ROSS v. ADAMS et al
ENTRY ON DEFENDANTS' MOTION TO DISMISS - This cause is before the Court on the motion to dismiss filed by the Defendants (Dkt. No. 12 ). The motion is fully briefed, and the Court, being duly advised, GRANTS the motion with regard to the Plaintiff's federal claim and DISMISSES WITHOUT PREJUDICE the Plaintiff's state law claims. (See Entry.) Signed by Judge William T. Lawrence on 7/18/2017. (RSF)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
NATHAN ADAMS, ED MICHAELS, and
RICK GRAVES, as COMMISSIONERS
OF GREEN COUNTY, INDIANA,
) Cause No. 2:16-cv-297-WTL-DKL
ENTRY ON DEFENDANTS’ MOTION TO DISMISS
This cause is before the Court on the motion to dismiss filed by the Defendants (Dkt. No.
12). The motion is fully briefed, and the Court, being duly advised, GRANTS the motion with
regard to the Plaintiff’s federal claim and DISMISSES WITHOUT PREJUDICE the
Plaintiff’s state law claims for the reasons set forth below.
The Defendants move to dismiss the Plaintiff’s Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that the Complaint fails to state a claim upon which relief can
be granted. In reviewing a Rule 12(b)(6) motion, the Court “must accept all well pled facts as
true and draw all permissible inferences in favor of the plaintiff.” Agnew v. Nat’l Collegiate
Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012). For a claim to survive a motion to dismiss for
failure to state a claim, it must provide the defendant with “fair notice of what the . . . claim is
and the grounds upon which it rests.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting
Erickson v. Pardus, 551 U.S. 89, 93 (2007)) (omission in original). A complaint must “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
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Agnew, 683 F.3d at 334 (citations omitted). A complaint’s factual allegations are plausible if
they “raise the right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007).
The Plaintiff, Kimberly Ross, has brought claims against the Defendants, Nathan Adams,
Ed Michaels, and Rick Graves, as the Commissioners of Greene County, Indiana. For the
purposes of this motion, the Court accepts the following facts as true.
Ross was the chief deputy auditor in the Greene County Auditor’s Office from January 3,
2011, until July 22, 2014. She was employed by Greene County during this three-year period.
Ross regularly worked in excess of forty hours per week, but was not compensated for all
overtime hours. Her employment was terminated by the County in approximately July 2014. At
the time of her termination, Ross asserts that she was owed approximately $4,732.95 in unpaid
Ross alleges that the Defendants willfully violated the Fair Labor Standards Act, 29
U.S.C. § 201 et seq., (“FLSA”) by failing to pay her minimum wages and overtime. Ross
contends that she was an employee and Greene County was an employer for the purposes of the
FLSA. In the alternative to her FLSA claim, Ross contends that the Defendants violated
Indiana’s Minimum Wage Law of 1965, Ind. Code § 22-2-9 et seq., by failing to timely pay
earned wages. Ross further claims that the Defendants breached a contract of employment with
her by failing to pay her wages and to comply with state and federal requirements to do so.
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A. Fair Labor Standards Act Claim
In the instant motion, the Defendants argue that Ross was not an employee for the
purposes of the FLSA and, therefore, she cannot sue under the statute. Specifically, they argue
that she was excluded from the definition of employee under the FLSA because she was in a
policymaking position. Alternatively, they argue that she was excluded from the definition
because she was a member of the personal staff of an elected official, or the county was not her
The FLSA requires employers to pay a minimum wage to employees. 29 U.S.C. §
206(a). It also requires employers to pay an overtime wage to employees who work more than
forty hours in a workweek. 29 U.S.C. § 207(a). The FLSA excludes certain individuals
employed by a state, a political subdivision of a state, or an interstate governmental agency from
its protections, including any individual:
(i) who is not subject to the civil service laws of the State, political subdivision, or agency
which employs him; and
(I) holds a public elective office of that State, political subdivision, or agency,
(II) is selected by the holder of such an office to be a member of his personal
(III) is appointed by such an officeholder to serve on a policymaking level,
(IV) is an immediate adviser to such an officeholder with respect to the
constitutional or legal powers of his office, or
(V) is an employee in the legislative branch or legislative body of that State,
political subdivision, or agency and is not employed by the legislative library of
such State, political subdivision, or agency.
