In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1720

CAROLYN S. FAIN,

Plaintiff-Appellant,

v.

WAYNE COUNTY AUDITOR’S OFFICE, 

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 00 C 385—Larry J. McKinney, Chief Judge.

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ARGUED JANUARY 22, 2004—DECIDED OCTOBER 27, 2004

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Before EASTERBROOK, MANION, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Carolyn Fain worked at the Wayne

County Auditor’s Office from 1990 until June, 1999. She did

not work for most of the time period from January 1, 1999,

through June 18, 1999, using personal leave, vacation, sick

leave, and FMLA-qualified leave. On June 18, 1999, her

position was terminated, and the circumstances surrounding that termination form the basis for this cause of action.

Fain asserts that her termination violated the Family and

Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq.,

as well as the Americans with Disabilities Act of 1990
2 No. 03-1720

(ADA), 42 U.S.C. §§ 12101, et seq. The district court, however,

granted summary judgment to the Auditor’s Office, holding

that the Auditor’s Office did not qualify as an “employer”

under the ADA and that Fain was not an eligible employee

under the FMLA. For both statutes, the court’s decision was

based upon the number of persons employed by the Auditor’s

Office. The undisputed evidence was that the Auditor’s Office

never employed more than 12 employees at one time. The

ADA’s protections, however, apply only to employers with

15 or more employees, 42 U.S.C. § 12111(5), and the FMLA,

as we will discuss shortly, essentially requires 50 employees

in a given geographic area in order for an employee to seek

its protections, 29 U.S.C. § 2611(2)(B). The district court

viewed the Auditor’s Office in isolation, rather than as a

part of the Wayne County government as a whole. That

decision ordained the result. 

On appeal, Fain purports to challenge the grant of summary judgment on both the ADA and the FMLA claims. In

the brief on appeal, however, Fain presents only the statutory and regulatory language from the FMLA, and her

argument relates solely to that statute. The ADA portion of

the brief includes just two sentences, declaring that the

district court reached the same conclusion regarding both

statutes and therefore we should reverse the ADA claim if

we reverse the FMLA claim. Yet the district court opinion did

not even address the proper FMLA provisions, and although

Fain identifies the most relevant FMLA law, she cannot cite

to any parallel provisions in the ADA. It is Fain’s burden on

appeal to present the arguments for reversing the district

court. No effort was made to raise any argument based on

the ADA. Only in the reply brief does Fain even address the

distinction between the FMLA and the ADA, yet even there

Fain merely identifies the ADA factors but then fails to

apply them to the present case. That is insufficient to raise

the issue in this court. Because only the FMLA issue is

presented to this court, we address only that issue in this
No. 03-1720 3

opinion. Although the Auditor’s Office argues that Fain

waived her argument regarding the FMLA, the argument

was sufficiently presented in the district court and here,

and therefore we address that on the merits.

The FMLA generally applies only to employers with 50 or

more employees, but the statute treats public agencies

differently. The FMLA specifies that public agencies are

“employers” under the statute regardless of the number of

employees. 29 U.S.C. § 2611(4)(A)(3); 29 C.F.R. § 825.108(d).

That numerical limitation, however, is resurrected elsewhere in the FMLA, which limits eligibility for FMLA protections to “eligible employees.” 29 U.S.C. § 2611(2)(B)(2).

The term “eligible employee” in the FMLA includes “any

employee of an employer who is employed at a worksite at

which such employer employs less than 50 employees if the

total number of employees employed by that employer within

75 miles of that worksite is less than 50.” 29 U.S.C.

§ 2611(2)(B). The regulations make clear that this provision

applies to public agencies, stating “employees of public

agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g. State) employed 50 employees at the worksite or within 75 miles.” 29

C.F.R. § 825.108(d). Therefore, even though public agencies

fall within the FMLA regardless of the number of employees, those employees cannot seek FMLA benefits unless the

agency employed at least 50 employees within a 75 mile

area. 

