PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CELESTE NADER, Individually and 

on behalf of a class of State of

Maryland Employees similarly

situated,

Plaintiff-Appellant,

v.  No. 07-2107 FLOYD R. BLAIR, Esquire; ROBERT

L. EHRLICH, Individually and as

Governor; JOSEPH E. STEFFEN, JR.;

CHRISTOPHER J. MCCABE; NEIL E.

MERKEL; HEINRICH JOSEPH

LOSEMANN, JR.; ANTHONY COBB,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William D. Quarles, Jr., District Judge.

(1:06-cv-02890-WDQ)

Argued: October 29, 2008

Decided: December 12, 2008

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Judge King and Judge Shedd joined.
COUNSEL

ARGUED: Joseph Schiffer Kaufman, SCHULMAN &

KAUFMAN, L.L.C., Baltimore, Maryland, for Appellant.

Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Douglas F. Gansler, Attorney General of

Maryland, David E. Beller, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees Floyd R. Blair,

Esquire, Robert L. Ehrlich, Individually and as Governor,

Christopher J. McCabe, Neil E. Merkel, Heinrich Joseph

Losemann, Jr., and Anthony Cobb.

OPINION

GREGORY, Circuit Judge:

Celeste Nader appeals the district court’s decision denying

her motion for class certification and her motion to strike the

Defendants’ supporting affidavits, and granting the Defendants’ motion for summary judgment on her claims of unconstitutional termination and violations of due process. For the

reasons set forth below, we affirm the decision of the district

court.

I.

Nader was employed for over thirty-eight years by the Baltimore City Department of Social Services ("BCDSS"), which

is a local social-services agency within the Maryland Department of Human Resources ("DHR"). Nader first began working at BCDSS in 1965 as a case worker, and her position was

classified as part of the merit system. Nader received several

promotions while she was employed at BCDSS, with her final

promotion coming in November 2001. As a result of the

2 NADER v. BLAIR
November 2001 promotion, Nader held the position of Assistant Director of Business Management and Financial Services

("Assistant Director") and was one of six assistant directors

who reported directly to the Director of BCDSS. Nader’s

position was classified as part of the "management service" of

the Maryland state personnel system, which meant that she

was considered an at-will employee and could be "terminated

from employment for any reason, solely in the discretion of

the appointing authority." See Md. Code Ann., State Pers. &

Pensions § 11-305 (2004 Repl. Vol.). At the time of her promotion, Nader signed a Position Description for the Assistant

Director position, which indicated that her position was part

of the management service.

According to the Position Description, the main purpose of

the position "is to provide leadership, management, control,

coordination and monitor the activities and services provided

by the Administrative Support Units." (J.A. 26.) The Assistant

Director "oversees three major administrative units and subunits," including Budget and Accounting, the Automated Systems Office, and Office Services. (Id.)

The Position Description further describes the "essential

job functions" of the Assistant Director and provides a percentage of time or effort that must be devoted to each function. (See id.) The Position Description indicates that twenty

percent of the Assistant Director’s efforts should be devoted

to administration. Among her administrative duties, the Assistant Director is a member of the agency’s executive administrative team, and in that capacity she must "plan, coordinate,

and evaluate agency operations." (Id.) Moreover, the Assistant Director must "[p]rovide leadership in business activities

and inform [the] staff of appropriate policies and procedures."

(Id.)

The Position Description allocates another twenty percent

of the Assistant Director’s time towards budget and accounting duties. The Assistant Director must "[e]nsure that fiscal

NADER v. BLAIR 3
activities are performed in accordance with federal, state, and

local policies, procedures, and strategic plans," as well as

"[d]irect fiscal operations of the department including reports,

payroll, internal control, bank reconciliation, and collection

activities." (Id.) In this capacity, the Assistant Director oversees a staff of eighty-five employees who provide extensive

financial support services for the Administrative and Line

Units within BCDSS. According to the Position Description,

"[t]he budget is the overall responsibility of the [Assistant

Director]." (J.A. 27.) Accordingly, the Assistant Director is

expected to "[r]epresent all departmental needs and initiatives

during budget preparation." (J.A. 36.)

