           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2     Justice v. Pike County                        No. 01-6156
        ELECTRONIC CITATION: 2003 FED App. 0392P (6th Cir.)                       Bd. of Educ., et al.
                    File Name: 03a0392p.06
                                                                                                 _________________
UNITED STATES COURT OF APPEALS                                                                        COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED: Jeremiah A. Collins, BREDHOFF & KAISER,
                     _________________                                      Washington, D.C., for Appellant. Robert L. Chenoweth,
                                                                            CHENOWETH LAW OFFICE, Frankfort, Kentucky, for
 ANNA LEA JUSTICE,                X                                         Appellees. ON BRIEF: Jeremiah A. Collins, BREDHOFF
          Plaintiff-Appellant,     -                                        & KAISER, Washington, D.C., for Appellant. Robert L.
                                   -                                        Chenoweth, John C. Fogle III, CHENOWETH LAW
                                   -   No. 01-6156                          OFFICE, Frankfort, Kentucky, for Appellee.
            v.                     -
                                    >                                                            _________________
                                   ,
 PIKE COUNTY BOARD OF              -
 EDUCATION and FRANK                                                                                 OPINION
                                   -                                                             _________________
 WELCH ,                           -
         Defendants-Appellees. -                                              BOGGS, Chief Circuit Judge. Plaintiff Anna Lea Justice
                                   -                                        appeals the district court’s grant of summary judgment to
                                  N                                         defendants, the Pike County Board of Education (“Board”)
       Appeal from the United States District Court                         and its superintendent, Frank Welch, in her free speech and
     for the Eastern District of Kentucky at Pikeville.                     disability discrimination action. Justice, a certified teacher,
     No. 99-00399—Joseph M. Hood, District Judge.                           worked as Grants Department Director for the Board. When
                                                                            Welch became the new superintendent, after a campaign in
                     Argued: March 25, 2003                                 which Justice supported his opponents, he abolished the
                                                                            grants department and reassigned Justice to the classroom.
            Decided and Filed: November 4, 2003                             Rather than comply, Justice sought and received a pension
                                                                            based on her physical inability to perform some classroom
   Before: BOGGS, Chief Circuit Judge; SILER, Circuit                       duties. The district court rejected Justice’s claim that she had
           Judge; and STEEH, District Judge.*                               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.
    *
     The Honorab le George C. Steeh, United States District Judge for the
Eastern District of Michigan, sitting by designation.

                                   1
No. 01-6156                       Justice v. Pike County     3    4      Justice v. Pike County                    No. 01-6156
                                     Bd. of Educ., et al.                Bd. of Educ., et al.

                              I                                       provide grant writing workshops for teachers and
                                                                      administrative staff.
  Justice was a certified teacher in the Pike County school           8. Professional Development: Attend grant writing
system under the Kentucky Teacher’s Tenure Act, Ky. Rev.              workshops and conferences in a variety of disciplines so
Stat. § 161.720-161.841. She worked as a teacher from 1981            as to be abreast of the latest trends in education.
through 1989 and held various administrative positions from
1989 through 1995. In November 1995, the Board, at the            As grants director, she reported directly to the superintendent
initiative of the then-school superintendent, Reo Johns,          and in turn supervised two clerical workers.
created a grants department and appointed Justice its director.
Her job description, largely drafted by Justice herself, was as     In 1997, Johns came under public scrutiny after local
follows:                                                          newspapers published articles alleging that he had closed
                                                                  down a public school in order to enhance the business of a
  JOB GOAL:                                                       competing private school run by Johns’s son, the Kentucky
  The Grants Department Director is responsible for seeing        Youth Academy. Justice served as a director of the Kentucky
  that the goals and objectives of the Grants Department          Youth Academy and, at public meetings of the Board, she
  are achieved.                                                   repeatedly defended Johns and the Academy. Nevertheless,
  DESCRIPTION OF DUTIES:                                          in May 1998, Johns resigned as superintendent and Brenda
  1. Write Grant Proposals: Spearhead the research,               Gooslin was appointed interim superintendent. After Johns’s
  planning, and proposal writing for submission of                resignation, Justice published an article in the local paper
  proposals to federal, state, and foundation funding             further defending and praising him.
  sources.