29 U.S.C. § 203(e)(2)(C).
The Defendants argue that Ross was not subject to any civil service laws because she
served at the pleasure of the elected auditor. The Court agrees. In Indiana, the county auditor
holds an elected, constitutional office. See Ind. Const. art. VI, § 2. Under Indiana law, the
county auditor is entitled to appoint a chief deputy. Ind. Code § 36-2-16-4. The Indiana Court
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of Appeals has held that “[county] [o]fficials are independently empowered to appoint and
discharge their own deputies at their discretion.” Local 1963 of UAW v. Madison Cty., 999
N.E.2d 949, 957 (Ind. Ct. App. 2013). Because the position of deputy county auditor is one in
which the county auditor may appoint or terminate an individual at his or her discretion, Ross
was not an individual subject to any civil service laws.
The Defendants next contend that Ross was excluded from the definition of employee
because her position falls within the “policymaking exception” under the statute. See 29 U.S.C.
§ 203(e)(2)(C)(ii)(III) (excluding any individual from FLSA coverage who is appointed by a
public official “to serve on a policymaking level”). The Defendants’ argument is based on the
seminal decisions of the United States Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976)
and Branti v. Finkel, 445 U.S. 507 (1980), establishing the inquiry for First Amendment
patronage dismissal cases.
In Elrod, the Supreme Court held that patronage dismissals of public employees infringe
First Amendment interests, but limitations or restraints on First Amendment rights are permitted
for appropriate reasons. 427 U.S. at 360. The Elrod Court noted that although political loyalty
is important in a representative government, this interest is “inadequate to validate patronage
wholesale.” Id. at 367. The Court struck a balance by “[l]imiting patronage dismissals to
policymaking positions.” Id. However, the Court noted that “no clear line can be drawn
between policymaking and nonpolicymaking positions.” Id. The Court provided that
policymaking positions are those “with responsibilities that are not well defined or are of broad
scope” and stated that “consideration would also be given to whether the employee acts as an
adviser or formulates plans for the implementation of broad goals.” Id. at 368. The Elrod
decision now stands for the proposition “that party affiliation may be an acceptable requirement
for some types of government employment.” Branti, 445 U.S. at 517.
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In Branti, the Court altered the analysis for the policymaking exception provided in
Elrod. The Branti Court recognized that “the ultimate inquiry is not whether the label
‘policymaker’ or ‘confidential’ fits a particular person; rather, the question is whether the hiring
authority can demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved.” 445 U.S. at 518.
The Seventh Circuit has further refined the inquiry to whether “the position authorizes,
either directly or indirectly, meaningful input into government decisionmaking on issues where
there is room for principled disagreement on goals or their implementation.” Davis v. Ockomon,
668 F.3d 473, 477 (7th Cir. 2012) (quoting Kiddy-Brown v. Blagojevich, 408 F.3d 346, 355 (7th
Cir. 2005)). To make this determination, a court must consider factors such as whether an
employee’s responsibilities “are not well defined or are of broad scope” and whether an
employee “acts as an adviser or formulates plans for the implementation of broad goals.” Pleva
v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999) (quoting Elrod, 427 U.S. at 368). Although the
Supreme Court in Branti abandoned the use of the terms “policymaker” and confidential” to
describe the positions excepted in patronage dismissal cases, the Seventh Circuit has found that
these labels “accurately describe the vast majority of offices that fall within the realm of
legitimate patronage under the Branti formulation.” Davis, 668 F.3d at 477 (quoting Kiddy–
Brown, 408 F.3d at 355).
Furthermore, the Seventh Circuit has emphasized that Elrod and Branti “require an
examination of the powers inherent in a given office, rather than the actual functions performed
by the current occupant of that office.” Kline v. Hughes, 131 F.3d 708, 710 (7th Cir. 1997)
(citation and internal quotation marks omitted). “Therefore, even if an officeholder performs
fewer or less important functions than usually attend his position, he may still be exempt from
the prohibition against political terminations if his position inherently encompasses tasks that
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render his political affiliation an appropriate prerequisite for effective performance.” KiddyBrown, 408 F.3d at 355 (citation and internal quotation marks omitted). The rationale behind
focusing the analysis on the inherent powers in an office is to “provide[ ] greater certainty to
litigants and relieve[ ] courts of the burden of having to re-examine a certain position every time
a new administration changes the mix of responsibilities bestowed upon the officeholder.”
Davis, 668 F.3d at 478 (citation and internal quotation marks omitted).