The Assistant Director is expected to devote ten percent of

her time towards auditing tasks, which requires her to

"[c]oordinate agencywide audit activities with federal, state,

legislative and local auditors" and to "[r]epresent [BCDSS] in

Annapolis to defend [its] audit reports." (J.A. 30.) After the

audits are completed, the Assistant Director must inform the

Director’s Cabinet of the findings and recommendations and

"[p]repare responses to audit findings in a manner that recognizes [the] agency’s overall mission and goal . . . ." (J.A. 36.)

Another ten percent of the Assistant Director’s efforts are

to be devoted to business management activities. According

to the Position Description, the Assistant Director must

"[c]oordinate agency initiatives and plans with federal, state,

local departments and the community" and "[r]epresent the

agency city-wide and promote a positive agency image." (J.A.

30.) In addition, the Assistant Director is to act as the BCDSS

liaison to the Mayor’s Mental Health Committee. In this role,

the Assistant Director is to meet with community and agency

representatives to make sure that mental health services are

available and to make site visits to mental health facilities.

Also included among the Business Management Activities are

several duties to be performed on the Director’s behalf,

including "[r]eview[ing] and sign[ing] for [the] Director 600

personnel contracts for contractual employees," "sign[ing]

4 NADER v. BLAIR
medical consent forms for adults for whom [the] agency has

guardianship when emergency medical treatment is needed,"

and "[h]andl[ing] all issues in the absence of the Director as

indicated." (J.A. 31.)

In addition to describing the essential job functions to be

performed by the Assistant Director, the Position Description

lists the types of work contacts that the Assistant Director is

expected to have with other agencies and individuals. The

Assistant Director is to have daily contact with state personnel

from DHR Operations, the Family Investment Administration,

and the Social Services Administration "to discuss relevant

issues impacting this department." (J.A. 31.) Moreover, the

Assistant Director is to meet weekly with the Mayor of Baltimore or other designated executive staff members "to share

information about the department" and to meet weekly with

state and local budget and finance staff "to negotiate budget

and fiscal activities." (Id.)

Furthermore, the Position Description lists several types of

decisions entrusted to the Assistant Director, including

"[d]etermining priorities in line with Agency mission goals

and objectives as it relates to workload productivity, fiscal

processing, etc." (J.A. 32.) With regard to the decisions made

by the Assistant Director, she is to receive only "managerial

supervision," meaning that the Director of BCDSS would

supervise her actions at the least intrusive level. (Id.)

Notwithstanding the job responsibilities listed in the job

description, Nader maintains that Floyd R. Blair, who was the

Interim Director of BCDSS at the time Nader received her

notice of termination, never actually assigned her any tasks

that required her to make policymaking decisions. Moreover,

Nader alleges that the Position Description did not state that

she would make policy decisions, nor did it require any particular political affiliation.

Blair became the Interim Director of BCDSS in August

2003. On November 19, 2003, Blair gave Nader a memoranNADER v. BLAIR 5
dum in which he terminated her employment effective

December 5, 2003. As explanation for the termination, the

memorandum stated only that it was due to "changes" Blair

was making at BCDSS. (J.A. 14.) The memorandum also

notified Nader that pursuant to § 11-113 of the Maryland

State Personnel and Pensions Article, she had fifteen days

from receipt of the memorandum in which to appeal the termination. The memorandum gave Nader the opportunity to

resign in lieu of termination, and Nader ultimately elected that

option.

On December 17, 2003, more than fifteen days after receipt

of the memorandum, Nader filed an administrative appeal.

