RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0037p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

C. SUE SCHWAMBERGER,

Plaintiff-Appellant,

v.

MARION COUNTY BOARD OF ELECTIONS; F. JOHN 

MEYER, individually and in his official capacity as 

former Director of the Marion County Board of 

Elections, 

Defendants-Appellees.

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No. 20-3575

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:19-cv-02626—Jack Zouhary, District Judge.

Argued: January 12, 2021

Decided and Filed: February 17, 2021

Before: CLAY, GILMAN, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: J.C. Ratliff, Marion, Ohio, for Appellant. Jeffrey A. Stankunas, ISAAC WILES 

BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for Appellee Marion County Board of 

Elections. Susan S.R. Petro, WILLIAMS & SCHOENBERGER CO., L.L.C., Columbus, Ohio, 

for Appellee F. John Meyer. ON BRIEF: J.C. Ratliff, Marion, Ohio, for Appellant. Jeffrey A. 

Stankunas, Matthew R. Aumann, ISAAC WILES BURKHOLDER & TEETOR, LLC, 

Columbus, Ohio, for Appellee Marion County Board of Elections. Susan S.R. Petro, Richard A. 

Williams, WILLIAMS & SCHOENBERGER CO., L.L.C., Columbus, Ohio, for Appellee 

F. John Meyer.

>
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 2

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. C. Sue Schwamberger, a former deputy 

director of the Marion County Board of Elections (the Board), brought suit against the Board and 

its former director, F. John Meyer. She asserted 12 causes of action in connection with her 

termination, only 3 of which involve federal constitutional claims. These three claims, brought 

under 42 U.S.C. § 1983, allege that the defendants’ actions constituted (1) First Amendment 

retaliation, (2) a violation of the Fourteenth Amendment’s Due Process Clause, and (3) a 

violation of the Fourteenth Amendment’s Equal Protection Clause. 

The defendants moved to dismiss Schwamberger’s complaint. After dismissing the 

federal causes of action, the district court declined to exercise supplemental jurisdiction over the 

state-law claims. For the reasons set forth below, we AFFIRM the judgment of the district 

court. 

I. BACKGROUND

A. Factual background

1. Ohio’s county boards of elections 

Schwamberger’s former employer is the election authority for Marion County, 

established under Ohio Revised Code (R.C.) § 3501.06. In setting up county boards of elections, 

R.C. § 3501.06(A) stipulates that “[t]here shall be in each county of the state a board of elections 

consisting of four qualified electors of the county, who shall be appointed by the secretary of 

state,” and who shall serve as the secretary’s representatives. R.C. § 3501.06(B) provides that 

each county board’s partisan makeup must be balanced, evenly split between “board members 

. . . from the political party which cast the highest number of votes for the office of governor at 

the most recent regular state election” and the party that placed second. R.C. §§ 3501.06(B)(1), 

(2). Put simply, each county board must have four members divided equally between the two 

major parties. 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 3

Four sections of Ohio’s Revised Code are especially relevant to this case. First, the 

deputy director (here, Schwamberger) and the director (in 2018, Meyer) are always members of 

opposite political parties. See R.C. § 3501.091 (“The director and deputy director shall be of 

opposite political parties . . . .”). Second, board members’ responsibilities include appointing 

and removing directors, deputy directors, and other board employees. R.C. § 3501.11(D). The 

third pertinent section provides that deputy directors serve at the pleasure of their county boards, 

meaning that a county board “may decide by the affirmative vote of at least three members that 

the services of a deputy director are unnecessary and such deputy director then shall not be 

employed.” R.C. § 3501.09. Finally, the secretary of state can remove and suspend board 

employees. R.C. § 3501.16 (“The secretary of state may summarily remove or suspend any 

member of a board of elections, or the director, deputy director, or any other employee of the 

board, for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful 

violation of . . . the Revised Code, or for any other good and sufficient cause.”).

2. Schwamberger’s employment by the Board

Schwamberger worked for the Board without any significant problems until the fall of 

2018. Her first position as a part-time clerk started in October 2000, and she was promoted to 

senior clerk approximately ten years later. Schwamberger assumed her deputy-director position 

in October 2011. She continued in this role until her November 8, 2018 termination. 

3. Tensions with Director Meyer

Schwamberger was not subject to any disciplinary proceedings, write-ups, or reprimands 

prior to the fall of 2018, but tensions began in early 2015 when the Board appointed Meyer as its 

new director. Prior to Meyer’s appointment, Schwamberger had worked with two directors, 

Sophie Rogers and David Little, with no apparent friction. 

