* The Honorab le George C. Steeh, United States Distri ct Judge for the

Eastern District

of Michigan, sit

ting by designat ion.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0392P (6th C ir.) File Name: 03a03 92p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

ANNA L EA J USTICE ,

Plaintiff- Appellant

,

v.

P IKE C OUNTY B OARD OF E DUCATI ON and F RANK W ELCH , Defenda nts-Appe llees. X - - - -

> , - - - - - N 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

Befor e: BOGG S, Chief Cir

cuit Judge ; SIL

ER, Circui

t Judge; and STEEH, District Judge. * 2 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

_________________ COUNSEL

ARGUED: Jeremiah A . Collin s, BREDHOFF & KAI SER, Washington, D.C., for Appellant. Robert L. Chenow eth, CHENOWETH LAW OFFI CE, F ran kfort, Kentucky , for Appellees. ON BRIE F: Jeremiah A . Collins, BREDHOFF & KAISER, Washington, D .C ., f or A ppe ll ant . R obe rt L. Chenoweth, John C. F ogl e II I, CHENOWETH L

AW OFFICE, Fr

ankfort, Kentucky , for Appellee.

_________________ OPINION

_________________ BOGGS, Chief Circ

uit Judge. Pl a intiff Anna Lea Justice appeals the distri c t court’s

grant o f summary

judgmen t to defenda nts, t he Pike County Board of Education (“Board”)

a nd its superintendent, Frank Welch, in her free spee chan d disability discrimination action. Justice, a cer t ified teacher, worked as Gran ts Department Director for the Board. When Welch became the ne w s uperinte ndent, af ter a ca mpaign i n whichJustice supported his opponents, he abolished the grants department and reassigned Jus tice to the classro om. Rather than comply, Justice s ought and received a pension based on her ph ysical

inability to perform some classroom duties. The districtcourt rejected Justice’s claim that she had been terminat ed from h er gra

nts depar tment posit

ion in retaliation

for her poli tical affil iation because her position was of a type allowing political discrimination. The district court rejected Justice’s d

isability discrimination cla

im becau se Justice, in seekin

g a stat e teacher’s disa

bility pen sion, had implicitly denied her status as a qualified individual under

the ADA. We r

everse on both issu

es.No. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 3

I

Justice was a certified teacher in the Pike County school
sys t em under the Kentucky Teacher’s Tenure Act, Ky . Rev. Stat. § 161.720-161.841. She worked as a teacher from

1981 throu gh 1989 and held

various administrative positions from 1989 t hrou gh 1995. In November 1995, the Board, at the initiative of th e t hen-school super intenden t, 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 D epartme

nt Director is res

ponsible f or se e ing that the go als andobjectives of the Grants Department are achieved. DESCRIP TION OF D UTIES: 1. Write Grant Prop osals: Spear head the research, plann ing, and proposal writing for submission of proposal s to federal, state, and foundation funding

sources

. 2. Program Monitoring and Evaluation : Monitor and evaluat e funded programs according to guidelines as set forth in the proposal and evaluate program streng ths and weakne sses. 3. Establish and Monitor School-Based Gr an t Teams: Select, train and

work with teachers at each school who
are par t of the Pik

e County grant t eam. 4. Sp earhead

Proposal D evelopm ent: Work with committees in variou s disciplines to deve lop goa ls, objectiv es, and b

udgets. 5. Conduc t

Needs Ass essments : Plan for and conduct needs assessme

nts to dete

rmin e nee ds for program development. 6. Locate fun ding sourc es for th e dis trict: Research funding sources for spec ific nee ds. 7. P rov ide Technical Assistance: Provide technical

a ssistance on an as needed b asis to sch ool sta ff an d 4 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

provide grant w riti ng wo rkshops for teachers and administrative staff. 8. Professio nal Deve lopment: Attend g rant writing workshops and

confer ences in a varie ty of discip lines so as to be abreast of the latest trends in education.

As grants director, she reported dire ctly to the superintendent and in tur n supervi sed two c lerical

worker s.

