               Case: 14-14475       Date Filed: 07/07/2015      Page: 1 of 15


                                                                      [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-14475
                              ________________________

                         D.C. Docket No. 4:12-cv-00012-HLM

NIKKI BALLARD,
CINDY CLARK,

                                                                       Plaintiffs-Appellants
                                                                           Cross Appellees,

                                            versus

CHATTOOGA COUNTY BOARD OF TAX
ASSESSORS, CHATTOOGA COUNTY,
                                                                      Defendants-Appellees
                                                                          Cross Appellants.
                              ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                       (July 7, 2015)

Before HULL, ANDERSON, and FARRIS,* Circuit Judges.




___________
*    Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
              Case: 14-14475     Date Filed: 07/07/2015    Page: 2 of 15




PER CURIAM:

      This appeal raises two primary issues that have been resolved by two en

banc decisions of this Court. The first issue requires that we decide whether two

local governmental entities within the state of Georgia should be treated as a single

“employer” for purposes of Title VII and the Family and Medical Leave Act

(“FMLA”). This issue is controlled by our decision in Lyes v. City of Riviera

Beach, Florida, 166 F.3d 1332 (11th Cir. 1999) (en banc). The second issue

requires that we decide whether the Board of Assessors of Chattooga County,

Georgia (“Board”) is entitled to Eleventh Amendment immunity from plaintiffs’

§ 1983 claims. This issue is controlled by our decision in Manders v. Lee, 338

F.3d 1304 (11th Cir. 2003) (en banc).

      Because the issues in this case are clearly controlled by the above-mentioned

en banc decisions of this Court, this opinion is written only for the benefit of the

parties. We address each issue in turn.

              I. PLAINTIFFS’ TITLE VII AND FMLA CLAIMS
          FAIL BECAUSE PLAINTIFFS’ “EMPLOYER” EMPLOYS
          LESS THAN THE NUMBER OF EMPLOYEES REQUIRED
                FOR APPLICATION OF TITLE VII OR FMLA

      Because the relevant facts were set forth comprehensively in the magistrate

judge’s Report and Recommendation (Docket 194) and in the district court’s Order

(Docket 198), we refer to the facts only as appropriate in our application of the law


                                           2
                Case: 14-14475       Date Filed: 07/07/2015        Page: 3 of 15


to the relevant facts. Both plaintiffs were employed by the Board, not by

Chattooga County. The Board employs fewer than fifteen employees, the required

number for applicability of Title VII, and far fewer than the requisite number for

applicability of FMLA. Plaintiffs’ argument that the Board employed at least

fifteen employees fails because the members of the Board itself are not employees.

Rather, they are the employer.

       Plaintiffs can satisfy the numerosity requirement only if they could succeed

in their argument that the Board and the County constitute a single “employer” for

purposes of Title VII and FMLA. 1 However, plaintiffs’ argument fails because

plaintiffs cannot satisfy the test set forth in Lyes.



1
        As a threshold matter, plaintiffs urge us to decline to entertain the merits of either the
single employer numerosity issue or the Eleventh Amendment issue. They argue that the district
court abused its discretion in allowing the Board to amend its pleadings after the magistrate
judge raised these issues. After careful consideration of the briefs, the record, and full
exploration at oral argument, we cannot conclude that there has been an abuse of discretion
under the particular facts and circumstances here, where the issue raised by the parties is closely
related to the issues raised by the magistrate judge; where the magistrate judge was led inevitably
to the new, closely-related issues by the plaintiffs’ own position with respect to the issue raised
by the parties; and where additional discovery was allowed and the new issues were fully briefed
by the parties. The cases relied on by plaintiffs are distinguished from the instant case, not only
by the foregoing facts, but also because the Board here is a public agency such that strong
federalism and comity concerns counsel against ignoring the fact that the Georgia legislature has
declared that such boards of tax assessors shall be separate entities and almost entirely
independent of the respective county governments. Moreover, with respect to the numerosity
issue, we note that it is an element of plaintiffs’ cause of action – not an affirmative defense –
and that it was pled only implicitly in plaintiffs’ complaint. And, with respect to the Eleventh
Amendment immunity issue, plaintiffs never argued in the district court that the Board’s failure
to assert it in its initial pleadings constituted a waiver. Indeed, even on appeal, the waiver
argument was neither raised in a straightforward manner nor briefed.



