Justice v. Pike Cnty Bd of Ed

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Justice v. Pike County No. 01-6156

ELECTRONIC CITATION: 2003 FED App. 0392P (6th Cir.) Bd. of Educ., et al.

File Name: 03a0392p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ARGUED: Jeremiah A. Collins, BREDHOFF & KAISER,

_________________ Washington, D.C., for Appellant. Robert L. Chenoweth,

CHENOWETH LAW OFFICE, Frankfort, Kentucky, for

ANNA LEA JUSTICE, X Appellees. ON BRIEF: Jeremiah A. Collins, BREDHOFF

Plaintiff-Appellant, - & KAISER, Washington, D.C., for Appellant. Robert L.

- Chenoweth, John C. Fogle III, CHENOWETH LAW

- No. 01-6156 OFFICE, Frankfort, Kentucky, for Appellee.

v. -

> _________________

,

PIKE COUNTY BOARD OF -

EDUCATION and FRANK OPINION

- _________________

WELCH , -

Defendants-Appellees. - BOGGS, Chief Circuit Judge. Plaintiff Anna Lea Justice

- appeals the district court’s grant of summary judgment to

N defendants, the Pike County Board of Education (“Board”)

Appeal from the United States District Court and its superintendent, Frank Welch, in her free speech and

for the Eastern District of Kentucky at Pikeville. disability discrimination action. Justice, a certified teacher,

No. 99-00399—Joseph M. Hood, District Judge. worked as Grants Department Director for the Board. When

Welch became the new superintendent, after a campaign in

Argued: March 25, 2003 which Justice supported his opponents, he abolished the

grants department and reassigned Justice to the classroom.

Decided and Filed: November 4, 2003 Rather than comply, Justice sought and received a pension

based on her physical inability to perform some classroom

Before: BOGGS, Chief Circuit Judge; SILER, Circuit duties. The district court rejected Justice’s claim that she had

Judge; and STEEH, District Judge.* been terminated from her grants department position in

retaliation for her political affiliation because her position was

of a type allowing political discrimination. The district court

rejected Justice’s disability discrimination claim because

Justice, in seeking a state teacher’s disability pension, had

implicitly denied her status as a qualified individual under the

ADA. We reverse on both issues.

*

The Honorab le George C. Steeh, United States District Judge for the

Eastern District of Michigan, sitting by designation.

1

No. 01-6156 Justice v. Pike County 3 4 Justice v. Pike County No. 01-6156

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I provide grant writing workshops for teachers and

administrative staff.

Justice was a certified teacher in the Pike County school 8. Professional Development: Attend grant writing

system under the Kentucky Teacher’s Tenure Act, Ky. Rev. workshops and conferences in a variety of disciplines so

Stat. § 161.720-161.841. She worked as a teacher from 1981 as to be abreast of the latest trends in education.

through 1989 and held various administrative positions from

1989 through 1995. In November 1995, the Board, at the As grants director, she reported directly to the superintendent

initiative of the then-school superintendent, Reo Johns, and in turn supervised two clerical workers.

created a grants department and appointed Justice its director.

Her job description, largely drafted by Justice herself, was as In 1997, Johns came under public scrutiny after local

follows: newspapers published articles alleging that he had closed

down a public school in order to enhance the business of a

JOB GOAL: competing private school run by Johns’s son, the Kentucky

The Grants Department Director is responsible for seeing Youth Academy. Justice served as a director of the Kentucky

that the goals and objectives of the Grants Department Youth Academy and, at public meetings of the Board, she

are achieved. repeatedly defended Johns and the Academy. Nevertheless,

DESCRIPTION OF DUTIES: in May 1998, Johns resigned as superintendent and Brenda

1. Write Grant Proposals: Spearhead the research, Gooslin was appointed interim superintendent. After Johns’s

planning, and proposal writing for submission of resignation, Justice published an article in the local paper

proposals to federal, state, and foundation funding further defending and praising him.

sources.

