               Case: 13-14631    Date Filed: 11/10/2014     Page: 1 of 33


                                                                              [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 13-14631
                            ________________________

                        D.C. Docket No. 1:12-cv-00694-CAP

ZANETA (JOI) RAINEY LIGHTFOOT,

                                                     Plaintiff - Appellant,

versus

HENRY COUNTY SCHOOL DISTRICT,

                                               Defendant - Appellee.
                            ________________________

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

                                (November 10, 2014)

Before WILSON and ROSENBAUM, Circuit Judges, and HUCK,* District Judge.

PAUL C. HUCK, District Judge:

         Appellant Zaneta Lightfoot sued her former employer, Appellee Henry

County School District (the “School District”), in the Northern District of Georgia

       *Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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for alleged violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§ 2601 et seq., and the Americans with Disabilities Act of 1990, as amended

(“ADA”), 42 U.S.C. § 12101 et seq. The primary issue presented on appeal is

whether the School District is an “arm of the State” of Georgia, such that it is

immune from suit in federal court under the Eleventh Amendment. We hold that

the School District is not an “arm of the State,” and instead operates more like a

county or similar political subdivision to which Eleventh Amendment immunity

does not extend. The district court’s judgment on this ground is, therefore,

reversed. Its dismissal, on separate grounds, of Lightfoot’s ADA retaliation claim

is affirmed.

I.    Facts and Procedural History

      Lightfoot was hired by the School District in August 2007 and began

teaching English and drama at Woodland High School (“Woodland”) in 2008.

[Appellant’s Br. 4]. Lightfoot suffers from sickle cell anemia, a blood disorder

that causes sporadic pain crises, making standing and walking difficult. In March

2010, Lightfoot applied for intermittent leave under the FMLA, which would allow

her to take leave on days when the pain from her medical condition became

overwhelming. Lightfoot’s application was approved in October 2010, and she

took leave throughout the 2010–2011 school year.          On February 14, 2011,




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Lightfoot was approved for an additional period of intermittent FMLA leave. [Id.

at 4–5].

      On February 23, 2011, Woodland Principal Bret Cook and Assistant

Principals Shannon Ellis and Molly Schmidt met with Lightfoot to give her a

disciplinary document called a letter of redirection. [Id. at 5]. The letter stated that

Lightfoot had neglected her duties under the “Georgia Teacher Duties and

Responsibilities Instrument” (GTDRI) and violated specific requirements

contained in the School District’s “Annual Teacher Evaluation Addendum,”

including the requirements that teachers “interact[] in a professional manner with

students, parents, and colleagues” and “provide[] adequate information, plans and

materials for substitute teachers.” [Doc. 54-4 at 1]. The letter described instances

in which Lightfoot had violated these requirements by, among other things,

“fail[ing] to work cooperatively with co-workers” and “fail[ing] to provide five

days of substitute lesson plans.” [Id.]. Lightfoot claims that at the meeting, Cook,

Ellis, and Schmidt revealed that their true reason for issuing the letter was

Lightfoot’s use of FMLA leave. Cook stated that Lightfoot’s medical absences

had caused many of the problems described in the letter, and Ellis suggested that




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Lightfoot transfer to a middle school because the high school’s schedule was not

compatible with her medical condition. 1 [Appellant’s Br. 6].

       On March 28, 2011, Schmidt administered Lightfoot’s performance

evaluation.     Lightfoot received an overall evaluation of “unsatisfactory” for

allegedly failing to correct the GTDRI deficiencies outlined in her letter of

redirection. [Id. at 6–7]. Because of her negative evaluation, Lightfoot was placed

on a Professional Development Plan (“PDP”). A PDP is an “individually tailored

educational and professional plan” containing specific objectives for improvement

and criteria for measuring progress. [Doc. 54-2 at 3; Doc. 71 at 3]. However, it is

also the most severe form of discipline a teacher can receive short of being

terminated. [Appellant’s Br. 8]. Lightfoot’s PDP was in effect for the remainder

of the 2010–2011 school year and for the following school year. Around this time,

Cook removed Lightfoot from her position as the school’s cheerleading coach, a

position she had held since 2009 and for which she received additional

compensation. On April 4, 2011, Lightfoot filed charges of disability

discrimination and retaliation with the Equal Employment Opportunity

Commission (“EEOC”). [Id. at 8–9].



1
  While the School District disputes these and other statements allegedly made by Woodland’s
administration [see Appellee’s Br. 9–11], the facts are to be construed in the light most favorable
to the non-movant on review of a summary judgment order. Manders v. Lee, 338 F.3d 1304,
1306 n.1 (11th Cir. 2003).

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          When Lightfoot returned to school for the 2011–2012 school year, she found

that her English classroom, previously located across the hall from her drama

classroom, had been moved to the other side of the building.                         This required

Lightfoot to take a painful walk between the distant classrooms.                         Lightfoot

requested an accommodation to reduce her walking, which Cook denied because

Lightfoot did not appear to him to be in pain. [Id. at 10–11].

          After exhausting administrative remedies with the EEOC, Lightfoot brought

the instant suit in March 2012, alleging discrimination and retaliation under the

ADA and retaliation under the FMLA. [Id. at 11; Doc. 71 at 5]. Shortly after

filing suit, Lightfoot successfully completed her PDP. However, several months

later, she received a second letter of redirection based on allegations that she had

falsified a student’s grades.2 In March 2013, Cook informed Lightfoot that the

School District would not be renewing her contract and that her employment was

terminated. [Appellant’s Br. 13–14].

          In July 2013, the district court granted the School District’s motion for

summary judgment on Lightfoot’s ADA claims but denied it on her FMLA claim.