In1997, Johns came un d er public scrutiny a fter local
newspapers published articles alleging that he ha d closed downa public school in order to enhance the busines s of a competing private schoo l run b y 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 repeat edly defende d Johns and the Acade my

. Nevertheless, inMay 1998, John s resi gn e d as superintendent and Brenda Gooslin was appointed interim superintendent. After Johns’s resignation, Justice published an article in the local paper further defendi ng and praising

him.

InAugust 1 998, supporters of defenda nt We lch defeated Gooslin’s supporters in school board elections and the Board appointed Welch as the new sup erinten dent. In April 1999, Welch, claiming that the grants department was not a n efficient use of re sources , prevail ed upon th e Boar d to abolish it and return its functions to other admini str ators. Welch notified Justice tha

t, starti ng in the 1999-2000 school y ear, she would be ass ign e d back to classroom teaching duty . As classroom

teacher, Justice would have continued to draw the

same per diem salary. B ut because as a classroom teacher she was only expected

to work 185 days a y

ear, compared to the 240 days a y

ear as a grants director , this would have involved

a s ig ni fi ca nt re du ct io n i n a nn ua l s al ar y.

Justice had become sign ificantl y di sabled si

nce she l ast held a classroom

teaching position. On November 11, 1995, about the same time

she was promoted to

grants director, sheNo. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 5

suffered a serious c ar acc ident, re sulting in multiple f

ractur es, contusion s, and whipl ash. The se injuries and the subsequent post-tra umatic arthritis made it difficult for her to st and or walk for extended periods of time, c limb stairs , or run. T hese disabilities did notsubstantia lly interfe re with he

r work a s a grants director, most of w

hich was sedenta ry . Accor

ding to Justice’s medical e

xperts, the se disabilities would have made it very diffic

ult for her t o fu nction as an effective classroom teacher, a posi tion requi ring fr equen t stan ding an d walk ing. Justice also suff

ers f rom chronic depression and had been taking me dicat ion for this condition since 1985. Justice claim s th at he r m en ta l p ro bl em s w er e t ri gge re d b y a confrontation

with a student

and th at they

render her unab le to handle classro om stress.

Justice complained about t he reas si g nment to Welch, alleging that it con stituted pu

nis hment for her political associationwith and

support f or Johns. She also claimed that she was unable t o perfo rm 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 thesecomplaints, Justice accepted the classroom assignment under protest a

nd immedia

tely applied f

or disabi lity retirement

under the Kentucky

Teacher’s Retirement

Syst em. To su c ceed in s

uch an a

pplication, the cla

imant must demonst ratethat she is unable to perform the essential functions of he r job. On August 1, 1999, prior to her sched u led start of work as classroom teacher, Justice was grante d disabilit

y r etireme nt.

OnOctober

29, 1999, Justice filed a complaintagainst the Board and Welch

in th e Uni ted States District Court for the Eastern District o f Kentucky. In it she all eged that the defenda nts had deprived her of her First and Fo urteent h Amendment

rights to f reedoms of expression, speech, and association, i n violation of 42 U.S.C. § 1983, denied her a position in

order to punish he

r for he r politica l affilia tion, in violation of Ky. Rev. Stat. § 161.164 (4), a nd discriminated 6 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

agains ther on the basis of her disa bilities, in violation of the Americans with Disabilities Act (“ADA ”), 4 2 U.S.C. § 12112, an

d the Reha

bil itation A ct, 29 U.S.C. § 794. She also allege d parall el st at e c on st it ut io na l c la im s, un de r K y. Const. §§ 1 and 2, and state anti-discrimination claims. On thesegroun d s, she asked for compensatory and punitive damage s, injunctive relief, and attorney ’s fees. On August 17, 2001, t

he distric t court g ranted t he defe ndants’ motion for summary judg ment. The district court

concluded that the position of Grant Development Director was one for whichconsideration of political affiliat io n or support was appropriate, thus defe ating Justi ce’s fe deral c ons titutional claims, and that

Justice, by

apply ing for disability retirement, had conced ed that sh e was not

a qualif ied individ

u al within the scop e of the ADA and the Rehabilitation Act, thus defeating her disa

bility discrimination cla

ims . H aving disposed of all o f Justice’s federal claims, the district court declined to exercise supplemental jurisdiction over her state law claims. T he distric t court also did not rule on the defenda nts’ proffered

E leventh Amendment and qualified immunity defense s. Before the court now is Justic e’s timel

y appeal of the dis trict cou

rt’s gran t of summary judgme nt on the fede ral ques tions.