Schwamberger contends that she began experiencing a hostile work environment soon 

after Meyer became director. Per Schwamberger’s complaint, Meyer allegedly called her 

“incompetent” and “stupid,” stole credit for her work, falsely implied that he was her boss 

instead of an equal, accessed her computer files and personal communications without 

permission, and even “bugged her office.” 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 4

4. Schwamberger’s termination

Schwamberger’s son ran for County Prosecutor in 2018. As a result, the Board barred 

her from administering that year’s elections, which were instead managed by Meyer. The 

election process proceeded on schedule, with a primary election in May, a special election in 

August, and a general election in November. Schwamberger’s first formal disciplinary incident 

also occurred that autumn in the form of a written reprimand from the Board and a three-day 

suspension. What caused the reprimand was not explained by either Schwamberger or the 

Board. 

The general election was held on November 6, 2018. Two days later, the Board called a 

special meeting at which Schwamberger, per her complaint, “verbally attempted to present” the 

Board with a “list of errors, discrepancies, problems, and/or possible criminal violations” related 

to the 2018 election cycle. She claimed that two primary-election votes were uncounted, that 

31 special-election votes were inaccurately recorded, and that 254 general-election votes had not 

been correctly “unloaded.” Schwamberger alleged that these errors occurred because of flawed 

policies regarding the administration of elections in Marion County. After she presented these 

and other alleged errors to the Board, the Board convened an executive session and voted 3–1 to 

terminate her for impermissibly commenting on the election process, and therefore on policy and 

political issues related to her deputy-director position. 

B. Procedural background

Schwamberger timely filed her complaint in the United States District Court for the 

Northern District of Ohio, asserting 12 causes of action. The district court analyzed the three 

alleged constitutional claims for any violation of the First and Fourteenth Amendments. It 

ultimately found that Schwamberger’s constitutional claims were meritless. The court therefore 

granted the defendants’ motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure and declined to exercise supplemental jurisdiction over the state-law claims. 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 5

II. ANALYSIS

A. Standard of review

We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6). 

Theile v. Michigan, 891 F. 3d 240, 243 (6th Cir. 2018). In our review, we accept the plaintiff’s 

factual allegations as true, but the complaint “must contain sufficient factual matter . . . to state a 

claim to relief that is plausible on its face.” Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., 

962 F.3d 882, 887 (6th Cir. 2020) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) 

(internal quotation marks omitted). A plaintiff need not demonstrate a probable right to relief, 

but must plead facts sufficient to raise a reasonable expectation that discovery will reveal 

evidence of the alleged wrongdoing. Cates v. Crystal Clear Techs., L.L.C., 874 F.3d 530, 534 

(6th Cir. 2017) (citations omitted). 

Although we read the complaint generously, we do not presume facts not alleged therein. 

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 

(1983). We also “need not accept as true a legal conclusion couched as a factual allegation, or an 

unwarranted factual inference.” Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 

2012) (citing Twombly, 550 U.S. at 555) (internal quotation marks and citation omitted). 

B. Schwamberger did not raise a viable First Amendment retaliation claim

This court set forth a two-part test in Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002), 

to determine when the discharge of a public employee supports a First Amendment retaliation 

claim. First, the plaintiff must show that her speech touched on “a matter of public concern.” Id. 

(quoting Dambrot v. Cent. Mich. Univ., 55 F.3d 1117, 1186 (6th Cir. 1995)). “The question 

. . . is one of law, to be reviewed de novo.” Dambrot, 55 F.3d at 1186. Second, the plaintiff 

must show that her speech deserves protection under the balancing test outlined in Pickering v.

Board of Education, 391 U.S. 563 (1968), which weighs whether her free-speech interests 

“outweigh the efficiency interests of the government as an employer.” Rose, 291 F.3d at 920.

Schwamberger’s speech, which addressed how the 2018 election was conducted, clearly 

related to “a matter of public concern,” see Dambrot, 55 F.3d at 1186, because an election is a 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 6

“matter of political, social, or other concern to the community,” Connick v. Myers, 461 U.S. 138, 

146 (1983). Schwamberger therefore satisfies the first part of Rose’s two-part test to evaluate 

First Amendment retaliation claims. See Rose, 291 F. 3d at 920. 

