Carolyn S. Fain v. Wayne County Auditor ’ S Office

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1720
C AROLYN S. F AIN ,
Plaintiff-Appellant,
v.
W AYNE C OUNTY A UDITOR ’ S O FFICE ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 C 385—Larry J. McKinney, Chief Judge.
____________
A RGUED J ANUARY 22, 2004—D ECIDED O CTOBER 27, 2004
____________
Before E ASTERBROOK , M ANION , and R OVNER, Circuit
Judges.
ROVNER, Circuit Judge. Carolyn Fain worked at the Wayne
County Auditor’s Office from 1990 until June, 1999. She did
not work for most of the time period from January 1, 1999,
through June 18, 1999, using personal leave, vacation, sick
leave, and FMLA-qualified leave. On June 18, 1999, her
position was terminated, and the circumstances surround-
ing that termination form the basis for this cause of action.
Fain asserts that her termination violated the Family and
Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq.,
as well as the Americans with Disabilities Act of 1990

-- 1 of 11 --

2 No. 03-1720
(ADA), 42 U.S.C. §§ 12101, et seq. The district court, however,
granted summary judgment to the Auditor’s Office, holding
that the Auditor’s Office did not qualify as an “employer”
under the ADA and that Fain was not an eligible employee
under the FMLA. For both statutes, the court’s decision was
based upon the number of persons employed by the Auditor’s
Office. The undisputed evidence was that the Auditor’s Office
never employed more than 12 employees at one time. The
ADA’s protections, however, apply only to employers with
15 or more employees, 42 U.S.C. § 12111(5), and the FMLA,
as we will discuss shortly, essentially requires 50 employees
in a given geographic area in order for an employee to seek
its protections, 29 U.S.C. § 2611(2)(B). The district court
viewed the Auditor’s Office in isolation, rather than as a
part of the Wayne County government as a whole. That
decision ordained the result.
On appeal, Fain purports to challenge the grant of sum-
mary judgment on both the ADA and the FMLA claims. In
the brief on appeal, however, Fain presents only the statu-
tory and regulatory language from the FMLA, and her
argument relates solely to that statute. The ADA portion of
the brief includes just two sentences, declaring that the
district court reached the same conclusion regarding both
statutes and therefore we should reverse the ADA claim if
we reverse the FMLA claim. Yet the district court opinion did
not even address the proper FMLA provisions, and although
Fain identifies the most relevant FMLA law, she cannot cite
to any parallel provisions in the ADA. It is Fain’s burden on
appeal to present the arguments for reversing the district
court. No effort was made to raise any argument based on
the ADA. Only in the reply brief does Fain even address the
distinction between the FMLA and the ADA, yet even there
Fain merely identifies the ADA factors but then fails to
apply them to the present case. That is insufficient to raise
the issue in this court. Because only the FMLA issue is
presented to this court, we address only that issue in this

-- 2 of 11 --

No. 03-1720 3
opinion. Although the Auditor’s Office argues that Fain
waived her argument regarding the FMLA, the argument
was sufficiently presented in the district court and here,
and therefore we address that on the merits.
The FMLA generally applies only to employers with 50 or
more employees, but the statute treats public agencies
differently. The FMLA specifies that public agencies are
“employers” under the statute regardless of the number of
employees. 29 U.S.C. § 2611(4)(A)(3); 29 C.F.R. § 825.108(d).
That numerical limitation, however, is resurrected else-
where in the FMLA, which limits eligibility for FMLA pro-
tections to “eligible employees.” 29 U.S.C. § 2611(2)(B)(2).
The term “eligible employee” in the FMLA includes “any
employee of an employer who is employed at a worksite at
which such employer employs less than 50 employees if the
total number of employees employed by that employer within
75 miles of that worksite is less than 50.” 29 U.S.C.
§ 2611(2)(B). The regulations make clear that this provision
applies to public agencies, stating “employees of public
agencies must meet all of the requirements of eligibility, in-
cluding the requirement that the employer (e.g. State) em-
ployed 50 employees at the worksite or within 75 miles.” 29
C.F.R. § 825.108(d). Therefore, even though public agencies
fall within the FMLA regardless of the number of employ-
ees, those employees cannot seek FMLA benefits unless the
agency employed at least 50 employees within a 75 mile
area.
Fain worked for the Auditor’s Office, which was located in
the County building along with many other departments of
the County government. Although the Auditor employed
only 12 employees, the County employed significantly more
than the 50-employee threshold for FMLA employee eligi-
bility within that County building. Accordingly, this appeal
turns on whether the Auditor should be considered inde-
pendent from the County.

