*

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

Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0392P (6th Cir.)

File Name: 03a0392p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ANNA LEA JUSTICE,

Plaintiff-Appellant,

v.

PIKE COUNTY BOARD OF

EDUCATION and FRANK

WELCH,

Defendants-Appellees.

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No. 01-6156

Appeal from the United States District Court

for the Eastern District of Kentucky at Pikeville.

No. 99-00399—Joseph M. Hood, District Judge.

Argued: March 25, 2003

Decided and Filed: November 4, 2003 

Before: BOGGS, Chief Circuit Judge; SILER, Circuit

Judge; and STEEH, District Judge.*

2 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

_________________

COUNSEL

ARGUED: Jeremiah A. Collins, BREDHOFF & KAISER,

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

CHENOWETH LAW OFFICE, Frankfort, Kentucky, for

Appellees. ON BRIEF: Jeremiah A. Collins, BREDHOFF

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

Chenoweth, John C. Fogle III, CHENOWETH LAW

OFFICE, Frankfort, Kentucky, for Appellee.

_________________

OPINION

_________________

BOGGS, Chief Circuit Judge. Plaintiff Anna Lea Justice

appeals the district court’s grant of summary judgment to

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

and its superintendent, Frank Welch, in her free speech and

disability discrimination action. Justice, a certified teacher,

worked as Grants Department Director for the Board. When

Welch became the new superintendent, after a campaign in

which Justice supported his opponents, he abolished the

grants department and reassigned Justice to the classroom.

Rather than comply, Justice sought and received a pension

based on her physical inability to perform some classroom

duties. The district court rejected Justice’s claim that she had

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.
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

3

I

Justice was a certified teacher in the Pike County school

system under the Kentucky Teacher’s Tenure Act, Ky. Rev.

Stat. § 161.720-161.841. She worked as a teacher from 1981

through 1989 and held various administrative positions from

1989 through 1995. In November 1995, the Board, at the

initiative of the then-school superintendent, Reo Johns,

created a grants department and appointed Justice its director.

Her job description, largely drafted by Justice herself, was as

follows:

JOB GOAL:

The Grants Department Director is responsible for seeing

that the goals and objectives of the Grants Department

are achieved.

DESCRIPTION OF DUTIES:

1. Write Grant Proposals: Spearhead the research,

planning, and proposal writing for submission of

proposals to federal, state, and foundation funding

sources.

2. Program Monitoring and Evaluation: Monitor and

evaluate funded programs according to guidelines as set

forth in the proposal and evaluate program strengths and

weaknesses.

3. Establish and Monitor School-Based Grant Teams:

Select, train and work with teachers at each school who

are part of the Pike County grant team.

4. Spearhead Proposal Development: Work with

committees in various disciplines to develop goals,

objectives, and budgets.

5. Conduct Needs Assessments: Plan for and conduct

needs assessments to determine needs for program

development.

6. Locate funding sources for the district: Research

funding sources for specific needs.

7. Provide Technical Assistance: Provide technical

assistance on an as needed basis to school staff and

4 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

provide grant writing workshops for teachers and

administrative staff.

8. Professional Development: Attend grant writing

workshops and conferences in a variety of disciplines so

as to be abreast of the latest trends in education.

As grants director, she reported directly to the superintendent

and in turn supervised two clerical workers.

In 1997, Johns came under public scrutiny after local

newspapers published articles alleging that he had closed

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

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

Youth Academy. Justice served as a director of the Kentucky

Youth Academy and, at public meetings of the Board, she

repeatedly defended Johns and the Academy. Nevertheless,

in May 1998, Johns resigned as superintendent and Brenda

Gooslin was appointed interim superintendent. After Johns’s

resignation, Justice published an article in the local paper

further defending and praising him.

In August 1998, supporters of defendant Welch defeated

Gooslin’s supporters in school board elections and the Board

appointed Welch as the new superintendent. In April 1999,

Welch, claiming that the grants department was not an

efficient use of resources, prevailed upon the Board to abolish

it and return its functions to other administrators. Welch

notified Justice that, starting in the 1999-2000 school year,

she would be assigned back to classroom teaching duty. As

classroom teacher, Justice would have continued to draw the

same per diem salary. But because as a classroom teacher she

was only expected to work 185 days a year, compared to the

240 days a year as a grants director, this would have involved

a significant reduction in annual salary.

