ALBERT J. HENDERSON, Circuit Judge:
The appellant, Patricia Rogero, sued her former employer, B.M. Noone, individually and as Putnam County Tax Collector, alleging that because of her pregnancy, she was wrongfully discharged in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976) (the Act) and 42 U.S.C. § 1983 (1976). The district court granted summary judgment for the defendant, concluding that Noone was exempt from liability because he was not an "employer" within the meaning of the Act. For reasons stated below, we affirm.
B.M. Noone was elected as Putnam County Tax Collector in January, 1972. Six months later, Patricia Rogero was hired as a clerk in his office. She learned in May, 1975 that she was pregnant and, although she suffered mild nausea and leg cramps, she continued to work until discharged by Noone in August, 1975. In her suit, she claims that her pregnancy was the reason for the termination. Noone does not recall the exact reason for her dismissal, but admitted that it was his predecessor's policy to fire pregnant women.
On September 30, 1975, Rogero filed a grievance with the Equal Employment Opportunity Commission (EEOC) and, upon receipt of a right to sue letter, she commenced this action pursuant to the provisions of 42 U.S.C. § 1983 (1976) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). The complaint named only B.M. Noone, individually and as Putnam County Tax Collector, as defendant. As a defense Noone asserted that he was exempt from liability because he did not employ more than fifteen persons and was thus not an "employer" within the meaning of 42 U.S.C. § 2000e (1976).
The sole issue on appeal
Taken as a whole, Rogero's argument is logically inconsistent. She relies on the agency relationship for purposes of numerosity but denies it, in essence, with respect to liability. Despite the fact that jurisdiction rests on the "borrowed" manpower strength of the county, the appellant has failed to join it as a party and has thus deprived Putnam County of a chance to defend against potential liability. Either the county has a stake in the outcome of this law suit, or it does not. The appellant cannot have it both ways by insisting that Putnam County is indispensible for jurisdictional purposes, but unnecessary for a resolution of the merits.
Although the scope of Title VII should be liberally construed, Congress did place certain limits on the broad sweep of the Act. Had Congress meant to remove all restrictions, the statutory definition of "employer" would not have been limited to legal entities employing fifteen or more persons.
Therefore, the district court did not err in granting summary judgment to the defendant.
The judgment of the district court is AFFIRMED.
CLARK, Circuit Judge, specially concurring:
While I would affirm the district court's grant of summary judgment in favor of appellee, I do so for reasons other than those stated in the majority opinion.
The majority implicitly holds that if appellant had joined Putnam County as a defendant, plaintiff's complaint would have stated a cause of action. In my view, nonjoinder of Putnam County does not determine whether Noone is or is not an agent of Putnam County. While courts in other jurisdictions have held a county liable for a political subdivision's breach of the statutory requirements of Title VII,
I conclude from the Florida constitutional and statutory scheme and the facts in this case that Noone was not an agent of the county within the terms of the federal statute. The office of tax collector in Florida is created by the constitution of that state, Fla. Const. art. 7, sec. 1(d). The tax collector receives his commission from the governor of Florida, and in the case of the death of a tax collector a vacancy in the office is filled by the governor and not by the county commissioners. See In re Advisory Opinion to the Governor, 313 So.2d 717 (Fla. 1975). The law of Florida makes the tax collector of each county an arm of the state Department of Revenue. See Title XIII, Taxation and Finance, commencing at chapter 192 of the Florida Statutes, 1975. See also Fla.Stat. 195.002, et seq., 1975, for the description of the supervisory powers by the Department of Revenue of tax collectors. The amount of money necessary for operating a tax collector's office and the amount and type of expenditures are prescribed in the budget submitted by the tax collector to the Department of Revenue, over which the county has no authority. See Fla.Stat. 195.087. The lack of authority of a board of county commissioners over the operation of a tax collector's office is described in Advisory Opinion 076-173 (Aug. 19, 1976) of the Florida Attorney General and is exemplified by a portion of the opinion as follows:
Annual Report of the Attorney General (1976), p. 326.
Appellant argues that the tax collector in Florida is simply one part of the operation of the particular county government involved. She also argues that the employees of the tax collector's office, like other county employees, are members of the state retirement plan, which is provided by Florida statutes and made applicable to all state and county employees. She further points out that the employees of the tax collector are participants in the Putnam County group health and life insurance plan. However, appellant presents no other facts or law to support a conclusion that the board of county commissioners of Putnam County bore any responsibility with respect to fixing the salaries, wages, hours, qualifications, and the myriad other employment policies that go into a determination of who is or is not employed or discharged by the tax collector of Putnam County.
I construe the majority opinion to mean that if there is a future Title VII case against the tax collector of Putnam County or any tax collector in Florida who has less than 15 employees and the plaintiff joins the board of county commissioners as a defendant, the plaintiff employee would have a cause of action under Title VII. Since I do not agree that joinder or nonjoinder is the determinative factor, I have written separately.
Rogero filed a general notice of appeal. Fed. R.App.P. 3. In her appellate brief, she designated as the only issue on appeal "whether the district court erred in refusing to treat the Putnam County Tax Collector as an agent of Putnam County or at least as a component of that political subdivision [within the meaning of § 2000e]." Her brief mentions neither the § 1983 charge nor the direct fourteenth amendment claim. In this posture, we can only assume that she does not appeal the dismissal of Count II (the § 1983 cause of action) or the district court's failure to consider the purported fourteenth amendment violation in Count III. Consequently, those issues are deemed abandoned. Wilson v. Taylor, 658 F.2d 1021, 1023 n. 1 (5th Cir. Unit B 1981); Harris v. Plastics Manufacturing Co., 617 F.2d 438, 440 (5th Cir. 1980).
A "person" under 42 U.S.C. § 2000e(a) is:
Fla.Stat. 112.042(1) states:
In the present case, appellant has offered no evidence with respect to whether Putnam County has a civil service commission. Its existence or nonexistence and the relationship of the tax collector's employees to such a commission, if it does exist, would help determine whether the county should be liable.