                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a0862n.06
                                                                                            FILED
                                           No. 10-6103
                                                                                       Aug 08, 2012
                            UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT

DAVID ELLIS,

          Plaintiff-Appellant,
                                                           ON APPEAL FROM THE
v.                                                         UNITED STATES DISTRICT
                                                           COURT FOR THE EASTERN
STATE OF TENNESSEE,                                        DISTRICT OF TENNESSEE

          Defendant-Appellee.


                                                      /

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


          BOYCE F. MARTIN, JR., Circuit Judge. In this employment discrimination case, David

Ellis claims that his employer, the Bradley County Election Commission, unlawfully refused him

a reasonable accommodation for his disability arising from his Crohn’s disease and unlawfully

terminated his employment because of his disability. Ellis filed an employment discrimination

action against Bradley County, but that action was dismissed after this Court found that Tennessee,

not Bradley County, was Ellis’s employer. Ellis then filed the present action against Tennessee,

claiming disability discrimination, retaliatory discharge, and failure to accommodate his disability.

The district court granted Tennessee’s motion for summary judgment on these claims and denied as

moot Ellis’s motion for partial summary judgment as to the fact that Tennessee was his employer.

Ellis appeals. For the following reasons, we REVERSE the district court’s denial of Ellis’s motion
No. 10-6103
Ellis v. Tennessee
Page 2

for partial summary judgment and REMAND to the district court for further proceedings consistent

with this opinion.

                                                 I.

       Ellis has suffered from Crohn’s disease during much of his twenty-two-year employment

with the Commission, and took a medical leave of absence in April 2006 because of his worsening

medical condition. While Ellis was on medical leave, the Commission learned that Ellis was under

investigation by the county mayor’s office for possible state law violations. The Commission

reinstated Ellis in August and simultaneously suspended him with pay pending completion of the

mayor’s investigation. The investigation resulted in a finding that Ellis had violated Tennessee law.

On October 6, the Commission voted to terminate Ellis due to both his poor work performance and

his state law violations.

       Following his termination, Ellis filed an employment discrimination lawsuit in federal court

in December 2006 against Bradley County, Tennessee. See Ellis v. Bradley Cnty., No. 1:06-CV-260,

2007 WL 1830756 (E.D. Tenn. June 22, 2007). Ellis alleged that Bradley County was his employer.

Bradley County filed a motion to dismiss on the basis that Tennessee, and not Bradley County, was

Ellis’s employer. The district court granted Bradley County’s motion and dismissed the case upon

finding that Tennessee, and not Bradley County, was indeed Ellis’s employer. We affirmed this

decision, Ellis v. Bradley Cnty., 387 F. App’x 516, 516-17 (6th Cir. 2008), and explained that:

               The district court dismissed Ellis’s complaint under Rule 12b(1) & (6) after
       “examining the Tennessee Code, relevant case law, and the persuasive Attorney
       General opinions,” [and] the district court concluded that Ellis was an employee of
       the State of Tennessee rather than Bradley County. Ellis’s salary, life and health
       insurance, and retirement benefits were paid by Bradley County, the minimum
No. 10-6103
Ellis v. Tennessee
Page 3

        amount of his salary was determined by state law. See Tenn. Code Ann. § 2-12-208.
        The statutes provide that a portion of an administrator’s salary will be paid by the
        state if the administrator passes “a written examination on election laws” and,
        consequently becomes certified by the state election commission, which apparently
        Ellis was. Tenn. Code Ann. §§ 2-11-202(b), 2-12-209.

Ellis’s duties “were not owed to the county alone.” See Tenn. Code Ann. § 2-12-201(a)(9) and (12).

Ellis was associated with the Bradley County Election Commission, whose membership was

controlled by the state election commission. See Tenn. Code Ann. § 2-12-101. Because the Bradley

County Election Commission members are hired, fired, and disciplined by the state election

commission, Bradley County did not have the authority to hire, fire, or discipline Ellis. See id.

Ellis’s duties were defined by state law. See Tenn. Code Ann. § 2-12-201.

        Read in context, the statutes to which Ellis refers to support his argument that he was a

county, rather than a state, employee do not apply. See Tenn. Code Ann. § 2-12-210; Tenn. Code

Ann. § 8-17-102(a)(2). Under these circumstances, Ellis was for all intents and purposes an

employee of the State of Tennessee rather than Bradley County. Indeed, the Tennessee Supreme

Court has determined that a county election commission “is not an arm of the county government.”