2. Program Monitoring and Evaluation: Monitor and In August 1998, supporters of defendant Welch defeated

evaluate funded programs according to guidelines as set Gooslin’s supporters in school board elections and the Board

forth in the proposal and evaluate program strengths and appointed Welch as the new superintendent. In April 1999,

weaknesses. Welch, claiming that the grants department was not an

3. Establish and Monitor School-Based Grant Teams: efficient use of resources, prevailed upon the Board to abolish

Select, train and work with teachers at each school who it and return its functions to other administrators. Welch

are part of the Pike County grant team. notified Justice that, starting in the 1999-2000 school year,

4. Spearhead Proposal Development: Work with she would be assigned back to classroom teaching duty. As

committees in various disciplines to develop goals, classroom teacher, Justice would have continued to draw the

objectives, and budgets. same per diem salary. But because as a classroom teacher she

5. Conduct Needs Assessments: Plan for and conduct was only expected to work 185 days a year, compared to the

needs assessments to determine needs for program 240 days a year as a grants director, this would have involved

development. a significant reduction in annual salary.

6. Locate funding sources for the district: Research

funding sources for specific needs. Justice had become significantly disabled since she last

7. Provide Technical Assistance: Provide technical held a classroom teaching position. On November 11, 1995,

assistance on an as needed basis to school staff and about the same time she was promoted to grants director, she

No. 01-6156 Justice v. Pike County 5 6 Justice v. Pike County No. 01-6156

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suffered a serious car accident, resulting in multiple fractures, against her on the basis of her disabilities, in violation of the

contusions, and whiplash. These injuries and the subsequent Americans with Disabilities Act (“ADA”), 42 U.S.C.

post-traumatic arthritis made it difficult for her to stand or § 12112, and the Rehabilitation Act, 29 U.S.C. § 794. She

walk for extended periods of time, climb stairs, or run. These also alleged parallel state constitutional claims, under Ky.

disabilities did not substantially interfere with her work as a Const. §§ 1 and 2, and state anti-discrimination claims. On

grants director, most of which was sedentary. According to these grounds, she asked for compensatory and punitive

Justice’s medical experts, these disabilities would have made damages, injunctive relief, and attorney’s fees. On

it very difficult for her to function as an effective classroom August 17, 2001, the district court granted the defendants’

teacher, a position requiring frequent standing and walking. motion for summary judgment. The district court concluded

Justice also suffers from chronic depression and had been that the position of Grant Development Director was one for

taking medication for this condition since 1985. Justice which consideration of political affiliation or support was

claims that her mental problems were triggered by a appropriate, thus defeating Justice’s federal constitutional

confrontation with a student and that they render her unable claims, and that Justice, by applying for disability retirement,

to handle classroom stress. had conceded that she was not a qualified individual within

the scope of the ADA and the Rehabilitation Act, thus

Justice complained about the reassignment to Welch, defeating her disability discrimination claims. Having

alleging that it constituted punishment for her political disposed of all of Justice’s federal claims, the district court

association with and support for Johns. She also claimed that declined to exercise supplemental jurisdiction over her state

she was unable to perform the duties of a classroom teacher law claims. The district court also did not rule on the

because of her disabilities and that she had to be assigned to defendants’ proffered Eleventh Amendment and qualified

a non-classroom position. When Welch was unmoved by immunity defenses. Before the court now is Justice’s timely

these complaints, Justice accepted the classroom assignment appeal of the district court’s grant of summary judgment on

under protest and immediately applied for disability the federal questions.

retirement under the Kentucky Teacher’s Retirement System.

To succeed in such an application, the claimant must During the pendency of this appeal, we heard and decided

demonstrate that she is unable to perform the essential two factually and legally closely-related cases. In Hager v.

functions of her job. On August 1, 1999, prior to her Pike County Board of Education, 286 F.3d 366 (6th Cir.

scheduled start of work as classroom teacher, Justice was 2002), we decided a case mirroring Justice’s constitutional

granted disability retirement. claims. Carolyn Sue Hager, too, was a teacher in the Pike

County school system. Id. at 368. Hager had publicly

On October 29, 1999, Justice filed a complaint against the supported Johns’s appointment as superintendent and Johns

Board and Welch in the United States District Court for the had appointed Hager to the position of Gifted and Talented

Eastern District of Kentucky. In it she alleged that the Teacher/Coordinator. Ibid. After Johns retired and Welch

defendants had deprived her of her First and Fourteenth became superintended, he “decided to eliminate [Hager’s]