-- 3 of 11 --

4 No. 03-1720
We are not without guidance on that question. The regu-
lations to the FMLA provide that:
A state or a political subdivision of the state constitutes
a single public agency, and, therefore, a single employer
for purposes of determining employee eligibility. For
example, a state is a single employer; a county is a single
employer; a city or town is a single employer. Where
there is any question about whether a public entity is a
public agency, as distinguished from a part of another
public agency, the U.S. Bureau of the Census’ “Census
of Governments” will be determinative, except for new
entities formed since the most recent publication of the
“Census.” For new entities, the criteria used by the
Bureau of Census will be used to determine whether an
entity is a public agency or a part of another agency,
including existence as an organized entity, governmental
character, and substantial autonomy of the entity.
29 C.F.R. § 825.108(c)(1). Fain asserts that the issue is
indeed in question here, and that the Census of Governments
(“Census”) establishes that the Auditor’s Office is a part of
the County and not a distinct public agency in itself. The
defendant does not contest that the Census, if consulted,
would defeat their position. Instead, they assert that we
should never get to that point. They argue that when the
regulation declares that the Census controls “where there
is any question about whether a public entity is a public
agency, as distinguished from a part of another public
agency,” that means that it controls only if state law does
not already provide the answer. Where state law clearly
reflects that the Auditor’s Office is a distinct public agency,
there is no question and therefore no need to resort to the
Census.
As support for that position, they rely on the Sixth
Circuit’s decision in Rollins v. Wilson County Government,
154 F.3d 626 (6th Cir. 1998). In Rollins, the court interpreted

-- 4 of 11 --

No. 03-1720 5
§ 825.108(c)(1) as requiring it to first ascertain whether
state law definitively resolved the status of the governmental
entities, and to resort to the Census of Governments only
where state law did not so resolve it. Id. at 629. The court
conceded that the regulation could also be read as directing
courts to the Census whenever the issue was in dispute
between the parties, but it rejected that interpretation in
favor of its holding which gave more deference to the state’s
own determination of its governmental entities. Id.
The parties now raise the same dispute in this court, with
Fain arguing that the Census is controlling because the
status of the Auditor’s Office is contested. That suggestion
has its advantages, not the least of which is that it lends
certainty to the issue and minimizes the need for extensive
arguments in individual cases. Moreover, it is not difficult
to imagine the potential for abuse by leaving the matter
entirely to states. A state could then prevent its employees
from taking advantage of FMLA protections by decreeing
that each County department was a distinct public agency.
But we do not have before us any evidence of such manipu-
lation, and the Rollins approach has the benefit of giving
meaning to all of the words of the regulations. As Rollins
noted, if the Census were to control in all instances, the
regulations could have said that much more clearly. Id. At
a minimum, state law would retain relevance insofar as it
informs the application of the three factors to new entities
or to established entities for which post-Census changes
would alter their status under the Census criteria. Ulti-
mately, we need not definitively resolve the issue for this
circuit, because even under the Rollins approach, a question
remains in this case and therefore the Census controls.
A more comprehensive look at Rollins is illustrative. In
that case, Linda Rollins worked for the Wilson County School
System for eight months, and the Wilson County Finance
Department for approximately four months. Id. at 627. Her
eligibility for FMLA leave depended on whether those two