Justice had become significantly disabled since she last

held a classroom teaching position. On November 11, 1995,

about the same time she was promoted to grants director, she
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

5

suffered a serious car accident, resulting in multiple fractures,

contusions, and whiplash. These injuries and the subsequent

post-traumatic arthritis made it difficult for her to stand or

walk for extended periods of time, climb stairs, or run. These

disabilities did not substantially interfere with her work as a

grants director, most of which was sedentary. According to

Justice’s medical experts, these disabilities would have made

it very difficult for her to function as an effective classroom

teacher, a position requiring frequent standing and walking.

Justice also suffers from chronic depression and had been

taking medication for this condition since 1985. Justice

claims that her mental problems were triggered by a

confrontation with a student and that they render her unable

to handle classroom stress.

Justice complained about the reassignment to Welch,

alleging that it constituted punishment for her political

association with and support for Johns. She also claimed that

she was unable to perform the duties of a classroom teacher

because of her disabilities and that she had to be assigned to

a non-classroom position. When Welch was unmoved by

these complaints, Justice accepted the classroom assignment

under protest and immediately applied for disability

retirement under the Kentucky Teacher’s Retirement System.

To succeed in such an application, the claimant must

demonstrate that she is unable to perform the essential

functions of her job. On August 1, 1999, prior to her

scheduled start of work as classroom teacher, Justice was

granted disability retirement.

On October 29, 1999, Justice filed a complaint against the

Board and Welch in the United States District Court for the

Eastern District of Kentucky. In it she alleged that the

defendants had deprived her of her First and Fourteenth

Amendment rights to freedoms of expression, speech, and

association, in violation of 42 U.S.C. § 1983, denied her a

position in order to punish her for her political affiliation, in

violation of Ky. Rev. Stat. § 161.164(4), and discriminated

6 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

against her on the basis of her disabilities, in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12112, and the Rehabilitation Act, 29 U.S.C. § 794. She

also alleged parallel state constitutional claims, under Ky.

Const. §§ 1 and 2, and state anti-discrimination claims. On

these grounds, she asked for compensatory and punitive

damages, injunctive relief, and attorney’s fees. On

August 17, 2001, the district court granted the defendants’

motion for summary judgment. The district court concluded

that the position of Grant Development Director was one for

which consideration of political affiliation or support was

appropriate, thus defeating Justice’s federal constitutional

claims, and that Justice, by applying for disability retirement,

had conceded that she was not a qualified individual within

the scope of the ADA and the Rehabilitation Act, thus

defeating her disability discrimination claims. Having

disposed of all of Justice’s federal claims, the district court

declined to exercise supplemental jurisdiction over her state

law claims. The district court also did not rule on the

defendants’ proffered Eleventh Amendment and qualified

immunity defenses. Before the court now is Justice’s timely

appeal of the district court’s grant of summary judgment on

the federal questions.

During the pendency of this appeal, we heard and decided

two factually and legally closely-related cases. In Hager v.

Pike County Board of Education, 286 F.3d 366 (6th Cir.

2002), we decided a case mirroring Justice’s constitutional

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

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

supported Johns’s appointment as superintendent and Johns

had appointed Hager to the position of Gifted and Talented

Teacher/Coordinator. Ibid. After Johns retired and Welch

became superintended, he “decided to eliminate [Hager’s]

position and reassign the duties to another central office

employee in an unpaid capacity.” Id. at 369. “He believed

this arrangement was a more economic and efficient use of

district resources.” Ibid. Hager was “reassigned to classroom
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

7

teaching at the elementary school level, with a salary

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

and Talented Program. Ibid. Two months before Justice filed

her complaint, Hager filed a complaint against the same

defendants, raising the same constitutional claims, in the same

court, presided over by the same judge. The district court, as

here, found that Hager’s position was of a type that allowed

her to be dismissed on the basis of political affiliation or

support, and granted summary judgment to defendants. Id. at

368. We held that Hager’s position was not of this type and

therefore reversed and remanded for a finding as to whether

Hager’s political affiliation or support had been the cause in

fact of her dismissal. Ibid.

In Dotson v. Pike County Board of Education, 2001 WL

1216998 (6th Cir. 2001) (per curiam) (table), we decided a

case mirroring Justice’s disability discrimination claims.