Although discretion is also an important factor, the Seventh Circuit has recognized that
“[a]lmost all jobs in government require individuals to exercise at least some level of discretion,
resulting in somewhat arbitrary line-drawing based on how much discretion is authorized,” and
“positions requiring the exercise of professional rather than political discretion do not properly
fall within the policymaker exception.” Davis, 668 F.3d at 477 (citations and internal quotation
marks omitted). “Thus, both the amount and type of discretion authorized are relevant.” Id. at
477-78. “Ultimately, a defendant bears the burden of establishing that a plaintiff’s position falls
within the exception to the general prohibition on patronage dismissal.” Kiddy-Brown, 408 F.3d
The Seventh Circuit has broadly applied the policymaking exception to ADEA and Title
VII cases in addition to First Amendment political patronage cases. See Opp v. Office of State’s
Attorney of Cook Cty., 630 F.3d 616, 620 (7th Cir. 2010) (ADEA); Americanos v. Carter, 74
F.3d 138, 144 (7th Cir. 1996) (First Amendment, ADEA, and Title VII); Heck v. City of
Freeport, 985 F.2d 305, 310 (7th Cir. 1993) (ADEA); Pleva, 195 F.3d at 917 (First Amendment
and ADEA); see also Americanos, 74 F.3d at 144 (quoting Heck, 985 F.2d at 310) (“[T]he
reasons for exempting the office from the patronage ban apply with equal force to the
requirements of the ADEA [and Title VII].”). In using a single test, this Circuit has declined “to
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draw a distinction between how aggrieved individuals are interpreted as policymakers under the
First Amendment and under the ADEA [and Title VII].” Opp, 630 F.3d at 620.
In the instant case, the Plaintiff makes no argument as to why the context of the FLSA is
any different from that of the First Amendment or the anti-discrimination statutes.1 In fact, the
policymaking exception in the definition of employee under the FLSA is nearly identical to the
same exception within the ADEA and Title VII. Compare 29 U.S.C. § 203(e)(2)(C)(ii)(III) with
29 U.S.C. § 630(f) and 42 U.S.C. § 2000e(f). Therefore, the Court will apply the Seventh
Circuit’s inquiry with regard to the policymaking exception contained in the FLSA. Cf. Birch v.
Cuyahoga Cty. Prob. Court, 392 F.3d 151, 161 (6th Cir. 2004) (noting that courts have
interpreted the FLSA’s policymaking exception consistently with its Title VII counterpart).
Generally, the question of whether a position is excluded as policymaking “is a factual
one that should ordinarily be left for a jury to determine.” Pleva, 195 F.3d at 912 (citations
omitted). However, the policymaking determination “may be done without the aid of a finder of
fact when the duties and responsibilities of a particular position are clearly defined by law and
regulations.” Opp, 630 F.3d at 621 (citation omitted). The Seventh Circuit has articulated that
the inquiry should begin by focusing on any state statutes or city ordinances that define the duties
of the position in question. See Davis, 668 F.3d at 478 (“[W]e focus our attention on the City
ordinances in effect at the time of [the plaintiff’s] termination, which define by law the duties of
In fact, the Plaintiff fails to respond entirely in her Brief in Opposition to Defendants’
Motion to Dismiss (Dkt. No. 16) to the Defendants’ arguments presented in the Defendants’
Memorandum of Law in Support of Motion to Dismiss (Dkt. No. 13). Instead, Ross devotes her
response to arguing that she is a non-exempt employee entitled to overtime and compensatory
time for the purposes of the FLSA. As the Defendants note in their Reply Memorandum of Law
in Support of Motion to Dismiss (Dkt. No. 17), the issue of whether an employee is exempt or
non-exempt under the FLSA is an issue separate from whether an individual is excluded under
the definition of employee for FLSA purposes. Compare 29 U.S.C. § 213 (FLSA exemptions)
with 29 U.S.C. § 203(e)(1) (FLSA employee definition). Regardless, the Defendants point out
that they do not concede that Ross’ position was non-exempt. Dkt. No. 17 at 2 n.2.
