                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      November 27, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
TWILLADEAN CINK,

      Plaintiff - Appellant,

v.                                                        No. 15-6030
                                                   (D.C. No. 5:13-CV-01069-C)
GRANT COUNTY, OKLAHOMA, a                                 (W.D. Okla.)
political subdivision which is sued in the
name of the Board of County
Commissioners for Grant County,
Oklahoma,

      Defendant - Appellee,

and

SCOTT STERLING, individually,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                 _________________________________

       Plaintiff Twilladean Cink appeals from a grant of summary judgment in favor

of defendant Grant County, Oklahoma, on her claims under the Age Discrimination

       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.1 The district court concluded

that Grant County was not her employer and therefore was not subject to liability

under either statute. We hold that the district court applied the wrong analysis and

reached the wrong conclusion regarding the County’s status as Ms. Cink’s employer.

We therefore reverse and remand for further proceedings.

                                      I. BACKGROUND

       Ms. Cink worked as a jailer/dispatcher at the Grant County Sheriff’s Office for

over thirty years. In June 2013, a few months after returning to work from a medical

leave of absence, she was terminated by the newly elected Sheriff, Scott Sterling.

Following exhaustion of administrative remedies, she brought this action alleging,

inter alia, that her termination was the result of age and disability discrimination, as

well as retaliation for activities protected under the ADEA and ADA. Grant County,

the defendant on these claims,2 moved for summary judgment on various grounds.

The first of these, and the sole ground relied on by the district court in granting the

motion, was that Ms. Cink’s employer for purposes of the ADEA and ADA was the

Grant County Sheriff’s Office, not Grant County itself.

       1
         The district court’s concomitant election not to exercise supplemental
jurisdiction over Ms. Cink’s remaining state-law claims resulted in a final disposition
of the action for purposes of appeal. See generally Amazon, Inc. v. Dirt Camp, Inc.,
273 F.3d 1271, 1274-75 (10th Cir. 2001).
       2
           Grant County is “a body corporate and politic and as such [is] empowered
. . . [t]o sue and be sued.” Okla. Stat. tit. 19, § 1. As the caption of this case reflects,
“[i]n all suits or proceedings by or against a county, the name in which a county shall
sue or be sued shall be, ‘Board of County Commissioners of the County.’” Id. § 4.
                                             2
      The district court resolved that question by applying the “joint employer” and

“single employer” tests adopted by this court for determining employer status when

multiple employer-entities may be involved. See Bristol v. Bd. of Cty. Commr’s,

312 F.3d 1213, 1218 (10th Cir. 2002) (en banc). While these tests frame the analysis

differently, the district court correctly observed that both look to the control the

alleged employer-entities exercised over conditions of employment—in either a

separate-but-joint or effectively-unitary manner, see id. at 1218 (summarizing

joint-employer test), 1220 (summarizing single-employer test). The district court

acknowledged that Grant County was responsible for funding the Sheriff’s Office

payroll, but emphasized that the Sheriff was responsible for hiring, training, and

supervising staff and, indeed, made the decision to terminate Ms. Cink. The district

court concluded that Grant County did not meet either test, because it exercised no

supervisory control over Ms. Cink individually or over labor relations in the Sheriff’s

Office generally.

      The district court did not, however, address Ms. Cink’s distinct argument,

under Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), that Grant County was her

employer under basic agency principles, because the Sheriff is a Grant County officer

and the Sheriff’s Office merely a subordinate department of Grant County. We note

in this regard that a different judge of the same district court relied on Owens (and

distinguished Bristol) to reach just such a conclusion in an ADEA/Title VII action

brought against Grant County by another Grant County Sheriff’s staff member.

See Payne v. Grant Cty., Okla., No. CIV-14-362-M, 2015 WL 4925782, *2-*3

                                            3
(W.D. Okla. Aug. 18, 2015).3 As explained below, we conclude that Owens provides

the proper analysis here.

                    II. THE HOLDINGS OF BRISTOL AND OWENS

      In Bristol, a confinement officer working for the Sheriff of Clear Creek

County, Colorado, brought suit against the Sheriff (in his official capacity) and the

Clear Creek Board of County Commissioners for alleged disability discrimination,

asserting that both the Sheriff and the Board qualified as her employers for purposes

of the ADA.4 “Under the Colorado constitution, the County Sheriff is a distinct

position, separate from the Board of County Commissioners.” Bristol, 312 F.3d at

1219 (citing constitutional provisions separately prescribing the election of county

commissioners and the election of sheriffs and other county officers). Thus, the

circumstances in Bristol were suited to the joint-employer and single-employer tests,

which “are designed for situations where there is more than one alleged employer.”

