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
_________________

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.

_________________

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.
_________________

OPINION
_________________

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
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 3
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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)).
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 4
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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.
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 7
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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).
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 14
Job & Family Servs., et al.

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
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 15
Job & Family Servs., et al.

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.
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 16
Job & Family Servs., et al.

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.
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 17
Job & Family Servs., et al.

________________________________________

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,
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 18
Job & Family Servs., et al.

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.”
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 19
Job & Family Servs., et al.

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)).
No. 09-3432 Lowe v. Hamilton County Dep’t of Page 20
Job & Family Servs., et al.

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.