DHR’s Employer-Employee Relations Unit dismissed the

appeal, both because it was untimely and because it found that

Nader had not met her burden of showing that the termination

was illegal or unconstitutional. Nader filed a petition for judicial review of the administrative decision in the Maryland

state court system but was unsuccessful, both due to the

untimeliness of the initial appeal as well as on the merits of

the claim.

Nader next initiated this civil action in the United States

District Court for the District of Maryland. Nader brought a

class action suit against Blair, former Interim Director of

BCDSS; Christopher J. McCabe, former Secretary of the

Maryland DHR; Robert L. Ehrlich, Jr., former Governor of

Maryland; and other state employees. In Counts I and II of the

complaint, Nader alleged that she had been unlawfully terminated based on her political affiliation, in violation of the First

and Fourteenth Amendments of the United States Constitution

and Article 40 of the Maryland Declaration of Rights. In

Count III of the complaint, Nader alleged that the Defendants’

conduct also constituted a violation of the Due Process Clause

of the Fourteenth Amendment.1

1Nader alleged in Count IV of the complaint that the Defendants were

engaged in an unlawful civil conspiracy, and the district court granted

summary judgment to the Defendants on this Count. Nader did not appeal

this decision. 

6 NADER v. BLAIR
Before the parties engaged in discovery, the Defendants

moved to dismiss or, in the alternative, for summary judgment

on the claims. Nader moved to strike the Defendants’ supporting affidavits. The district court denied class certification,

denied Nader’s motion to strike the Defendants’ supporting

affidavits, and granted the Defendants’ motion for summary

judgment. Nader appeals.

II.

We review a district court’s grant of a motion for summary

judgment de novo, applying the same legal standards as the

district court. Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th

Cir. 1995). "The district court should only grant a motion for

summary judgment where there is no genuine dispute as to an

issue of material fact, and the moving party is entitled to summary judgment as a matter of law." Id. at 236-37 (citing Fed.

R. Civ. P. 56(c)). In deciding a motion for summary judgment, the district court must view all reasonable inferences

drawn from the evidence in the light that is most favorable to

the non-moving party. Id. at 237. We review a district court’s

denial of a motion to allow further discovery before ruling on

a summary judgment motion under an abuse of discretion

standard. See Strag v. Bd. of Trs., 55 F.3d 943, 952-53 (4th

Cir. 1995); Nguyen, 44 F.3d at 242.

A.

Nader first contends that the district court erred in determining as a matter of law that the Assistant Director position

was the type of position that could be subject to a patronage

dismissal. A pair of Supreme Court decisions, Elrod v. Burns,

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

(1980), established the standards for determining whether

patronage dismissals of government employees violate the

First and Fourteenth Amendment rights of freedom of political belief and association. In determining whether political

patronage dismissals are constitutionally permissible, the

NADER v. BLAIR 7
essential 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; accord Stott v. Haworth, 916 F.2d

134, 140 (4th Cir. 1990). This Court has adopted the "generally accepted broad interpretation" derived from the ElrodBranti line of cases that "[p]olitical affiliation is an appropriate requirement when there is a rational connection between

shared ideology and job performance." Stott, 916 F.2d at 142

(internal quotations omitted).

In Stott, this Court adopted a two-part formulation of the

Elrod-Branti analysis that was first articulated by an en banc

panel of the First Circuit in Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986). Under this

two-part analysis, a court must first "examin[e] whether the

position at issue, no matter how policy-influencing or confidential it may be, relates to partisan political interests . . . or

concerns." Stott, 916 F.2d at 141 (internal quotations omitted). In particular, the court must consider whether the position "involve[s] government decisionmaking on issues where

there is room for political disagreement on goals or their

implementation[.]" Id. at 141-42 (internal quotations omitted).

If the position satisfies the first part of the analysis, the

court must next "examine the particular responsibilities of the

position to determine whether it resembles a policymaker, a

privy to confidential information, a communicator, or some

other office holder whose function is such that party affiliation is an equally appropriate requirement." Id. at 142 (internal quotations omitted). In judging whether the particular

responsibilities of a position meet this test, "courts focus on

the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office." Id.