  2. Program Monitoring and Evaluation: Monitor and                  In August 1998, supporters of defendant Welch defeated
  evaluate funded programs according to guidelines as set         Gooslin’s supporters in school board elections and the Board
  forth in the proposal and evaluate program strengths and        appointed Welch as the new superintendent. In April 1999,
  weaknesses.                                                     Welch, claiming that the grants department was not an
  3. Establish and Monitor School-Based Grant Teams:              efficient use of resources, prevailed upon the Board to abolish
  Select, train and work with teachers at each school who         it and return its functions to other administrators. Welch
  are part of the Pike County grant team.                         notified Justice that, starting in the 1999-2000 school year,
  4. Spearhead Proposal Development: Work with                    she would be assigned back to classroom teaching duty. As
  committees in various disciplines to develop goals,             classroom teacher, Justice would have continued to draw the
  objectives, and budgets.                                        same per diem salary. But because as a classroom teacher she
  5. Conduct Needs Assessments: Plan for and conduct              was only expected to work 185 days a year, compared to the
  needs assessments to determine needs for program                240 days a year as a grants director, this would have involved
  development.                                                    a significant reduction in annual salary.
  6. Locate funding sources for the district: Research
  funding sources for specific needs.                               Justice had become significantly disabled since she last
  7. Provide Technical Assistance: Provide technical              held a classroom teaching position. On November 11, 1995,
  assistance on an as needed basis to school staff and            about the same time she was promoted to grants director, she
No. 01-6156                       Justice v. Pike County       5    6     Justice v. Pike County                       No. 01-6156
                                     Bd. of Educ., et al.                 Bd. of Educ., et al.

suffered a serious car accident, resulting in multiple fractures,   against her on the basis of her disabilities, in violation of the
contusions, and whiplash. These injuries and the subsequent         Americans with Disabilities Act (“ADA”), 42 U.S.C.
post-traumatic arthritis made it difficult for her to stand or      § 12112, and the Rehabilitation Act, 29 U.S.C. § 794. She
walk for extended periods of time, climb stairs, or run. These      also alleged parallel state constitutional claims, under Ky.
disabilities did not substantially interfere with her work as a     Const. §§ 1 and 2, and state anti-discrimination claims. On
grants director, most of which was sedentary. According to          these grounds, she asked for compensatory and punitive
Justice’s medical experts, these disabilities would have made       damages, injunctive relief, and attorney’s fees.              On
it very difficult for her to function as an effective classroom     August 17, 2001, the district court granted the defendants’
teacher, a position requiring frequent standing and walking.        motion for summary judgment. The district court concluded
Justice also suffers from chronic depression and had been           that the position of Grant Development Director was one for
taking medication for this condition since 1985. Justice            which consideration of political affiliation or support was
claims that her mental problems were triggered by a                 appropriate, thus defeating Justice’s federal constitutional
confrontation with a student and that they render her unable        claims, and that Justice, by applying for disability retirement,
to handle classroom stress.                                         had conceded that she was not a qualified individual within
                                                                    the scope of the ADA and the Rehabilitation Act, thus
   Justice complained about the reassignment to Welch,              defeating her disability discrimination claims. Having
alleging that it constituted punishment for her political           disposed of all of Justice’s federal claims, the district court
association with and support for Johns. She also claimed that       declined to exercise supplemental jurisdiction over her state
she was unable to perform the duties of a classroom teacher         law claims. The district court also did not rule on the
because of her disabilities and that she had to be assigned to      defendants’ proffered Eleventh Amendment and qualified
a non-classroom position. When Welch was unmoved by                 immunity defenses. Before the court now is Justice’s timely
these complaints, Justice accepted the classroom assignment         appeal of the district court’s grant of summary judgment on
under protest and immediately applied for disability                the federal questions.
retirement under the Kentucky Teacher’s Retirement System.
To succeed in such an application, the claimant must                  During the pendency of this appeal, we heard and decided
demonstrate that she is unable to perform the essential             two factually and legally closely-related cases. In Hager v.
functions of her job. On August 1, 1999, prior to her               Pike County Board of Education, 286 F.3d 366 (6th Cir.