Abercrombie v. City of Chattanooga, 203 Tenn. 357, 313 S.W.2d 256, 258 (1958). Because Bradley

County was not the proper defendant, Ellis’s complaint was subject to dismissal for failure to state

a claim for relief.

        Ellis then filed the present action against Tennessee, alleging that the Commission was a state

entity and that the Commission had unlawfully refused to provide him a reasonable accommodation

for his disability and terminated his employment because of his disability, in violation of the

Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Family and Medical Leave Act, 29 U.S.C. §
No. 10-6103
Ellis v. Tennessee
Page 4

2601 et seq. Tennessee and Ellis filed cross-motions for summary judgment on all claims. Ellis also

filed a motion for partial summary judgment as to his assertion that Tennessee was his employer.

The district court granted Tennessee’s motion for summary judgment, denied Ellis’s motion for

summary judgment, denied as moot Ellis’s motion for partial summary judgment as to the fact that

Tennessee was Ellis’s employer, and dismissed the case. Ellis appeals, arguing that the district court

erred in deciding the merits of Ellis’s discrimination, retaliation, and failure to accommodate claims,

and in denying as moot Ellis’s motion for partial summary judgment on the issue of whether

Tennessee was his employer.

                                                  II.

       Because the question of mootness is “a jurisdictional question,” Demis v. Sniezek, 558 F.3d

508, 512 (6th Cir. 2009), we consider it before reaching Ellis’s other claims. “Although the denial

of a motion for summary judgment is usually an interlocutory order that is not immediately

appealable, where an appeal from a denial of summary judgment is presented in tandem with a grant

of summary judgment, this court has jurisdiction to review the propriety of the district court’s denial

of summary judgment.” Smith v. Jefferson Cnty. Bd. of School Comm’rs, 641 F.3d 197, 205 (6th Cir.

2011) (en banc) (internal quotation marks omitted). We review de novo the district court’s denial

of partial summary judgment on the issue of mootness. Id.; see also Demis, 558 F.3d at 512 (finding

that this Court reviews jurisdictional questions de novo). A claim is moot when the issues are “no

longer live or the parties lack a legally cognizable interest in the outcome.” Los Angeles Cnty. v.

Davis, 440 U.S. 625, 631 (1979) (internal quotation marks omitted).
No. 10-6103
Ellis v. Tennessee
Page 5

       The district court denied as moot Ellis’s motion for partial summary judgment regarding the

issue of the identity of his employer. Ellis argues on appeal that the district court erred in denying

his motion because the issue of his employer’s identity had already been decided by this Court. In

our previous unpublished opinion in Ellis, 387 F. App’x at 517, we found that “Ellis was for all

intents and purposes an employee of the State of Tennessee rather than Bradley County.” We found

that the district court had fully examined the question of which entity employed Ellis in his previous

lawsuit against Bradley County and affirmed the district court’s prior finding that “Ellis was an

employee of the State of Tennessee rather than Bradley County.” Id.

       In its brief, Tennessee “requests that this issue be re-examined in light of the facts developed

in this action.” However, Tennessee does not point to any new facts, nor does it identify any new

case law developments that might affect our finding in the previous case.

       We have already fully considered the relevant facts and legal standards regarding the

substance of the employer issue contained in Ellis’s motion for partial summary judgment, and we

found that Tennessee was his employer in Ellis, id., a case to which Tennessee was not a party. The

identity of the proper defendant is a necessary question of personal jurisdiction. The district court

erred in refusing to rule on the jurisdictional question “concerning whether [Tennessee] was [Ellis’s]

employer.” Ellis v. Tennessee, No. 1:09-CV-131 (E.D. Tenn. Aug. 2, 2010) (order granting

defendant’s motion for summary judgment, denying plaintiff’s counter motion for summary

judgment, denying as moot plaintiff’s motion for partial summary judgment, and dismissing the

case). Because we reverse and remand for further proceedings to clarify this jurisdictional issue, we

do not reach the other issues presented by Ellis on appeal.
No. 10-6103
Ellis v. Tennessee
Page 6

                                            III.

       For the above reasons, we REVERSE the district court’s denial of Ellis’s motion for

summary judgment on the fact that Tennessee was his employer, and REMAND for further

proceedings consistent with this opinion.