During the pendency

of this appeal, we heard and decided
two factua

lly and le gally c losely-relate d cases. In Hager v. Pike County Boa rd of E ducation , 286 F.3d 366 (6th Cir. 2002), we deci ded a ca se mir rorin g J ustic e’s constitutional claims. Carolyn Sue Hag er, t oo, was a teacher in the Pike County school system. Id. at 368. Hager had pu b licly supported Johns’s appo intment as superintendent and Johns had appointe d Hage

r to the po sition of G if

ted a nd Talented Teacher/Coordinator. Ibid. Afte r Johns retired and Welch became superinte

nded, he “decide d to elimina

te [Hage r’s] posi tion and reassign the duties to another centra l off ic e employee in an unp a id capacity.” Id. at 369. “He believed
t his arrangement was a more economic and efficient us e o f districtresources.” Ibid. Hager was “rea ssigned to classroomNo. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 7

teachingat the ele

mentary school le

vel, wit h a salary reduction of $28,000 an d no responsibilities in the” Gifted and Talented Program. Ibid. Two months before Justice filed her complain

t, Hage r filed a complain

t again st the same defenda nts, raising

the same constituti onal claims, in the same court, presided over by

the same judge. The district court, as here, found that Hager ’s posi tion was of a type tha t allowed her to be dismissed on the basis of political affiliation or support, and

granted summary judgme

nt to defendants. Id. at 368. We held that

Hager’s position was not of this ty pe and therefore reversed and remanded for a finding as to whether Hager’s political affiliationor suppor t had bee n the cau se in fact of her dismissal. Ibid.

In Dotson v. Pike Coun ty Board o f E ducation , 2001 WL 1216998 (6th Cir. 2001) (per curiam) (table), we de cided a

casemirroring Justice’s disability discr imi nation cl aims. Fannie Louise Dotson, too, had been a teacher in the Pike County school system. Id. at *1. In 1997, Dotson retired on inc ome from the Board’s early retirement plan. Ibid. Sh e also drew disability benef its from the Ke ntucky Teac her’s Retirement

System based on knee

and back injuries , untilshe

was inf o rmed that teachers drawing disability benefits from that system where ine ligible for the Board’s early

retirement plan. Ibid. In response, Do tson f iled a complaint alleging disability discriminat io n, in violation of the ADA and the Rehabilitation Act, ag ainst the s ame def endants, in the same court, preside d over by

th e s ame judge. Ibid. “The district
court held that Dotson’s rec eip t of disab ility benefit s prevented her from cla iming tha t she is a ‘qualified individual with a disability’ who could perf or m the essential functions of her job, as required by

the A DA.” Ibid. Because the standards for disability under the AD A and the retirement plan differ, we reversed. Id. at *2. 8 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

II

We recently summarized the state of the la

w of politi cally motivated firing s:
[The plain

tiff ] argue s that her demotion and reassignment

were in retaliation for the exerci se of her constitutional rights to political expression and association. These rights arewell-established under the Constitution. See, e.g.