scheduled start of work as classroom teacher, Justice was           2002), we decided a case mirroring Justice’s constitutional
granted disability retirement.                                      claims. Carolyn Sue Hager, too, was a teacher in the Pike
                                                                    County school system. Id. at 368. Hager had publicly
  On October 29, 1999, Justice filed a complaint against the        supported Johns’s appointment as superintendent and Johns
Board and Welch in the United States District Court for the         had appointed Hager to the position of Gifted and Talented
Eastern District of Kentucky. In it she alleged that the            Teacher/Coordinator. Ibid. After Johns retired and Welch
defendants had deprived her of her First and Fourteenth             became superintended, he “decided to eliminate [Hager’s]
Amendment rights to freedoms of expression, speech, and             position and reassign the duties to another central office
association, in violation of 42 U.S.C. § 1983, denied her a         employee in an unpaid capacity.” Id. at 369. “He believed
position in order to punish her for her political affiliation, in   this arrangement was a more economic and efficient use of
violation of Ky. Rev. Stat. § 161.164(4), and discriminated         district resources.” Ibid. Hager was “reassigned to classroom
No. 01-6156                      Justice v. Pike County      7    8      Justice v. Pike County                       No. 01-6156
                                    Bd. of Educ., et al.                 Bd. of Educ., et al.

teaching at the elementary school level, with a salary                                            II
reduction of $28,000 and no responsibilities in the” Gifted
and Talented Program. Ibid. Two months before Justice filed        We recently summarized the state of the law of politically
her complaint, Hager filed a complaint against the same           motivated firings:
defendants, raising the same constitutional claims, in the same
court, presided over by the same judge. The district court, as          [The plaintiff] argues that her demotion and
here, found that Hager’s position was of a type that allowed          reassignment were in retaliation for the exercise of her
her to be dismissed on the basis of political affiliation or          constitutional rights to political expression and
support, and granted summary judgment to defendants. Id. at           association. These rights are well-established under the
368. We held that Hager’s position was not of this type and           Constitution. See, e.g., Rutan v. Republican Party, 497
therefore reversed and remanded for a finding as to whether           U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S.
Hager’s political affiliation or support had been the cause in        347, 356 (plurality opinion)) (“Political belief and
fact of her dismissal. Ibid.                                          association constitute the core of those activities
                                                                      protected by the First Amendment.”). Moreover, “even
   In Dotson v. Pike County Board of Education, 2001 WL               practices that only potentially threaten political
1216998 (6th Cir. 2001) (per curiam) (table), we decided a            association are highly suspect.” McCloud v. Testa, 97
case mirroring Justice’s disability discrimination claims.            F.3d 1536, 1552 (6th Cir. 1996) (“McCloud I”).
Fannie Louise Dotson, too, had been a teacher in the Pike               The defendants argue that [the plaintiff] was in a
County school system. Id. at *1. In 1997, Dotson retired on           position that allowed the defendants to consider political
income from the Board’s early retirement plan. Ibid. She              affiliation in their personnel decisions under the
also drew disability benefits from the Kentucky Teacher’s             Elrod/Branti exceptions to the general prohibition
Retirement System based on knee and back injuries, until she          against government employment decisions based on
was informed that teachers drawing disability benefits from           political activities. The district court agreed and found
that system where ineligible for the Board’s early retirement         no violation of a constitutional right. “Whether political
plan. Ibid. In response, Dotson filed a complaint alleging            affiliation is an appropriate consideration for a
disability discrimination, in violation of the ADA and the            government position is a question of law.” Sowards v.
Rehabilitation Act, against the same defendants, in the same          Loudon County, 203 F.3d 426, 435 (6th Cir. 2000).
court, presided over by the same judge. Ibid. “The district           Therefore, to obtain summary judgment, defendants must
court held that Dotson’s receipt of disability benefits               establish that no genuine issues of material fact exist as
prevented her from claiming that she is a ‘qualified individual       to “‘whether political affiliation may appropriately be
with a disability’ who could perform the essential functions          considered with respect to the position in question.’” Id.
of her job, as required by the ADA.” Ibid. Because the                (quoting Feeney v. Shipley, 164 F.3d 311, 314 (6th Cir.
standards for disability under the ADA and the retirement             1999)).
plan differ, we reversed. Id. at *2.                                    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        9   10       Justice v. Pike County                            No. 01-6156
                                      Bd. of Educ., et al.                    Bd. of Educ., et al.

  effectiveness and efficiency. Elrod, 427 U.S. at 366.              and (4) positions filled by balancing of affiliations. Ibid.