Fannie Louise Dotson, too, had been a teacher in the Pike

County school system. Id. at *1. In 1997, Dotson retired on

income from the Board’s early retirement plan. Ibid. She

also drew disability benefits from the Kentucky Teacher’s

Retirement System based on knee and back injuries, until she

was informed that teachers drawing disability benefits from

that system where ineligible for the Board’s early retirement

plan. Ibid. In response, Dotson filed a complaint alleging

disability discrimination, in violation of the ADA and the

Rehabilitation Act, against the same defendants, in the same

court, presided over by the same judge. Ibid. “The district

court held that Dotson’s receipt of disability benefits

prevented her from claiming that she is a ‘qualified individual

with a disability’ who could perform the essential functions

of her job, as required by the ADA.” Ibid. Because the

standards for disability under the ADA and the retirement

plan differ, we reversed. Id. at *2.

8 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

II

We recently summarized the state of the law of politically

motivated firings:

[The plaintiff] argues that her demotion and

reassignment were in retaliation for the exercise of her

constitutional rights to political expression and

association. These rights are well-established under the

Constitution. See, e.g., Rutan v. Republican Party, 497

U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S.

347, 356 (plurality opinion)) (“Political belief and

association constitute the core of those activities

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

practices that only potentially threaten political

association are highly suspect.” McCloud v. Testa, 97

F.3d 1536, 1552 (6th Cir. 1996) (“McCloud I”).

The defendants argue that [the plaintiff] was in a

position that allowed the defendants to consider political

affiliation in their personnel decisions under the

Elrod/Branti exceptions to the general prohibition

against government employment decisions based on

political activities. The district court agreed and found

no violation of a constitutional right. “Whether political

affiliation is an appropriate consideration for a

government position is a question of law.” Sowards v.

Loudon County, 203 F.3d 426, 435 (6th Cir. 2000).

Therefore, to obtain summary judgment,defendants must

establish that no genuine issues of material fact exist as

to “‘whether political affiliation may appropriately be

considered with respect to the position in question.’” Id.

(quoting Feeney v. Shipley, 164 F.3d 311, 314 (6th Cir.

1999)).

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

Bd. of Educ., et al.

9

effectiveness and efficiency. Elrod, 427 U.S. at 366.

“Limiting patronage dismissals to policymaking

positions is sufficient to achieve the valid governmental

objective of preventing holdover employees from

undermining the ability of a new administration to

implement its policies.” Id. In contrast,

“‘[n]onpolicymaking individuals usually have only

limited responsibilities and are therefore not in a position

to thwart the goals of the in-party.’” Hall v. Tollett, 128

F.3d 418, 422 (6th Cir. 1997) (quoting Elrod, 427 U.S.

at 367). Therefore, “the single substantive question . . .

is whether a nonpolicymaking, nonconfidential

government employee can be discharged or threatened

with discharge from a job that [she] is satisfactorily

performing upon the sole ground of [her] political

beliefs.” Elrod, 427 U.S. at 375 (Stewart, J., concurring).

This question extends beyond the context of firings, to

include areas such as transfers, promotions, and recalls

from layoffs. Rutan, 497 U.S. at 64. Abolition of

positions, reassignments, and/or demotions are also

included. See id.; Thaddeus-X v. Blatter, 175 F.3d 378,

396 (6th Cir. 1999) (en banc). Thus, to avoid a

constitutional violation in instances of patronage, the

hiring authority must “demonstrate that party affiliation

is an appropriate requirement for the effective

performance of the public office involved.” Branti v.

Finkel, 445 U.S. 507, 518 (1980) (emphasis added).

Hager, 286 F.3d at 371-72 (citations regularized).

To add concreteness to this exception to the First

Amendment protection of public employees, we have

established four broad categories of positions that fall within

the Elrod/Branti exception. McCloud I, 97 F.3d at 1557.

These categories are: (1) positions explicitly empowered by

law to exercise political discretion; (2) positions not explicitly

so empowered, but exercising political discretion by a

jurisdiction’s pattern or practice; (3) confidential advisors;

10 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

1

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

whether political affiliation is an appropriate requirement, a reviewing

court ‘must look beyond the mere job title and examine the actual duties

of the specific position.’” Hager, 286 F.3d at 372 (quoting Hall, 128 F.3d

at 423, emphasis in Hager). In the present case, the court below looked

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

duties, according to her own testimony, match her job description well,

this was at worst harmless error.

and (4) positions filled by balancing of affiliations. Ibid.