-- 5 of 11 --

6 No. 03-1720
entities could be considered the same public agency under
the FMLA. The court in Rollins appeared to assume that the
Finance Department was part of the County, and instead
examined only whether the School System was also a part
of the County as opposed to a distinct public agency. In
determining that the School System was a distinct agency
not part of the County, the Rollins court relied on Tennessee
state law which differentiated the two in terms of origins,
functions, and management. Id. at 629 (noting that those
differences were traced by the Rollins district court). The
Rollins district court discussed those differences at some
length. Rollins v. Wilson County Government, 967 F. Supp.
990, 996-97 (M.D. Tenn. 1997). That court held that under
Tennessee state law, the county board of education was a
separate and distinct governmental entity from the county
government as revealed by the separate creation of the two
entities, the differing governmental functions, and by the
separate administration. Id. at 996. Specifically, the school
systems of Tennessee were created by constitution, whereas
the counties were statutorily created. Id. Moreover, Tennessee
courts had held that public education was, at core, a state
rather than county or municipal function. Id. State statutes
set forth a uniform statewide system of public education
and provided authority to the state commissioner of educa-
tion. Id. Moreover, Tennessee law also recognized a separa-
tion of powers between a county school board and the
county government officials. Id. at 996-97.
Those differences were apparent in Rollins’ circumstances
of employment as well. Rollins worked for both the School
System and the County Finance Department as a payroll
clerk, yet each job entailed different working hours, pay,
supervisors, and offices. Rollins, 154 F.3d at 628. At the
School System, she received paychecks issued by the Wilson
County Board of Education, whereas the Wilson County
Government issued her paycheck when she worked at the
Finance Department. Id. When Rollins left the School System

-- 6 of 11 --

No. 03-1720 7
to work for the County Finance Department, she had to fill
out new insurance forms, tax forms, and employment eli-
gibility forms. Id. Furthermore, the defendants in Rollins
offered affidavit evidence that the two entities “have separate
accounting books and methods, separate payrolls, separate
management with related policies and procedures, separate
insurance policies, separate workers’ compensation policies,
own separate real property, and are controlled by a separ-
ate group of government officials.” Rollins, 967 F. Supp. at
997. The district court noted that the only connection be-
tween the Wilson County School System and the County
Government was the allocation of county funds for operat-
ing the schools. Id. Accordingly, the courts held that under
Tennessee law, there was no question that the School System
was a distinct governmental entity from the County.
No similar differences are identifiable in the present case
between the Auditor’s Office and the County. The defendant
contends that the Auditor’s Office is distinct because it was
a constitutional rather than a statutory creation. See Ind.
Const. Art. VI, § 2. In addition, the defendant analogizes
the Auditor’s Office to the Sheriff’s Office, relying on Indiana
law regarding the latter to demonstrate that the Auditor’s
Office is a separate government. Specifically, the defendant
contends that the Sheriff’s office is created by the same con-
stitutional provision, and that the Indiana courts have held
that the county does not control the actions of the County
Sheriff and is therefore not vicariously liable for the Sheriff’s
actions. See Radcliff v. County of Harrison, 618 N.E.2d
1325, 1328 (Ind. App. 1993); Carver v. Crawford, 564 N.E.2d
330, 334 (Ind. App. 1990); Delk v. Bd. of Commissioners of Del.
Cty., 503 N.E.2d 436, 440 (Ind. App. 1987). In those cases,
the Indiana courts addressed whether the County could be
held vicariously liable for the actions of employees of the
Sheriff’s department. The court held that because the
County did not have control over those employees, they
could not be held vicariously liable. The defendant main-

-- 7 of 11 --

8 No. 03-1720
tains that the Auditor’s Office is analogous to the Sheriff’s
Office as a separate constitutionally-created entity, and
that those Indiana cases thus establish that the Auditor’s
Office is a distinct governmental entity.
There are numerous problems with that argument, not the
least of which is that the defendant equates the determina-
tion of vicarious liability to the statutory determination of
whether a department is an independent governmental
agency or part of a governmental agency, yet provides no
support for that argument. There is no support in the stat-
utory language for equating the two. Instead, the statute
references the Census, and where the Census is inappli-
cable, it requires courts to apply the same criteria used by
the Census in identifying distinct public agencies. Those
criteria are: existence as an organized entity, governmental
character, and substantial autonomy of the entity, and the
Census provides significant detail on the types of factors that
can establish each of those criteria. See U.S. Census
Bureau, 2002 Census of Governments, Vol. 1, Number 1,
Government Organization (2002) (“Census”) at 10-12. The
defendant has made no attempt to indicate whether state
law mandates a finding that the Auditor’s Office is an org-
anized entity which has governmental character and substan-
tial autonomy. In fact, the defendant has not identified any
state authority addressing the status of the Auditor’s Office,
and certainly nothing definitively resolving the matter so as
to forestall reliance on the Census. The analogy to the
Sheriff’s Office relies essentially on their common constitu-
tional origin, but that cannot resolve all three of the above
factors, and the two offices are obviously very different in
their functioning. More fundamentally, no state law defini-
tively establishes that the Auditor’s Office, or even the
Sheriff’s Office for that matter, is a separate government.
Caselaw holding that the County is not vicariously liable for
the actions of an individual in the Sheriff’s Office falls well
short of “definitively establishing” that the Auditor’s Office
is a government agency rather than part of the County.