, Rutan v. Republican Party , 497 U.S. 62, 69 (1990 ) (quo ting Elrod v. Burns , 427 U.S. 347, 356 (plurality opinion)) (“Political belief and

a s sociationconstitute the core of those activities protected by the

First Amendment.”). Moreover, “even practices that only

p otentially threaten political associa tio n 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 affiliationin their personnel decisions under the Elrod / Branti exception s t o t he general prohibition agains tgo v ernment employment dec isions based on political activities. Th e d istrict court agreed and found

no violation of a constitutional right. “Whether political affiliationis an approp ria te consideration for a government

position is a question of law.” Sowards v. Loudon County , 203 F.3d 426, 4 35 (6 th Cir. 2000). Therefore, to ob tain s ummar y judgm ent, defendant s must establish that no genuine issues of material fact exist as
to “‘whether political affiliation may appro pr iately be considered

with respect to the position in question.’” Id. (quoting Feeney v. Shipley , 16 4 F.3d 311, 314 (6th Cir. 1999)). It is well-settled that public employees e nj oy F irst Amendment

freedo ms of political belief and association, however, if the exercise of those rights interferes with the disch arge of public duties, then the rights may have to yie ld to the government’s interest in maintainingNo. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 9

effec tiveness

and effi cien cy. Elrod , 427 U.S. at 366. “Limiting patronage dismissals to policy making positions is suffic ient to achieve the valid governmental objective of preventing holdover empl oy ees from undermining the ability of a n e w administ ration to implement its policies.” Id. In c ontr ast
, “‘[n]onpolicymaking

ind i viduals us

ually have only limitedresponsibilities and are therefore not in a position
to thwart the goa ls of the in-party.’ ” Hall v. Toll ett , 128 F.3d 418, 422 (6th Cir. 1997) (quot ing Elrod , 427 U.S.
at 367). Therefore, “the single substantive question . . . is whether a nonp olicy making, nonconf

identia l government

employee c an be discharged or threa tened with dischar ge from a job tha

t [she] is sat isfactor

ily performing

upon the sole ground of [her] p olitical beliefs.” Elrod

, 427 U.S. a t 375 (Stewart, J., concurring). This ques tion ext end s bey ond the context of fir

ings, to include areas s

uch as tr ansfer s, promotions, and re calls fromlayoffs. Rutan , 497 U.S. a t 64. Abolition of positions, reassignments, and/ or d emotions a re also included. See id. ; Thaddeus-X v. Blatter , 175 F.3d 378, 396 (6th Cir. 1999) (en banc). Thus, to av o id a constitutional vio l ation in instances of patronage, the hiring a uthority must “demonstrate t

hat part y affiliation is an appropriat

e require

ment for the effec tiv e performan ce 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 ad d concr eteness

to this exce

ption to the

First Amendment

protection of public employe es, we h a ve established

four bro ad cate gories

of position s that fal l within the Elrod / Bra nti exception. McCloud I

, 97 F.3d at 1557. Thesecate gor

ies a re: ( 1) po sitio ns exp licit ly empowere d by law to exercise political discretion; (2) p ositions no t explicitly

so em po we re d, bu t e xe rc is in g p ol it ic al di sc re ti on by a jurisdiction’s pattern or practice; (3) confi dential a dvisors; 10 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

1 In so doing we look at Justice’ s actua l duti es. “To determine whether politica l affiliation is an a ppr opr iate req uirem ent, a reviewing

court ‘must

look beyond t

he mere job t itl e and examine the actual duti es of the s pecifi c posit ion.’ ” Hager , 286 F.3d at 372 (q uoting Ha ll , 128 F. 3d at 423, emphasis in Hager ). I n the pre sent c ase, t he court below looked mainly at Justice’s formal job d esc rip tion. However, as Justi ce’s a ctual duties, according to her own t esti mony, mat ch her job desc r ipti on we ll, this was at

worst harmless err or. and( 4) positions filled by balancing of affiliations. Ibid. While a government position “need not fall neatly within one of th e c at eg or ie s” to fi t i nt o t he ex ce pt io n, an y posit ion that falls into these categori es “with reasona ble certainty”

removes its holder from the constitutional protection against political dismissal enjoyed by

other employee s. Sowards , 203 F.3d at 435-36. The court bel ow he ld that Justic e’s positi on 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

categ ory four is un

dis p uted . We consider the appli cability

of the fir st three categ ories se

riatim and c on clude that Justice’s position of Grants Development Director does not