While a government position “need not fall neatly within one

of the categories” to fit into the exception, any position that

falls into these categories “withreasonable certainty” removes

its holder from the constitutional protection against political

dismissal enjoyed by other employees. Sowards, 203 F.3d at

435-36. The court below held that Justice’s position fell

within category two and here the Board argues that Justice’s

position falls within categories one, two, and three. That her

position is not within category four is undisputed. We

consider the applicability of the first three categories seriatim

and conclude that Justice’s position of Grants Development

Director does not fit within any of them.1

In McCloud I, we defined category one as “positions

specifically named in relevant federal, state, county or

municipal law to which discretionary authority with respect

to the enforcement of that law or the carrying out of some

other policy of political concern is granted.” 97 F.3d at 1557.

This category “captures the intuition gained from reading

Elrod, Branti, and Rutan that a chief executive’s cabinet

secretaries and similar employees fall into the Branti

exception. The proviso that the policymaking authority

possessed by a category one position-holder must be held in

relation to a matter of political concern stems from the

discussion in Branti that a football coach is a policymaker,

but not the sort of policymaker for whom political affiliation

is an appropriate requirement under the First Amendment.”

Id. at 1557 n.30. As an illustrative examples of a position
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

11

within this category we listed “a secretary of state given

statutory authority over various state corporation law

policies.” Id. at 1557.

The Board argues that because it is authorized by law to

establish written job descriptions, and Justice had such a

description, her position falls within category one. This

scarcely needs refuting. A written job description is not

“federal, state, county or municipal law.” Nothing in our

precedents suggests it is and the Board cites no support for

this proposition. Our category one case law focuses on

whether positions established in law are political in nature.

See, e.g., Hoard v. Sizemore, 198 F.3d 205, 214 (6th Cir.

1999) (county road supervisor within category one because

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

the general charge of all county roads and bridges within his

county’ and must see that ‘county roads and bridges are

improved and maintained as provided by law’ and ‘[r]oad

maintenance is a policy of political concern’” and the road

foreman “has some discretionary authority with respect to

carrying out this policy.”); Collins v. Voinovich, 150 F.3d

575, 578 (6th Cir. 1998) (executive director of Ohio Lottery

Commission within category one because it is a cabinet-level

position “charged with administering the [lottery] in

accordance with the governor’s mandate” and named in state

law). However, we have never held that the requirement that

a position be established in law could be fulfilled by a mere

job description. Instead, we have created category two to

cover positions similar to category one positions but not

created by law.

In McCloud I, we defined category two as “positions to

which a significant portion of the total discretionary authority

available to category one position-holders has been delegated;

or positions not named in law, possessing by virtue of the

jurisdiction’s pattern or practice the same quantum or type of

discretionary authority commonly held by category one

positions in other jurisdictions.” 97 F.3d at 1557. This

12 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

category “is constructed to recognize that it may be necessary

to deny First Amendment protection not just to positions at

the very top of any state administrative hierarchy, but in some

cases to those occupying levels a bit farther down the

hierarchy. Category two also exists to capture those who

would otherwise be category one policymakers, except that

the federal government, state, county, or municipality has

chosen for whatever reason not to set out the responsibilities

of such a position in a statute, ordinance, or regulation.” Id.

at 1557 n.31. As an illustrative example of a position within

this category we gave “a deputy secretary of labor in a state,

to whom the secretary of labor has delegated the

responsibility for crafting the department’s annual proposed

legislative agenda.” Id. at 1557.

While the language in McCloud I suggests that category

two could be limited to relatively high-level executive

positions, our case law has made clear that the hallmark of a

case two position is not high rank, but political discretion,

even if exercised at a fairly low level. Compare Hall, 128

F.3d at 426 & n.4, 429 & n.6 (chief deputy sheriff, but not

other deputy sheriff, within category two because sheriff had

“delegated a significant portion of his or her discretionary

responsibility” to chief deputy), with Hager, 286 F.3d at 377

(school’s gifted and talented coordinator not within category

two because she had no budgetary discretion), Heggen v. Lee,

284 F.3d 675, 684 (6th Cir. 2002) (deputy sheriff whose

duties “comprised road patrol, serving arrest warrants and

civil papers, taking complaints, ‘working’ auto accidents, and

transporting prisoners” not within category two), and

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

because she did “not participate in any type of

policymaking”). At the same time, we have held that a

defendant who dismisses on the basis of political affiliation

“a governmental employee [who] may be nothing more than

a supervisor with a glorified title who is simply performing

functions over which he or she has no discretion, or no

discretion of political significance,” will not even meet the
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

13

2

This is not to say that there will never be a political aspect to the

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

conditions which are politically highly sensitive; one need only think of

a grant exclusively for the teaching of sex education or creationism. To

decide to accept or reject such a grant is clearly a political question.

