Armour v. Beaver

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

11-21-2001

Armour v. Beaver

Precedential or Non-Precedential:

Docket 00-3431

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Recommended Citation

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Filed November 21, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3431

DELORES ARMOUR, Appellant

v.

THE COUNTY OF BEAVER, PENNSYLVANIA, BEA

SCHULTE, COMMISSIONER, in her individual capacity

On Appeal From the United States District Court

For the Western District of Pennsylvania

Chief District Judge: Hon. Donald E. Ziegler

D.C. No. 99-cv-00669

Argued: December 12, 2000

Before: SCIRICA and AMBRO, Circuit Judges, and

POLLAK, District Judge.*

(Filed: November 21, 2001)

Samuel J. Cordes (Argued)

Ogg, Cordes, Murphy & Ignelzi

245 Fort Pitt Boulevard

Pittsburgh, PA 15222

Attorneys for Appellant

_________________________________________________________________

* The Honorable Louis H. Pollak, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

Neva L. Stanger (Argued)

Campbell, Durrant & Beatty

555 Grant Street, Suite 120

Pittsburgh, PA 15219

Attorneys for Appellees

OPINION OF THE COURT

POLLAK, District Judge.

In this case, plaintiff-appellant Delores Armour claims

that her First Amendment rights were violated when she

was fired from her position as secretary to defendant-

appellee Bea Schulte, then a County Commissioner of

defendant-appellee Beaver County, Pennsylvania ("the

County"). Armour contends that she was terminated

because of her political beliefs, and hence that her

termination contravened the general rule against political

patronage dismissals established in Elrod v. Burns, 427

U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980).

The District Court granted summary judgment in favor of

the County and Schulte, on the ground that the County

and Schulte had satisfied the burden of establishing that

political affiliation was an appropriate requirement for the

secretarial position. Additionally, the District Court found,

sua sponte, that appellant had failed to adduce sufficient

evidence to enable a fact-finder to infer that her termination

was politically motivated--i.e., to infer that, as Armour

contended, Schulte decided to terminate her based on the

perception that Armour was supporting a candidate other

than the one backed by Schulte in a campaign for a local

judgeship.

For the reasons that follow, we reverse.

I. Factual and Procedural Overview

Armour and Schulte met when Armour volunteered to

work on Schulte's 1995 campaign as a Democratic

candidate for the office of County Commissioner. Armour

was one of a number of people working on Schulte's

campaign. As part of her involvement in the campaign,

2

Armour attended campaign committee meetings, traveled

with Schulte to polling locations and political functions,

attended fund-raising events, and placed Schulte's signs

throughout the voting district. After winning the election,

Schulte offered to hire Armour as her secretary. Armour

accepted and began her employment as Schulte's secretary

in January 1996. According to Armour's deposition

testimony, once hired, she relinquished her political role

and turned her attention to the clerical tasks of the job, at

least during work hours. Armour testified that she spent

approximately half of her time working for Schulte and

that, in the balance of her time, Armour--like the other

commissioners' secretaries--performed clerical tasks under

the supervision of the Chief Clerk of the County. Armour

testified that in January, 1999, Joseph Askar, a Democrat

seeking election to a local judgeship, approached her with

logistical questions about running a campaign; she

answered Askar's questions but took no other action on his

behalf. The parties agree that in early February Schulte

learned of Armour's contact with Askar--who was running

against the Democratic candidate supported by Schulte and

the local party establishment--and questioned Armour

about her involvement with Askar's campaign.

At about the same time, Armour proposed that the

County create a human service coordinator position and

hire her for the position. Schulte testified that she raised

the possibility with the other commissioners and that they

decided against creating the position. Instead, in late

February, 1999, Schulte offered Armour a part-time clerical

position at a geriatric center earning a lower salary and

asked Armour to go home and think about the offer. 1 The

next day Armour took a personal day off. The testimony of

Schulte and Armour indicates that, on February 26, when

Armour was next in the office, Schulte asked Armour

whether she had made a decision about taking the geriatric

center position. Schulte testified that "[Armour] told me

that I would have to speak to her attorney." Armour

testified that she told Schulte that "if [Schulte] had some

_________________________________________________________________

1. Schulte testified that she did not know at the time that the position

was part-time; however, Armour testified that she, Armour, was aware

that the position was part-time when it was offered.

3

work for me to do I'd be more than happy to go back to her

office, but if it was about the job offer, I was requesting she

wait until my attorney was present to discuss it." App. at

77 (Armour Dep. at 101). The parties are in agreement that

Schulte then advised Armour that she was terminated.

Armour filed suit under 42 U.S.C. S 1983 in the United

States District Court for the Western District of

Pennsylvania against the County and also against Schulte

in her individual capacity. The County and Schulte moved

for summary judgment on the ground that political

affiliation was an appropriate job requirement for the

position of secretary to a Beaver County Commissioner. In

their summary judgment motion, appellees acknowledged

that the question whether Armour was fired based on her

political affiliation "involve[s] disputes over issues of

material fact best left for trial." The District Court granted

summary judgment in favor of Schulte and the County

based both on the appropriateness of a political-affiliation

job requirement and on the lack of evidence that Armour's

political affiliation was the cause of her termination.

II Standard of Review

We exercise plenary review of the District Court's decision

to grant summary judgment. See Assaf v. Fields , 178 F.3d

170, 171 (3d Cir.), cert. denied, 528 U.S. 951 (1999). In

doing so, we must apply the same test that the district

court must apply. See Chipollini v. Spencer Gifts, Inc., 814

F.2d 893, 896 (3d Cir.)(en banc), cert. denied , 483 U.S.

1052 (1987). Reviewing the record as a whole, we will "draw

all reasonable inferences in favor of the non-moving party"

and will not weigh the evidence or make credibility

determinations. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 150 (2000). If it appears that "there is

no genuine issue as to any material fact" and the movant

is entitled to judgment at a matter of law, we will affirm a

grant of summary judgment. Fed. R. Civ. P. 56(c). Of

course, we will give credence to " `evidence supporting the

moving party that is uncontradicted and unimpeached, at

least to the extent that evidence comes from disinterested

witnesses.' " Reeves, 530 U.S. at 151 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 300 (1986)).

4

In lawsuits such as the present one, in which the plaintiff

is a government employee raising a First Amendment

political discharge claim, the usual standard of review for

grants of summary judgment is modified in that it is up to

the defendant government employer to prove that political

affiliation is an appropriate requirement for the job. "Since

. . . it is the government's burden to demonstrate an

overriding interest in order to validate an encroachment on

protected interests, the burden of establishing this

justification" rests with the government employer. Elrod,

427 U.S. at 368. Moreover, in Zold v. Township of Mantua,

935 F.2d 633 (3d Cir. 1991), we invoked the principle that,

when the First Amendment is implicated, appellate courts

have a special responsibility to undertake an exacting

review of the whole record with a particularly close focus on

facts that are determinative of a constitutional right. Id. at

636 (citing New York Times Co. v. Sullivan, 376 U.S. 254,

285 (1964) and New Jersey Citizen Action v. Edison

Township, 797 F.2d 1250, 1259 (3d Cir. 1986)).