(internal quotations omitted). Indeed, even "if an officeholder

performs fewer or less important functions than usually attend

his position, he may still be exempt from the prohibition

against political terminations if his position inherently encom8 NADER v. BLAIR
passes tasks that make his political affiliation an appropriate

requirement for effective performance." Id. (internal quotations omitted).

In determining whether a particular position is that of a

policymaker, "[a]n employee with responsibilities that are not

well defined or are of broad scope" is more likely to be a policymaker, and "consideration should also be given to whether

the employee acts as an advisor or formulates plans for the

implementation of broad goals." Elrod, 427 U.S. at 368. Other

relevant factors in distinguishing a policymaker from a nonpolicymaker include: "relative pay, technical competence,

power to control others, authority to speak in the name of

policymakers, public perception, influence on programs, contact with elected officials and responsiveness to partisan politics and political leaders." Jimenez Fuentes, 807 F.2d at 242

(internal quotations omitted).

Examining the inherent nature of the job responsibilities for

the Assistant Director position under the Elrod-Branti twopart analysis, we find that the position is one for which political affiliation is a constitutionally permissible ground for termination. With regard to the first part of the analysis, which

is whether the position relates to partisan political interests or

concerns, positions within social-services agencies clearly

may satisfy this requirement. See, e.g., Flynn v. City of Boston, 140 F.3d 42, 44-46 (1st Cir. 1998) (finding that associate

director positions in a community social-services agency

related to partisan political interests); Vona v. County of Niagara, 119 F.3d 201, 208 (2d Cir. 1997) (determining that assistant social services attorney position was related to "political

and ideological concerns"). Moreover, the Assistant Director

position directly involved budgetary issues within the

BCDSS, and undoubtedly there could be strong partisan disagreement about the funding for different programs and services.

Turning to the second part of the Elrod-Branti analysis—whether the particular responsibilities of the Assistant

NADER v. BLAIR 9
Director position are those of a policymaker, someone who is

privy to confidential information, or a communicator—the job

responsibilities listed in the Position Description satisfy this

requirement. First, the Assistant Director is a member of

BCDSS’s executive administrative team, and in this capacity

she helps shape the overarching policies and programs of

BCDSS. The Assistant Director is also responsible for preparation of BCDSS’s budget and for oversight of the budget,

accounting, auditing, and office services operations. The

Assistant Director’s responsibility for the budget alone provides ample evidence of the policymaking nature of her position, as such decisions may be quite political and contentious.

See Blair v. Meade, 76 F.3d 97, 100 (6th Cir. 1996) ("The

efficient and orderly administration of a budget is an integral

part of the budgetary process and certainly has key political

implications and consequences."). Furthermore, the Assistant

Director is authorized to act for the Director of BCDSS in the

Director’s absence, evidencing the policymaking nature of her

position. Because of the nature of the responsibilities assigned

to the Assistant Director, she has access to a variety of confidential information, including information relating to the budget, personnel matters, and audits.

Several of the job responsibilities listed in the Position

Description also require the Assistant Director to be a communicator for BCDSS. The Assistant Director is to have daily

contact with state personnel from DHR Operations, the Family Investment Administration, and the Social Services

Administration to discuss issues within BCDSS. Moreover,

the Assistant Director is to meet weekly with the Mayor of

Baltimore or other designated executive staff members to

share information about BCDSS and to meet weekly with

state and local finance staff regarding the budget and other

fiscal activities. As part of her auditing duties, the Assistant

Director must represent the agency to defend its audit reports,

and then inform the Director’s Cabinet of the findings and

prepare responses to the audits in line with the policies of

BCDSS. Given these tasks, it is clear that the Assistant Direc10 NADER v. BLAIR
tor is expected to represent BCDSS in substantive interactions

with other departments and outside agencies.