  “Limiting patronage dismissals to policymaking                     While a government position “need not fall neatly within one
  positions is sufficient to achieve the valid governmental          of the categories” to fit into the exception, any position that
  objective of preventing holdover employees from                    falls into these categories “with reasonable certainty” removes
  undermining the ability of a new administration to                 its holder from the constitutional protection against political
  implement its policies.”            Id.      In contrast,          dismissal enjoyed by other employees. Sowards, 203 F.3d at
  “‘[n]onpolicymaking individuals usually have only                  435-36. The court below held that Justice’s position fell
  limited responsibilities and are therefore not in a position       within category two and here the Board argues that Justice’s
  to thwart the goals of the in-party.’” Hall v. Tollett, 128        position falls within categories one, two, and three. That her
  F.3d 418, 422 (6th Cir. 1997) (quoting Elrod, 427 U.S.             position is not within category four is undisputed. We
  at 367). Therefore, “the single substantive question . . .         consider the applicability of the first three categories seriatim
  is whether a nonpolicymaking, nonconfidential                      and conclude that Justice’s position of Grants Development
  government employee can be discharged or threatened                Director does not fit within any of them.1
  with discharge from a job that [she] is satisfactorily
  performing upon the sole ground of [her] political                    In McCloud I, we defined category one as “positions
  beliefs.” Elrod, 427 U.S. at 375 (Stewart, J., concurring).        specifically named in relevant federal, state, county or
  This question extends beyond the context of firings, to            municipal law to which discretionary authority with respect
  include areas such as transfers, promotions, and recalls           to the enforcement of that law or the carrying out of some
  from layoffs. Rutan, 497 U.S. at 64. Abolition of                  other policy of political concern is granted.” 97 F.3d at 1557.
  positions, reassignments, and/or demotions are also                This category “captures the intuition gained from reading
  included. See id.; Thaddeus-X v. Blatter, 175 F.3d 378,            Elrod, Branti, and Rutan that a chief executive’s cabinet
  396 (6th Cir. 1999) (en banc). Thus, to avoid a                    secretaries and similar employees fall into the Branti
  constitutional violation in instances of patronage, the            exception. The proviso that the policymaking authority
  hiring authority must “demonstrate that party affiliation          possessed by a category one position-holder must be held in
  is an appropriate requirement for the effective                    relation to a matter of political concern stems from the
  performance of the public office involved.” Branti v.              discussion in Branti that a football coach is a policymaker,
  Finkel, 445 U.S. 507, 518 (1980) (emphasis added).                 but not the sort of policymaker for whom political affiliation
                                                                     is an appropriate requirement under the First Amendment.”
Hager, 286 F.3d at 371-72 (citations regularized).                   Id. at 1557 n.30. As an illustrative examples of a position

  To add concreteness to this exception to the First
Amendment protection of public employees, we have                         1
                                                                           In so doing we look at Justice’s actual duties. “To determine
established four broad categories of positions that fall within      whether political affiliation is an appropriate req uirement, a reviewing
the Elrod/Branti exception. McCloud I, 97 F.3d at 1557.              court ‘must look beyond the mere job title and examine the actual duties
These categories are: (1) positions explicitly empowered by          of the specific position.’” Hager, 286 F.3d at 372 (q uoting Ha ll, 128 F.3d
law to exercise political discretion; (2) positions not explicitly   at 423, emphasis in Hager). In the present case, the court below looked
                                                                     mainly at Justice’s formal job d escription. However, as Justice’s actual
so empowered, but exercising political discretion by a               duties, according to her own testimony, match her job description well,
jurisdiction’s pattern or practice; (3) confidential advisors;       this was at worst harmless error.
No. 01-6156                       Justice v. Pike County     11    12   Justice v. Pike County                      No. 01-6156
                                     Bd. of Educ., et al.               Bd. of Educ., et al.

within this category we listed “a secretary of state given         category “is constructed to recognize that it may be necessary
statutory authority over various state corporation law             to deny First Amendment protection not just to positions at
policies.” Id. at 1557.                                            the very top of any state administrative hierarchy, but in some
                                                                   cases to those occupying levels a bit farther down the
  The Board argues that because it is authorized by law to         hierarchy. Category two also exists to capture those who
establish written job descriptions, and Justice had such a         would otherwise be category one policymakers, except that
description, her position falls within category one. This          the federal government, state, county, or municipality has
scarcely needs refuting. A written job description is not          chosen for whatever reason not to set out the responsibilities
“federal, state, county or municipal law.” Nothing in our          of such a position in a statute, ordinance, or regulation.” Id.
precedents suggests it is and the Board cites no support for       at 1557 n.31. As an illustrative example of a position within
this proposition. Our category one case law focuses on             this category we gave “a deputy secretary of labor in a state,
whether positions established in law are political in nature.      to whom the secretary of labor has delegated the
See, e.g., Hoard v. Sizemore, 198 F.3d 205, 214 (6th Cir.          responsibility for crafting the department’s annual proposed
1999) (county road supervisor within category one because          legislative agenda.” Id. at 1557.