fit within a

ny o f them. 1

In McCloud I

, we defi ned category

one as “positions specific ally

named in relevant federal, state, county or municipal law to whi ch discr etionar y a uthority w ith respect
to the enforcemen

t o f that law or the

carry ing out of

some other policy of political conce

rn is granted.” 97 F.3d at 1557. This category

“captures the intuition gained f r om reading Elrod

, Branti , and Rutan that a c hie f executive’s cabinet

se cretaries and similar employees f all into the Br ant i exception. The proviso tha t the policy making a uthority possessed by a ca tegory one position-holder must be held in

r elationto a matte

r of politi cal conc ern stems f rom th e discussion in Branti that a football coach is a policy maker, butnot the sort of policymaker for whom political affiliation is a n appropriate re quireme nt under t he First Amendmen

t. ” Id. at 1557 n .30. A s an illustrative examples of a positionNo. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 11

within this category

we listed “a secretary

of state given statutory authority

over var

ious state corporation law policies.” Id . at 1557.

The Board argues that bec ause it is authorized by law to establish written jo

b descri ptio ns, andJustice had such a description, her positio n falls wi thin cate gory

one. This

sc a rcely needs refuting. A written job description is not “feder al, state, county or municipal law .” N ot hing in our preced ents sug gests it is and the Board cites no support for this proposition. Our cate go ry o ne case law focuses on whether positions established in law are political in nat ur e. See, e.g. , Hoard v. S

izemore

, 198 F.3 d 205, 214 (6th Cir. 1999) (county ro a d supervi sor within categ ory one bec ause “state law specifically

provides for [the position] which ‘has the general charg e of all county r oads and bridg es within h is

co un ty’ and must se e that ‘ county roads a nd bridges are improved and main

tained as provided by law ’ and ‘[r]oad maintenance is a

pol icy of political conce rn’” and the road foreman “has some

discreti onary

authority with resp ect to carry ing out this poli cy .”); Collins v. V oinovic h , 150 F.3d 575, 578 (6th Cir. 1998) (executiv e direc tor of Ohi o Lottery Commission within category one because

it is a cabinet-level position “charg ed with ad ministerin

g the [lo tter y] in accordancewith the governor’s mandate” and named in s tate 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 ha ve created categor

y two to

cover positions similar to category one positions but not created by

law.

In McCloud I

, we d efin ed cate gory

two as “p ositions to whicha significant portion of the total d

iscretionary

authority avail able to category

one positi on-holde

rs has be en delegate d ;

or positions not named in law, possessing by virtue o f the jurisdiction’s pattern or practicethe same quantum or type of discretionary

authorit y com monly held by

category one positi ons in other jur

isdictions .” 97 F.3 d at 1557. This 12 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

category “is constructed to recognize that it may be necessary
to deny First Ame

ndm ent protection not just to positions at the very top of a

ny state administrative

hierarchy , but in some

cases to th ose oc cupying le vels a bit farther down the hi er ar ch y. Category

two als o exists to capture those who would other wise be category

one policymakers, except that the federal government, state, county , or municipality has chosen for whatever reason not

to setout the responsibilities of sucha position in a statute, ordinance, or regulation.” Id.
at 1557 n.31. As an illustr

ative exa mple of a position wi

thin this category

we gave“a deputy se cretary of labor in a

state, to whom the se cretar y of labor ha s delega ted the responsi bility for cra fting th e department’s annual proposed legislative agenda.” Id . at 1557.

While the language in McCloud I sugges ts t hat category
two could be limited to re lativ ely high- level executive positions, our

case law has made clear

that the hallmark of a

casetwo position is not high rank, bu t po litical discretion,

even i f exercised at a fairly low level. Compare H

all , 12 8 F.3d at 426 & n.4, 429 & n.6 (chief deputy sheriff, but not other deputy sheriff, within category

two because sheriff had “delega ted a significant portion of his or her discretionary

re sp on si bi li ty” 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 sher iff whose duties “comprised road patrol, serving arr es t warr ants and civilpapers, taking c omplaints, ‘working ’ auto accidents, and transporting prisoners” not w ithin 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 sam e time, we have held that a defendant who dismisses on the basis of political affiliation “a governmentalemployee [who] may be nothing more than

a supervisor with a glorified title who is simply pe rforming functions o ve r which he or she has no discretion, or no discr e tion of political significance,” will not even meet theNo. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 13