III Review of the Record

Before undertaking an analysis of the legal issues

presented on this appeal, we will set forth (1) the principal

record evidence regarding the nature of Armour's secretarial

position, (2) the principal record evidence regarding the

reason or reasons for Armour's termination, and (3) the

District Court's rationale for granting summary judgment in

favor of appellees.

A. The Nature of the Secretarial Position

None of the parties contends that Armour was a policy-

maker in her position as secretary to Schulte. But the

parties disagree as to the level of confidentiality,

loyalty, and political trust required in the position. There

are three Beaver County Commissioners. At the time in

question, there were two Democrats--Commissioner

Schulte and Commissioner Dan Donatella--and one

Republican--Commissioner Nancy Loxley. Joann Clarke

was Donatella's secretary and Jo Johnson was Loxley's

secretary.2 According to the testimony of Donatella,

_________________________________________________________________

2. Clarke and Johnson were both hired by previous commissioners and

then retained by Donatella and Loxley, respectively.

5

although as a formal matter all three commissioners had

joint authority over personnel decisions regarding the

commissioners' secretaries, it was understood among the

commissioners that each commissioner had the power to

hire and fire his or her own secretary.

The three secretaries shared the same office space and,

depending on availability, they would perform routine tasks

for any one of the commissioners. Armour testified that she

devoted fifty to sixty percent of her time to performing work

for the Chief Clerk. Clarke testified that tasks assigned to

her by the Chief Clerk filled approximately sixty percent of

her working hours. In working for the Chief Clerk and in

working for the commissioners, the secretaries spent the

bulk of their time performing such clerical tasks as typing

correspondence, resolutions and motions; answering

phones; greeting and directing visitors to the office;

handling paperwork; opening mail; making photocopies;

making travel arrangements; scheduling meetings; filing

documents; directing checks to the proper departments;

and obtaining signatures. Armour also scheduled the board

meetings which required the presence of the entire board,

made photocopies of all mail received that was relevant to

the entire board, and took minutes at public board

meetings when Johnson was not available to do so.

Additionally, she attended monthly meetings of the

Aliquippa Family Preservation Network ("AFPN") in

Schulte's stead. At these meetings she took notes and voted

as Schulte's proxy. In testimony, Armour described her role

at those meetings as follows:

[I]t was not a real important board, they didn't really

deal with a lot of issues other than trying to get

themselves established and there were things that

would have to be voted on, like paying the bills, this

person going to conference or whatever. I didn't sit in

on the executive board and have privy to the decision

making, but the regular minutes, if it called for a vote,

yes.

App. at 69 (Armour Dep. at 48). As to Armour's

participation in the AFPN meetings, Schulte testified: "[A]t

the time I didn't realize that she had the power to vote, but

I found out later that she was, indeed, voting in my stead."

6

App. at 54 (Schulte Dep. at 21). Armour maintained in her

deposition testimony that, although she did not end her

own political involvement, she stopped accompanying

Schulte to political functions at the close of the 1995

campaign. Also, Armour testified that none of the

secretaries was privy to personnel matters or files; the

testimony of Clarke and Johnson is not to the contrary.3

In 1996, Armour suggested that a position of office

manager for the commissioners be created and that she be

appointed to the position. Schulte testified that she

proposed this to the other commissioners but that they

were not in favor of the idea. App. at 56 (Schulte Dep. at

31)("I'm sure they did not want to have their secretaries

subject to my secretary."). In 1997, the commissioners

decided to create an executive administrative position

directly under the commissioners and on par with the Chief

Clerk. In her testimony, Schulte emphasized that the

person in the executive administrative position, as that

position was envisioned, would have performed "strictly

executive administrative-type duties and . . . represent the

commissioners." The position was created and funded but

never filled because, according to Schulte's testimony, the

commissioners could not decide on who should be hired.

Moreover, it seems that Armour was not seriously

considered for this position because the commissioners had

decided that a college degree--which Armour did not

have--was a requirement for the job. Schulte testified:

Delores' husband called me and wanted to know why

we had included a requirement for a college degree for

that position, because that eliminated Delores from

consideration. . . . I told him that I included--had

included that requirement, because this person would,

indeed, be representing the three commissioners, and

we felt that was a necessary--all the commissioners

had agreed that would be a necessary requirement.

App. at 56 (Schulte Dep. at 32).

_________________________________________________________________

3. However, when enumerating his secretary's duties in deposition

testimony, Donatella mentioned that his secretary had some involvement

in payroll.

7

On March 11, 1998, Armour completed a document

entitled "Class Specification Review & Comment".

Directions for completing the form stated, in pertinent part:

Please review the attached classification specification

to make sure it accurately describes the body of work

you perform. Please note that in many cases, it will not

identify every task that you specifically perform. When

you see the words: May perform other duties, including

work in other functional areas this means that within

the list of duties you should find the essential duties

that you regularly perform.

If you believe some essential duties have been

omitted, or a part of the specification is inaccurate;

please indicate this below.

App. at 93 (emphasis in original).

Appellant typed the following response on the space

provided:

Although this job may appear secretarial in nature, a

large portion of the duties fall more towards

administrative assistant. The high level of

confidentiality and responsibility reaches far beyond

the desk, often into our personal lives. A broad

background in County government is essential for even

the entry level of this position.

Id.

The form was signed by Armour and initialed by Schulte.

In deposition testimony, Armour explained this statement

by saying: "[T]he concept I was trying to get across was

what I thought the job should be more so than what the job

actually is." Asked whether she viewed her position as a

confidential position, Armour testified: "I viewed it as a

secretary. Of course all secretaries have some confidence to

their boss, regardless of their position." App. at 69 (Armour

Dep. at 49). Asked if she would describe the position as

requiring a high degree of confidentiality, Armour

responded, "I would say normal." Id.

Armour's description of the position in her deposition

testimony stands in some tension with the statements of

8

other witnesses. Schulte testified that Armour was privy to

confidential material through her access to lists of

resolutions and motions from commissioners' meetings,

correspondence among commissioners, Schulte's telephone

calls, and her personal calendar. Schulte also testified that

Armour "would often talk to department heads setting up

meetings and explaining the purpose of the meeting. That

was a very important part of her function. If she didn't

understand the purpose of the meeting, then she couldn't

explain it, and often the meetings were involving

confidential matters." App. at 54 (Schulte Dep. at 21-22).

When asked to describe the secretarial position,

Donatella testified as follows:

The secretary obviously in that capacity works very

close with the county commissioner whom she's

affiliated with because of the fact that you need a good

close relationship. As a matter of fact, I do believe that

they were classified as confidential secretaries and not

come under the realm of the union, because each

commissioner was at liberty to select that particular

employee because of the relationship that they needed

to maintain.

App. at 44 (Donatella Dep. at 6).

Donatella also testified, with respect to the duties that

his secretary performed:

She does everything from answering the telephone for

me to doing confidential letters, even sometimes

arranging meetings. Doing not only my clerical work,

but frankly, operating as my eyes and ears, both

political and otherwise. She helps me even on the

political end of it, arranging for different political

functions and so forth.