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the [Senior Humane Officer].”); Pleva, 195 F.3d at 912 (“Because [the plaintiff’s] position . . .
was clearly defined by state statute and city ordinance, we find that the district court’s
determination as a matter of law of the policymaking status of [the plaintiff’s] position was
Here, the position in question is the chief deputy auditor of Greene County, which Ross
formerly held. Under Indiana law, a deputy auditor “shall take the oath required of the [county
auditor].” Ind. Code § 36-2-16-2(b). The deputy “may perform all the official duties of the
[county auditor] and is subject to the same regulations and penalties as the officer.” Ind. Code §
36-2-16-3(a). In addition, the county auditor “is responsible for all the official acts of the
deputy.” Ind. Code § 36-2-16-3(b). The Indiana Supreme Court has even acknowledged that
“[a] deputy auditor . . . is more than a clerk or an employee; he is vested with the power, by
express statute, to perform all duties of the auditor, and public policy requires that this should be
so. He is essentially a public officer and discharges functions of government, under express
statutory direction.” Wells v. State, 94 N.E. 321, 323 (Ind. 1911).
In Kline, the Seventh Circuit addressed an analogous situation in affirming the district
court’s determination that, under Indiana law, a deputy county auditor was a policymaking
position, thus barring the plaintiff’s First Amendment claim. 131 F.3d at 710. Because “[u]nder
Indiana law, a deputy county auditor may perform all the official duties of the county auditor”
and “the county auditor is responsible for all the official acts of the deputy,” the Kline Court
determined that this “arrangement makes clear that the office of deputy auditor plays a vital role
in the implementation of the county auditor’s policies.” Id. The Court concluded that “this
statutory scheme places the deputy county auditor in a position that carries with it the inherent
ability to have ‘meaningful input into governmental decisionmaking on issues where there is
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room for principled disagreement on goals or their implementation.’” Id. (quoting Americanos,
74 F.3d at 141).
Because the duties and inherent powers of a deputy county auditor are clearly defined by
Indiana law, a deputy auditor of Greene County falls within the FLSA’s policymaking exception.
As such, the Court finds that Ross, as a chief deputy auditor, held a policymaking position and,
therefore, is not covered by the scope of the FLSA as a matter of law. Accordingly, the
Defendants’ motion to dismiss is GRANTED as to the Plaintiff’s federal claim under the FLSA.
B. State Law Claims
The only remaining claims are the Plaintiff’s state law claims under Indiana’s Minimum
Wage Law and for breach of contract. The Court’s jurisdiction over these claims is based upon
28 U.S.C. § 1367, which provides for the exercise of supplemental jurisdiction over claims based
on state law that are closely related to the federal claim(s) in a case. However, “[w]hen all
federal claims in a suit in federal court are dismissed before trial, the presumption is that the
court will relinquish federal jurisdiction over any supplemental state-law claims.” RWJ Mgmt.
Co. v. BP Products N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (citation omitted). “The
presumption is rebuttable, but it should not be lightly abandoned, as it is based on a legitimate
and substantial concern with minimizing federal intrusion into areas of purely state
law.” Id. (citations and internal quotation marks omitted). The Seventh Circuit has identified
certain circumstances that may displace the presumption, namely:
(1) the statute of limitations has run on the pendent claim, precluding the filing of a
separate suit in state court; (2) substantial judicial resources have already been
committed, so that sending the case to another court will cause a substantial duplication
of effort; or (3) when it is absolutely clear how the pendent claims can be decided.
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Id. at 480 (citation omitted). Because it does not appear that any of these exceptions apply here,
the Court declines to exercise supplemental jurisdiction over the state law claims asserted in the
For the reasons set forth above, the Defendants’ Motion to Dismiss (Dkt. No. 12) is
GRANTED as to the Plaintiff’s federal claim. Ordinarily, a plaintiff is given an opportunity to
file an amended complaint that corrects the deficiencies in the current complaint before judgment
is issued. See Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687
(7th Cir. 2004) (“The better practice is to allow at least one amendment regardless of how
unpromising the initial pleading appears because except in unusual circumstances it is unlikely
that the court will be able to determine conclusively on the face of a defective pleading whether
plaintiff actually can state a claim.”) (quotation marks and citation omitted). Such an
opportunity, however, is not provided where “it is certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted.” Id. Here, Ross’s federal claim fails as a
matter of law; any amendment would be futile because there is no possible set of facts that would
state a claim under then FLSA. Accordingly, the Court will enter judgment as to the Plaintiff’s
federal claim. The Court declines to exercise supplemental jurisdiction over the Plaintiff’s state
law claims; accordingly, those claims are DISMISSED WITHOUT PREJUDICE.
SO ORDERED: 7/18/2017
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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