Amendment rights to freedoms of expression, speech, and position and reassign the duties to another central office

association, in violation of 42 U.S.C. § 1983, denied her a employee in an unpaid capacity.” Id. at 369. “He believed

position in order to punish her for her political affiliation, in this arrangement was a more economic and efficient use of

violation of Ky. Rev. Stat. § 161.164(4), and discriminated district resources.” Ibid. Hager was “reassigned to classroom

No. 01-6156 Justice v. Pike County 7 8 Justice v. Pike County No. 01-6156

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teaching at the elementary school level, with a salary II

reduction of $28,000 and no responsibilities in the” Gifted

and Talented Program. Ibid. Two months before Justice filed We recently summarized the state of the law of politically

her complaint, Hager filed a complaint against the same motivated firings:

defendants, raising the same constitutional claims, in the same

court, presided over by the same judge. The district court, as [The plaintiff] argues that her demotion and

here, found that Hager’s position was of a type that allowed reassignment were in retaliation for the exercise of her

her to be dismissed on the basis of political affiliation or constitutional rights to political expression and

support, and granted summary judgment to defendants. Id. at association. These rights are well-established under the

368. We held that Hager’s position was not of this type and Constitution. See, e.g., Rutan v. Republican Party, 497

therefore reversed and remanded for a finding as to whether U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S.

Hager’s political affiliation or support had been the cause in 347, 356 (plurality opinion)) (“Political belief and

fact of her dismissal. Ibid. association constitute the core of those activities

protected by the First Amendment.”). Moreover, “even

In Dotson v. Pike County Board of Education, 2001 WL practices that only potentially threaten political

1216998 (6th Cir. 2001) (per curiam) (table), we decided a association are highly suspect.” McCloud v. Testa, 97

case mirroring Justice’s disability discrimination claims. F.3d 1536, 1552 (6th Cir. 1996) (“McCloud I”).

Fannie Louise Dotson, too, had been a teacher in the Pike The defendants argue that [the plaintiff] was in a

County school system. Id. at *1. In 1997, Dotson retired on position that allowed the defendants to consider political

income from the Board’s early retirement plan. Ibid. She affiliation in their personnel decisions under the

also drew disability benefits from the Kentucky Teacher’s Elrod/Branti exceptions to the general prohibition

Retirement System based on knee and back injuries, until she against government employment decisions based on

was informed that teachers drawing disability benefits from political activities. The district court agreed and found

that system where ineligible for the Board’s early retirement no violation of a constitutional right. “Whether political

plan. Ibid. In response, Dotson filed a complaint alleging affiliation is an appropriate consideration for a

disability discrimination, in violation of the ADA and the government position is a question of law.” Sowards v.

Rehabilitation Act, against the same defendants, in the same Loudon County, 203 F.3d 426, 435 (6th Cir. 2000).

court, presided over by the same judge. Ibid. “The district Therefore, to obtain summary judgment, defendants must

court held that Dotson’s receipt of disability benefits establish that no genuine issues of material fact exist as

prevented her from claiming that she is a ‘qualified individual to “‘whether political affiliation may appropriately be

with a disability’ who could perform the essential functions considered with respect to the position in question.’” Id.

of her job, as required by the ADA.” Ibid. Because the (quoting Feeney v. Shipley, 164 F.3d 311, 314 (6th Cir.

standards for disability under the ADA and the retirement 1999)).

plan differ, we reversed. Id. at *2. It is well-settled that public employees enjoy First

Amendment freedoms of political belief and association,

however, if the exercise of those rights interferes with the

discharge of public duties, then the rights may have to

yield to the government’s interest in maintaining

No. 01-6156 Justice v. Pike County 9 10 Justice v. Pike County No. 01-6156

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effectiveness and efficiency. Elrod, 427 U.S. at 366. and (4) positions filled by balancing of affiliations. Ibid.