Id. at 1218; see also id. at 1218 n.5 (noting that “[i]n various factual contexts, other

tests have been followed by the courts, such as the agency test, the alter ego test, and

the instrumentality test,” but “[b]ecause the joint-employer test and single-employer

test are most applicable to the present factual context, we will limit our analysis to

      3
       Ms. Cink properly brought the Payne decision to this court’s attention
through a notification pursuant to Fed. R. App. P. 28(j).
      4
        We refer at various points to employer status under the ADA, ADEA, and
Title VII. There are no material differences in these statutes for our purposes. All
refer broadly to a “person” (specified, or judicially interpreted, to include political
subdivisions) “engaged in an industry affecting commerce who has [a requisite
number of] employees.” 29 U.S.C. § 630(b) (ADA); 42 U.S.C. § 2000e(b) (Title VII)
42 U.S.C. § 12111(5)(A) (ADEA).
                                            4
these two tests”). Relying heavily on the fact that the Sheriff, and not the Board,

exercised control over labor relations in the Sheriff’s Office, this court held that the

Board could not be deemed the employer under the ADA. See id. at 1219-20.

      In Owens, a Sheriff’s deputy brought suit under Title VII against the Sheriff of

Wabaunsee County, Kansas, the Wabaunsee County Board of Commissioners, and

Wabaunsee County itself. Focusing on the Sheriff as the only potential employer, the

district court dismissed the suit because the Sheriff’s department did not have the

fifteen employees required for application of Title VII. This court reversed, making

two points relevant to the present action—viz., a Sheriff may be an agent of the

County for Title VII purposes, and in assessing whether such an agency relationship

exists the court should not conflate the County with the County Board:

               The district court concluded that the Sheriff should not be
      considered an agent of the county for purposes of hiring and firing Sheriff
      department employees because the Board of County Commissioners had
      little, if any, control over the Sheriff in such matters. Absent a “nexus”
      between the Board and the improper conduct, the court felt it unwise to
      impose Title VII liability on the County.
             The analysis employed by the district court apparently considers
      Wabaunsee County and the Board of County Commissioners as the same
      entity. In this lies the error. It is true that the County acts by and through
      the Board. However, the “Board” is not the “County.” The County is a
      political subdivision encompassing and representing all citizens within its
      boundaries. The Board acts on behalf of the County—as its agent.
             Similarly, the Sheriff is an agent of the County. Like the Board
      members, he is elected by the body politic and acts on its behalf in
      enforcing the state’s laws. The Sheriff is an agent of the County for all
      purposes under his control and jurisdiction. He is an agent of the County
      whether or not he would be considered an agent of the Board of County
      Commissioners under traditional agency principles.


                                             5
Owens, 636 F.2d at 286 (footnotes omitted). Significantly, this agency relationship

sufficed to show that the County was the employer of Sheriff staff without need to

resort to principles for treating distinct entities as one (as was later done in Bristol):

“The sheriff and the county in this case are more analogous to a department and the

corporation it operates within than to separate corporate entities.” Id. at 286 n.2.

Finally, we added that “[a] fair interpretation of Title VII confirms our conclusion

that the Sheriff should be considered an agent of the County,” explaining that

“[w]hatever the reason for excluding employers with fewer than fifteen employees

from Title VII coverage, it should not be construed to exempt a political subdivision

with many employees from Title VII proscriptions on grounds that the immediate

employing agent has fewer than fifteen employees.” Id. at 287. The same point

applies equally to the ADA and ADEA, with their exclusions for employers with

fewer than fifteen and twenty employees, respectively, see 42 U.S.C. § 12111(5)(A);

29 U.S.C. § 630(b).

       To sum up: Bristol held that the Sheriff was a distinct entity from the County

Board of Commissioners and, consequently, the Board could not be deemed an

employer of Sheriff’s staff absent satisfaction of one of the tests for imputing

employer status between separate entities; Owens held that the Sheriff was not a

distinct entity from—but rather an agent of—the County and, consequently, the

County was properly deemed the employer of Sheriff’s staff under traditional agency

principles. In its appellate brief, Grant County refers dismissively to Owens as

“outdated,” Aplee. Response Br. at 26, raising the suggestion that the en banc Bristol

                                             6
decision superseded Owens and its agency analysis. We turn to the relationship

between Bristol and Owens next.