2 Th is is not t o say that t here will never be a political as pect to the quest for gra nt funds . A fund ing pro gram could easily car ry with it conditions which are politi cally hi ghly sens it ive; one nee d only thi nk of

a gran t ex clus ively f

or th e te achi ng of

sex e du cat i on or cr ea t i on i sm

. To decide to accept or reject such a grant is clearl y a political question. However, nothing in the record suggests t hat any such polit ically sensiti ve grant ca me up during Justice’s te nure o r that it wou ld hav e bee n with i n her authori ty t o dec ide t o accept such a conditional grant . To the

con trary, Justice te stified that sh e wo uld ask the sup erinten den t’s express perm ission b efore app lying for an y grant. highly deferential standard of

the quali fied immun

ity defense. McCloud I

, 97 F.3d at 1559.

The Board argues that Justice falls within this category because she exerc ised so m e discretion about how to seek grants

. Also the B oard poin ts o ut th at Ju stice , even thou gh she only had two subordinates herself, reported directly

to the superint endent, a category

one position, a factor

that we had given some weight in Hall . It is true that Justice’s relative ly low-level position does not au tomati cally exclude her f rom this categ ory . It is

also cor rect tha t J ustice exercise d some discretionin her position. However

, every position but the
most menial involves the exercise of a degree of discretion. Whatdistinguishes category two positions from others is the exercise of discretion of political s ignific an ce . Such discreti on Justice did not have. The core of her duties as grants director was to r

aise as much mone

y a s possible

and to

ensure that the condi t ions attached to the money were complied with. The former is a goal that a superintendent of practic ally

any political persuas ion would

seek to pursue and the latter a legal obligation that any superintendent would be bound to observe. 2 Therefore Ju stice, lacking political discretion, was not within category two.

In McCloud I

, we def ined cat egory three a s “c onfidential advisors who spend

a signif icant por tion of the ir timeon the job advising category

one or category two position-holders on 14 Justice v. Pike C ounty Bd. of Educ ., et al. No. 01-6156

how to exercise the ir statutory or deleg ated policymaking

au th or it y, or other confidential employ ees wh o control the lines of communication t o category one positions, category
two posit ions orconfidential advisors.” 97 F.3d at 1557. This categ ory

“is formu

lated to c omport wit

h the discussion in Branti indicating that a state governor may ‘believe that the official duties of

various a ssista

nts w ho help him

write speeche s, explain his views to the pre ss, or commun icate wi th the legisla

ture ca nnot be pe

rformed effec tiv e ly u

nless thos e persons share his political beliefs and party c ommitments.’” Id. at 1557 n. 32 (ci ting Branti , 445 U.S. at 518). As an illustrative example of

a position within this category

we gave “a judge’s law clerk or secre tary.” McCloud I

, 9 7 F.3d at 1557.

The contours of category

three have been further c lar ified inour case law. Compare Hoard , 198 F.3d at 213-14, 215 (county road s u pervisor within category three because he “serve[d] as the jud

ge’s ‘ alter-e go’ in the communi ty w ith respect to road conditions”), id. at 215-16 (assistant road foreman, garage superv

isor, and senio r cit izens director within category three for similar re as ons), Collins , 150 F.3d
at 578 (ex ecutive

director of Ohio L

ottery Commission w

ithin
cat egory three because that office is char ged wi t h “communi c at [ing] departmental views to the press or the legislatur e”), Hall , 128 F.3d at 426 & n.4, 429 & n.6 (chief deputy sheriff, but not other deputy sheriff, within cate gory three because chief deputy at times acted as “c onfidential advisor to th e sh eriff”), and Smith v. Sushka