[Doc. 71 at 22–23]. The School District moved for reconsideration of the FMLA

claim, raising for the first time the defense of Eleventh Amendment immunity.

Lightfoot moved for reconsideration of her ADA retaliation claim, and also moved


2
    An investigation yielded no evidence of grade falsification. [Appellant’s Br. 13].
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to amend her complaint to add claims based on her termination. On September 17,

2013, the district court granted the School District’s motion for reconsideration and

found that the School District was entitled to Eleventh Amendment immunity.

[Doc. 80 at 3–11]. The court therefore granted the School District summary

judgment on Lightfoot’s FMLA claim and denied Lightfoot’s motion to amend her

complaint.   [Id. at 18].   On separate grounds, the district court also denied

Lightfoot’s motion for reconsideration of her ADA retaliation claim. [Id. at 12–

13].

       On appeal, Lightfoot argues that the School District is not an “arm of the

State” of Georgia, and is therefore not entitled to immunity under the Eleventh

Amendment. Lightfoot further argues that the district court erred in granting the

School District summary judgment on her ADA retaliation claim.

II.    Standard of Review

       “[W]hether an entity constitutes an arm of the state under Eleventh

Amendment immunity analysis is a question of law subject to de novo review.”

United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 602 (11th

Cir. 2014). Lightfoot frames her second issue on appeal as whether the district

court erred in granting the School District summary judgment on her ADA

retaliation claim, which we would normally review de novo. Hickson Corp. v. N.

Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004). However, Lightfoot’s


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argument that the district court should have liberally construed her ADA retaliation

claim as being based on facts pled elsewhere in her complaint was raised in her

motion for reconsideration. We review the district court’s disposition of that

motion for abuse of discretion. See Farris v. United States, 333 F.3d 1211, 1216

(11th Cir. 2003); Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th

Cir. 2001).

III.   Analysis

       A.      Eleventh Amendment Immunity

       “The Eleventh Amendment largely shields States from suit in federal courts

without their consent . . . .” Hess v. Port Auth. Trans–Hudson Corp., 513 U.S. 30,

39, 115 S. Ct. 394, 400 (1994).3 Eleventh Amendment immunity “extends not

only to the state itself, but also to state officers and entities when they act as an

‘arm of the state.’” Lesinski, 739 F.3d at 601. It does not, however, extend to

counties, municipal corporations, or similar political subdivisions of the state.

Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499, 1509 (11th Cir. 1990)

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.

Ct. 568, 572 (1977)). Thus, the School District’s immunity under the Eleventh


3
  The Eleventh Amendment states that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Supreme Court has held that the Eleventh Amendment also bars suits
against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504 (1890).

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Amendment turns on whether it should be treated as an “arm of the State” of

Georgia, or as a county or similar political subdivision. Mt. Healthy, 429 U.S. at

280, 97 S. Ct. at 572. This assessment is made “in light of the particular function

in which [the School District] was engaged when taking the actions out of which

liability is asserted to arise.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.

2003) (en banc). Here, the relevant functions pertain to the School District’s

employment of teachers, and specifically, to its discipline, evaluation, and

termination of teachers.

       To determine whether an entity is an “arm of the state,” we evaluate the

following four factors: “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.” Manders, 338 F.3d at

1309. The resolution of these factors depends, in part, on state law, id., which

differs from state to state. Still, we note that the Supreme Court and the vast

majority of appellate courts that have considered the issue have found that school

districts and school boards are not entitled to Eleventh Amendment immunity. 4


4
 See Mt. Healthy, 429 U.S. at 281, 97 S. Ct. at 573; Holz v. Nenana City Pub. Sch. Dist., 347
F.3d 1176, 1181 (9th Cir. 2003) (Alaska); Savage v. Glendale Union High Sch., 343 F.3d 1036,
1051 (9th Cir. 2003) (Arizona); Herts v. Smith, 345 F.3d 581, 588 (8th Cir. 2003) (Arkansas);
Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir. 1989) (Connecticut); Gary A. v. New Trier High
Sch. Dist., 796 F.2d 940, 944–47 (7th Cir. 1986) (per curiam) (Illinois); Parker v. Franklin Cnty.
Cmty. Sch. Corp., 667 F.3d 910, 929 (7th Cir. 2012) (Indiana); Unified Sch. Dist. No. 480 v.
Epperson, 583 F.2d 1118, 1123 (10th Cir. 1978) (Kansas); Minton v. St. Bernard Parish Sch.
Bd., 803 F.2d 129, 131 (5th Cir. 1986) (Louisiana); Soper v. Hoben, 195 F.3d 845, 853 n.9 (6th
                                                8
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This includes the Eleventh Circuit. 5 By contrast, the School District identifies only

one appellate case in which a school board was deemed an “arm of the state.” See

Belanger v. Madera Unified Sch. Dist., 963 F.2d 248 (9th Cir. 1992) (California). 6

Comparisons to these cases are provided when useful to our analysis.

             1. How State Law Defines the Entity

          The first Manders factor considers how Georgia defines its school districts.

Georgia school districts are established by Georgia’s Code, which provides that

“[e]ach county of this state . . . shall compose one school district and shall be

confined to the control and management of a county board of education . . . .” Ga.