              III. VITALITY AND REACH OF OWENS AFTER BRISTOL

       Bristol did not abrogate Owens. As a general matter, Bristol did not hold that

the joint-employer and single-employer tests it relied on displaced all other principles

relating to the analysis of employer status under federal employment-discrimination

statutes. Rather, it noted that the applicability of the tests it applied was a function of

the circumstances it confronted—involving multiple separate entities as alleged

potential employers—and that different principles could properly govern in other

circumstances. See Bristol, 312 F.3d at 1218 & n.5.

       More specifically, Bristol explicitly acknowledged Owens and distinguished,

rather than disavowed, its agency-based holding. See Bristol, 312 F.3d at 1220-21.

Bristol held that Owens’ agency analysis applies when the employee-numerosity

requirement is implicated (i.e., when disregarding the agency relationship between

Sheriff and County would leave the court without subject matter jurisdiction to

remedy prohibited discrimination):

       Owens did conclude that a Kansas Sheriff was an agent of the County, but
       for the sole purpose of satisfying the fifteen-employee jurisdictional
       requirement of Title VII. No such jurisdictional question is at issue in the
       present case, because the Sheriff of Clear Creek had more than fifteen
       employees. Because we are presently faced with a case where the
       jurisdictional requirement is indisputably met, Owens is not implicated.
Bristol, 312 F.3d at 1220-21 (citation omitted). Here, as in Owens, the federal

employment-discrimination claims would, if asserted separately against the Sheriff’s


                                             7
department, fail the jurisdictional numerosity requirement. To fall within the ADA

or ADEA, an employer must have fifteen or twenty employees, respectively, “for

each working day in each of 20 or more calendar weeks in the current or preceding

calendar year.” 42 U.S.C § 12111(5)(A); 29 U.S.C. § 630(b).5 An interrogatory

answer from Grant County indicates that the Sheriff’s department had no more than

twelve employees in any given week during the relevant period. See Aplt. App. at

675-78.

      Of course, to hold that Owens’ agency principle remains available to attribute

employer status to a County under the federal employment-discrimination statutes is

not to hold that the principle necessarily applies under the circumstances of any

particular case. We must still determine whether the Grant County Sheriff should be

treated as an agent of Grant County.

          IV. SHERIFF AS AGENT OF GRANT COUNTY (SHERIFF’S OFFICE
               AS SUBORDINATE DEPARTMENT OF GRANT COUNTY)

      Under Oklahoma law, the County is a body politic and corporate, Okla. Const.

Art. XVII, § 1, encompassing several offices including the office of an elected

Sheriff, id. § 2; Okla. Stat. tit. 19, § 131(A), who acts on the County’s behalf by

      5
         We note there has been some question whether the numerosity requirement in
the ADEA applies to government employers. When the ADEA was amended to
clarify that it covered political subdivisions, the sentence added to § 630(b) to make
that point did not refer back to the numerosity requirement. A number of circuits
have now confirmed, based on legislative history showing a general intent to treat
government and private employers the same, that the numerosity requirement applies
to political subdivisions. See, e.g., Palmer v. Ark. Council on Econ. Educ., 154 F.3d
892, 896 (8th Cir. 1998); EEOC v. Monclova Twp., 920 F.2d 360, 363 (6th Cir.
1990); Kelly v. Wauconda Park Dist., 801 F.2d 269, 273 (7th Cir. 1986). We adopt
that view here.
                                           8
enforcing the state’s laws within its boundaries, see Okla. Stat. tit. 19, § 516(A).

The same basic points under Kansas law were enough for this court to hold in Owens

that the Sheriff was an agent of the County and the Sheriff’s staff were perforce

County employees. See Owens, 636 F.2d at 286. In addition, the Oklahoma County

Budget Act defines the Sheriff as a County officer, Okla. Stat. tit. 19, § 1404(8), and

the Sheriff’s Office as a constituent department of the County, see id. tit. 19,

§ 1404(7), (11). The state Governmental Tort Claims Act (GTCA) likewise

recognizes County officers and their staffs as County employees, id. tit. 51,

§§ 152(7)(a)(1), (11)(c), who are thereby insulated from tort liability (borne instead

by the County through respondeat superior) for acts within the scope of their

employment, see id. tit. 51, § 152.1.