, 117 F.3d 965, 971 (6th Cir. 1997) (administrative assistant to co un ty chief engineer within categor

y three be cause she was a

“ co nfidential employee[ ] who control[led] the lines of communications to [a] categ ory on e position”), with Hager

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

three bec ause sh e did not de al with political issues, ad vise the superintendent on confidential information, or contr

ol the line s of commu

nication to the superintendent), Sowards , 203 F.3d at 437 ( chi ef jailer notNo. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 15

within ca te go ry three because she did not “not have any

access to any confidential or

political information”), and Bauer v. Montgo mery , 215 F.3d 656, 660- 61 (6th

Cir. 2000) (field investigator in attorney general’s offi ce not within category three where there was

no evidence that plaintiff provided confidential advi ce or controlled the lines of communication to anyone).

Justi ce did n ot spend a

consider able por tion of he

r time rendering confidential advice to the superintendent. The eight-point

job descr

iption on wh

ich th e Bo ard and court below rely so hea

vily does not

even mention the rendering of advice to the superintendent. While Justice did report to the superint endent, and eve

ry subordina

te wil l at times communic ate w ith a s uperior in a manner that can fairly be describe d as giving advice, nothing in the re cord indicates that Justice would spend more of her time giving advice than
any other sub ordinate

in a hierarchical organization. Moreover, while pres umably some of the communica tions between Justice and the superintendent were not mean t fo r public consumpti on, there is nothing

in Justice’ s d

u ties that renders her adv

ice par ticularl y se nsitive or confide ntial.

Nor did Justice control the lines of communication between the superintend ent and the g eneral public. Whi le

commu nications between the superintenden t and Justice’s two staff persons or grantors would usually have pa s sed th rough Justice, n ot ev eryone w

ho sometimes passes messages from pol iti cal appointees is therefore in control of the lines of communication. To hold oth erwise would put ev er y public employee working under a politica l appo intee in category three. Rather, the lines-of-communication subset of category three focuses

on those w

ho contro l the li nes of communic ation with the ge neral publ ic and it s representatives

. See McCloud I

, 9 7 F.3d at 1557 n.32 (referring to those who “write speeches, explain . . . views to the press, or communicate with th e legislature” on behalf of

a p olitical superior). Control over such lines of 16 Justice v. Pike C ounty 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 protect i on agains tpolitical 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 sec retary who answered the phone used

by the members of the public wishing to contact the mayor). However, Justice’s position did not contr ol these lines of communication, eve n at a low level. Therefore, Justice’s position does not fall within category thre e.

In Hager , we also found K entuck y state law proba tive of the question whether Hag er ’s position was protected from dismissal on the basi s of her p olitical a ffiliation or suppo rt:

Inaddition to the Elrod

/ Branti ex ceptio ns, there is an additional factor that the district court did not adequ

ately consider in its determinat ion that politics was an
appropr iate requirement for the [Gifted and Talented Program Coordinator] position. Kentucky statutory law clearly establishes that a teacher or employ ee of a school districthas the r

ight to be f

ree from demotion or discrimination based on political affilia ti o n. KRS § 161.164(4) (“[n]o te acher or employ ee of an y di str ic t board of e ducation shall be . . . demoted or dismissed from, an y position or in any way . . . discriminated agains twith respect to employment be ca us e of [her] political

. . . affilia

tions.”) ; see also Sowards , 203 F.3d at 439 n.4 (“it is important to examine the applica ble state and local law when

d eciding whether political considerations may be used in empl oym e nt decisions

. . . .”). The existence of the Kentuc ky stat ute as protection

against politica l re prisal suc h as occu rred in th is case has been clearly established by the Ke

ntuck y courts for many y

ears. See Cal h oun v. Cassady , 534 S.W.2d 806, 808 (Ky. 1976) (sta tute ena c ted to prevent Superint endent and Board from perpet rating transfers and demotions a s po litical “vendettas” for supporting candidates opposed to

Superintendent in race for office);No. 01-6156 Justice v. Pike C ounty Bd. of Educ ., et al. 17

se e also Harlan

County Bd. of Educ. v

. Stagnolia , 55 5 S.W.2d 828, 830 (Ky . Ct. App. 1 977) (“Po litic al reprisa ls by superintendents and a maj or ity of board members b r ought about the enactment of KRS 161.162 which prohib it s such act

ion.”). T

he existence of thi s long-standing

prohibition raises significan t question as to the legitima

cy of the de fendant s’s actions in this matter.