Id. (Donatella Dep. at 6-7). There may, however, be room for

more than one interpretation of Donatella's testimony

regarding the nature of the secretarial position. For

example, Donatella testified:

[B]asically, they do everything that any other

confidential secretary would do as far as even running

the office side is concerned. They do resolutions, they

9

get signatures, payroll, act as receptionist, they do

typing and all the other secretarial skills that's

required.

Id.

Asked to explain what he meant when he said the

secretaries "do resolutions," Donatella clarified his

testimony by stating that the resolutions are prepared by

the law department and the secretaries' responsibilities are

limited to (a) ensuring that the commissioners sign the

completed resolutions and (b) mailing the resolutions to the

proper places.

When Donatella was asked whether political affiliation

was required for a commissioner's secretary, he testified:

Well, I don't know if it's a requirement, no; but mainly,

it is associated with that because on the campaign

trail, usually those people are directly or indirectly

involved in the campaign, helping that individual to be

elected. But I have seen where sometimes someone is

selected that is not involved in the campaign. . . . It's

whomever that commissioner feels comfortable with I

think is the bottom line. They have to be capable of

doing the job at hand, and it always helps to be

politically astute, obviously.

Id. at 45 (Donatella Dep. at 9). Amplifying the connection

between politics and the secretarial position, Donatella

explained:

[G]enerally, if a Republican is a commissioner, they are

going to hire a Republican secretary and the other way

around. I don't know of any case where it was other

than that. I do [not] remember a Democrat hiring a

Republican or vice versa, at least to my knowledge in

the 35 years I was there. They are generally the same

party, if that's the question.

Id. (Donatella Dep. at 10).

The testimony of Johnson, secretary to Commissioner

Loxley, reinforces appellees' argument that Armour's

position required a significant level of confidentiality: "The

work that I do for Nancy [Loxley] I would consider to be of

10

a confidential nature, not so much the general work that I

do for [the Chief Clerk] . . ." App. at 85 (Johnson Dep. at

36). With respect to her work for Loxley, Johnson testified:

"[I]t's a political atmosphere here, and Nancy would often

times talk to me in confidence about political issues, party

issues that I would have to keep to myself and not be able

to share with anybody else." Id. However, portions of

Johnson's testimony indicate some question as to the

substance behind her more general assertions regarding

the nature of the job. Asked whether there were any other

sources of confidential information beyond the above

referenced conversations with Loxley, such as letters or

phone calls, Johnson testified: "No. Her correspondence

that she got in typically, unless it was something political

in nature, if it was county related, all three commissioners

would get the same correspondence." Id. Additionally,

Johnson testified that she had not been questioned about

her political affiliation during her interview for the position,

that she did not consider herself a political adviser, and

that her political affiliation did not play any role in her

ability to keep information confidential. Johnson also

provided an affidavit in which she stated that Armour used

to identify herself as Schulte's "confidential secretary" when

she answered the phone. However, Armour denied having

so identified herself.

Clarke, Donatella's secretary, testified that "my

responsibility, of course, is to represent [Donatella] and to

keep all confidentiality". App. at 89 (Clarke Dep. at 9).

Clarke's testimony brings into focus the seeming ambiguity

of the term "represent" as used by the parties and

witnesses. Asked about her participation in active

campaigning, Clarke testified that she served as Donatella's

campaign treasurer (usually performing these tasks during

evening and weekend hours) and would assist Donatella

with his campaign at his request: "I represent

Commissioner Donatella mainly when I am anywhere

politically. I'm there basically to assist him, if that's--you

know, if I am to represent him at a function or if I am to be

there just to be, you know, part of the event." App. at 91

(Clarke Dep. at 34). Additional questions on this topic

resulted in the following exchange:

11

Q: Do you consider yourself to be a political advisor to

[Donatella]?

A: Inform him of happenings or go in his behalf? I

don't understand.

Q: Do you advise him on policies for the county?

A: No.

Q: But you occasionally go to functions on his behalf?

A: Not for him. Basically, I will go part of.

Q: Do you go to tell him what happened at the

functions, or what do you mean?

A: No, I don't, I go just to represent him, be present,

that if -- there may be five or six events going on

in one evening, and so he's represented.

. . .

Q: Okay. Do you give speeches or anything of that

nature at those kinds of functions?

A: No.

Id. (Clarke Dep. at 34-35).

B. The Reason for Armour's Termination

We now turn to the evidence in the record regarding the

reason for Armour's termination.

Armour contends that rumors of her involvement with

Joseph Askar's campaign for District Justice in Centre

Township motivated Schulte to fire her. It is undisputed

that Schulte was aware of such rumors. According to

Armour's testimony, in January 1999, while Armour was

still employed as Schulte's secretary, Askar, a Democrat,

approached Armour with questions about the mechanics of

conducting his campaign. Armour contends, and appellees

do not dispute, that she merely answered Askar's questions

on topics such as how many signs were required to cover

a certain voting district. It appears to be undisputed that

Schulte was told in early February, 1999 that Armour

intended to support Askar instead of Joseph Zupsic, the

Democratic candidate supported by Schulte. Donatella

12

testified that he and Schulte were present at a rally when

someone told Donatella "that I'd better find Bea Schulte

because Joe Schaffer, the town chair, was extremely upset

because allegedly Dee [Armour] was working for Joe Askar."

App. at 47 (Donatella Dep. at 20). Donatella testified

further:

So I went and found Bea and I said, "Bea, there's a

problem, I think you better go talk to Mr. Schaffer

because he is saying that your employee is working for

Joe Askar." So I escorted her over to Mr. Schaffer and

Mr. Zupsic, who was the other candidate, and they

confronted her with and accused her that Dee

[Armour], her employee, was working for Mr. Zupsic's

opposition. Bea's comment in my presence was that

she would find out about what was going on, she was

not aware of that but she would talk to Dee.

Id. It is undisputed that on one occasion early in February

of 1999, Schulte did question Armour about her

involvement in Askar's campaign. Armour testified that

Schulte called her into Schulte's office and said:"I'm getting

flak over you supporting Joe Askar." App. at 70 (Armour

Dep. at 53). According to Armour, Schulte asked a number

of questions about Armour's involvement with Askar's

campaign. For example, Armour testified that Schulte

asked her whether she was holding "coffee klatches"--small

grass-roots meetings to introduce a candidate to voters--for

Askar, and that in reply she had explained that she was

not involved in Askar's campaign but had answered some

simple questions. Later that day, Armour approached

Schulte and told her that she was upset about being

questioned about what she did in her personal time. Some

two to three weeks later, on February 26, 1999, Schulte

discharged Armour.

Despite his acknowledgment that there was concern

regarding Armour's possible involvement with Askar's

campaign, Donatella testified that he was not under the

impression that Armour's termination was related to her

perceived support of Askar, nor had he heard rumors that

Armour lost her job for that reason. Rather, Donatella

testified that he attributed Armour's termination to a

deterioration of the relationship between Armour and

13

Schulte that, according to Donatella, had begun

approximately six months prior to Armour's termination.

C. The District Court's Opinion

With the foregoing synopsis of the record in view, we turn

to the District Court's ruling granting summary judgment

in favor of Schulte and the County. The District Court

made the following assessment of Armour's testimony about

the nature of her position:

Plaintiff completed [the March 11, 1998] job description

[in which she described the position as entailing a

"high level of confidentiality"] before any alleged

problems between herself and Schulte. We thus

consider her deposition testimony [in which she

described the position as entailing a "normal" level of

confidentiality] as contradictory and her unbiased

statement regarding her job duties as provided in

March 1998 as more significant. See, e.g., Martin v.

Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705-

06 (3d Cir. 1988)(permissible for district court to

disregard subsequent contradictory affidavit for

purposes of determining whether there was a material

dispute of fact).

Mem. Op. at 10.

The District Court proceeded to hold that appellees had

carried their burden of establishing that political affiliation

was properly required for the secretarial position:

We find that plaintiff's party affiliation was an

appropriate requirement for the effective performance of

the job. See [Ness v. Marshall, 660 F.2d 517, 521 (3d

Cir. 1981)]; [Brown v. Trench, 787 F.2d 167, 170 (3d

Cir. 1986)]; Waskovich v. Morgano, 2 F.3d 1292, 1303

(3d Cir. 1993); Roseman v. County of Cambria, 862

F.Supp. 19, 21 (W.D. Pa. 1993); see also Williams v.

City of River Rouge, 909 F.2d 151, 153 n.4 (6th Cir.

1990)(political affiliation is more than party politics, it

is about trust, confidence, and sharing a common

viewpoint with those to whom authority is delegated).

Plaintiff acted as liaison between department heads and

Schulte, which required knowledge of confidential

14

matters. She also had access to correspondence

containing party issues and confidential material.

Commissioner Donatella noted the importance of

loyalty and the necessity of a close relationship between

the commissioner and secretary. Johnson described the

office as a political atmosphere, and Clarke

acknowledged that she "represents" Commissioner

Donatella at political events.

Plaintiff testified that she responded to constituent

calls and handled the matter before involving Schulte.

Each time plaintiff responded to a concern of a

constituent, she was representing Schulte in a political

nature. See, e.g., Brown, 787 F.2d at 170 (while some

of [plaintiff's] duties were only technical or clerical in

nature, her principal duty was to act as spokesman for

the Commissioners). It is likely that Democratic

constituents who seek redress from their Democratic

commissioner, or simply express concerns of a political

nature, expect that the commissioners' secretary shares

their political ideology. In other words, Democratic

constituents should find comfort in expressing their

concerns to the commissioner's secretary, whom the

voters felt would express or relay the issues accurately

and compassionately to the commissioner. In essence,

plaintiff was a conduit between the Democratic

constituents and Commissioner Schulte, their elected

representative. See Waskovich, 2 F.3d at 1299-1300,

quoting Hall v. Ford, 856 F.2d 255, 263 (D.C. Cir.

1988)("high level officials must be permitted to

accomplish their organizational objectives through key

deputies who are loyal, cooperative, willing to carry out

their superior's policies, and perceived by the public as

sharing their superiors' aims").

Plaintiff attended meetings on behalf of Schulte, voted

in her stead, and attended political functions with the

Commissioner. Her own job description elevated the

position to one of "administrative assistant." Based on

the evidence of record, we find that an absence of

political cohesion would undermine the working

relationship between plaintiff and Schulte. Cf. Burns v.

County of Cambria, Pennsylvania, 971 F.2d 1015,

15

1022-23 (3d Cir. 1992). We find that defendants have

established that political affiliation is an appropriate job

requirement for plaintiff's position.

Mem. Op. at 10-12.4

Additionally, the District Court held that Armour did not

establish the causation elements of the test set forth in

Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995)(plaintiff

must prove "that the employee maintained an affiliation

with a party" and "that the employee's political affiliation

was a substantial or motivating factor in the adverse

employment decision"). First, the District Court held that

Armour's actual political affiliation with Askar was

insufficient to meet the Robertson test because that

connection "was minor." Mem. Op. at 13. Second, the

District Court held that Armour's argument that her

" `perceived' political affiliation with Askar's campaign was a

substantial or motivating factor in Schulte's decision to

terminate her" was "without merit" because Schulte

questioned Armour about her involvement with Askar's

campaign on only one occasion. Id. Finally, the District

Court credited testimony of Donatella and Schulte that

indicated that Armour was fired because her relationship

with Schulte had deteriorated independently of any

tensions that were caused by Armour's perceived

connection with Joseph Askar.

III Discussion

First, we will consider whether, as the District Court

held, the record on appellees' motion for summary

judgment mandated a finding that political affiliation was

an appropriate requirement for Armour's job. Second, we

will consider whether, as the District Court held sua

sponte, appellees were entitled to summary judgment on

the alternate ground that Armour had failed to present any

significant evidence that her firing was attributable to

political affiliation.

_________________________________________________________________

4. Armour testified that she did not accompany Schulte to political

functions once she was hired as Schulte's secretary.

16

A. Armour's Job

At least at one time--namely, during Schulte's 1995

campaign--Delores Armour's relationship with Bea Schulte

could have been characterized as political in nature. It is

less clear that Armour's position as secretary to Schulte

required a shared political purpose. The question before

this court is whether defendants have established, beyond

factual dispute, that political agreement was an appropriate

requirement for the position of secretary to a Beaver County

Commissioner.

Adverse employment actions against government

employees that are based on political affiliation are, as a

general rule, prohibited. See O'Hare Truck Service, Inc. v.

City of Northlake, 518 U.S. 712 (1996); Rutan v. Republican

Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445

U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976). In

Elrod, a plurality of the Court first announced this rule

based on the recognition that political patronage dismissals

run counter to the First Amendment rights of free speech

and political association. See Elrod, 427 U.S. at 359. At the

same time, the Court delineated a narrowly drawn

exception for particular positions for which political

affiliation is found to be an appropriate requirement.

Applying the intermediate "exacting" level of scrutiny, the

Court explained: "The interest advanced must be

paramount, one of vital importance, and the burden is on

the government to show the existence of such an interest."

Id. at 362; see Boyle v. County of Allegheny Pennsylvania,

139 F.3d 386, 395 (3d Cir. 1998). The notion of what

constitutes a position for which political affiliation may

acceptably be required has developed over time. In Elrod,

the Court adopted an approach that distinguished between

policymaking and non-policymaking positions. Reiterating

the rule in his concurrence, Justice Stewart advised that

political affiliation could not provide a basis for adverse

actions taken against a "nonpolicymaking, nonconfidential

government employee". Id. at 375 (Stewart, J., concurring).

The Court described the inquiry into the nature of the

responsibilities and the function of a given position as

particularly fact-specific. Id. at 367-68.

17

In Branti, the Court revised the Elrod test to lessen the

emphasis on determinations of whether a position entails

policymaking and confidentiality: "the ultimate inquiry is

not whether the label `policymaker' or `confidential' fits a

particular position; 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." Branti, 445 U.S. at 518. Justice

Stevens, speaking for the Court, stated: "Under some

circumstances, a position may be appropriately considered

political even though it is neither confidential nor

policymaking in character." Id. at 518 (providing an

example of a scenario in which "a State's election laws

require that precincts be supervised by two election judges

of different parties"). He continued: "It is equally clear that

party affiliation is not necessarily relevant to every

policymaking or confidential position." Id. (giving the

example of a football coach for a state university).