“Limiting patronage dismissals to policymaking While a government position “need not fall neatly within one

positions is sufficient to achieve the valid governmental of the categories” to fit into the exception, any position that

objective of preventing holdover employees from falls into these categories “with reasonable certainty” removes

undermining the ability of a new administration to its holder from the constitutional protection against political

implement its policies.” Id. In contrast, dismissal enjoyed by other employees. Sowards, 203 F.3d at

“‘[n]onpolicymaking individuals usually have only 435-36. The court below held that Justice’s position fell

limited responsibilities and are therefore not in a position within category two and here the Board argues that Justice’s

to thwart the goals of the in-party.’” Hall v. Tollett, 128 position falls within categories one, two, and three. That her

F.3d 418, 422 (6th Cir. 1997) (quoting Elrod, 427 U.S. position is not within category four is undisputed. We

at 367). Therefore, “the single substantive question . . . consider the applicability of the first three categories seriatim

is whether a nonpolicymaking, nonconfidential and conclude that Justice’s position of Grants Development

government employee can be discharged or threatened Director does not fit within any of them.1

with discharge from a job that [she] is satisfactorily

performing upon the sole ground of [her] political In McCloud I, we defined category one as “positions

beliefs.” Elrod, 427 U.S. at 375 (Stewart, J., concurring). specifically named in relevant federal, state, county or

This question extends beyond the context of firings, to municipal law to which discretionary authority with respect

include areas such as transfers, promotions, and recalls to the enforcement of that law or the carrying out of some

from layoffs. Rutan, 497 U.S. at 64. Abolition of other policy of political concern is granted.” 97 F.3d at 1557.

positions, reassignments, and/or demotions are also This category “captures the intuition gained from reading

included. See id.; Thaddeus-X v. Blatter, 175 F.3d 378, Elrod, Branti, and Rutan that a chief executive’s cabinet

396 (6th Cir. 1999) (en banc). Thus, to avoid a secretaries and similar employees fall into the Branti

constitutional violation in instances of patronage, the exception. The proviso that the policymaking authority

hiring authority must “demonstrate that party affiliation possessed by a category one position-holder must be held in

is an appropriate requirement for the effective relation to a matter of political concern stems from the

performance of the public office involved.” Branti v. discussion in Branti that a football coach is a policymaker,

Finkel, 445 U.S. 507, 518 (1980) (emphasis added). but not the sort of policymaker for whom political affiliation

is an appropriate requirement under the First Amendment.”

Hager, 286 F.3d at 371-72 (citations regularized). Id. at 1557 n.30. As an illustrative examples of a position

To add concreteness to this exception to the First

Amendment protection of public employees, we have 1

In so doing we look at Justice’s actual duties. “To determine

established four broad categories of positions that fall within whether political affiliation is an appropriate req uirement, a reviewing

the Elrod/Branti exception. McCloud I, 97 F.3d at 1557. court ‘must look beyond the mere job title and examine the actual duties

These categories are: (1) positions explicitly empowered by of the specific position.’” Hager, 286 F.3d at 372 (q uoting Ha ll, 128 F.3d

law to exercise political discretion; (2) positions not explicitly at 423, emphasis in Hager). In the present case, the court below looked

mainly at Justice’s formal job d escription. However, as Justice’s actual

so empowered, but exercising political discretion by a duties, according to her own testimony, match her job description well,

jurisdiction’s pattern or practice; (3) confidential advisors; this was at worst harmless error.

No. 01-6156 Justice v. Pike County 11 12 Justice v. Pike County No. 01-6156

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within this category we listed “a secretary of state given category “is constructed to recognize that it may be necessary

statutory authority over various state corporation law to deny First Amendment protection not just to positions at

policies.” Id. at 1557. the very top of any state administrative hierarchy, but in some

cases to those occupying levels a bit farther down the

The Board argues that because it is authorized by law to hierarchy. Category two also exists to capture those who

establish written job descriptions, and Justice had such a would otherwise be category one policymakers, except that

description, her position falls within category one. This the federal government, state, county, or municipality has

scarcely needs refuting. A written job description is not chosen for whatever reason not to set out the responsibilities

“federal, state, county or municipal law.” Nothing in our of such a position in a statute, ordinance, or regulation.” Id.

precedents suggests it is and the Board cites no support for at 1557 n.31. As an illustrative example of a position within

this proposition. Our category one case law focuses on this category we gave “a deputy secretary of labor in a state,

whether positions established in law are political in nature. to whom the secretary of labor has delegated the

See, e.g., Hoard v. Sizemore, 198 F.3d 205, 214 (6th Cir. responsibility for crafting the department’s annual proposed

1999) (county road supervisor within category one because legislative agenda.” Id. at 1557.