Fain worked for the Auditor’s Office, which was located in

the County building along with many other departments of

the County government. Although the Auditor employed

only 12 employees, the County employed significantly more

than the 50-employee threshold for FMLA employee eligibility within that County building. Accordingly, this appeal

turns on whether the Auditor should be considered independent from the County.
4 No. 03-1720

We are not without guidance on that question. The regulations to the FMLA provide that: 

A state or a political subdivision of the state constitutes

a single public agency, and, therefore, a single employer

for purposes of determining employee eligibility. For

example, a state is a single employer; a county is a single

employer; a city or town is a single employer. Where

there is any question about whether a public entity is a

public agency, as distinguished from a part of another

public agency, the U.S. Bureau of the Census’ “Census

of Governments” will be determinative, except for new

entities formed since the most recent publication of the

“Census.” For new entities, the criteria used by the

Bureau of Census will be used to determine whether an

entity is a public agency or a part of another agency,

including existence as an organized entity, governmental

character, and substantial autonomy of the entity.

29 C.F.R. § 825.108(c)(1). Fain asserts that the issue is

indeed in question here, and that the Census of Governments

(“Census”) establishes that the Auditor’s Office is a part of

the County and not a distinct public agency in itself. The

defendant does not contest that the Census, if consulted,

would defeat their position. Instead, they assert that we

should never get to that point. They argue that when the

regulation declares that the Census controls “where there

is any question about whether a public entity is a public

agency, as distinguished from a part of another public

agency,” that means that it controls only if state law does

not already provide the answer. Where state law clearly

reflects that the Auditor’s Office is a distinct public agency,

there is no question and therefore no need to resort to the

Census.

As support for that position, they rely on the Sixth

Circuit’s decision in Rollins v. Wilson County Government,

154 F.3d 626 (6th Cir. 1998). In Rollins, the court interpreted
No. 03-1720 5

§ 825.108(c)(1) as requiring it to first ascertain whether

state law definitively resolved the status of the governmental

entities, and to resort to the Census of Governments only

where state law did not so resolve it. Id. at 629. The court

conceded that the regulation could also be read as directing

courts to the Census whenever the issue was in dispute

between the parties, but it rejected that interpretation in

favor of its holding which gave more deference to the state’s

own determination of its governmental entities. Id.

The parties now raise the same dispute in this court, with

Fain arguing that the Census is controlling because the

status of the Auditor’s Office is contested. That suggestion

has its advantages, not the least of which is that it lends

certainty to the issue and minimizes the need for extensive

arguments in individual cases. Moreover, it is not difficult

to imagine the potential for abuse by leaving the matter

entirely to states. A state could then prevent its employees

from taking advantage of FMLA protections by decreeing

that each County department was a distinct public agency.

But we do not have before us any evidence of such manipulation, and the Rollins approach has the benefit of giving

meaning to all of the words of the regulations. As Rollins

noted, if the Census were to control in all instances, the

regulations could have said that much more clearly. Id. At

a minimum, state law would retain relevance insofar as it

informs the application of the three factors to new entities

or to established entities for which post-Census changes

would alter their status under the Census criteria. Ultimately, we need not definitively resolve the issue for this

circuit, because even under the Rollins approach, a question

remains in this case and therefore the Census controls. 

A more comprehensive look at Rollins is illustrative. In

that case, Linda Rollins worked for the Wilson County School

System for eight months, and the Wilson County Finance

Department for approximately four months. Id. at 627. Her

eligibility for FMLA leave depended on whether those two
6 No. 03-1720

entities could be considered the same public agency under

the FMLA. The court in Rollins appeared to assume that the

Finance Department was part of the County, and instead

examined only whether the School System was also a part

of the County as opposed to a distinct public agency. In

determining that the School System was a distinct agency

not part of the County, the Rollins court relied on Tennessee

state law which differentiated the two in terms of origins,

functions, and management. Id. at 629 (noting that those

differences were traced by the Rollins district court). The

Rollins district court discussed those differences at some

length. Rollins v. Wilson County Government, 967 F. Supp.