                                                3
                Case: 14-14475         Date Filed: 07/07/2015        Page: 4 of 15


       The Lyes opinion summarized the test as follows:

       To summarize, we hold that in assessing whether multiple
       governmental entities are a single “employer” under Title VII, we
       begin with the presumption that governmental subdivisions
       denominated as separate and distinct under state law should not be
       aggregated for purposes of Title VII. That presumption may be
       rebutted by evidence establishing that a governmental entity was
       structured with the purpose of evading the breach of federal
       employment discrimination law. Absent an evasive purpose, the
       presumption against aggregating separate public entities will control
       the inquiry, unless it is clearly outweighed by factors manifestly
       indicating that the public entities are so closely interrelated with
       respect to control of the fundamental aspects of the employment
       relationship that they should be counted together under Title VII.

       The standard we adopt is not whether a fact finder reasonably could
       conclude the plaintiff has overcome the presumption. Instead, the
       standard is whether the fact finder reasonably could conclude the
       plaintiff has clearly overcome the presumption. The adverb “clearly,”
       which derives from the federalism concerns we have discussed, is
       meant to be limiting. It is a thumb on the scale and sometimes it will
       be decisive because federalism concerns should sometimes be
       decisive.

166 F.3d at 1345. The Lyes opinion also set forth several factors that guide our

determination of whether one entity “exerts or shares control over the fundamental

aspects of the employment relationship of another entity to such a substantial


         As will be apparent from our discussion below, Georgia’s statutory scheme and case law
reveals a clear intent that Georgia’s boards of tax assessors are separate from, and independent
of, the respective local county governments. The boards of assessors are subject to extensive
controls from the state level, but little to no control by the local county government, all in service
of the State’s purpose to equalize statewide the valuation of real estate for ad valorem tax
purposes. Strong federalism and comity concerns persuade us that we should not ignore this
clear legislative intent of the State, as plaintiffs would have us do.



                                                  4
              Case: 14-14475      Date Filed: 07/07/2015    Page: 5 of 15


extent that it clearly outweighs the presumption that the entities are distinct.” Id.

The factors include: (1) interrelationship of operations and centralized control of

labor operations; (2) the authority to hire, transfer, promote, discipline or

discharge; (3) the authority to establish work schedules or direct work assignments;

and (4) the obligation to pay or the duty to train the charging party. Id. The four

listed factors are not intended to be all inclusive; rather, the analysis is based on the

totality of the circumstances. Id.

      Our analysis begins with the state law. As set forth both by the district court

and the magistrate judge below, Georgia law clearly establishes the Board as a

separate and independent entity. The obvious purpose of the state legislation was

to equalize the assessment of property for ad valorem taxation statewide, and thus

to subject the process to controls from the state level, independent of control by the

local county-level government. Georgia’s statutory scheme and its case law make

clear that it is the Board – not the County – that has “control over the fundamental

aspects of the employment relationships” with respect to these plaintiffs. See id.

Chambers v. Fulford, 495 S.E.2d 6 (Ga. 1998), holds:

      O.C.G.A. § 48-5-260 establishes a comprehensive system for the
      administration and equalization of property taxes. The statute was
      enacted to

          Create, provide, and require a comprehensive system of the
          equalization of taxes on real property within this state by the
          establishment of uniform state-wide forms, records, and


                                            5
               Case: 14-14475    Date Filed: 07/07/2015    Page: 6 of 15


            procedures, and by the establishment of a competent full-time
            staff for each county of this state to:

               (A) Assist the board of tax assessors of each county …

      Id. at (1). O.C.G.A. § 48-5-290 creates a county board of assessors
      for each county in the State . . . . O.C.G.A. § 48-5-262(c)(1)
      establishes the minimum tax appraiser staffing requirement for each
      county . . . . The rate of compensation payable to a staff appraiser is
      determined by the state revenue commissioner and payable from
      county funds. O.C.G.A. § 48-5-263(c).

      ...

      [I]n all matters dealing with county tax appraisers it is the board of
      tax assessors and not the board of commissioners which acts as the
      “governmental board [which] has the authority to act for the county.”
      Spell v. Blalock, supra, at 462, 254 S.E.2d 842 (“[t]he authority to
      hire and fire appraisers . . . is not a power vested in the [county board
      of] commissioners.”). Because the power to hire and fire Powell as a
      tax appraiser rests with the Wheeler County Board of Tax Assessors,
      see id.; O.C.G.A. § 48-5-298(a), it follows that the authority to alter
      the duration of the employment contract remains with that body, not
      with the board of commissioners, which previously approved the
      contract.