Nevertheless, Nader contends that the district court erred in

granting summary judgment because there is no evidence that

she was in fact relied upon in policymaking decisions, and

without such evidence, a court may not determine that the

Assistant Director position is that of a policymaker. This contention is without merit.

According to Stott, "courts focus on the powers inherent in

a given office, as opposed to the functions performed by a

particular occupant of that office." 916 F.2d at 142 (internal

quotations omitted). A court will "only look past the job

description where the plaintiff demonstrates some systematic

unreliability," such as where "the description has been manipulated in some manner by officials looking to expand their

political power." Allen v. Martin, 460 F.3d 939, 944 (7th Cir.

2006). While testimony regarding one’s actual job duties

"may be useful in filling gaps left by the official job description and in amplifying the responsibilities listed in the

description," "such testimony cannot be used to belittle the

job into one with less significant responsibilities than identified in the official description." Stott v. Martin, 783 F. Supp.

970, 976 n.6 (E.D.N.C. 1992).

Nader has put forth no evidence that the job description

contains any "systematic unreliability" to warrant looking past

the Position Description to the actual duties she performed,

and it is uncontroverted that she signed the Position Description assenting to those duties and responsibilities. Moreover,

the fact that Blair did not assign her any policymaking tasks

would not reveal any systematic unreliability in the Position

Description, since the Position Description was created in

2001 and Blair did not become Interim Director of BCDSS

until 2003.

Nader also argues that the district court abused its discretion in granting summary judgment to the Defendants before

NADER v. BLAIR 11
allowing her the opportunity to engage in discovery. Generally, a district court must refuse summary judgment "where

the nonmoving party has not had the opportunity to discover

information that is essential to [its] opposition." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986); accord

Nguyen, 44 F.3d at 242. However, a party generally must

comply with Federal Rule of Civil Procedure 56(f), which

requires that it set out the reasons for discovery in an affidavit, and it cannot withstand a motion for summary judgment

by merely asserting in its brief that discovery was necessary.

See Hayes v. N. State Law Enforcement Officers Ass’n, 10

F.3d 207, 215 (4th Cir. 1993). Nevertheless, strict compliance

with Rule 56(f) affidavits may not be necessary where the circumstances are such that "the nonmoving party, through no

fault of its own, has had little or no opportunity to conduct

discovery, and when fact-intensive issues, such as intent, are

involved," provided that "the nonmoving party has adequately

informed the district court that the motion is pre-mature and

that more discovery is necessary." Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002).

Here, Nader failed to file a timely affidavit under Rule

56(f) that particularly set out the reasons for further discovery,

and the district court denied Nader’s motion on that ground.

Even if the district court had considered Nader’s untimely

affidavit, it would not have affected the district court’s decision to proceed with ruling on the motion for summary judgment. In the affidavit, Nader claimed that she needed to

engage in discovery regarding the Defendants’ motives and

intent. However, the Defendants’ motives and intent were not

at issue in the motion for summary judgment, as this motion

concerned only whether Nader’s position was such that she

could be terminated for political reasons, not whether political

reasons did in fact motivate her termination. Evidence of the

Defendants’ motives or intent would not be essential to

Nader’s opposition of the Defendants’ motion for summary

judgment, and thus discovery on that issue was unnecessary.

12 NADER v. BLAIR
Because the job responsibilities listed in the Position

Description satisfy the Elrod-Branti two-part test and Nader

provided no evidence that her actual job duties needed to be

considered or that further discovery was necessary, this Court

affirms the decision of the district court granting summary

judgment on this claim.2

B.

Nader next contends that she was deprived of the procedural protections of Maryland law because BCDSS failed to

follow its own procedural rules and regulations regarding terminations. Nader relies on the Accardi doctrine, which provides that when an agency fails to follow its own procedures

or regulations, that agency’s actions are generally invalid.