Code Ann. § 20-2-50. Georgia’s Constitution vests authority in “county and area

boards of education to establish and maintain public schools within their limits;



Cir. 1999) (Michigan); Black v. N. Panola Sch. Dist., 461 F.3d 584, 598 (5th Cir. 2006)
(Mississippi); Miener v. State of Mo., 673 F.2d 969, 980 (8th Cir. 1982) (Missouri); Febres v.
Camden Bd. of Educ., 445 F.3d 227, 237 (3d Cir. 2006) (New Jersey); Duke v. Grady Mun. Sch.,
127 F.3d 972, 978 (10th Cir. 1997) (New Mexico); Woods v. Rondout Valley Cent. Sch. Dist. Bd.
of Educ., 466 F.3d 232, 251 (2d Cir. 2006) (New York); Eason v. Clark Cnty. Sch. Dist., 303
F.3d 1137, 1141–45 (9th Cir. 2002) (Nevada); Cash v. Granville Cnty. Bd. of Educ., 242 F.3d
219, 226 (4th Cir. 2001) (North Carolina); Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331
n.6 (3d Cir. 2000) (Pennsylvania); Lopez v. Hous. Indep. Sch. Dist., 817 F.2d 351, 353 (5th Cir.
1987) (Texas), overruled on other grounds by Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995)
(en banc); Ambus v. Granite Bd. of Educ., 995 F.2d 992, 997 (10th Cir. 1993) (en banc) (Utah);
Stoddard v. Sch. Dist. No. 1, 590 F.2d 829, 835 (10th Cir. 1979) (Wyoming).
5
 See Stewart, 908 F.2d at 1511 (Alabama); Travelers Indem. Co. v. Sch. Bd. of Dade Cnty., 666
F.2d 505, 509 (11th Cir. 1982) (Florida). The former Fifth Circuit has similarly rejected
Eleventh Amendment claims by local boards of education. See Moore v. Tangipahoa Parish
Sch. Bd., 594 F.2d 489, 494 (5th Cir. 1979) (Louisiana); Campbell v. Gadsden Cnty. Dist. Sch.
Bd., 534 F.2d 650, 655–56 (5th Cir. 1976) (Florida); Adams v. Rankin Cnty. Bd. of Educ., 524
F.2d 928, 929 (5th Cir. 1975) (per curiam) (Mississippi).
6
    As reflected in note 4, subsequent Ninth Circuit cases have declined to follow Belanger.
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provided, however, that [this] authority . . . shall not diminish any authority of the

General Assembly otherwise granted under this article . . . .” Ga. Const. art. VIII,

§ V, ¶ I. School districts are not explicitly defined as being either part of, or

distinct from, the State. This case is therefore unlike Mt. Healthy, where the

Supreme Court found that Ohio school boards were not “arms of the state” in part

because “[u]nder Ohio law the ‘State’ does not include ‘political subdivisions,’ and

‘political subdivisions’ do include local school districts.” Mt. Healthy, 429 U.S. at

280, 97 S. Ct. at 572.

      Nevertheless, it is telling that Georgia courts have held that “[a] county

board of education . . . is merely the agency through which the county, as a

subdivision of the State, acts in school matters.” Krasner v. Harper, 82 S.E.2d

267, 272 (Ga. Ct. App. 1954); see also Beckanstin v. Drake, 80 S.E.2d 506, 507

(Ga. Ct. App. 1954). Georgia courts have similarly observed that teachers are

“county employees” by virtue of “being employees of the county governing

authority through which the county acts in school matters (i.e., the county board of

education).” Rosser v. Meriwether Cnty., 186 S.E.2d 788, 791 (Ga. Ct. App. 1971)

(per curiam). This is in contrast to Manders, where we held that the sheriff’s office

was an “arm of the state” in part because it was a “separate and independent

office” from the county, and its employees were not county employees. Manders,

338 F.3d at 1319.


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      Furthermore, in discussing the powers of various government entities,

Georgia’s Constitution often groups school districts together with counties and

municipalities, indicating that those entities are similar to one another, and distinct

from the State.        For example, the section pertaining to “Intergovernmental

Relations” provides that the “state, or any institution, department, or other agency

thereof” may contract with “any county, municipality, school district, or other

political subdivision of the state.” Ga. Const. art. IX, § III, ¶ I. Similarly, the

section discussing “Home Rule for Counties and Municipalities” states that the

“General Assembly may waive the immunity of counties, municipalities, and

school districts by law.”      Id. § II, ¶ IX.    Finally, the section setting forth

“Limitations on Local Debt” places a cap on the “debt incurred by any county,

municipality, or other political subdivision of this state,” while excepting “local

school systems which are authorized by law . . . to incur debt in excess of [the

cap].” Id. § V, ¶ I.

      Georgia’s Code likewise groups school districts together with other political

subdivisions. The article governing “State and Local Government Partnership”

states that its purpose is to “strengthen the partnership between the State of

Georgia and local political subdivisions,” and defines the latter to include counties,

municipalities, and county school districts. Ga. Code Ann. §§ 28-5-47.1 to -48.

Similarly, the Code’s title on “Local Government” provides that “[c]ounties,


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municipalities, county boards of education, and other political subdivisions of the

state . . . shall have the power and authority . . . to issue notes, certificates, or other

evidence of indebtedness in anticipation of the collection of taxes.” Ga. Code Ann.

§ 36-80-2. Although these various provisions are not definitive, they suggest that

Georgia considers school districts to be political subdivisions, distinct from the

State. 7

       The School District counters that Georgia courts have deemed school

districts part of the State for purposes of state sovereign immunity, which extends

to “the state and all of its departments and agencies.” Ga. Const. art. I, § II, ¶ IX;

see Coffee Cnty. Sch. Dist. v. Snipes, 454 S.E.2d 149, 150 (Ga. Ct. App. 1995).

The School District further notes that we have cautioned against “the incongruous

result of having a ‘state agency’ that is immune from suit under state law but not

federal law.” Ross v. Jefferson Cnty. Dept. of Health, 701 F.3d 655, 659 (11th Cir.

2012) (per curiam) (internal quotation marks omitted).