      Reflecting the above legal provisions in more concrete practical terms, the

Grant County “Employee Personnel Policy Handbook” defines employees of the

County “as those deputies and employees employed by or serving at the pleasure of

the elected [county] officials,” Aplt. App. at 249, and directs County officials to

instruct each new hire to “report to the County Clerk’s Office for enrollment as a

county employee,” id. at 250. And Grant County does not dispute that it paid Ms.

Cink’s wages, see Okla. Stat. tit. 19, § 153 (providing for County payment of salaries

of county officers and their deputies and clerks), and enrolled her in its retirement

plan, see id. tit. 19 § 957 (providing for County employee retirement plan for officers

and employees). To be sure, Grant County points out that it is the Sheriff, and not

the County Board, who oversees Sheriff’s staff and was responsible for the prohibited

                                            9
conduct alleged here. But this was also true in Owens, where “[t]he district court

concluded that the Sheriff should not be considered an agent of the county for

purposes of hiring and firing Sheriff department employees because the Board of

County Commissioners had little, if any, control over the Sheriff in such matters.”

Owens, 636 F.2d at 286. We deemed the point immaterial to the County’s liability as

employer under the federal employment-discrimination statutes: “[I]t is

inappropriate to condition the County’s liability on whether the allegedly improper

act was committed by the Board or the Sheriff when both are agents of the same

political entity—the County.” Owens, 636 F.2d at 286.

      Grant County has not cited any authority, statutory or case law, that undercuts

application of Owens’ agency principle here. We have, however, discovered a

decision of the Oklahoma Court of Civil Appeals that appears facially inconsistent

with such a result. In Bryson v. Oklahoma County ex rel. Oklahoma County

Detention Center, 261 P.3d 627 (Okla. Civ. App. 2011), the County was sued,

pursuant to the GTCA, under a respondeat superior theory for an alleged assault

committed by a Sheriff’s deputy. The state trial court dismissed the claim on the

basis that the deputy had not acted within the scope of his employment. After

rejecting this rationale for dismissal, the court of appeals affirmed on the alternative

basis that the deputy was not a County employee: “[I]t is apparent from the record

that [the deputy] was employed by the Oklahoma County Sheriff’s Office.

Therefore, . . . the County was not [the deputy’s] employer.” Id. at 632. But the

unstated premise of the court of appeals’ truncated syllogism, i.e., that employment

                                           10
in the County Sheriff’s Office precluded—rather than reflected—employment by the

County, rested on little analysis and no precedent from the state supreme court (or

additional authority from the court of appeals). And in any event, Bryson’s holding

does nothing more than underscore the Sheriff’s direct supervisory responsibility for

Sheriff’ staff, which may be significant for purposes of respondeat superior liability

under state tort law but, as we have seen, is not the focus of our analysis of the

County’s liability for purposes of the federal employment-discrimination statutes

under Owens.

      The notion of “employer” in the federal statutes is not limited to employment

per se, but also explicitly incorporates agency. Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 754 (1998) (referring to definition in Title VII6). Thus, “Congress has

directed federal courts to interpret [these statutes] based on agency principles,” and

for that we must “rely on the general common law of agency, rather than on the law

of any particular State.” Id. at 754-55 (internal quotation marks omitted)

(characterizing “[t]he resulting federal rule[s]” as “statutory interpretation pursuant

to congressional direction”). The rule of Owens constitutes just such an agency

principle and, per Ellerth, is not constrained by narrow state-law pronouncements

regarding the scope of the strict employer-employee relationship. Consequently, the

state court of appeals’ summary holding about the lack of such a relationship between

the County and the Sheriff’s staff in Bryson, which involved a distinct state law


      6
       The definitions of employer in the ADEA and ADA also refer to agents.
See 29 U.S.C. § 630(b); 42 U.S.C. § 12111(5)(A).
                                           11
context and turned on considerations lacking material import here, does not cause us

to question our resolution of this case under Owens.

                                     V. CONCLUSION

      For the reasons stated above we conclude that, for purposes of the ADEA and

ADA, Grant County qualifies as statutory “employer” of Grant County Sheriff staff,

including Ms. Cink. The entry of summary judgment for Grant County therefore

cannot stand on the legal basis invoked by the district court. And, because dismissal

of the supplemental state-law claims was predicated on the failure of these federal

claims, that disposition likewise cannot stand on its stated rationale. Of course, our

holding here does not mean Ms. Cink must ultimately prevail. Grant County remains

entitled to assert other defenses, at trial or indeed on summary judgment, to her

federal and state claims.

      The judgment of the district court is reversed and remanded for further

proceedings consistent with this order and judgment.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




                                          12