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260,

268 (1954); see Pollock v. Patuxent Inst. Bd. of Review, 823

A.2d 626, 639-45 (Md. 2003) (discussing the various

approaches of Maryland courts in applying the Accardi doctrine).

Nader argues that the Accardi doctrine was violated

because § 11-106 of the Maryland State Personnel and Pensions Article provides that employees discharged for misconduct are entitled to certain procedural protections, including

notice and a pre-termination meeting. In support of this contention, Nader relies on Danaher v. Dep’t of Labor, Licensing

& Regulation, 811 A.2d 359, 375 (Md. Ct. Spec. App. 2002),

in which the Court of Special Appeals of Maryland held that

the procedural protections of § 11-106 applied to management

service employees.

Nader’s reliance on Danaher for the proposition that man2The Defendants alternatively claimed that the decision of the district

court should be affirmed on the grounds of qualified immunity. Because

we find that the Defendants have committed no constitutional violation,

we need not consider their claim of qualified immunity. 

NADER v. BLAIR 13
agement service employees are always afforded the procedural protections of § 11-106 is misplaced, however.

Subsequent to the decision in Danaher, Maryland courts have

clarified that the procedural protections of § 11-106 apply

only when an employee is discharged for misconduct and

have held that the Danaher decision should be so limited. See

Dozier v. Dep’t of Human Res., 883 A.2d 1025, 1031 (Md. Ct.

Spec. App. 2005); see also Pub. Serv. Comm’n v. Wilson, 882

A.2d 849, 882-84 (Md. 2005). Nader concedes that she was

not discharged for misconduct; therefore, BCDSS was

required to comply only with the procedural requirements of

§§ 11-305 and 11-113 of the Maryland State Personnel and

Pensions Article, which give the terminated employee the

right to file a written appeal within fifteen days of receiving

the notice of termination. Nader was given notice of her right

to file an administrative appeal but failed to file it in a timely

manner, which precluded her from pursuing her claims

administratively or through the Maryland judicial system. See

Public Service Comm’n, 882 A.2d at 888-89. In fact, Nader

received even more process than that to which she was entitled, because DHR’s Employer-Employee Relations Unit considered her untimely appeal but ultimately dismissed it on

timeliness grounds and on its merits. Given this, Nader’s

claim that BCDSS failed to provide her with the procedural

protections of Maryland law and agency regulations must fail.

C.

Finally, Nader contends that the affidavit of Ginger Scott,

the Assistant Director of BCDSS’s Office of Human

Resources, should not have been considered by the district

court in ruling on the motion for summary judgment. Specifically, Nader argues that Scott did not become an employee at

BCDSS until September 22, 2003, and thus she had no personal knowledge of events prior to that date, including the

creation of the Position Description and other employment

documents. We review the district court’s decision regarding

the admissibility of an affidavit for an abuse of discretion, and

14 NADER v. BLAIR
the factual determinations underlying the evidentiary ruling

for clear error. Evans v. Techs. Applications & Serv. Co., 80

F.3d 954, 962 (4th Cir. 1996).

Under Rule 56(e) of the Federal Rules of Civil Procedure,

"[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant is competent to testify on

the matters stated." While it is true that Scott did not have personal knowledge of the records in that she did not personally

take part in or witness the creation of the documents, her testimony was based on her personal knowledge as the custodian

of the records she maintained at BCDSS. It is well established

that employees who are familiar with the record-keeping practices of a business are qualified to speak from personal knowledge that particular documents are admissible business

records, and affidavits sworn by such employees constitute

appropriate summary judgment evidence. Fed. R. Evid.

803(6); Thanongsinh v. Bd. of Educ., 462 F.3d 762, 777 (7th

Cir. 2006); FDIC v. Patel, 46 F.3d 482, 484 (5th Cir. 1995).

Scott’s affidavit did no more than provide the foundation for

the admission of these business records, and thus the trial

court did not err in considering the affidavit in the motion for

summary judgment.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

NADER v. BLAIR 15