On the other hand, it is equally clear that the Governor

of a State may appropriately believe that the official

duties of various assistants who help him write

speeches, explain his views to the press, or

communicate with the legislature cannot be performed

effectively unless those persons share his political

beliefs and party commitments.

Id. The Branti Court also reiterated that in order for a

patronage dismissal to pass constitutional muster, it must

forward a governmental purpose:

The plurality [in Elrod] emphasized that patronage

dismissals could be justified only if they advanced a

governmental, rather than a partisan, interest. 427

U.S., at 362. That standard clearly was not met to the

extent that employees were expected to perform

extracurricular activities for the party, or were being

rewarded for past services to the party. Government

funds, which are collected from taxpayers of all parties

on a nonpolitical basis, cannot be expended for the

benefit of one political party simply because that party

has control of the government.

Branti, 445 U.S. at 517 n.12. The requirement of a

governmental purpose to support political patronage

18

reflects the core holding of Elrod and Branti that a long

tradition of political patronage cannot, in itself, immunize

politically motivated dismissals from scrutiny.

We have had numerous occasions to apply these

principles. In Boyle v. County of Allegheny Pennsylvania,

139 F.3d 386 (3d Cir. 1998), we charted the development of

Third Circuit case law interpreting the Elrod /Branti test.

The Boyle court canvassed Ness v. Marshall, 660 F.2d 517,

521 (3d Cir. 1981)(adopting a "functional analysis" under

which a dismissal was permissible where a difference in

party affiliation would "be highly likely to cause an official

to be ineffective in carrying out the duties and

responsibilities of the office"), Brown v. Trench, 787 F.2d

167, 168 (3d Cir. 1986)(refining the Elrod/ Branti test by

focusing the inquiry on "whether the employee has

meaningful input into decision making concerning the

nature and scope of a major [governmental]

program")(internal quotation marks omitted), and Zold, 935

F.2d at 636 (synthesizing prior decisions and holding that

appellate courts are obligated to "make an independent

examination of the whole record" with "special scrutiny").

We noted in Boyle, 139 F.3d at 396, that because the

Elrod/Branti test is flexible and entails an extremely fact-

intensive inquiry, cases such as the case at bar resist easy

generalizations. In the case at bar, we must determine

whether the District Court's grant of summary judgment

was correct as to the appellant--a nonpolicymaking,

secretary-clerk serving in roughly equal parts an elective

county executive (County Commissioner) and a non-elective

county administrator (Chief Clerk). Unsurprisingly, none of

our prior cases carries us effortlessly to a resolution;

however, we find particular guidance in Brown and Zold.

Brown arose from the dismissal of a county assistant

director of public information. In that case, we discussed

the difficulty of determining the appropriateness of political-

affiliation requirements for jobs that entail clerical tasks:

While Branti provides us with a "test" the Supreme

Court has not specified the particular factors which

indicate that a position falls within the Branti test.

Factors suggested by other courts include whether the

19

employee's duties are simply clerical or related to law

enforcement, nondiscretionary or technical. Courts

have also considered whether the employee participates

in Council discussions or other meetings, whether the

employee prepares budgets, or has authority to hire or

fire employees, the salary of the employee, and the

employee's power to control others and to speak in the

name of policymakers. In Crisp [v. Bond, 536 F.Supp.

137, 139 (W.D. Mo. 1982)], the Court held that the

Assistant Director of the Division of Motor Vehicle and

Drivers Licensing could not be fired because he had no

confidential duties even though he supervised

employees, prepared the budget, was liaison with the

public, attended conferences, and analyzed

administrative procedures and work standards. The

key factor seems to be not whether the employee was

a supervisor or had a great deal of responsibility but

whether the employee has "meaningful input into

decision making concerning the nature and scope of a

major township program."

Brown, 787 F.2d at 169-70 (citations omitted). In Brown,

we concluded: "While some of [Brown's] duties were only

technical or clerical in nature, her principal duty was to act

as spokesman for the Commissioners and help promote

county projects. Brown could, therefore, be dismissed

because of her political affiliation without any violation of

her first amendment rights." Id. at 170.

In Zold, a deputy township clerk challenged her politically

motivated dismissal. We reversed the district court's grant

of summary judgment in favor of the township and

remanded the case for further proceedings. We observed

that the district court appeared to rely on three job

functions in finding that political affiliation was a proper

job requirement for the deputy clerk position: (1) secretary

of the Township Committee, in which capacity the deputy

clerk could have access to confidential information during

closed sessions; (2) liaison officer between government

officials and taxpayers and between the executive and the

general body of municipal personnel; and (3) public

relations figure. See Zold, 935 F.2d at 637. We

distinguished the public relations work performed by Zold

20

from that conducted by the appellant in Brown based on

the fact that Zold was not responsible for writing press

releases and speeches of elected officials, or for promoting

county projects, or for acting as spokesperson for the

county commissioners before the press and public. See id.

at 638. Instead, we reasoned:

Her contact with the press is generally limited to

informing reporters about the agenda of upcoming

meetings, and her contact with the public is, as the

district court put it, "receiving inquiries and complaints

from the electorate and responding in kind," 737

F.Supp. at 317, rather than promoting policies.

Therefore, Brown does not provide a basis to conclude

that the deputy clerk's political affiliation is a job

requirement.

Id. (citations omitted).

Additionally, we found that the deputy clerk's access to

confidential material did not justify a political affiliation job

requirement; however this holding was narrowly tailored to

the circumstances of Zold:

Arguably, even though there is no evidence that the

clerk or the deputy clerk acts as anything other than a

functionary during the closed Committee meetings, the

access to confidential information which may be

discussed on these occasions might signify that

political affiliation, translated in this case into loyalty

to the majority party, is a job requirement. Nor do we

deny that there is some sensitivity and discretion

which must be exercised when the deputy clerk is

acting as a liaison or as a spokesman. However, these

factors cannot serve to demonstrate the need for party

affiliation because virtually all of these functions are

duties that the deputy assumes from the clerk. State

law makes clear that political affiliation is not a factor

in the municipal clerk's position.

Id. at 638. Hence, we stated that "we cannot conclude that

duties fulfilled by a tenured, nonpolitical appointee

suddenly become confidential or political on those

occasions when the deputy clerk is called to substitute for

him." Id.

21

Finally, we observed:

The defendants have expressed concern that an

employee whose tasks include contact with the public

could deliberately harm the government's (and thereby

the dominant party's) image in the public eye; one who

must provide information to government officials

perhaps could deliberately undermine policy decisions

or administrative efficacy. However, any government

employee, including those with the most routine

clerical tasks, could injure the employer's efficiency or

public image. A receptionist could put callers on hold

and neglect to answer or forward their inquiries; an

office clerk could misfile forms, deliberately delay their

processing, and treat visitors rudely. The obvious

response is that employees who engage in such

behavior can be discharged on the basis of their poor

job performance. The potential that an employee may

cause havoc is in itself no basis for holding the

employee can be hired or discharged because of his or

her political affiliation.

Id. at 639.

In the present case, the District Court found, at the close

of discovery, that there were no remaining material issues

of fact as to whether political affiliation was an appropriate

requirement for Armour's position. As we explain in the

paragraphs which follow, our review of the record yields a

different conclusion.