However, nothing in the record suggests that any such politically sensitive

grant came up during Justice’s tenure or that it would have been within

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

contrary, Justice testified that she would ask the superintendent’s express

permission before applying for any grant.

highly deferential standard of the qualified immunity defense.

McCloud I, 97 F.3d at 1559.

The Board argues that Justice falls within this category

because she exercised some discretion about how to seek

grants. Also the Board points out that Justice, even though

she only had two subordinates herself, reported directly to the

superintendent, a category one position, a factor that we had

given some weight in Hall. It is true that Justice’s relatively

low-level position does not automatically exclude her from

this category. It is also correct that Justice exercised some

discretion in her position. However, every position but the

most menial involves the exercise of a degree of discretion.

What distinguishes category two positions from others is the

exercise of discretion of political significance. Such

discretion Justice did not have. The core of her duties as

grants director was to raise as much money as possible and to

ensure that the conditions attached to the money were

complied with. The former is a goal that a superintendent of

practically any political persuasion would seek to pursue and

the latter a legal obligation that any superintendent would be

bound to observe.2 Therefore Justice, lacking political

discretion, was not within category two.

In McCloud I, we defined category three as “confidential

advisors who spend a significant portion of their time on the

job advising category one or category two position-holders on

14 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

how to exercise their statutory or delegated policymaking

authority, or other confidential employees who control the

lines of communication to category one positions, category

two positions or confidential advisors.” 97 F.3d at 1557.

This category “is formulated to comport with the discussion

in Branti indicating that a state governor may ‘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. at 1557 n.32 (citing Branti, 445 U.S. at 518). As an

illustrative example of a position within this category we gave

“a judge’s law clerk or secretary.” McCloud I, 97 F.3d at

1557.

The contours of category three have been further clarified

in our case law. Compare Hoard, 198 F.3d at 213-14, 215

(county road supervisor within category three because he

“serve[d] as the judge’s ‘alter-ego’ in the community with

respect to road conditions”), id. at 215-16 (assistant road

foreman, garage supervisor, and senior citizens director

within category three for similar reasons), Collins, 150 F.3d

at 578 (executive director of Ohio Lottery Commission within

category three because that office is charged with

“communicat[ing] departmental views to the press or the

legislature”), Hall, 128 F.3d at 426 & n.4, 429 & n.6 (chief

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,

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

engineer within category three because she was a

“confidential employee[ ] who control[led] the lines of

communications to [a] category one position”), with Hager,

286 F.3d at 374-76 (school’s gifted and talented coordinator

not within category three because she did not deal with

political issues, advise the superintendent on confidential

information, or control the lines of communication to the

superintendent), Sowards, 203 F.3d at 437 (chief jailer not
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

15

within category three because she did not “not have any

access to any confidential or political information”), and

Bauer v. Montgomery, 215 F.3d 656, 660-61 (6th Cir. 2000)

(field investigator in attorney general’s office not within

category three where there was no evidence that plaintiff

provided confidential advice or controlled the lines of

communication to anyone).

Justice did not spend a considerable portion of her time

rendering confidential advice to the superintendent. The

eight-point job description on which the Board and court

below rely so heavily does not even mention the rendering of

advice to the superintendent. While Justice did report to the

superintendent, and every subordinate will at times

communicate with a superior in a manner that can fairly be

described as giving advice, nothing in the record indicates

that Justice would spend more of her time giving advice than

any other subordinate in a hierarchical organization.

Moreover, while presumably some of the communications

between Justice and the superintendent were not meant for

public consumption, there is nothing in Justice’s duties that

renders her advice particularly sensitive or confidential.

Nor did Justice control the lines of communication between

the superintendent and the general public. While

communications between the superintendent and Justice’s two

staff persons or grantors would usually have passed through

Justice, not everyone who sometimes passes messages from

political appointees is therefore in control of the lines of

communication. To hold otherwise would put every public

employee working under a political appointee in category

three. Rather, the lines-of-communication subset of category

three focuses on those who control the lines of

communication with the general public and its

representatives. See McCloud I, 97 F.3d at 1557 n.32

(referring to those who “write speeches, explain . . . views to

the press, or communicate with the legislature” on behalf of

a political superior). Control over such lines of

16 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

communication, even at a fairly low and non-policy making

level, will suffice to remove a position from the protection

against political dismissals. See Faughender v. City of North

Olmsted, 927 F.2d 909, 911, 913-14 (6th Cir. 1991) (allowing

political refusal to rehire mayor’s secretary who answered the

phone used by the members of the public wishing to contact

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

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

Justice’s position does not fall within category three.