       However, it is federal law, not state law, that ultimately governs whether an

entity is immune under the Eleventh Amendment. See Stewart, 908 F.2d at 1509.

State-law immunity does not control our analysis, id., particularly because Georgia

7
  The School District argues that the fact that Georgia refers to school districts as “political
subdivisions” is not significant because Georgia’s Supreme Court has referred to “political
subdivisions” as “arms of the State,” citing Troup County Electric Membership Corp. v. Georgia
Power Co., 191 S.E.2d 33, 37 (Ga. 1972). [Appellee’s Br. 17]. However, the School District
points to no case in which a political subdivision was referred to as an “arm of the state” for
Eleventh Amendment purposes.

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also extends immunity to counties, which are clearly not immune under the

Eleventh Amendment. See Coffee Cnty. Sch. Dist., 454 S.E.2d at 150 (noting that

counties are entitled to state sovereign immunity); Stewart, 908 F.2d at 1509

(explaining that the Eleventh Amendment “does not extend to counties”).

Additionally, the Georgia Tort Claims Act, which waives the State’s sovereign

immunity under certain circumstances, explicitly excludes school districts from its

definition of “State,” which is defined as “the State of Georgia and any of its

offices, agencies . . . and institutions, but does not include counties, municipalities,

school districts, [or] other units of local government . . . .” Ga. Code Ann. § 50-

21-22.

      Finally, the School District argues that it is an “arm of the State” because it

carries out the State’s constitutional duty to provide public education. See Ga.

Const. art. VIII, § I, ¶ I (“The provision of an adequate public education for the

citizens shall be a primary obligation of the State of Georgia.”). The School

District analogizes to Lesinski, where we found the South Florida Water

Management District to be an “arm of the state” in part because Florida’s water

districts were “designed to perform a state function—water management and

protection.” Lesinski, 739 F.3d at 603.

      However, it is not sufficient that the School District’s powers and duties are

derived from state law.


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      [T]he Eleventh Amendment shields an entity . . . only when it is . . .
      the direct means by which the State acts . . . . In contrast, when a State
      creates subdivisions and imbues them with a significant measure of
      autonomy, such as the ability to levy taxes, issue bonds, or own land
      in their own name, these subdivisions are too separate from the State
      to be considered its “arms.”

Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S. 299, 313, 110 S. Ct. 1868,

1877 (1990) (Brennan, J., concurring in part and concurring in the judgment); see

also Savage v. Glendale Union High Sch., 343 F.3d 1036, 1048 (9th Cir. 2003)

(finding that Arizona school district with a substantial degree of autonomy did not

perform a central government function, even though Arizona’s Constitution

mandated that its legislature “provide for the establishment and maintenance of a . .

. public school system” (quoting Ariz. Const. art. XI, § I.A)). As discussed in the

following sections, Georgia grants its school districts a significant amount of

autonomy. On balance, the first factor indicates that the School District is not an

“arm of the State.”

         2. The Degree of Control Maintained by the State

      The second factor examines where Georgia vests control over school

districts. Under Georgia law, school districts are subject to “the control and

management” of county boards of education, which have the authority to “establish

and maintain public schools within their limits” and make “rules to govern the

county schools of their county.” Ga. Code Ann. § 20-2-50, -59; Ga. Const. art.

VIII, § V, ¶ I; see also Thornton v. Clarke Cnty. Sch. Dist., 514 S.E.2d 11, 13 (Ga.
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1999) (“A local school board has broad discretion to control the operation of the

school system . . . .”). County school board members are locally elected county

residents. See Ga. Code Ann. § 20-2-51 (“No person shall be eligible for election

as a member of a local board of education who is not a resident of the school

district in which that person seeks election and of the election district which such

person seeks to represent.”).

      As a result, Georgia school districts are largely under local control. Indeed,

as explained by the Georgia Supreme Court, Georgia’s Constitution “embodies the

fundamental principle of exclusive local control of general primary and secondary

(‘K–12’) public education.” Gwinnett Cnty. Sch. Dist. v. Cox, 710 S.E.2d 773, 775

(Ga. 2011). The constitution “limit[s] governmental authority over the public

education of Georgia’s children to that level of government closest and most

responsive to the taxpayers and parents of the children being educated.” Id. at 776.

      In addition to being locally operated and controlled, Georgia’s school

districts and school boards have substantial autonomy over their affairs. School

districts may sue and be sued. Foster v. Cobb Cnty. Bd. of Educ., 213 S.E.2d 38,

39 (Ga. Ct. App. 1975). School boards may purchase property, borrow money,

enter contracts, and issue bonds. See Ga. Code Ann. §§ 20-2-520, -390, -500, -




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430.8 Similar powers were considered evidence of autonomy in Mt. Healthy, 429

U.S. at 280–81, 97 S. Ct. at 573 (school board could issue bonds and levy taxes

within certain state law restrictions), and Stewart, 908 F.2d at 1510–11 (school

board could issue tax anticipation warrants, borrow funds, and establish education

policy). See also Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489, 493–94

(5th Cir. 1979) (school board with power to sue and be sued, contract, purchase

and sell property, borrow funds, and levy taxes deemed autonomous political

subdivision).

       The School District argues that Georgia nonetheless exercises significant

control over school districts by setting rules and regulations for school boards and

establishing statewide education policies. The School District notes, for example,

that the State establishes the qualifications and duties of school board members, the

manner in which they are elected, their terms of office, and the basic procedures

for their meetings. See Ga. Code Ann. §§ 20-2-49, -51, -52, -57–58. The State

also gives the Governor authority to suspend board members if a school becomes

at risk of losing its accreditation. Id. § 20-2-73.