“state law specifically provides for [the position] which ‘has
the general charge of all county roads and bridges within his         While the language in McCloud I suggests that category
county’ and must see that ‘county roads and bridges are            two could be limited to relatively high-level executive
improved and maintained as provided by law’ and ‘[r]oad            positions, our case law has made clear that the hallmark of a
maintenance is a policy of political concern’” and the road        case two position is not high rank, but political discretion,
foreman “has some discretionary authority with respect to          even if exercised at a fairly low level. Compare Hall, 128
carrying out this policy.”); Collins v. Voinovich, 150 F.3d        F.3d at 426 & n.4, 429 & n.6 (chief deputy sheriff, but not
575, 578 (6th Cir. 1998) (executive director of Ohio Lottery       other deputy sheriff, within category two because sheriff had
Commission within category one because it is a cabinet-level       “delegated a significant portion of his or her discretionary
position “charged with administering the [lottery] in              responsibility” to chief deputy), with Hager, 286 F.3d at 377
accordance with the governor’s mandate” and named in state         (school’s gifted and talented coordinator not within category
law). However, we have never held that the requirement that        two because she had no budgetary discretion), Heggen v. Lee,
a position be established in law could be fulfilled by a mere      284 F.3d 675, 684 (6th Cir. 2002) (deputy sheriff whose
job description. Instead, we have created category two to          duties “comprised road patrol, serving arrest warrants and
cover positions similar to category one positions but not          civil papers, taking complaints, ‘working’ auto accidents, and
created by law.                                                    transporting prisoners” not within category two), and
                                                                   Sowards, 203 F.3d at 437 (chief jailer not within category two
  In McCloud I, we defined category two as “positions to           because she did “not participate in any type of
which a significant portion of the total discretionary authority   policymaking”). At the same time, we have held that a
available to category one position-holders has been delegated;     defendant who dismisses on the basis of political affiliation
or positions not named in law, possessing by virtue of the         “a governmental employee [who] may be nothing more than
jurisdiction’s pattern or practice the same quantum or type of     a supervisor with a glorified title who is simply performing
discretionary authority commonly held by category one              functions over which he or she has no discretion, or no
positions in other jurisdictions.” 97 F.3d at 1557. This           discretion of political significance,” will not even meet the
No. 01-6156                             Justice v. Pike County         13     14   Justice v. Pike County                       No. 01-6156
                                           Bd. of Educ., et al.                    Bd. of Educ., et al.

highly deferential standard of the qualified immunity defense.                how to exercise their statutory or delegated policymaking
McCloud I, 97 F.3d at 1559.                                                   authority, or other confidential employees who control the
                                                                              lines of communication to category one positions, category
  The Board argues that Justice falls within this category                    two positions or confidential advisors.” 97 F.3d at 1557.
because she exercised some discretion about how to seek                       This category “is formulated to comport with the discussion
grants. Also the Board points out that Justice, even though                   in Branti indicating that a state governor may ‘believe that the
she only had two subordinates herself, reported directly to the               official duties of various assistants who help him write
superintendent, a category one position, a factor that we had                 speeches, explain his views to the press, or communicate with
given some weight in Hall. It is true that Justice’s relatively               the legislature cannot be performed effectively unless those
low-level position does not automatically exclude her from                    persons share his political beliefs and party commitments.’”
this category. It is also correct that Justice exercised some                 Id. at 1557 n.32 (citing Branti, 445 U.S. at 518). As an
discretion in her position. However, every position but the                   illustrative example of a position within this category we gave
most menial involves the exercise of a degree of discretion.                  “a judge’s law clerk or secretary.” McCloud I, 97 F.3d at
What distinguishes category two positions from others is the                  1557.