“state law specifically provides for [the position] which ‘has

the general charge of all county roads and bridges within his While the language in McCloud I suggests that category

county’ and must see that ‘county roads and bridges are two could be limited to relatively high-level executive

improved and maintained as provided by law’ and ‘[r]oad positions, our case law has made clear that the hallmark of a

maintenance is a policy of political concern’” and the road case two position is not high rank, but political discretion,

foreman “has some discretionary authority with respect to even if exercised at a fairly low level. Compare Hall, 128

carrying out this policy.”); Collins v. Voinovich, 150 F.3d F.3d at 426 & n.4, 429 & n.6 (chief deputy sheriff, but not

575, 578 (6th Cir. 1998) (executive director of Ohio Lottery other deputy sheriff, within category two because sheriff had

Commission within category one because it is a cabinet-level “delegated a significant portion of his or her discretionary

position “charged with administering the [lottery] in responsibility” to chief deputy), with Hager, 286 F.3d at 377

accordance with the governor’s mandate” and named in state (school’s gifted and talented coordinator not within category

law). However, we have never held that the requirement that two because she had no budgetary discretion), Heggen v. Lee,

a position be established in law could be fulfilled by a mere 284 F.3d 675, 684 (6th Cir. 2002) (deputy sheriff whose

job description. Instead, we have created category two to duties “comprised road patrol, serving arrest warrants and

cover positions similar to category one positions but not civil papers, taking complaints, ‘working’ auto accidents, and

created by law. transporting prisoners” not within category two), and

Sowards, 203 F.3d at 437 (chief jailer not within category two

In McCloud I, we defined category two as “positions to because she did “not participate in any type of

which a significant portion of the total discretionary authority policymaking”). At the same time, we have held that a

available to category one position-holders has been delegated; defendant who dismisses on the basis of political affiliation

or positions not named in law, possessing by virtue of the “a governmental employee [who] may be nothing more than

jurisdiction’s pattern or practice the same quantum or type of a supervisor with a glorified title who is simply performing

discretionary authority commonly held by category one functions over which he or she has no discretion, or no

positions in other jurisdictions.” 97 F.3d at 1557. This discretion of political significance,” will not even meet the

No. 01-6156 Justice v. Pike County 13 14 Justice v. Pike County No. 01-6156

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highly deferential standard of the qualified immunity defense. how to exercise their statutory or delegated policymaking

McCloud I, 97 F.3d at 1559. authority, or other confidential employees who control the

lines of communication to category one positions, category

The Board argues that Justice falls within this category two positions or confidential advisors.” 97 F.3d at 1557.

because she exercised some discretion about how to seek This category “is formulated to comport with the discussion

grants. Also the Board points out that Justice, even though in Branti indicating that a state governor may ‘believe that the

she only had two subordinates herself, reported directly to the official duties of various assistants who help him write

superintendent, a category one position, a factor that we had speeches, explain his views to the press, or communicate with

given some weight in Hall. It is true that Justice’s relatively the legislature cannot be performed effectively unless those

low-level position does not automatically exclude her from persons share his political beliefs and party commitments.’”

this category. It is also correct that Justice exercised some Id. at 1557 n.32 (citing Branti, 445 U.S. at 518). As an

discretion in her position. However, every position but the illustrative example of a position within this category we gave

most menial involves the exercise of a degree of discretion. “a judge’s law clerk or secretary.” McCloud I, 97 F.3d at

What distinguishes category two positions from others is the 1557.

exercise of discretion of political significance. Such

discretion Justice did not have. The core of her duties as The contours of category three have been further clarified

grants director was to raise as much money as possible and to in our case law. Compare Hoard, 198 F.3d at 213-14, 215

ensure that the conditions attached to the money were (county road supervisor within category three because he

complied with. The former is a goal that a superintendent of “serve[d] as the judge’s ‘alter-ego’ in the community with

practically any political persuasion would seek to pursue and respect to road conditions”), id. at 215-16 (assistant road

the latter a legal obligation that any superintendent would be foreman, garage supervisor, and senior citizens director

bound to observe.2 Therefore Justice, lacking political within category three for similar reasons), Collins, 150 F.3d

discretion, was not within category two. at 578 (executive director of Ohio Lottery Commission within

category three because that office is charged with

In McCloud I, we defined category three as “confidential “communicat[ing] departmental views to the press or the

advisors who spend a significant portion of their time on the legislature”), Hall, 128 F.3d at 426 & n.4, 429 & n.6 (chief