990, 996-97 (M.D. Tenn. 1997). That court held that under

Tennessee state law, the county board of education was a

separate and distinct governmental entity from the county

government as revealed by the separate creation of the two

entities, the differing governmental functions, and by the

separate administration. Id. at 996. Specifically, the school

systems of Tennessee were created by constitution, whereas

the counties were statutorily created. Id. Moreover, Tennessee

courts had held that public education was, at core, a state

rather than county or municipal function. Id. State statutes

set forth a uniform statewide system of public education

and provided authority to the state commissioner of education. Id. Moreover, Tennessee law also recognized a separation of powers between a county school board and the

county government officials. Id. at 996-97.

Those differences were apparent in Rollins’ circumstances

of employment as well. Rollins worked for both the School

System and the County Finance Department as a payroll

clerk, yet each job entailed different working hours, pay,

supervisors, and offices. Rollins, 154 F.3d at 628. At the

School System, she received paychecks issued by the Wilson

County Board of Education, whereas the Wilson County

Government issued her paycheck when she worked at the

Finance Department. Id. When Rollins left the School System
No. 03-1720 7

to work for the County Finance Department, she had to fill

out new insurance forms, tax forms, and employment eligibility forms. Id. Furthermore, the defendants in Rollins

offered affidavit evidence that the two entities “have separate

accounting books and methods, separate payrolls, separate

management with related policies and procedures, separate

insurance policies, separate workers’ compensation policies,

own separate real property, and are controlled by a separate group of government officials.” Rollins, 967 F. Supp. at

997. The district court noted that the only connection between the Wilson County School System and the County

Government was the allocation of county funds for operating the schools. Id. Accordingly, the courts held that under

Tennessee law, there was no question that the School System

was a distinct governmental entity from the County. 

No similar differences are identifiable in the present case

between the Auditor’s Office and the County. The defendant

contends that the Auditor’s Office is distinct because it was

a constitutional rather than a statutory creation. See Ind.

Const. Art. VI, § 2. In addition, the defendant analogizes

the Auditor’s Office to the Sheriff’s Office, relying on Indiana

law regarding the latter to demonstrate that the Auditor’s

Office is a separate government. Specifically, the defendant

contends that the Sheriff’s office is created by the same constitutional provision, and that the Indiana courts have held

that the county does not control the actions of the County

Sheriff and is therefore not vicariously liable for the Sheriff’s

actions. See Radcliff v. County of Harrison, 618 N.E.2d

1325, 1328 (Ind. App. 1993); Carver v. Crawford, 564 N.E.2d

330, 334 (Ind. App. 1990); Delk v. Bd. of Commissioners of Del.

Cty., 503 N.E.2d 436, 440 (Ind. App. 1987). In those cases,

the Indiana courts addressed whether the County could be

held vicariously liable for the actions of employees of the

Sheriff’s department. The court held that because the

County did not have control over those employees, they

could not be held vicariously liable. The defendant main-
8 No. 03-1720

tains that the Auditor’s Office is analogous to the Sheriff’s

Office as a separate constitutionally-created entity, and

that those Indiana cases thus establish that the Auditor’s

Office is a distinct governmental entity. 

There are numerous problems with that argument, not the

least of which is that the defendant equates the determination of vicarious liability to the statutory determination of

whether a department is an independent governmental

agency or part of a governmental agency, yet provides no

support for that argument. There is no support in the statutory language for equating the two. Instead, the statute

references the Census, and where the Census is inapplicable, it requires courts to apply the same criteria used by

the Census in identifying distinct public agencies. Those

criteria are: existence as an organized entity, governmental

character, and substantial autonomy of the entity, and the

Census provides significant detail on the types of factors that

can establish each of those criteria. See U.S. Census

Bureau, 2002 Census of Governments, Vol. 1, Number 1,

Government Organization (2002) (“Census”) at 10-12. The

defendant has made no attempt to indicate whether state

law mandates a finding that the Auditor’s Office is an organized entity which has governmental character and substantial autonomy. In fact, the defendant has not identified any

state authority addressing the status of the Auditor’s Office,

and certainly nothing definitively resolving the matter so as

to forestall reliance on the Census. The analogy to the

Sheriff’s Office relies essentially on their common constitutional origin, but that cannot resolve all three of the above

factors, and the two offices are obviously very different in

their functioning. More fundamentally, no state law definitively establishes that the Auditor’s Office, or even the

Sheriff’s Office for that matter, is a separate government.