exercise of discretion of political significance. Such
discretion Justice did not have. The core of her duties as                       The contours of category three have been further clarified
grants director was to raise as much money as possible and to                 in our case law. Compare Hoard, 198 F.3d at 213-14, 215
ensure that the conditions attached to the money were                         (county road supervisor within category three because he
complied with. The former is a goal that a superintendent of                  “serve[d] as the judge’s ‘alter-ego’ in the community with
practically any political persuasion would seek to pursue and                 respect to road conditions”), id. at 215-16 (assistant road
the latter a legal obligation that any superintendent would be                foreman, garage supervisor, and senior citizens director
bound to observe.2 Therefore Justice, lacking political                       within category three for similar reasons), Collins, 150 F.3d
discretion, was not within category two.                                      at 578 (executive director of Ohio Lottery Commission within
                                                                              category three because that office is charged with
  In McCloud I, we defined category three as “confidential                    “communicat[ing] departmental views to the press or the
advisors who spend a significant portion of their time on the                 legislature”), Hall, 128 F.3d at 426 & n.4, 429 & n.6 (chief
job advising category one or category two position-holders on                 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,
    2                                                                         971 (6th Cir. 1997) (administrative assistant to county chief
      This is not to say that there will never be a political aspect to the   engineer within category three because she was a
quest for grant funds. A funding pro gram could easily carry with it
conditions which are politically highly sensitive; one need only think of     “confidential employee[ ] who control[led] the lines of
a grant exclusively for the teaching of sex education or creationism. To      communications to [a] category one position”), with Hager,
decide to accept or reject such a grant is clearly a political question.      286 F.3d at 374-76 (school’s gifted and talented coordinator
However, nothing in the record suggests that any such politically sensitive   not within category three because she did not deal with
grant came up during Justice’s tenure o r that it would have bee n within     political issues, advise the superintendent on confidential
her authority to decide to accept such a conditional grant. To the
contrary, Justice testified that she would ask the superintendent’s express   information, or control the lines of communication to the
perm ission before applying for an y grant.                                   superintendent), Sowards, 203 F.3d at 437 (chief jailer not
No. 01-6156                      Justice v. Pike County     15    16   Justice v. Pike County                         No. 01-6156
                                    Bd. of Educ., et al.               Bd. of Educ., et al.

within category three because she did not “not have any           communication, even at a fairly low and non-policy making
access to any confidential or political information”), and        level, will suffice to remove a position from the protection
Bauer v. Montgomery, 215 F.3d 656, 660-61 (6th Cir. 2000)         against political dismissals. See Faughender v. City of North
(field investigator in attorney general’s office not within       Olmsted, 927 F.2d 909, 911, 913-14 (6th Cir. 1991) (allowing
category three where there was no evidence that plaintiff         political refusal to rehire mayor’s secretary who answered the
provided confidential advice or controlled the lines of           phone used by the members of the public wishing to contact
communication to anyone).                                         the mayor). However, Justice’s position did not control these
                                                                  lines of communication, even at a low level. Therefore,
  Justice did not spend a considerable portion of her time        Justice’s position does not fall within category three.
rendering confidential advice to the superintendent. The
eight-point job description on which the Board and court            In Hager, we also found Kentucky state law probative of
below rely so heavily does not even mention the rendering of      the question whether Hager’s position was protected from
advice to the superintendent. While Justice did report to the     dismissal on the basis of her political affiliation or support:
superintendent, and every subordinate will at times
communicate with a superior in a manner that can fairly be          In addition to the Elrod/Branti exceptions, there is an
described as giving advice, nothing in the record indicates         additional factor that the district court did not adequately
that Justice would spend more of her time giving advice than        consider in its determination that politics was an
any other subordinate in a hierarchical organization.               appropriate requirement for the [Gifted and Talented
Moreover, while presumably some of the communications               Program Coordinator] position. Kentucky statutory law
between Justice and the superintendent were not meant for           clearly establishes that a teacher or employee of a school
public consumption, there is nothing in Justice’s duties that       district has the right to be free from demotion or
renders her advice particularly sensitive or confidential.          discrimination based on political affiliation. KRS
                                                                    § 161.164(4) (“[n]o teacher or employee of any district
   Nor did Justice control the lines of communication between       board of education shall be . . . demoted or dismissed
the superintendent and the general public.               While      from, any position or in any way . . . discriminated
communications between the superintendent and Justice’s two         against with respect to employment because of [her]
staff persons or grantors would usually have passed through         political . . . affiliations.”); see also Sowards, 203 F.3d at
Justice, not everyone who sometimes passes messages from            439 n.4 (“it is important to examine the applicable state
political appointees is therefore in control of the lines of        and local law when deciding whether political
communication. To hold otherwise would put every public             considerations may be used in employment decisions
employee working under a political appointee in category            . . . .”). The existence of the Kentucky statute as
three. Rather, the lines-of-communication subset of category        protection against political reprisal such as occurred in
three focuses on those who control the lines of                     this case has been clearly established by the Kentucky
communication with the general public and its                       courts for many years. See Calhoun v. Cassady, 534
representatives. See McCloud I, 97 F.3d at 1557 n.32                S.W.2d 806, 808 (Ky. 1976) (statute enacted to prevent
(referring to those who “write speeches, explain . . . views to     Superintendent and Board from perpetrating transfers and
the press, or communicate with the legislature” on behalf of        demotions as political “vendettas” for supporting
a political superior).        Control over such lines of            candidates opposed to Superintendent in race for office);
No. 01-6156                        Justice v. Pike County    17   18   Justice v. Pike County                     No. 01-6156
                                      Bd. of Educ., et al.             Bd. of Educ., et al.