495 S.E.2d at 8.

      From the foregoing recitation of Georgia law, it is clear that Georgia has

established the Board as a separate entity, independent of the local county

government, thus triggering the Lyes presumption. Pursuant to Lyes, that

presumption can be rebutted only if “it is clearly outweighed by factors manifestly

indicating that the public entities are so closely interrelated with respect to control

of the fundamental aspects of the employment relationship that they should be


                                           6
              Case: 14-14475     Date Filed: 07/07/2015    Page: 7 of 15


counted together under Title VII.” 166 F.3d at 1345. Applying Lyes’s four

guiding factors to the facts of this case as established by Georgia law, it is clear

that the presumption is not rebutted. Rather, application of the factors

overwhelmingly indicates that it is the Board – not the County – which has

“control over the fundamental aspects of the employment relationships.” See id.

Chambers makes it clear that it is the Board – not the County – which has control

of labor operations [Lyes factor number 1]; the authority to hire, transfer, promote,

discipline or discharge [factor number 2]; and the authority to establish work

schedules or direct work assignments [factor number 3]. See 495 S.E.2d at 8.

With respect to factor number 4 – the obligation to pay or the duty to train the

charging authority – the rate of compensation for each appraiser, O.C.G.A. § 48-5-

263(a)(1), and the training, id. § 48-5-268, are determined at the state level. While

county funds comprise the major source of funding, at least the minimum level of

funding is established, O.C.G.A. § 48-5-263(a)(1), and mandated, id. § 48-5-

263(c), at the state level. Thus, the four factors listed by Lyes overwhelmingly

establish that it is the Board – not the County – that controls the fundamental

aspects of the employment relationships.

      Looking at the totality of the circumstances, it is true that the County

provides the building in which the tax appraisers work, maintains the building,

provides payroll and human resources services, and other administrative services.


                                           7
                Case: 14-14475       Date Filed: 07/07/2015        Page: 8 of 15


However, such administrative services are tangential to the “fundamental aspects

of the employment relationships” and fall far short of creating a genuine issue of

fact with respect to plaintiffs’ heavy burden to “clearly overcome the

presumption.” See Lyes 166 F.3d at 1345.

       For the foregoing reasons, plaintiffs’ Title VII and FMLA claims fail for

failure to satisfy the numerosity requirements of the respective statutes. 2

                II. PLAINTIFFS’ SECTION 1983 CLAIMS FAIL
                   BECAUSE THE BOARD OF ASSESSORS IS
             ENTITLED TO ELEVENTH AMENDMENT IMMUNITY

       Plaintiffs’ claims relate to alleged gender discrimination. We cannot address

the merits of those claims because we agree with the district court that the Board is

entitled to Eleventh Amendment immunity.

       As we stated in Manders:

       In Eleventh Amendment cases, this Court uses four factors to
       determine whether an entity is an “arm of the state” in carrying out a
       particular function: (1) how state law defines the entity; (2) what
       degree of control the State maintains over the entity; (3) where the
       entity derives its funds; and (4) who is responsible for judgments
       against the entity.

338 F.3d at 1309. In determining whether a defendant is an “arm of the state,”

Manders directs us to focus on the particular function in which the defendant was
2
        Although Lyes addressed only the single employer issue in the context of Title VII,
plaintiffs make no argument indicating that the corresponding FMLA analysis should be
different. Also, we summarily reject plaintiffs’ other arguments in support of their Title VII and
FMLA claims. For example, their argument that the Board is a mere agent of the County is
simply inconsistent with Georgia’s statutory scheme.


                                                8
                Case: 14-14475        Date Filed: 07/07/2015        Page: 9 of 15


engaged when taking the actions out of which liability is alleged to arise. Id. at

1308. The particular function at issue in this case involves the discipline and

termination of plaintiffs who were either working as, or training for, appraiser

positions. We address the Manders factors in turn. 3

       A. How Georgia law defines boards of assessors

       As the above discussion indicates, Georgia law establishes the Board as a

separate entity, independent of the local county government. Indeed, the creation of

the boards of assessors by the state legislature was part of a state-level effort to

equalize taxes on real property throughout the state. Georgia Code § 48-5-260,

entitled “Purpose of Part” provides in relevant part:

       It is the purpose and intent of this part to:

          (1) Create, provide, and require a comprehensive system for the
          equalization of taxes on real property within this state by the
          establishment of uniform state-wide forms, records, and procedures