8
  Specifically, Georgia’s Code authorizes school boards to, inter alia, “purchase, lease, or rent
school sites” and other school property, Ga. Code Ann. § 20-5-520; “borrow sufficient amounts
of money . . . to pay for the operation of the public schools,” id. § 20-2-390; enter “contracts
for . . . supplies, materials, equipment, or agricultural products,” id. § 20-2-500; and “incur any
bonded debt for building, equipping, or purchasing sites for . . . schoolhouses,” id. § 20-2-430.

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      Moreover, the School District contends, Georgia has exercised increasing

control over education policy since the enactment of the Quality Basic Education

Act (“QBE”) in 1985. The QBE’s stated purposes include:

      Providing an equitable public education finance structure which
      ensures that every student has an opportunity for a quality basic
      education, regardless of where the student lives, . . . [e]stablishing . . .
      state-wide standards which ensure that each student has access to a
      quality program[,] . . . [and] [p]roviding an evaluation process for all
      school system personnel to assure the public that personnel are
      performing at acceptable levels . . . .

Ga. Code Ann. § 20-2-131.

      The QBE sets forth a framework for funding basic education in Georgia’s

public schools. Specific provisions of the QBE also establish minimum salaries for

teachers, standards for teacher certification, graduation requirements, and a

statewide core curriculum. See Ga. Code Ann. §§ 20-2-140, -142, -200, -212.9

The QBE further requires school districts to submit their budgets to the State Board

of Education (“State Board”), which “either accept[s] or reject[s]” the budgets.

Ga. Code Ann. § 20-2-167. School districts must spend at least sixty-five percent

of their total operating expenditures on items “directly associated with the

interaction between teachers and students,” such as teacher salaries, school

supplies, and classroom activities. Id. § 20-2-171. The State’s Office of Planning


9
     See also Chris Grant, Education Reform, New Georgia Encyclopedia,
http://www.georgiaencyclopedia .org/ articles/education/education-reform#The-Quality-Basic-
Education-Act (last updated Oct. 8, 2014).

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and Budget is authorized to “verify the proper expenditure of funds” by school

districts. Id. § 20-2-68. Finally, the State Board may withhold state funds from

any school district that fails to comply with the QBE. Id. § 20-2-243.

        The School District contends that these and similar regulations demonstrate

the State’s “immense control” over Georgia’s school districts. The School District

further argues that in addition to exercising general control, the State controls the

particular functions at issue here: the evaluation, discipline, and termination of

teachers.

        The School District notes that Georgia requires teachers to be evaluated on

an annual basis using an “evaluation system as adopted and defined by the State

Board of Education.” Ga. Code Ann. § 20-2-210. The evaluation must be based

on several criteria, including growth in student achievement and observations of

the teacher’s classroom, id., and a teacher who receives an “unsatisfactory”

evaluation must be placed on a PDP. [Appellee’s Br. 27 n.7]. The State also

regulates the termination of teachers by specifying only eight statutory bases for

terminating or not renewing a teacher’s contract. A school board’s termination

decision may be appealed to the State Board. Ga. Code Ann. §§ 20-2-940, -942, -

1160.

        The School District correctly asserts that Georgia has enacted many laws

pertaining to the operation of school districts.     However, these laws do not


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establish the requisite control for Eleventh Amendment purposes. As an initial

matter, many of Georgia’s laws prescribe minimum requirements that school

districts may exceed. For example, while a school district must base its curriculum

on the “uniformly sequenced core curriculum” established by the State Board, it

may “sequence, expand, and enrich this curriculum to the extent it deems

necessary and appropriate for its students and communities.” Ga. Code Ann. § 20-

2-140. Similarly, the State prescribes only minimum salaries for teachers, and

provides that “[l]ocal units of administration may supplement the salaries of

personnel subject to the schedule of minimum salaries.”               Id. § 20-2-212.

Establishing minimum requirements is not sufficient to demonstrate control. See

Savage, 343 F.3d at 1045 (“[I]f prescribing minimum standards were the measure

of a ‘central government function,’ then school districts would doubtless be

considered an arm of the federal government, as well, by virtue of such statutes as

the No Child Left Behind Act of 2001 . . . .”).

         Furthermore, other courts have found regulations similar to Georgia’s

insufficient to establish state control over a school district. In Savage, the court

described the many aspects of public education controlled by Arizona’s state

board:

         [T]he state board sets uniform statewide courses of study and
         competency requirements for promotion and graduation of students
         and controls certification of teachers, approves standardized tests, and
         prescribes criteria for determining students’ English proficiency. . . .
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      Arizona defines on a state-wide basis attendance requirements,
      circumstances when students may be expelled, and procedures for
      student discipline.

Id. (internal citations omitted).   Notwithstanding these regulations, the court

concluded that the state did not exercise centralized government control over its

school districts because the districts retained substantial autonomy. Id. at 1048;

see also Duke v. Grady Mun. Schs., 127 F.3d 972, 979 (10th Cir. 1997) (finding

that school board had local control even though New Mexico’s laws empowered

the state board to determine public school policy and exercise general authority

over schools, including the authority to establish standards regarding curriculum,

teacher accreditation and qualifications, and graduation requirements).

      Moreover, while state approval of an entity’s budget may sometimes

“evidence[] state control,” Williams v. District Board of Trustees of Edison

Community College, Florida, 421 F.3d 1190, 1194 (11th Cir. 2005), it does not do

so here because Georgia’s school districts exercise considerable autonomy over

local fundraising, as discussed under the third factor. See Stewart, 908 F.2d at

1510–11 (finding that Alabama school board with substantial financial autonomy

was not an “arm of the state,” even though it was required to submit its budget to

the state superintendent for approval).