  see also Harlan County Bd. of Educ. v. Stagnolia, 555                In Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
  S.W.2d 828, 830 (Ky. Ct. App. 1977) (“Political reprisals         805, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999), the
  by superintendents and a majority of board members                Court held that despite the conflict between the social
  brought about the enactment of KRS 161.162 which                  security program, which provides benefits to a person
  prohibits such action.”).       The existence of this             with a disability that cannot perform his work, and the
  long-standing prohibition raises significant question as to       ADA, which requires a person to be able to perform the
  the legitimacy of the defendants’s actions in this matter.        essential functions of his job, receipt of social security
                                                                    benefits does not automatically estop a recipient from
Hager, 286 F.3d at 377. As the relevant Kentucky state law          pursuing an ADA claim. The Court concluded that the
does not distinguish between the positions of Gifted and            two claims do not inherently conflict because the Social
Talented Program Coordinator and Grants Department                  Security Act does not account for the possibility of work
Director, identical considerations apply here.                      with “reasonable accommodation,” whereas the ADA
                                                                    does. See id. at 802-03. Similarly, although the ADA
                             III                                    and the Kentucky statute appear to conflict, Dotson’s
                                                                    qualification for disability retirement did not
  In Dotson, we answered in the negative the question of            automatically estop her from pursuing an ADA claim.
whether receipt of a Kentucky Teacher’s Retirement System              To survive summary judgment, Dotson must provide
disability pension estops the recipient from arguing that she       an explanation sufficient to warrant a reasonable juror
was a “qualified individual with a disability.” While Dotson        finding that, despite her statement that she is unable to
was a non-precedential opinion, its reasoning, based on both        work, that she could nonetheless perform the essential
recent Supreme Court precedent and recent, binding precedent        functions of her job, with or without reasonable
of this court, is sound and applicable here:                        accommodation. See Cleveland, 526 U.S. at 807; see
                                                                    also [Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 383
     The ADA prohibits discrimination against any                   (6th Cir. 1998)].
  “qualified individual with a disability,” which is defined           Dotson provided evidence that she had been able to
  as “an individual with a disability who, with or without          teach effectively throughout the 1996-97 school year, and
  reasonable accommodation, can perform the essential               although she submitted a request for accommodation to
  functions of the employment position that such                    which the school did not respond, she continued to work.
  individual holds or desires.” 42 U.S.C. §§ 12112(a),              Thus, a genuine issue exists as to whether Dotson was a
  12111(8). However, in order to qualify for disability             “qualified individual with a disability” under the ADA.
  retirement, Dotson had to attest that she “suffer[s] from         In addition, the court never addressed directly the
  a physical or mental condition presumed to be permanent           question of whether Dotson was in fact disabled under
  in duration and of a nature as to render the member               the ADA. It was error to grant summary judgment on the
  incapable of being gainfully employed . . .” Ky. Rev.             ADA and Rehabilitation Act claims.
  Stat. Ann. § 161.661(9) (1996). The district court held         Dotson, at *1-2 (footnotes omitted). For this reason, Justice
  that the conflict between Kentucky’s disability retirement      too was not estopped from making her ADA claim by receipt
  statute and the ADA necessarily prevented Dotson from           of her disability pension.
  having standing under the ADA.
No. 01-6156                        Justice v. Pike County    19
                                      Bd. of Educ., et al.

   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 non-
precedential, 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.