But she does not satisfy the second part. In Elrod v. Burns, 427 U.S. 347, 367 (1976), the 

Supreme Court determined that “policymaking” employees may be discharged based on political 

affiliation. “The three-justice plurality opinion and two-justice concurrence in Elrod together 

held . . . that ‘a nonpolicymaking, nonconfidential government employee can[not] be discharged 

or threatened with discharge from a job that he is satisfactorily performing upon the sole ground 

of his political beliefs.’” Carver v. Dennis, 104 F.3d 847, 850 n. 5 (6th Cir. 1997) (quoting 

Elrod, 427 U.S. at 375) (Stewart, J. concurring). The Court later clarified that “the ultimate 

inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position,” but 

“whether the hiring authority can demonstrate that party affiliation is an appropriate 

requirement” for the public office in question. Branti v. Finkel, 445 U.S. 507, 518 (1980). And 

in 2002, this court in Rose ruled that Elrod/Branti applies, and the Pickering balancing test 

therefore favors the government “as a matter of law,” when “a policymaking or confidential 

employee is discharged on the basis of actual speech rather than political affiliation.” 291 F. 3d 

at 921-22.

Schwamberger’s deputy-director position made her a policymaking employee because, 

under Ohio Law, “[t]he director and deputy director [of the Board] shall be of opposite political 

parties.” R.C. § 3501.09. In McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), this court 

delineated four categories of such employees. Schwamberger’s deputy-director position clearly 

falls under McCloud’s fourth category, which includes positions “that are part of a group of 

positions filled by balancing out political party representation,” or that are “filled by balancing 

out selections made by different governmental agents or bodies.” Id. at 1557. Schwamberger’s 

position is filled by balancing political representation, which clearly falls under McCloud. 

Schwamberger’s contrary arguments are unconvincing. She contends, for example, that 

she did not actually participate in administering the November 2018 elections because her son 

was running for office. Schwamberger further asserts that her November 8 statements were 

made as a private citizen “exercising her First Amendment rights.” Both points are 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 7

unpersuasive, however, because Schwamberger—although barred from participating in 

administration duties for the election in question—remained an officer of the Board. Her 

position as the Board’s deputy director, not her participation or duties, is the material point. See, 

e.g., Collins v. Voinovich, 150 F.3d 575, 578 (6th Cir. 1998) (holding that when the makeup of a 

panel must be balanced by political affiliation, the “balancing qualifies these positions as 

category-four positions” under McCloud). 

Schwamberger correctly asserts (and the defendants do not dispute) that her November 8 

speech proximately caused her termination. The Board voted to terminate Schwamberger 

immediately after she presented her “list of errors, discrepancies, problems, and/or possible 

criminal violations” at the open public meeting. But her argument that her speech represented 

only “her own political or policy viewpoints” misses the point because her speech implicated 

policy concerns. She alleged, for example, that the Board’s policy choices caused votes to be 

improperly counted. Because she was a policymaking employee, and because her statements 

concerned the Board’s election policies, her speech was unprotected. See Tompos v. City of 

Taylor, 644 F. App’x 678, 683 (6th Cir. 2016) (“[G]iven Tompos’s status as a policymaking 

employee, and because Tompos’s statements were policy-related, the district court did not err in 

granting summary judgment to the City.”). 

C. Schwamberger did not raise a viable Fourteenth Amendment due process claim

We now turn to Schwamberger’s Fourteenth Amendment claims. The first such claim, 

focused on due process, is raised when government employees demonstrate that they are 

“entitled to continued employment” that creates a protected property interest under state law. 

Bailey v. Floyd Cnty. Bd. of Educ., 106 F.3d 135, 141 (6th Cir. 1997) (citations and internal 

quotation marks omitted). The Supreme Court has made clear that proving the existence of a 

property interest requires that a “person . . . must have more than an abstract . . . desire for it. He

must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of 

entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). 

Schwamberger has not demonstrated such a property interest. Under Ohio law, she was 

an at-will employee who served at the pleasure of the Board and who could be removed from her 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 8

deputy-director position without cause at any time. See Christophel v. Kukulinsky, 61 F.3d 479, 

481-82 (6th Cir. 1995) (concluding that a public employee lacked a property interest under Ohio 

law because he served “at the pleasure of” his employer). Schwamberger correctly notes that 

Ohio’s secretary of state may remove the deputy director only for “good and sufficient cause.” 

R.C. § 3501.16. But she was removed by the Board, not the secretary of state, so any restrictions 

on the latter are irrelevant. See R.C. § 3501.09 (“[O]fficers [like the deputy director] shall 

continue in office, at the pleasure of the board, for two years.”) (emphasis added). 