In Hager, we also found Kentucky state law probative of

the question whether Hager’s position was protected from

dismissal on the basis of her political affiliation or support:

In addition to the Elrod/Branti exceptions, there is an

additional factor that the district court did not adequately

consider in its determination that politics was an

appropriate requirement for the [Gifted and Talented

Program Coordinator] position. Kentucky statutory law

clearly establishes that a teacher or employee of a school

district has the right to be free from demotion or

discrimination based on political affiliation. KRS

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

board of education shall be . . . demoted or dismissed

from, any position or in any way . . . discriminated

against with respect to employment because of [her]

political . . . affiliations.”); see also Sowards, 203 F.3d at

439 n.4 (“it is important to examine the applicable state

and local law when deciding whether political

considerations may be used in employment decisions

. . . .”). The existence of the Kentucky statute as

protection against political reprisal such as occurred in

this case has been clearly established by the Kentucky

courts for many years. See Calhoun v. Cassady, 534

S.W.2d 806, 808 (Ky. 1976) (statute enacted to prevent

Superintendent andBoard fromperpetrating transfers and

demotions as political “vendettas” for supporting

candidates opposed to Superintendent in race for office);
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

17

see also Harlan County Bd. of Educ. v. Stagnolia, 555

S.W.2d 828, 830 (Ky. Ct. App. 1977) (“Political reprisals

by superintendents and a majority of board members

brought about the enactment of KRS 161.162 which

prohibits such action.”). The existence of this

long-standing prohibition raises significant question as to

the legitimacy of the defendants’s actions in this matter.

Hager, 286 F.3d at 377. As the relevant Kentucky state law

does not distinguish between the positions of Gifted and

Talented Program Coordinator and Grants Department

Director, identical considerations apply here.

III

In Dotson, we answered in the negative the question of

whether receipt of a Kentucky Teacher’s Retirement System

disability pension estops the recipient from arguing that she

was a “qualified individual with a disability.” While Dotson

was a non-precedential opinion, its reasoning, based on both

recent Supreme Court precedent and recent, binding precedent

of this court, is sound and applicable here:

The ADA prohibits discrimination against any

“qualified individual with a disability,” which is defined

as “an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such

individual holds or desires.” 42 U.S.C. §§ 12112(a),

12111(8). However, in order to qualify for disability

retirement, Dotson had to attest that she “suffer[s] from

a physical or mental condition presumed to be permanent

in duration and of a nature as to render the member

incapable of being gainfully employed . . .” Ky. Rev.

Stat. Ann. § 161.661(9) (1996). The district court held

that the conflict between Kentucky’s disability retirement

statute and the ADA necessarily prevented Dotson from

having standing under the ADA.

18 Justice v. Pike County

Bd. of Educ., et al.

No. 01-6156

In Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

805, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999), the

Court held that despite the conflict between the social

security program, which provides benefits to a person

with a disability that cannot perform his work, and the

ADA, which requires a person to be able to perform the

essential functions of his job, receipt of social security

benefits does not automatically estop a recipient from

pursuing an ADA claim. The Court concluded that the

two claims do not inherently conflict because the Social

Security Act does not account for the possibility of work

with “reasonable accommodation,” whereas the ADA

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

and the Kentucky statute appear to conflict, Dotson’s

qualification for disability retirement did not

automatically estop her from pursuing an ADA claim.

To survive summary judgment, Dotson must provide

an explanation sufficient to warrant a reasonable juror

finding that, despite her statement that she is unable to

work, that she could nonetheless perform the essential

functions of her job, with or without reasonable

accommodation. See Cleveland, 526 U.S. at 807; see

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

(6th Cir. 1998)].

Dotson provided evidence that she had been able to

teach effectivelythroughout the 1996-97 school year, and

although she submitted a request for accommodation to

which the school did not respond, she continued to work.

Thus, a genuine issue exists as to whether Dotson was a

“qualified individual with a disability” under the ADA.

In addition, the court never addressed directly the

question of whether Dotson was in fact disabled under

the ADA. It was error to grant summary judgment on the

ADA and Rehabilitation Act claims.

Dotson, at *1-2 (footnotes omitted). For this reason, Justice

too was not estopped from making her ADA claim by receipt

of her disability pension.
No. 01-6156 Justice v. Pike County

Bd. of Educ., et al.

19

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 nonprecedential, 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.