We highlight certain factual disputes that we find

unsusceptible to resolution at the summary judgment

stage. First, we note that the District Court undertook to

weigh the credibility and relative significance of Armour's

March 11, 1998 written comments about her job

description and her subsequent deposition testimony on

the subject. Specifically, the District Court characterized

Armour's deposition testimony as "contradictory and her

unbiased statement regarding her job duties as provided in

March 1998 as more significant." We think such weighing

should have been reserved for the fact-finder.5

_________________________________________________________________

5. The District Court relied on Martin v. Merrell Dow Pharmaceuticals,

Inc., 851 F.2d 703 (3d Cir. 1988) as support for its authority to assess

22

In the same vein, we do not agree with the District Court

that Clarke's testimony that she "represented" Donatella

supports summary judgment. The theme of representation

was addressed in the testimony of a number of witnesses;

however, the content of the testimony on the concept of

representation of the commissioners is less than clear.

Whereas Clarke testified that she "represented" Donatella at

political events, a reasonable fact-finder might conclude

that the representation of which she spoke entailed little

more than her presence at certain events rather than active

participation as a spokesperson ("I go just to represent him,

be present"). For her part, Armour testified that it was not

part of her job to represent Schulte at political events.

Armour's role at the AFPN meetings--she attended in

Schulte's stead but Schulte only became aware that

Armour voted at the meetings after the fact--might also be

_________________________________________________________________

the credibility of the later deposition testimony. We find the District

Court's reliance on Martin to be misplaced. In Videon Chevrolet, Inc. v.

General Motors Corporation, 992 F.2d 482 (3d Cir. 1993), we

distinguished a situation in which a party gave ambiguous deposition

testimony from the situation in Martin and emphasized that the Martin

court had articulated a rule applicable only in extreme circumstances:

In Martin, the mother of a child born with birth defects made eight

sworn factual statements tending to negate liability on the part of

the defendant drug manufacturer. Later, facing an almost certain

loss on summary judgment, she submitted a flatly contradictory

affidavit which contained no explanation for her change in

position.

We held that on those clear and extreme facts the district court

could properly ignore the later affidavit.

Videon Chevrolet, Inc., 992 F.2d at 488. See also Farrell v. Planters

Lifesavers Company, 206 F.3d 271 (3d Cir. 2000).

Unlike Martin, in the present case appellant did provide what a fact-

finder might regard as a plausible explanation for the differences

between her 1998 written comments about the nature of the secretarial

position and her subsequent deposition testimony about the degree of

political involvement, confidentiality, and responsibility required

("[T]he

concept I was trying to get across was what I thought the job should be

more so than what the job actually is."). A fact-finder might not only

have accepted the explanation but gone on to credit the deposition

testimony of appellant that the District Court declined to give equivalent

weight to.

23

interpreted to support more than one inference regarding

the level of representation inherent in the position.

Further, Armour contends that the fact that the

commissioners created a new administrative position above

the secretaries, though they never filled that position,

would lend support to a finding that the secretarial

positions did not entail the level of confidentiality or require

the type of representation of the commissioners that would

make political affiliation a proper job requirement.

Specifically, Schulte testified that the never-filled executive

administrator position required a college degree because

the person in that position "would, indeed, be representing

the three commissioners." Of course, the fact that the

administrative position was created would not compel a

fact-finder to conclude that the work of the secretaries and

the work of the potential administrator would not have

overlapped in any respect. However, the creation of the

administrative position and the adoption of more

demanding requirements for it than for a secretarial

position might lead a fact-finder to doubt that a secretarial

position was one for which political affiliation was a proper

ingredient.

Finally, we note that the secretaries' contact with

constituents, relied on by the District Court in its summary

judgment ruling, also fails to bear the weight of the

government's burden on the appropriateness of a political-

affiliation requirement. It is undisputed that Armour and

the other secretaries responded to constituent calls

and, when possible, handled constituents' requests

without involving the commissioners. We are, however,

unpersuaded that the fact that the secretaries would

attempt to handle constituents' requests on their own

ineluctably leads to the conclusion that political affiliation

was an appropriate requirement for the job. See Zold, 935

F.2d at 638 (employee's contact with the public limited to

receiving and responding to inquiries and complaints rather

than promoting policies did not support a political-

affiliation requirement).

Neither the County nor Schulte contends that this case

implicates the central question in most political patronage

cases--whether an employee had "meaningful input into

24

decision making." Brown, 787 F.2d at 170. Instead,

appellees rely on evidence that Armour was entrusted with

access to confidential information as part of her job and

that a lack of political loyalty would interfere with the

performance of her duties. We have, indeed, acknowledged

that access to confidential information may support a

political-affiliation job requirement even in the absence of a

decision-making function. See Zold, 935 F.2d at 638-39.

However, we have also cautioned against an over reliance

on the factors of confidentiality and loyalty: "Although

loyalty and confidentiality of sheriff's deputies are desirable

attributes, those traits are needed for many working

relationships. It has never been suggested that the need for

loyalty and confidentiality alone supports politically

motivated dismissals independent of the tasks which the

employee must perform." Burns v. County of Cambria, 971

F.2d 1015, 1023 (3d Cir.), cert. denied, 506 U.S. 1081

(1993). Here we are faced with the question whether being

the personal secretary to a county commissioner is, without

more, sufficient evidence to establish as a matter of law

that political affiliation is an appropriate job requirement.

There is case law that points in this direction. For example,

in Faughender v. City of North Olmsted, 927 F.2d 909, 914

(6th Cir. 1991), the Sixth Circuit stated: "Viewed in its

functional aspect, a mayor's secretary is clearly the type of

position that involves access to confidential and political

material, and political loyalty, whether partisan or personal,

is an essential attribute of the job." But the fact-specific

approach embraced by this court in Brown and Zold and

other cases is not in harmony with such a categorical rule.

Armour's "access to confidential information . . . might

signify that political affiliation . . . is a job requirement."

Zold, 935 F.2d at 638. However, on the record before us, we

are unable to so conclude without weighing the evidence--a

task that we leave for the fact-finder. If a jury were to credit

Armour's testimony, and indeed a good deal of the

testimony of Donatella and Johnson, it could find that the

job duties of the commissioner's secretary were more

analogous to "the most routine clerical tasks," id. at 639,

than to tasks involving a high level of confidentiality.

Thus, based on our review of the record, we conclude

25

that, under Fed. R. Civ. P. 56(c), genuine disputes

regarding the nature of Armour's position remain. This

conclusion is strengthened in that, as mentioned above, the

"substantial" burden of proving that political affiliation is

an appropriate job requirement remains at all times on the

governmental entity or official seeking to justify the adverse

employment action. See Burns, 971 F.2d at 1022.6

B. The Sua Sponte Ruling That Armo ur Was Not Fired

for Political Reasons

We turn now to the District Court's alternative basis for

granting summary judgment--namely, that Armour failed

to come forward with evidence linking her termination to

her perceived political affiliation.

In order to prevail on a First Amendment claim of

discrimination, a public employee must prove "that the

employee's political affiliation was a substantial or

motivating factor in the adverse employment decision."

Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995). In this

_________________________________________________________________

6. Our dissenting colleague observes that "[w]e have previously declared

summary judgment appropriate in political dismissal cases, depending,

of course, on the facts. Boyle, 139 F.3d at 397; Ness, 660 F.2d at 522.

This is such a case."

Ness is authority for the proposition that"[w]here, as a matter of law,

a person is determined to have occupied a policymaking position, that

person's claims to protection from patronage dismissal under Elrod and

Branti are disposable on a motion for summary judgment." Id. What was

said in Ness must, of course, be read in the context of the Supreme

Court's recital in Branti "that party affiliation is not necessarily

relevant

to every policymaking or confidential position." 445 U.S. at 518. We do

not understand the dissent to contend that Armour's position could

properly be characterized as "policymaking." On the other hand, there is

certainly evidence of record that some of Armour's responsibilities were

"confidential." However, the record does not compel the inference that, as

a matter of law, the totality, or even the bulk, of Armour's

responsibilities were "confidential." Accordingly, determining whether the

defendants, on whom the burden rests, have been able to establish that

Armour's job falls outside the protections of Elrod and Branti is a matter

for the factfinder, not for the District Court on summary judgment. As

we noted in Boyle, "at the summary judgment stage, a court may not

weigh the evidence or make credibility determinations; these tasks are

left to the factfinder." 139 F.3d at 393.

26

case, appellees had submitted a summary judgment motion

to the District Court that was directed at the

appropriateness of requiring political affiliation in the

secretarial position. In that summary judgment motion

appellees acknowledged that the issue of whether Armour's

firing was politically motivated "involve[s] disputes over

issues of material fact best left for trial." Nevertheless, when

ruling on the parties' motions, the District Court sua sponte

addressed the issue of why Armour was fired.

We need not reach the merits of the District Court's sua

sponte disposition of the causation issue because the

District Court did not, prior to its ruling, notify the parties

that the issue would be addressed. Our holding in Otis

Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903

(3d Cir. 1994), is controlling. In Otis Elevator Co., "[t]he

district court not only denied [defendant's] motion for

summary judgment with respect to count IV, it granted

summary judgment for [plaintiff] with respect to that count,

sua sponte." Id. at 909. We noted that even though the

district court's decision was "understandable given the

state of the record," "it nonetheless constituted error under

Rule 56 of the Federal Rules of Civil Procedure," and,

accordingly, we vacated the order. Id. at 910.

Thus, we cannot sustain the District Court's sua sponte

ruling that appellant failed to adduce facts that would

support an inference that she was fired on the basis of her

political affiliation.

III Conclusion

Because we conclude that there are material issues of

fact for the fact-finder and because the District Court did

not provide notice to the parties that it would reach the

question of causation on summary judgment, the order of

the District Court granting summary judgment in favor of

appellees is reversed. The case is remanded to the District

Court for further proceedings consistent with this opinion.

27

SCIRICA, Circuit Judge, dissenting.

Throughout most of Pennsylvania's counties, the county

commissioners constitute both the executive and the

legislative branch of government, "generally regulating the

affairs of the county." 16 Pa. Cons. Stat. S 509(a) (1955).1

As such, the commissioners are the chief political and

governmental authorities, exercising all the corporate

powers of the county. Id. S 512. With respect to county

affairs, commissioners have long been vested with vast

discretionary powers. Kistler v. Carbon County , 35 A.2d

733, 739 (Pa. Super. Ct. 1944).

Despite their many governmental duties, Beaver County

Commissioners employ only one secretary apiece. Because

of the manifold demands placed on County Commissioner

Bea Schulte, her secretary, Dolores Armour, performed

many tasks requiring confidentiality and high levels of

responsibility. With significant political and administrative

duties, Armour functioned as more than a clerical

secretary. Armour was an integral component of the

commissioner's office, helping Schulte to serve her

constituents effectively.

In Elrod v. Burns, the Supreme Court held a political

employee who "acts as an advisor or formulates plans for

the implementation of broad goals" may be dismissed

because of her political beliefs without violating the First

Amendment. 427 U.S. 347, 368 (1976) (Brennan, J.,

plurality opinion). The Court also noted that "[n]o clear line

can be drawn between policymaking and nonpolicymaking

_________________________________________________________________

1. This is true in counties of the Third to Eighth Classes, comprising

sixty-two of Pennsylvania's sixty-seven counties. Philadelphia is

Pennsylvania's only First Class county, with more than 1,500,000

inhabitants (1,585,577 in the last census). Allegheny is a Second Class

county, with a population between 800,000 and 1,500,000 inhabitants

(1,336,449). There are three Second Class A counties, with populations

ranging from 500,000 to 800,000 inhabitants: Montgomery (678,111),

Delaware (547,651), and Bucks (541,174). Beaver is a Fourth Class

county, with a population between 150,000 and 225,000 inhabitants

(186,093). In counties from the Third to Eighth Classes, excepting home-

rule counties, the executive and legislative officers are the county

commissioners.

28

positions" and that "[t]he nature of the[employee's]

responsibilities is critical." Id. at 367. Four years later, in

Branti v. Finkel, the Supreme Court stated the ultimate

"question is whether the hiring authority can demonstrate

that party affiliation is an appropriate requirement for the

performance of the public office involved," taking into

account the "vital interest in maintaining governmental

effectiveness and efficiency." 445 U.S. 507, 517-18 (1980).

Recent cases have clarified how courts should determine

whether the dismissal of political-patronage employees, like

Dolores Armour, pass constitutional muster. This

"functional analysis" may turn, for example, on whether a

difference in political affiliation between employer and

employee will be "highly likely to cause an official to be

ineffective in carrying out" the official's duties. Ness v.

Marshall, 660 F.2d 517, 521 (3d Cir. 1981) (finding city

solicitors' party affiliations relevant to the performance of

their responsibilities). If so, the employee's dismissal does

not violate the First Amendment.2 Of course, as the District

Court here observed, "the constitutional limitations on

political patronage extend to intraparty political disputes as

well as interparty political disputes." Opinion at 3 (citing

Robertson v. Fiore, 62 F.3d 596, 601-02 (3d Cir. 1995)).

As the majority acknowledges, "access to confidential

information may support a political-affiliation job

requirement even in the absence of a decision-making

function." Supra at 25 (citing Zold v. Township of Mantua,

935 F.2d 633, 638-39 (3d Cir. 1991)). Given the sensitive

correspondence, resolutions, telephone messages, and

partisan material arriving in the commissioner's office each

day, Commissioner Schulte needed a loyal lieutenant. If

Armour's political loyalties diverged from her employer's, it

would appear that she should not be constitutionally

protected against dismissal from her confidential post.

_________________________________________________________________

2. See, e.g., Boyle v. County of Allegheny Pa., 139 F.3d 386, 396 (3d Cir.

1998); Wetzel v. Tucker, 139 F.3d 380, 384 (3d Cir. 1998); Waskovich v.

Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993). A similar test was employed

by the Court of Appeals for the Sixth Circuit in a case the majority cites

for support of a "categorical rule," Faughender v. City of North Olmstead,

927 F.2d 909, 914 (6th Cir. 1991). Faughender was also an appeal from

summary judgment.

