, § 1, para. III(a). Accordingly, the legislature has
enacted statutes granting various powers to and imposing duties on superior court
clerks. See O.C.G.A. §§ 15-6-60, 15-6-61. Clerks are also granted by statute the
power to appoint deputies. O.C.G.A. § 15-6-59(b). Further, the Georgia
3
Kicklighter has not briefed her theory of individual liability before this Court, and thus
her argument is abandoned. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“A legal claim or argument that has not been briefed on appeal is deemed abandoned
and its merits will not be addressed.”).
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Constitution also prohibits counties from taking action that affects “any elective
county office…or the personnel thereof.” Ga. Const. art. IX, § 2, para. I(c)(1). As
a result, the first Manders factor weighs in favor of finding that Goodrich was
acting as an arm of the state when exercising her hiring and firing power, much
like the sheriff in Pellitteri.
Although Kicklighter cites a Georgia Court of Appeals case that classified
superior court clerks as county officers, the court based its reasoning that clerks
were county officials primarily on the label that they were given. See Tostensen v.
State, 379 S.E.2d 9, 10 (Ga. Ct. App. 1989). However, we have stated that being
labeled as a “county officer” is not determinative in Eleventh Amendment
immunity cases. See Manders, 338 F.3d at 1312. Rather, the dispositive question
is the source of a defendant’s authority to exercise the functions at issue. See id. at
1308. As discussed above, that inquiry returns a result in favor of Goodrich.
2. Second factor: what degree of control the state maintains over the entity
The second Manders factor asks whether Georgia law vests control of the
clerk of the superior court in the state or rather with the county. In the present
case, this factor also weighs in favor of immunity. Georgia law sets qualifications
and training for superior court clerks, a factor we held in Pellitteri weighed in
favor of immunity in a case in which a sheriff’s deputy brought employment-
related claims against the sheriff. See O.C.G.A. § 15-6-50; Pellitteri, 776 F.3d at
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781–82 (examining state-mandated training in weighing second factor). In
addition, the Governor has the authority to appoint a committee to investigate the
clerk’s criminal charges, alleged misconduct, or incapacity to perform the
functions of the office, which can result in the superior court clerk’s removal.
O.C.G.A. § 15-6-82. And again, counties are barred by the Georgia Constitution
from taking actions which affect the operation of the clerk’s office or its personnel.
See Ga. Const. art. IX, § 2, para. I(c)(1). Control of the clerk, then, is vested in the
state, not the county. Accordingly, the second Manders factor weighs in favor of
immunity for Goodrich.
3. Third factor: where the entity derives its funds
“The third factor in the Eleventh Amendment analysis is where the entity
derives its funds.” Manders, 338 F.3d at 1323. In the present case, this factor also
tilts in favor of finding that Goodrich was an arm of the state. Although the county
funds the clerk’s office and pays the clerks’ salaries, it is required by state law to
do so. See O.C.G.A. §§ 15-6-87, 15-6-88; see also Pellitteri, 776 F.3d at 782.
Moreover, the county is prohibited from taking actions that affect clerks or their
personnel. See Ga. Const. art. IX, § 1, para. I(c)(1); see also Pellitteri, 776 F.3d at
782.
In Pellitteri, we noted that a county “bear[ing] the major burden of providing
funds to the sheriff’s office, including the salaries of his deputies” was not
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dispositive. 776 F.3d at 782. Rather, in that case the third Manders factor weighed
in favor of immunity, because the state of Georgia required counties to set the
sheriff’s total budget and the county could not dictate the way the sheriff used the
budget. See id.; see also Ross v. Jefferson Cty. Dep’t of Health, 701 F.3d 655, 660
(11th Cir. 2012). The same reasoning applies in Goodrich’s analogous situation.
4. Fourth factor: who is responsible for judgments against the entity
The parties concede the fourth factor weighs against immunity. However,
when the fourth factor is the only one weighing against finding that the entity is an
arm of the state, as here, the entity will, on balance, be entitled to Eleventh
Amendment immunity. See Pellitteri, 776 F.3d at 783. Accordingly, Goodrich is
entitled to immunity.
C. Kicklighter’s Claim for Reinstatement
Although Eleventh Amendment immunity bars claims for monetary
damages against an arm of the state, it does preclude claims for prospective
injunctive relief, such as reinstatement, against defendants in their official
capacities. Cross v. Ala. Dep’t of Mental Health & Mental Retardation, 49 F.3d
1490, 1503 (11th Cir. 1995).
Rule 25 of the Federal Rules of Civil Procedure states that “an action does
not abate when a public officer who is a party in an official capacity dies, resigns,
or otherwise ceases to hold office while the action is pending.” Fed. R. Civ. P.
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25(d). However, we have upheld the district court’s decision to deny a plaintiff the
remedy of reinstatement where the defendant public official was replaced by a new
official. See Lucas v. O’Loughlin, 831 F.2d 232, 236 (11th Cir. 1987). There is no
dispute that Goodrich retired and a new superior court clerk had replaced her.
Kicklighter’s powers and duties as deputy clerk ended when Goodrich left office.
See O.C.G.A. § 15-6-59(b). And because the new clerk of the superior court could
appoint her own deputies, she would not be required to accept or keep Kicklighter
as a deputy. See id. Even if Kicklighter were reinstated, the new clerk “could
terminate [Kicklighter] the same day on the ground that [the new clerk] preferred
the person whom he [or she] had already appointed.” Lucas, 831 F.2d at 236. As
such, the district court did not err in determining reinstatement was no longer an
available remedy.
II. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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