      The School District also overstates Georgia’s control over the evaluation and

discipline of teachers. Although the State Board’s evaluation system provides


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detailed guidelines for the teacher evaluation process, it appears that many of these

guidelines only establish minimum requirements, as evidenced by the fact that the

School District itself utilizes its own addendum to the State’s evaluation form.

[See Doc. 54-5 at 2] (“Henry County Schools Annual Teacher Evaluation

Addendum”). Moreover, while the evaluation system identifies broad criteria for

evaluation (e.g., whether the teacher “[p]rovides effective feedback . . . on student

performances”10), the actual observation and assessment of teachers is performed

by local officials. See Ga. Code Ann. § 20-2-210 (“The superintendent of each

local school system shall identify an appropriately trained evaluator . . . .”). In the

event that a teacher “disagrees with the evaluation procedures or results,” but the

dispute does not involve termination or reprimand, the teacher may raise the issue

with the local superintendent, but the “[l]ocal decision[] [is] not appealable to the

Georgia Board of Education.” 11

          Additionally, the school board exercises broad discretion over the formal

discipline of teachers. For example, a school superintendent may “write a letter of

reprimand . . . for any valid reason.” Ga. Code Ann. § 20-2-944. Similarly, while

a teacher may only be terminated or non-renewed for eight statutory reasons, one

of those reasons is “[a]ny other good and sufficient cause.” Id. § 20-2-940. This
10
  Ga. Dep’t of Educ., CLASS Keys Process Guide: Georgia’s Teacher Evaluation System 53
(2011),                     http://www.gadoe.org/School-Improvement/Teacher-and-Leader-
Effectiveness/Documents/CLASS-Leader Keys/CK Process Guide 3-23-2011.pdf
11
     Ga. Dep’t of Educ., supra note 10, at 34.

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gives the school board significant discretion over its disciplinary decisions.

Furthermore, its decisions are binding unless a party appeals to the State Board,

and even then, the State Board’s review is not de novo. Indeed, “the state board . .

. shall [not] consider any question in matters before the local board nor consider

the matter de novo, and the review by the state board . . . shall be confined to the

record.” Id. § 20-2-1160. The State Board must sustain the county board’s

findings if there is “any evidence” to support them. See Moulder v. Bartow Cnty.

Bd. of Educ., 599 S.E.2d 495, 497 (Ga. Ct. App. 2004).

      Finally, one disciplinary action of which Lightfoot complains is her removal

as cheerleading coach. The School District does not indicate how, if at all, this

matter is regulated by the State. For these reasons, the second Manders factor also

indicates that the School District is not an “arm of the State.”

          3. Where the Entity Derives its Funds

      The third factor examines where the School District derives its funds.

Georgia school districts receive federal, state, and local funding. Ga. Code Ann.

§§ 20-2-160–171. To raise local funds, county school boards may certify property

taxes to be levied by county authorities, borrow money, issue bonds, accept

donations, and levy a sales tax. See Ga. Const. art. VIII, § VI, ¶¶ I, IV; Ga. Code

Ann. §§ 20-2-390, -430, -74. Lightfoot argues that Georgia’s school boards are

similar to Ohio’s, which the Supreme Court described as having “extensive powers


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to issue bonds and to levy taxes within certain restrictions of state law.” Mt.

Healthy, 429 U.S. at 280, 97 S. Ct. at 573 (internal citation omitted).

      The School District, on the other hand, argues that its ability to raise local

funds for operational expenses, such as teachers’ salaries, is quite limited. The

School District notes that Georgia’s Constitution imposes a twenty mill cap on

local property taxes for educational use, Ga. Const. art. VIII, § VI, ¶ I, which the

School District has already reached. Furthermore, while the School District has

the power to issue bonds, it may do so only for “building, equipping, or purchasing

sites for the building and equipping of schoolhouses,” Ga. Code Ann. § 20-2-430,

and not for operational expenses. Similarly, it may levy only a one percent sales

tax, and those tax revenues may be used only for capital outlay projects or the

retirement of debt related to such projects. Ga. Const. art. VIII, § VI, ¶ IV.

Finally, while the School District may borrow money for operational expenses,

state funds would be used to repay the loans because the School District has

already levied the maximum authorized property tax.

      As a result, the School District relies heavily on state funding provided

under the QBE, which constitutes sixty-five percent of the School District’s

budget. The QBE aims to fund basic education for all Georgia students. In broad

terms, it sets a minimum level of funding for each school district based on the

number of students in the district. To receive state funding, the school district


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must levy a five mill property tax (the “local five mill share”) and put the revenue

toward the minimum amount. The State then funds the remainder of the minimum

amount. [Appellee’s Br. 34–35]. 12        In addition to funding basic education, the

QBE also provides for “equalization grants” to address the fact that the amount of

revenue generated from a mill of property taxes will vary from district to district.

These grants equalize, to a limited extent, the revenue generated from property

taxes above five mills.

      The School District argues that the QBE’s funding scheme is similar to the

Florida water management districts’ funding scheme in Lesinski. There, we found

that the third factor did not cut against finding immunity—even though the water

districts were “empowered to levy ad valorem taxes, issue bonds, buy land, and

borrow money”—because the state provided “a significant, albeit fluctuating”

portion of their funding, and because the state’s funding mechanism sought to

“harmonize the regional impact of water management district projects on the

State’s natural resources with the fact that preservation and management of these

resources is crucial to all residents, not just those who are affected locally.”