-- 8 of 11 --

No. 03-1720 9
That is borne out by examination of the functions and
operation of the Auditor’s Office, which further reveals at
least a “question” as to whether it is a part of the County.
Unlike the School System in Rollins, which was physically
separate from the County, maintained a separate payroll,
and was under the authority of the school board that had no
connections to the County, the Auditor’s Office in the
present case has far more ties to the County government.
The Auditor’s office is located in the County building along
with other County departments. Moreover, in contrast to
the situation in Rollins, Fain’s paycheck is issued by the
County government, not by the Auditor’s Office, and the
Auditor in this case relied on the County personnel depart-
ment to handle the administration of Fain’s leave. Further-
more, the duties of the Auditor’s Office are closely tied to
County government. Even the defendant acknowledges that
the Auditor provides services to the county, county execu-
tive, and county fiscal body. One of the primary functions of
the Auditor’s Office is to act in a secretarial capacity for the
County. See Ind. Code (IC) 36-2-9-7& 36-2-2-11 (auditor
performs duties of clerk of the county executive, including
attending all meetings of the county executive and record-
ing the meetings in writing); IC 36-2-9-8 & 36-2-3-6(b)
(auditor is clerk of the county fiscal body responsible for
keeping an accurate record of proceedings and recording the
votes); www.co.wayne.in.us/auditor/ (Wayne County website
listing duties of Auditor by category, including secretarial
duties which include acting as secretary to the County
Commissioners and the County Council.) Other duties in-
clude providing notice of County meetings, preparing the
budget for the County Council, and engaging in other
responsibilities that “impact the financial well-being of county
government,” which interweave the auditor’s position with
the County government as a whole. Id. and IC 36-2-9-1 et seq.
For instance, money may be paid from the county treasury
only upon a warrant drawn by the auditor, but except for

-- 9 of 11 --

10 No. 03-1720
certain circumstances delineated by statute, the auditor may
only draw a warrant if the county fiscal body has made an
appropriation for the money. IC 36-2-9-12 through 36-2-9-17.
Therefore, the duties of the Auditor’s Office relate directly
to the functioning and governance of the County, in contrast
to Rollins which involved education, a field that the state
supreme court had recognized as “essentially a state, rather
than a county or municipal, function.” City of Harriman v.
Roane County, 553 S.W.2d 904, 908 (Tenn. 1977), cited in
Rollins, 154 F.3d at 630. That distinction is in fact evident
in the Census itself. The Census of Governments recognized
that of the 15,014 public school systems in the United States
in 2002, only 1,508 are classified as agencies of other gov-
ernments, whereas the remaining 13,506 are independently
included in the count of governments. Census at 9. The
Census therefore recognized that school systems predomi-
nantly are not part of the county, but are independent. The
Rollins court merely recognized that given the characteris-
tics of its school system and the state law, the school system
in that case fell within the majority rather than the excep-
tion. No similar trend exists in the Census for auditor’s offices.
In fact, although the Census lists a number of entities that
should be considered independent rather than agencies of
other governments, it does not include auditor’s offices among
them. That does not mean that an auditor’s office will nec-
essarily be a part of another governmental agency, but here
there is nothing in either state law or the facts that would
establish that the Auditor’s Office is a separate public agency
rather than a part of the County.
Because state law does not definitively resolve the issue,
even under the defendant’s interpretation of the regulation
we must turn to the Census. All parties agree that the Census
supports Fain’s position, and therefore the district court
improperly granted summary judgment to the defendant on
the FMLA issue.

-- 10 of 11 --

No. 03-1720 11
The decision of the district court granting summary judg-
ment to the defendant on the FMLA claim is REVERSED, and
the case R EMANDED for further proceedings consistent with
this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-27-04

-- 11 of 11 --