Hager

, 286 F.3d at 3 77. As the releva nt Kentucky s tate 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 re ci pient 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 pre cedent and recent
, binding precedent of this court, is sound and applicable here:

The ADA p ro hibits discrimination against any “qualified individual with adisability,” which is defined

as “an indiv

idual with

a disabili ty w ho, with orwithout

reasona ble accommodation, can pe r form the essential functions of the empl oyment position that such individual holds or de sir e s.” 42 U.S.C. §§ 12112(a), 12111(8). Howeve

r, in orde r to qualif

y f or dis abi lity retirement, Dotson had to attest that she “suffer[s] from

a physical or mental

condition presumed to be permanent induration and of a natur e as to render the member incapableof being gainfully employed . . .” Ky . Rev. St at. Ann . § 161.661 (9) (199 6). The d istrict c ourt held that the co nf

li ct be tw ee n K en tu ck y’s di sa bi li ty retiremen t statute and the ADA necessarily prevented Dotson from having standing under the ADA. 18 Justice v. Pike C ounty 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 Courtheld that despite the confl i ct between the social security program, which provides benefits to a p erson with a disabili ty th at 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 secu rit y benefit s do es no t a ut om at ic al ly e st op a recipient from pursuing an ADA c laim. The Court concluded that the
two claims do notinherently conf lict because the Social Security Act does not

account for the possibility of work with “reasonable ac commodat io n ,” whereas the ADA does. S ee id. at 802-03. Similarly, although the A D A and the Kentu

cky statute a ppear to conflic t, Dotso n ’s
q ualification fo r d is ab il it y r etirement did no t automatic ally

estop her from pur suing an

ADA cla im. To survive s umm ary judg ment, Dotson must provide

anexpla natio n sufficient to warrant a reasonable juror finding that, des

pite her statemen t that she i s unable t

o

wor k

, that she could nonetheless perform the essential functions of her jo

b, with o r without r

easonab le accommodation

. S

ee Cleveland, 526 U.S. a t 807; see also [ Griffith v. Wal-

Mart Stores, Inc. , 135 F.3d 376, 383 (6th C ir. 19 98)]. Dotson pro v ided evid

ence tha t she had b een able

to teach effect ively thro ughout the 1996-97 school y ear, and although she submitted

a request for accommodation to whichthe school did not respond, she continued to work. Thus, a genu

ine issue exists as to whether

Dotson wa s a “qualified individual with a disability” under the ADA. Ina d dition, the court never addressed directly the question of w hether

Dotson was in fact disabled under the ADA . It was error

to grant summary

judgment on the ADA and R

ehabilita tion Act c laims. 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 C ounty Bd. of Educ ., et al. 19

The Board attempts to distinguish Cleveland on t he ba sis that so ci al se cu ri ty d isability income depends on a finding that an a pplicant cannot f ind employ

ment in the

economy in
gener al, while the teac her’s disability pension depends on a finding that the applicant can not perform the job of a teac her. In Dotson , which the Board urges us to disreg ard as non

preced ential, we rightly

noted that this was not a rel ev ant distinction. Rather, the holding of Clevela nd (and Dotson ) depended on the real ization that inability to perform a job witho ut a ccommodiation and ability to perform a job with accommoda tion a re not mutually exclusive. Nothing in the Board’s argume

nt addre sses this is sue. Equa lly unavailing is the Board’ s argument that K entucky state law bars disa bl ed teachers fro m wo rki ng i n t he s cho ol syst em. In so far as s tate law conflic ts with val id feder al law, f ederal 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 requ est for a disability pensi on, respectively , we REVERSE the district court’s summ a ry judgme nt and REMAND for further proceedings not inconsistent with this opinion.