Lesinski, 739 F.3d at 604. Similarly, the School District contends, the QBE’s

funding for basic education provides a “significant” portion of the School District’s



12
  See also Ross Rubenstein & David L. Sjoquist, Financing Georgia’s Schools: A Primer 11–15
(2003), http://aysps.gsu.edu/sites/default/files/documents/frc/report87.pdf.

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budget, and its equalization grants aim to balance education funding across

Georgia’s school districts.

      The School District further argues that the twenty mill cap on property taxes

makes QBE funding analogous to the funding scheme in Belanger. In Belanger,

the Ninth Circuit found that California’s school districts were “arms of the state”

because California exercised “strict state control of public school funding.”

Belanger, 963 F.2d at 252. Specifically, after California’s Supreme Court held that

the state’s constitution required “strict statewide equalization of school spending

per pupil,” California adopted a scheme whereby:

      The state sets a revenue limit for each school district based on average
      attendance, subtracts property tax revenues from that limit, and
      allocates the balance to the school district from the state school fund.
      In short, the state determines the amount of money that school
      districts may spend per pupil and then provides the necessary state
      funds.

Id. at 251–52 (internal citations omitted). Subsequent Ninth Circuit cases have

distinguished Belanger based on the uniqueness of California’s funding system.

See, e.g., Savage, 343 F.3d at 1042–44; Holz v. Nenana City Pub. Sch. Dist., 347

F.3d 1176, 1182–83 (9th Cir. 2003); Eason v. Clark Cnty. Sch. Dist., 303 F.3d

1137, 1142 (9th Cir. 2002).       The School District argues that Georgia, like

California, exercises strict control over public school funding, and its school

districts should therefore be considered “arms of the State.”



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       The School District’s arguments, though ostensibly of some merit, are

ultimately unavailing. First, it is not sufficient that the School District receives

significant funding from the State. See Mt. Healthy, 429 U.S. at 280, 97 S. Ct. at

573 (finding no Eleventh Amendment immunity even though Ohio’s school boards

received a “significant amount of money from the State”); Holz, 347 F.3d at 1182,

1189 (finding no Eleventh Amendment immunity even though the state provided

ninety-eight percent of the school district’s budget).13

        Furthermore, Lesinski is distinguishable. In Lesinski, we merely found that

because the first two Manders factors clearly indicated that Florida’s water

management districts were “arms of the State,” their funding mechanism did not

create “such autonomy in the District so as to . . . strip the District of its insulation

from suit in a federal forum.” Lesinski, 739 F.3d at 605 (emphasis added). We did

not find that the funding mechanism independently favored “arm of the state”

status. Here, the first two Manders factors do not clearly favor the School District;

thus, the School District cannot selectively rely on this portion of the Lesinski

analysis.

        Finally, the School District’s reliance on Belanger is misplaced, as that case

is of limited persuasive authority and involved a materially different funding

13
   It appears that most school districts receive at least some, if not significant, state funding. See
Rubenstein & Sjoquist, supra note 12, at 9 (“Virtually every state maintains a system of state
grants to local school systems to fund educational expenditures.”). However, almost none have
been granted Eleventh Amendment immunity. See supra note 4 and accompanying text.

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scheme. Unlike California, Georgia does not equalize or set a maximum limit on

funding per student. Instead, it guarantees a minimum amount of funding per

student, to which school districts must contribute a five mill share. School districts

are free to levy property taxes above five mills. Contrary to the School District’s

assertion, Georgia’s twenty mill cap on property taxes is not “almost identical” to

California’s revenue limits in Belanger. [Appellee’s Br. 40]. Whereas California

strictly limited the amount of local revenues school districts could raise, Georgia

school districts are free to raise revenues exceeding the basic education amount by

levying five to twenty mills in property taxes, issuing bonds, and borrowing

money.      Moreover, the twenty mill cap is not a hard limit; the cap may be

increased by the school board with approval from the majority of voters in the

school district. Ga. Const. art. VIII, § VI, ¶ II. Thus, the fact that the School

District has already levied a twenty mill property tax is not a significant factor.

Nor is the fact that the School District may only use revenues from bonds and sales

taxes for non-operating expenses.      Presumably, by utilizing those sources of

funding, any property tax revenue that would otherwise have gone toward, e.g.,

capital outlays, could instead be put toward operating expenses such as teacher

salaries.




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      In short, Georgia school districts are not “arms of State” under the analysis

in Lesinski or Belanger. Instead, they have local fundraising capabilities similar to

the school board in Mt. Healthy. Accordingly, the third factor favors Lightfoot.

           4. Responsibility for Judgments

      The final Manders factor examines whether the State would bear ultimate

responsibility for an adverse judgment against the School District. As the district

court found, and neither party disputes, “[t]here is no obligation for the state to pay

any judgment against [the School District].” [Doc. 80 at 9]. Nonetheless, the

School District argues that because its budget is comprised largely of state funds,

the fourth factor should lean in its favor under our analysis in Lesinski and

Manders.

      In Lesinski, we found that although an adverse judgment would be

enforceable against the water management district, the state’s treasury would still

be directly implicated because if judgment creditors “deplete[d] the District’s

funds to the point that it can longer effectively function, the State would ultimately

have to choose between increasing its appropriation . . . or shirking its

constitutionally mandated duty” to protect the state’s natural resources. Lesinksi,

739 F.3d at 605. Thus, we concluded that the fourth factor favored immunity. The

School District argues that Lesinski’s analysis is directly applicable here, because

if a large judgment were assessed against the School District, the State would


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either have to increase its funding or shirk its duty to provide an adequate public

education.

      In Manders, we similarly found that although Georgia would not be liable

for a judgment against the sheriff in his official capacity, state funds would still be

implicated in the event of a “significant adverse judgment,” because the sheriff

would need to seek additional funding from the State, which supplied a portion of

his budget. Thus, we found that the fourth factor “at a minimum, . . . [did] not

defeat” the sheriff’s immunity claim. Manders, 338 F.3d at 1327–28.