Caselaw holding that the County is not vicariously liable for

the actions of an individual in the Sheriff’s Office falls well

short of “definitively establishing” that the Auditor’s Office

is a government agency rather than part of the County. 
No. 03-1720 9

That is borne out by examination of the functions and

operation of the Auditor’s Office, which further reveals at

least a “question” as to whether it is a part of the County.

Unlike the School System in Rollins, which was physically

separate from the County, maintained a separate payroll,

and was under the authority of the school board that had no

connections to the County, the Auditor’s Office in the

present case has far more ties to the County government.

The Auditor’s office is located in the County building along

with other County departments. Moreover, in contrast to

the situation in Rollins, Fain’s paycheck is issued by the

County government, not by the Auditor’s Office, and the

Auditor in this case relied on the County personnel department to handle the administration of Fain’s leave. Furthermore, the duties of the Auditor’s Office are closely tied to

County government. Even the defendant acknowledges that

the Auditor provides services to the county, county executive, and county fiscal body. One of the primary functions of

the Auditor’s Office is to act in a secretarial capacity for the

County. See Ind. Code (IC) 36-2-9-7& 36-2-2-11 (auditor

performs duties of clerk of the county executive, including

attending all meetings of the county executive and recording the meetings in writing); IC 36-2-9-8 & 36-2-3-6(b)

(auditor is clerk of the county fiscal body responsible for

keeping an accurate record of proceedings and recording the

votes); www.co.wayne.in.us/auditor/ (Wayne County website

listing duties of Auditor by category, including secretarial

duties which include acting as secretary to the County

Commissioners and the County Council.) Other duties include providing notice of County meetings, preparing the

budget for the County Council, and engaging in other

responsibilities that “impact the financial well-being of county

government,” which interweave the auditor’s position with

the County government as a whole. Id. and IC 36-2-9-1 et seq.

For instance, money may be paid from the county treasury

only upon a warrant drawn by the auditor, but except for
10 No. 03-1720

certain circumstances delineated by statute, the auditor may

only draw a warrant if the county fiscal body has made an

appropriation for the money. IC 36-2-9-12 through 36-2-9-17.

Therefore, the duties of the Auditor’s Office relate directly

to the functioning and governance of the County, in contrast

to Rollins which involved education, a field that the state

supreme court had recognized as “essentially a state, rather

than a county or municipal, function.” City of Harriman v.

Roane County, 553 S.W.2d 904, 908 (Tenn. 1977), cited in

Rollins, 154 F.3d at 630. That distinction is in fact evident

in the Census itself. The Census of Governments recognized

that of the 15,014 public school systems in the United States

in 2002, only 1,508 are classified as agencies of other governments, whereas the remaining 13,506 are independently

included in the count of governments. Census at 9. The

Census therefore recognized that school systems predominantly are not part of the county, but are independent. The

Rollins court merely recognized that given the characteristics of its school system and the state law, the school system

in that case fell within the majority rather than the exception. No similar trend exists in the Census for auditor’s offices.

In fact, although the Census lists a number of entities that

should be considered independent rather than agencies of

other governments, it does not include auditor’s offices among

them. That does not mean that an auditor’s office will necessarily be a part of another governmental agency, but here

there is nothing in either state law or the facts that would

establish that the Auditor’s Office is a separate public agency

rather than a part of the County. 

Because state law does not definitively resolve the issue,

even under the defendant’s interpretation of the regulation

we must turn to the Census. All parties agree that the Census

supports Fain’s position, and therefore the district court

improperly granted summary judgment to the defendant on

the FMLA issue.
No. 03-1720 11

 The decision of the district court granting summary judgment to the defendant on the FMLA claim is REVERSED, and

the case REMANDED for further proceedings consistent with

this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-27-04