job advising category one or category two position-holders on deputy sheriff, but not other deputy sheriff, within category

three because chief deputy at times acted as “confidential

advisor to the sheriff”), and Smith v. Sushka, 117 F.3d 965,

2 971 (6th Cir. 1997) (administrative assistant to county chief

This is not to say that there will never be a political aspect to the engineer within category three because she was a

quest for grant funds. A funding pro gram could easily carry with it

conditions which are politically highly sensitive; one need only think of “confidential employee[ ] who control[led] the lines of

a grant exclusively for the teaching of sex education or creationism. To communications to [a] category one position”), with Hager,

decide to accept or reject such a grant is clearly a political question. 286 F.3d at 374-76 (school’s gifted and talented coordinator

However, nothing in the record suggests that any such politically sensitive not within category three because she did not deal with

grant came up during Justice’s tenure o r that it would have bee n within political issues, advise the superintendent on confidential

her authority to decide to accept such a conditional grant. To the

contrary, Justice testified that she would ask the superintendent’s express information, or control the lines of communication to the

perm ission before applying for an y grant. superintendent), Sowards, 203 F.3d at 437 (chief jailer not

No. 01-6156 Justice v. Pike County 15 16 Justice v. Pike County No. 01-6156

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within category three because she did not “not have any communication, even at a fairly low and non-policy making

access to any confidential or political information”), and level, will suffice to remove a position from the protection

Bauer v. Montgomery, 215 F.3d 656, 660-61 (6th Cir. 2000) against political dismissals. See Faughender v. City of North

(field investigator in attorney general’s office not within Olmsted, 927 F.2d 909, 911, 913-14 (6th Cir. 1991) (allowing

category three where there was no evidence that plaintiff political refusal to rehire mayor’s secretary who answered the

provided confidential advice or controlled the lines of phone used by the members of the public wishing to contact

communication to anyone). the mayor). However, Justice’s position did not control these

lines of communication, even at a low level. Therefore,

Justice did not spend a considerable portion of her time Justice’s position does not fall within category three.

rendering confidential advice to the superintendent. The

eight-point job description on which the Board and court In Hager, we also found Kentucky state law probative of

below rely so heavily does not even mention the rendering of the question whether Hager’s position was protected from

advice to the superintendent. While Justice did report to the dismissal on the basis of her political affiliation or support:

superintendent, and every subordinate will at times

communicate with a superior in a manner that can fairly be In addition to the Elrod/Branti exceptions, there is an

described as giving advice, nothing in the record indicates additional factor that the district court did not adequately

that Justice would spend more of her time giving advice than consider in its determination that politics was an

any other subordinate in a hierarchical organization. appropriate requirement for the [Gifted and Talented

Moreover, while presumably some of the communications Program Coordinator] position. Kentucky statutory law

between Justice and the superintendent were not meant for clearly establishes that a teacher or employee of a school

public consumption, there is nothing in Justice’s duties that district has the right to be free from demotion or

renders her advice particularly sensitive or confidential. discrimination based on political affiliation. KRS

§ 161.164(4) (“[n]o teacher or employee of any district

Nor did Justice control the lines of communication between board of education shall be . . . demoted or dismissed

the superintendent and the general public. While from, any position or in any way . . . discriminated

communications between the superintendent and Justice’s two against with respect to employment because of [her]

staff persons or grantors would usually have passed through political . . . affiliations.”); see also Sowards, 203 F.3d at

Justice, not everyone who sometimes passes messages from 439 n.4 (“it is important to examine the applicable state

political appointees is therefore in control of the lines of and local law when deciding whether political

communication. To hold otherwise would put every public considerations may be used in employment decisions

employee working under a political appointee in category . . . .”). The existence of the Kentucky statute as

three. Rather, the lines-of-communication subset of category protection against political reprisal such as occurred in

three focuses on those who control the lines of this case has been clearly established by the Kentucky

communication with the general public and its courts for many years. See Calhoun v. Cassady, 534

representatives. See McCloud I, 97 F.3d at 1557 n.32 S.W.2d 806, 808 (Ky. 1976) (statute enacted to prevent

(referring to those who “write speeches, explain . . . views to Superintendent and Board from perpetrating transfers and

the press, or communicate with the legislature” on behalf of demotions as political “vendettas” for supporting

a political superior). Control over such lines of candidates opposed to Superintendent in race for office);