      In both Lesinski and Manders, we emphasized that the first two factors

clearly favored finding immunity, indicating that the entities at issue were closely

related to the state. This emphasis was reflected in our analysis of the fourth factor

in those cases.    In Lesinski, the plaintiff argued that the water management

district’s “self-insurance fund” ensured that only the district, and not the state,

would pay for an adverse judgment.          We rejected that argument because it

“‘detach[ed] the importance of a State’s legal liability for judgments against a state

agency from its moorings as an indicator of the relationship between the State and

its creation.’” Lesinski, 739 F.3d at 605 (quoting Regents of Univ. of Cal. v. Doe,

519 U.S. 425, 430–31, 117 S. Ct. 900, 904–05 (1997)). In Manders, we noted that

one purpose of the Eleventh Amendment is to respect the integrity of the state, and




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that a state’s integrity “is not limited to who foots the bill.” Manders, 338 F.3d at

1328.

        Here, by contrast, the first two factors do not so strongly favor finding that

the School District is an “arm of the State” so as to implicate concerns about the

State’s integrity or the “relationship between the State and its creation.” Rather,

those factors establish that the School District is a political subdivision with

significant local control. Thus, this case is more akin to Stewart, as the School

District’s fiscal autonomy means that “it cannot be said that a judgment against

[the School District] will come from state funds.” Stewart, 908 F.2d at 1510–11.

Thus, the fourth factor indicates that the School District is not an “arm of the

State.”

        In summary, the Manders analysis establishes that the School District is not

an “arm of the State” of Georgia entitled to Eleventh Amendment immunity. We

reverse the judgment of the district court on this ground and remand for further

proceedings.

        B.     Lightfoot’s ADA Retaliation Claim

        In her second issue on appeal, Lightfoot contends that the district court erred

in granting the School District summary judgment on her ADA retaliation claim.

Count IV of Lightfoot’s complaint alleged retaliation under the ADA, stating:

        In February 2011, Plaintiff engaged in protected activity under the
        ADA[] when she told Defendant that she believed she was being
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      disciplined more harshly than her non-disabled coworkers because of
      her disability. Immediately thereafter, Defendant began to retaliate
      against Plaintiff for engaging in protected conduct.

      [Doc. 7 ¶¶ 78–79]. Her ADA count contains no allegation that Lightfoot

engaged in protected conduct by requesting FMLA leave. By contrast, Count V,

alleging retaliation under the FMLA, stated that “[b]y disciplining Plaintiff more

harshly than her coworkers who have not taken medical leave . . . Defendant

retaliated against Plaintiff for exercising her rights under the FMLA.” [Id. ¶ 86].

      In analyzing Count IV, Lightfoot’s ADA retaliation claim, the district court

found that Lightfoot presented no evidence that she had in fact complained to

school administrators about being disciplined. Therefore, the court concluded that

she had not established a prima facie case of retaliation, and granted the School

District’s motion for summary judgment. [Doc. 71 at 15–16].

      On appeal, Lightfoot argues that the district court should have construed her

allegations regarding her request for intermittent FMLA leave, which formed the

basis of her FMLA count, as also forming a basis for her ADA retaliation count.

She contends that, even though these allegations were not specifically included in

her ADA count, they were sufficiently set forth elsewhere in her complaint, where

she alleged that: (1) she requested and was granted FMLA leave to accommodate

her disability, (2) the School District “discriminated and retaliated against her . . .

because of her use of medical leave and her disability,” and (3) she suffered


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adverse employment action because she took FMLA leave. [Doc. 7 ¶¶ 1, 23–25,

29–36, 84–90]. Lightfoot further contends that the district court erred because, in

her opposition to the School District’s summary judgment motion, she expressly

argued that her request for FMLA leave was protected conduct under the ADA, for

which she suffered retaliation.

      The district court did not abuse its discretion by declining to construe

Lightfoot’s ADA retaliation claim as being based on different facts than the ones

actually pled in her ADA count.         Even when construed liberally, Lightfoot’s

complaint did not give the School District notice that her ADA retaliation claim

was based on her request for FMLA leave. Indeed, Count IV, her ADA retaliation

count, was expressly and solely based on her complaint to administrators, while

Count V, her FMLA retaliation count was expressly based on her use of FMLA

leave. The general allegations that appear elsewhere in the complaint merely

supported Lightfoot’s FMLA retaliation count, and did not put the School District

on notice that they also pertained to her ADA retaliation count. The School

District properly responded to, and the district court properly relied on, Lightfoot’s

ADA count as it was pled. See Gilmour v. Gates, McDonald & Co., 382 F.3d

1312, 1315 (11th Cir. 2004) (“Liberal pleading does not require that, at the

summary judgment stage, defendants must infer all possible claims that could arise

out of facts set forth in the complaint.”); cf. Bogovich v. Sandoval, 189 F.3d 999,


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1001 (9th Cir. 1999) (“[C]ourts should not undertake to infer in one cause of action

when a complaint clearly states a claim under a different cause of action.”).

      Finally, the district court did not err in declining to consider this new factual

basis when it was raised in Lightfoot’s opposition to summary judgment. “A

plaintiff may not amend her complaint through argument in a brief opposing

summary judgment.” Gilmour, 382 F.3d at 1315. Accordingly, the district court’s

grant of summary judgment to the School District on this claim is affirmed.

IV.   Conclusion

      For the reasons explained herein, the district court’s judgment is reversed in

part, and the case is remanded for further proceedings.




                                          33