In addition, as deputy director, Schwamberger was an “unclassified employee” under 

Ohio law. R.C. § 124.11(A)(2) (specifying that “unclassified” employees include “election 

officers”); R.C. §§ 3501.01(U)(6), 3501.14 (providing that “elections officers” include 

“employees of a board of elections,” such as the deputy director). As an unclassified employee, 

Schwamberger lacked a sufficient property interest in her public employment to establish a 

Fourteenth Amendment due process claim. See Christophel, 61 F.3d at 482. (“[U]nclassified 

civil servants have no property right to continued employment.”).

In sum, Schwamberger was an unclassified at-will employee not entitled “to any predeprivation process whatsoever.” See Bailey, 106 F.3d at 141. The district court therefore did 

not err in dismissing her due process claim. 

D. Schwamberger did not raise a viable Fourteenth Amendment equal protection claim

This leaves us with Schwamberger’s remaining constitutional claim, as set forth in her 

complaint, that the Board acted “arbitrarily,” thereby violating the Equal Protection Clause by 

terminating her instead of “any other employee [who] was the cause of the errors, discrepancies, 

problems, and/or possible criminal violations.” (The employee she is presumably referencing—

Meyer—was actually fired for cause by the secretary of state in January 2019.) But even if the 

Board did act “arbitrarily” regarding her discharge, its actions do not create a constitutional 

claim. 

Arbitrary actions by the government do not, without more, give rise to a constitutional 

violation. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 606-07 (2008) (refusing to 

recognize a “class-of-one” theory in the public-employment context, noting that “a claim that the 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 9

State treated an employee differently from others for a bad reason, or for no reason at all, is 

simply contrary to the concept of at-will employment,” and highlighting “the common-sense 

realization that government offices could not function if every employment decision became a 

constitutional matter”) (citations and internal quotation marks omitted). 

Of particular importance in the present case is that the complaint nowhere alleged 

disparate treatment based on membership in a protected class. The closest Schwamberger came 

to alleging any such impermissible discrimination was when she alleged, with regard to her due 

process claim, that her “termination was . . . based on [unspecified] personal motivations.” She 

also alluded to “gender” and “age” once in her complaint, but she did so in another context 

relating to a state-law claim. 

Schwamberger attempted to belatedly assert a disparate-treatment claim in her reply 

brief. Such a claim is potentially actionable in the public-employment context. See Deleon v. 

Kalamazoo Cnty. Rd. Comm’n, 739 F.3d 914, 917-18 (6th Cir. 2014) (noting that the elements 

necessary to establish an equal protection claim under 42 U.S.C. § 1983, and to establish a 

violation of Title VII, are “the same”). But the fact remains that the Equal Protection Clause 

portion of Schwamberger’s complaint not once references age or sex, nor points to any similarly 

situated individuals whom the Board treated differently. 

Finally, although Schwamberger’s reply brief attempted to rectify her complaint’s 

shortcomings, this is not a permissible way to amend a complaint. See, e.g., Bey v. Remondi, 

No. 16-CV-693, 2018 WL 6696914, at *4 (N.D. Ohio Dec. 20, 2018) (holding that “a plaintiff 

may not amend her complaint in a memorandum in opposition”) (citing Car Carriers, Inc. v. 

Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Her allegations, moreover, fail to 

provide the proof of “purposeful discrimination” necessary to raise a viable disparate-treatment 

claim. See Woodruff v. Ohman, 29 F. App’x 337, 344 (6th Cir. 2002) (“This court has ruled that 

the showing a plaintiff must make is identical under Title VII and § 1983,” and includes 

providing proof that “she was a victim of purposeful discrimination.”) (internal citation omitted). 

Nor are we required to accept as true ostensibly factual allegations made in the reply brief that 

are, in effect, legal conclusions. See Handy-Clay v. City of Memphis, 695 F.2d 531, 539 (6th Cir. 

2012) (internal citations and quotation marks omitted). 
No. 20-3575 Schwamberger v. Marion Cnty. Bd. of Elections et al. Page 10

E. Schwamberger’s state-law claims

This brings us to Schwamberger’s remaining causes of action. The district court 

permissibly concluded that this case is unsuitable for further federal litigation. See Experimental 

Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007) (“Generally, once a federal court has 

dismissed a plaintiff’s federal law claim, it should not reach state law claims.”). Here, “the 

interests of judicial economy and the avoidance of multiplicity of litigation” do not “outweigh 

our concern over needlessly deciding state law issues.” See Moon v. Harrison Piping Supply, 

465 F.3d 719, 728 (6th Cir. 2006). Schwamberger’s state-law claims are therefore best left to be 

decided by the state courts of Ohio. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.