3
        Plaintiffs’ argument against Eleventh Amendment immunity in this case is that the Board
is a division of the County and is acting for the County – not the State. For the first time in
plaintiffs’ reply brief, they cite our recent decision in Lightfoot v. Henry County School District,
771 F.3d 764 (11th Cir. 2014) (holding that Georgia school districts are political subdivisions of
the State like a municipality or county, thus holding that they are a division neither of the State
nor the County, and accordingly are not an “arm of the state” entitled to Eleventh Amendment
immunity). However, even in their reply brief, plaintiffs do not argue in a straightforward
manner that the Board is an independent entity that is neither part of the State nor the County.
As in Manders, we decline to address this very different issue which has not been briefed at all –
i.e., whether the Board is a separate entity and neither part of the State nor the County. 338 F.3d
at 1328 n.54. We note, however, that Georgia’s boards of assessors have nothing comparable to
the autonomy of the school district in Lightfoot, which had the authority to levy taxes, issue
bonds, etc., and which was treated in the Georgia statutes as a political subdivision comparable
to a municipality or county.



                                                 9
             Case: 14-14475     Date Filed: 07/07/2015    Page: 10 of 15


         and by the establishment of a competent, full-time staff for each
         county of this state to:

            (A) Assist the Board of Tax Assessors in each county in
            developing the proper information for setting tax assessments on
            property:

            (B) Maintain the tax assessment records for each county; and

            (C) Provide for state-wide duties and qualification standards for
            such staffs;

         (2) Provide for the examination of county tax digests in order to
         determine whether property valuation is uniform between the
         counties.

      The Georgia statutory scheme obviously contemplates that its boards of

assessors shall not only constitute a separate entity from the local county

government, but the statutes reflect a clear intent that the boards of assessors shall

be independent of the local county government. Georgia Code § 48-5-290

provides that, although members of the boards of assessors are appointed by the

county governing authority, no close relative of a county commissioner is eligible

to serve as a member of a board of assessors. Moreover, once appointed, the local

county government cannot change the length of the term of existing members of

boards of assessors. Id. § 48-5-295(a). And a member of a county board of

assessors may be removed only for cause after a hearing before a judge of the

superior court of the county. Id. § 48-5-295(b). Finally, and significantly in light

of our mandate to assess this Eleventh Amendment issue in light of the particular


                                          10
             Case: 14-14475     Date Filed: 07/07/2015    Page: 11 of 15


function giving rise to plaintiffs’ claim, the independence of Georgia’s boards of

assessors is reflected in the Georgia cases holding that local county governments

have no authority at all with respect to the discipline or termination of employees

of the boards of assessors. See Chambers, 495 S.E.2d at 8.

      We conclude that the first Manders factor weighs overwhelmingly in favor

of Eleventh Amendment immunity for the Board. We turn now to the second

factor.

      B. Georgia statutes and case law vest control over Georgia’s boards of
        assessors in the State, not in the local county government

      The second Manders factor looks at where the state law vests control. With

respect to the particular function at issue in this case, Georgia’s case law expressly

provides that the local county government shall have no control at all over the

discipline or termination of employees of the boards of assessors. See Chambers,

495 S.E.2d at 8. Moreover, there is extensive state-level control over virtually

every aspect of the work of Georgia’s boards of assessors. State law establishes

the minimum number of appraisers (O.C.G.A. § 48-5-262); the qualifications,

duties, and compensation thereof (Id. § 48-5-263); the training thereof (Id. § 48-5-

268); and the procedures to be followed (Id. § 48-5-269). Finally, and

significantly, the end product of the work of Georgia’s boards of assessors has to

be approved or disapproved at the state level. Id. § 48-5-304 (relating to the state-

level approval of the tax digests).
                                          11
             Case: 14-14475      Date Filed: 07/07/2015    Page: 12 of 15


      The state-level control in this case is all encompassing; by contrast, there is

no control at all vested in the local county governments. This is especially true

with respect to the particular function giving rise to plaintiffs’ claims; as noted,

Chambers holds that local county governments have no authority at all with respect

to the discipline or termination of the Board’s employees. 495 S.E.2d at 8. This

control factor of Manders points more overwhelmingly toward Eleventh

Amendment immunity than did this factor in Manders itself. We next address the

third Manders factor.

      C.     Source of funds for the Board

      The Georgia statutory scheme for funding its boards of tax assessors very

closely parallels the funding scheme for sheriffs as described in Manders, 338 F.3d

at 1323-24. Although the County “bears the major burden of funding[,]” the Board

here, just as in Manders, is thus funded “because the State so mandates.” Id. at

1323. State law determines the minimum number of appraisers for each county

and sets their qualifications and duties. O.C.G.A. §§ 48-5-262, 48-5-263(a)-(b).