29

The majority properly refuses to "overrel[y]" on Armour's

access to confidential information. But the testimony

unmistakably demonstrated more than Armour's access to

confidential information. It also proved that Armour

performed administrative and political tasks requiring

discretion and judgment. Armour served as Schulte's

private secretary and administrative assistant from January

1996 through February 1999. During that period, she

attended meetings of the Aliquippa Family Preservation

Network on Schulte's behalf, sometimes voting her proxy.

Whenever possible, Armour answered constituents'

requests herself. Armour also attended political functions

and fundraisers with Schulte, testifying these events were

designed "to get [Schulte's] name out." Furthermore,

Armour acted as the liaison between Schulte and

department heads. Admitting that her duties required

political acumen, Armour testified "[t]he high level of

confidentiality and responsibility reaches far beyond the

desk, often into our personal lives." Armour also conceded

that political affiliation was an appropriate requirement for

her position and that she would never have been hired had

she not actively supported Schulte's 1996 successful

campaign for office.3 As the District Court noted:

Each time [Armour] responded to a concern of a

constituent, she was representing Schulte in a political

nature. It is likely that Democratic constituents who

seek redress from their Democratic commissioner, or

simply express concerns of a political nature, expect

that the commissioner's secretary shares their political

ideology. In other words, Democratic constituents

should find comfort in expressing their concerns to the

commissioner's secretary, whom the voters felt would

express or relay the issues accurately and

compassionately to the commissioner.

_________________________________________________________________

3. Armour became involved in Schulte's campaign for county

commissioner when Schulte's husband, a Pennsylvania district justice,

asked Armour to assist his wife. Armour testified she did "[w]hatever was

asked" in the campaign, including attending organizational meetings and

functions, driving Schulte to the polling places, and posting Schulte's

signs throughout the county. After Schulte's election, the commissioner-

elect asked Armour to serve as her secretary, which Armour immediately

accepted. Armour began working the day Schulte took her oath of office.

30

Opinion at 11-12.

In addition to this evidence, the District Court considered

testimony from others regarding the role of commissioners'

secretaries. Beaver County Commissioner Dan Donatella

declared his secretary "operates as his eyes and ears, both

politically and otherwise." Jo Johnson, secretary to Beaver

County Commissioner Nancy Loxley, testified her position

required political loyalty because Loxley discussed in

confidence political as well as party issues. Both Johnson

and Joan Clarke, secretary to Commissioner Donatella,

described their jobs as "political." Clarke testified that she

represented Commissioner Donatella "when I am anywhere

politically."

In light of their duties, the Beaver County

Commissioners' secretaries functioned as political and

governmental assistants. Cf. Branti, 445 U.S. at 517. Other

Courts of Appeals have repeatedly concluded policymakers'

assistants' jobs are not protected by the First Amendment.4

The District Court correctly reached the same result in this

case.

Armour's duties were constitutionally indistinguishable

from those of a mayor's secretary. As the Court of Appeals

for the Sixth Circuit held, "Viewed in its functional aspect,

a mayor's secretary is clearly the type of position that

involves access to confidential and political material, and

political loyalty . . . is an essential attribute of the job."

Faughender, 927 F.2d at 914. It is difficult to imagine that

the Mayor of Philadelphia or Pittsburgh, or the President of

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4. E.g., Baker v. Hadley, 167 F.3d 1014, 1019 (6th Cir. 1999) (upholding

dismissal of employees in county auditor's office where the auditor

intended the positions to be "confidential, policymaking jobs for which

political affiliation was an appropriate requirement"); Soderstrum v. Town

of Grand Isle, 925 F.2d 135, 140-41 (5th Cir. 1991) (finding a police

chief's secretary was a "confidential employee," based in part on a

"realistic understanding of the confidential relationship between

secretaries and their bosses"); Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.

1988) (noting political affiliation is "an appropriate requirement when

there is a rational connection between shared ideology and job

performance"); Santiago-Correa v. Hernandez-Colon, 835 F.2d 395, 397

(1st Cir. 1987) (observing political officials may fire "'confidential'

employees, like personal secretaries" because of"political affiliation").

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their City Councils, would be unable to employ a secretary

who was not politically loyal.5 County commissioners in

Fourth Class counties, representing the executive and

legislative branches of government, must have at least as

much right as mayors to employ secretaries who further the

commissioners' political and governmental agendas.

Nevertheless, the majority finds summary judgment

inappropriate because of conflicting evidence whether a

commissioner's secretary is "clerical" in nature. Supra at

25. As we noted in Zold, "When the issue on appeal turns

on a constitutional fact . . . appellate courts have the

obligation to give such facts special scrutiny. . . . An

appellate court in such instances may draw its own

inference from facts in the record." 935 F.2d at 636. I see

no outstanding issues that require factual resolution. That

the District Court must apply a functional, case-specific

test does not render summary judgment inapplicable. We

have previously declared summary judgment appropriate in

political-dismissal cases, depending, of course, on the facts.

Boyle, 139 F.3d at 397; Ness, 660 F.2d at 522. This is such

a case.

Applying the same test as the District Court, I find no

"genuine issue of material fact," FED . R. CIV. P. 56(c), after

affording the non-moving party all "reasonable inferences,"

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,

150 (2000). Nor do I find "reasonable" an inference that

Armour's duties were primarily clerical. An officeholder's

"clerical" employees do not vote her proxies, resolve

constituents' requests, or have access to the office's most

sensitive and confidential political and governmental

information, as did Armour. The District Court held,"In

essence, plaintiff was a conduit between the Democratic

constituents and Commissioner Schulte, their elected

representative." Opinion at 12.

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5. As noted in Faughender, "A mayor's secretary must undertake those

functions in relation to the flow of information, whether by writing,

speech, or personal visit, to and from the mayor's office, that the mayor

wants the secretary to perform. A particular secretary's duties may be

circumscribed, but the function of the office is constant." 927 F.2d at

913-14.

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6. I would also affirm the District Court's alternative holding -- that

Armour did not demonstrate her support of Joseph Askar for a local

judgeship was a "substantial or motivating factor" in her termination.

Opinion at 12-14. The evidence demonstrated Schulte only questioned

Armour once about her involvement with Askar, and Armour denied any

"direct" involvement with Askar's campaign. With no other evidentiary

support, Armour did not meet her burden of proving that her political

affiliations led to her dismissal.

The majority frames the issue as whether summary

judgment was appropriate, given Armour was a

"nonpolicymaking, secretary-clerk serving in roughly equal

parts an elective county executive (County Commissioner)

and a non-elective county administrator (Chief Clerk)."

Supra at 19. I do not read the court's opinion as an attempt

to segregate Armour's duties between the "political" and the

"nonpolitical." Of course, were that the standard, "political"

employees in state or municipal government would be

virtually nonexistent. Necessity demands the staffs of

elected officials perform several tasks -- governmental,

political, administrative, and clerical. Clerical duties, even if

they are "roughly equal" to more specialized obligations, do

not render those employees "nonpolitical."

The District Court found that an "absence of political

cohesion" between Armour and Schulte would potentially

damage the commissioner's work, rendering Armour an

employee subject to dismissal on political grounds. Opinion

at 12, quoted supra at 14-16. Having reviewed the record,

I would agree.6

Because I would affirm the judgment of the District

Court, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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