No. 01-6156 Justice v. Pike County 17 18 Justice v. Pike County No. 01-6156

Bd. of Educ., et al. Bd. of Educ., et al.

see also Harlan County Bd. of Educ. v. Stagnolia, 555 In Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

S.W.2d 828, 830 (Ky. Ct. App. 1977) (“Political reprisals 805, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999), the

by superintendents and a majority of board members Court held that despite the conflict between the social

brought about the enactment of KRS 161.162 which security program, which provides benefits to a person

prohibits such action.”). The existence of this with a disability that cannot perform his work, and the

long-standing prohibition raises significant question as to ADA, which requires a person to be able to perform the

the legitimacy of the defendants’s actions in this matter. essential functions of his job, receipt of social security

benefits does not automatically estop a recipient from

Hager, 286 F.3d at 377. As the relevant Kentucky state law pursuing an ADA claim. The Court concluded that the

does not distinguish between the positions of Gifted and two claims do not inherently conflict because the Social

Talented Program Coordinator and Grants Department Security Act does not account for the possibility of work

Director, identical considerations apply here. with “reasonable accommodation,” whereas the ADA

does. See id. at 802-03. Similarly, although the ADA

III and the Kentucky statute appear to conflict, Dotson’s

qualification for disability retirement did not

In Dotson, we answered in the negative the question of automatically estop her from pursuing an ADA claim.

whether receipt of a Kentucky Teacher’s Retirement System To survive summary judgment, Dotson must provide

disability pension estops the recipient from arguing that she an explanation sufficient to warrant a reasonable juror

was a “qualified individual with a disability.” While Dotson finding that, despite her statement that she is unable to

was a non-precedential opinion, its reasoning, based on both work, that she could nonetheless perform the essential

recent Supreme Court precedent and recent, binding precedent functions of her job, with or without reasonable

of this court, is sound and applicable here: accommodation. See Cleveland, 526 U.S. at 807; see

also [Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 383

The ADA prohibits discrimination against any (6th Cir. 1998)].

“qualified individual with a disability,” which is defined Dotson provided evidence that she had been able to

as “an individual with a disability who, with or without teach effectively throughout the 1996-97 school year, and

reasonable accommodation, can perform the essential although she submitted a request for accommodation to

functions of the employment position that such which the school did not respond, she continued to work.

individual holds or desires.” 42 U.S.C. §§ 12112(a), Thus, a genuine issue exists as to whether Dotson was a

12111(8). However, in order to qualify for disability “qualified individual with a disability” under the ADA.

retirement, Dotson had to attest that she “suffer[s] from In addition, the court never addressed directly the

a physical or mental condition presumed to be permanent question of whether Dotson was in fact disabled under

in duration and of a nature as to render the member the ADA. It was error to grant summary judgment on the

incapable of being gainfully employed . . .” Ky. Rev. ADA and Rehabilitation Act claims.

Stat. Ann. § 161.661(9) (1996). The district court held Dotson, at *1-2 (footnotes omitted). For this reason, Justice

that the conflict between Kentucky’s disability retirement too was not estopped from making her ADA claim by receipt

statute and the ADA necessarily prevented Dotson from of her disability pension.

having standing under the ADA.

No. 01-6156 Justice v. Pike County 19

Bd. of Educ., et al.

The Board attempts to distinguish Cleveland on the basis

that social security disability income depends on a finding

that an applicant cannot find employment in the economy in

general, while the teacher’s disability pension depends on a

finding that the applicant can not perform the job of a teacher.

In Dotson, which the Board urges us to disregard as non-

precedential, we rightly noted that this was not a relevant

distinction. Rather, the holding of Cleveland (and Dotson)

depended on the realization that inability to perform a job

without accommodiation and ability to perform a job with

accommodation are not mutually exclusive. Nothing in the

Board’s argument addresses this issue. Equally unavailing is

the Board’s argument that Kentucky state law bars disabled

teachers from working in the school system. In so far as state

law conflicts with valid federal law, federal law prevails.

U.S. Const. art. VI, cl. 2.

IV

As we hold that Justice’s claims were not precluded by the

alleged political nature of her position and her request for a

disability pension, respectively, we REVERSE the district

court’s summary judgment and REMAND for further

proceedings not inconsistent with this opinion.