The “rate of compensation for each appraiser grade” is determined by the state

revenue commissioner pursuant to O.C.G.A. § 48-5-263(a)(1), and O.C.G.A. § 48-

5-263(c) mandates that: “Staff appraisers shall be paid from county funds.” And

as in Manders, “both state and county funds are involved[,]” 338 F.3d at 1324,




                                           12
             Case: 14-14475     Date Filed: 07/07/2015    Page: 13 of 15


because a portion of the salary of these appraisers is paid by the State. O.C.G.A. §

48-5-267.

      Thus, for the same reasons that prevailed in Manders, the “state involvement

is sufficient to tilt the third factor of the Eleventh Amendment analysis toward

immunity.” See 338 F.3d at 1324. We turn next to the fourth Manders factor.

      D.     Source of funds that will pay any adverse judgment

      As with the third factor, the situation of Georgia’s boards of assessors with

respect to the issue of who will pay any adverse federal judgment is very similar to

the situation that existed in Manders. There, Georgia law placed the legal liability

for paying the adverse judgment on neither the County nor the State, and “Sheriff

Peterson thus apparently would have to pay any adverse federal court judgment …

out of the budget of the Sheriff’s Office … [which] would reduce his budget, and

the practical reality is that Sheriff Peterson must recoup that money from

somewhere … [and thus] both county and state funds are implicated.” Manders,

338 F.3d at 1327. The Manders court also noted that

      [n]ever has the Supreme Court required an actual drain on the state
      treasury . . . because the Eleventh Amendment is rooted in a
      recognition that the States . . . maintain certain attributes of
      sovereignty, and a purpose of the Eleventh Amendment is to accord
      the States the respect owed them . . . and not to affront the dignity or
      integrity of a state by requiring a state to respond to lawsuits in federal
      courts.

Id. (internal quotations and citations omitted).


                                          13
             Case: 14-14475      Date Filed: 07/07/2015    Page: 14 of 15


      As in Manders, plaintiffs have pointed to no Georgia statute that makes a

Georgia county liable for an adverse judgment against one of Georgia’s boards of

assessors, and we are aware of no such statute. The Georgia Supreme Court in

Wayne County Board of Commissioners v. Warren, 223 S.E.2d 133 (Ga. 1976),

held that “[a] county is not liable to suit for any cause of action unless made so by

statute.” Id. at 134 (quoting then O.C.G.A. § 23-1502, now codified at O.C.G.A.

§ 36-1-4) (internal quotation marks omitted). Neither are we aware of any statute

making the State liable for an adverse judgment against one of Georgia’s boards of

assessors.

      Thus, again as in Manders, the Board itself “apparently would have to pay

any adverse federal court judgment,” and the “practical reality” is precisely the

same because “both county and state funds are implicated.” See 338 F.3d at 1327.

Just as in Manders, in this case too, “[t]he State’s ‘integrity’ is not limited to who

foots the bill, and, at a minimum, the liability-for-adverse-judgment factor does not

defeat [the Board’s] immunity claim.” See id. at 1328.

      In summary, our application of the Manders factors to the facts of this case

is as follows. With respect to factors one, three, and four, the relevant facts, as

dictated by the statutory scheme, are virtually indistinguishable from those in

Manders. And with respect to Manders’s second factor – what degree of control

the State maintains over the entity – the facts of this case as dictated by the


                                           14
               Case: 14-14475        Date Filed: 07/07/2015        Page: 15 of 15


statutory scheme point more overwhelmingly toward Eleventh Amendment

immunity than in Manders itself. For the foregoing reasons, we conclude that

Manders controls and that the Board is entitled to Eleventh Amendment immunity

from plaintiffs’ § 1983 claims. 4

                                      III. CONCLUSION

       Having rejected plaintiffs’ arguments with respect to the two primary issues

on appeal, we also reject any other challenges by plaintiffs to the judgment of the

district court without need for further discussion. We also reject as moot the

Board’s arguments on cross-appeal. Accordingly, the judgment of the district

court is

       AFFIRMED.




4
        Plaintiffs argue for the first time on appeal that their complaint also sought reinstatement,
and this claim would survive Eleventh Amendment immunity. We decline to entertain this
argument, which was not fairly presented to the district court. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue
not raised in the district court and raised for the first time in an appeal will not be considered by
this [C]ourt.” (internal quotation omitted)).


                                                 15
