Sandra S. Smith v. Ted W. Sushka

Moreover, proof of competent Petition- Applying the harm- guilt was abundant.

er’s case, we conclude in this error standard

less during clos- prosecutor’s statement egregious as to “so so

ing argument fundamentally unfair.” entire trial

render Bordenkircher, F.2d at 119.

Cook

IV. reasons, we REVERSE foregoing

For the granting Petitioner’s habeas cor- prosecutorial his mis-

pus relief on claim denying AFFIRM the decision

conduct right petition on claim denial

to counsel. Plaintiff-Appellant, SMITH,

Sandra S. Defendant-Appellee. SUSHKA,

Ted W.

No. 95-4261. Appeals, Court of

United States

Sixth Circuit.

Argued Oct. 2, 1997. July

Decided LIVELY, BOGGS, NORRIS,

Before: and Judges. Circuit BOGGS, J., opinion delivered the court, NORRIS, J., in which joined. LIVELY, 971-974), (pp. J. delivered a separate dissenting opinion.

OPINION BOGGS, Judge. Circuit Plaintiff Sandra appeals S. Smith from a magistrate judge’s1 grant of summary judg- ment to defendant Ted W. Sushka in this dispute allegedly political firing. over §§ Smith filed suit under 42 U.S.C. 1983 and 1985, alleging that she had been terminated as administrative assistant to Washington County, engineer, in violation of her First and Fourteenth rights. Amendment magistrate judge, The in reaching his deci- Sushka, sion in favor of held that Smith was collaterally estopped relitigating the is- sue of her duties as administrative assis- that, tant and based the facts found Ohio State Personnel Board of Review (“SPBR”), her “was one for which party affiliation is an require- performance ment for the effective office.” We affirm.

I began November working Smith as an administrative assistant to the Wash- ington County engineer, who at that time Sushka, however, was Paul Junk. defeated Junk in primary the 1992 Democratic and ultimately prevailed in general election. office, In March after two months in 28,1993, May Sushka fired Smith. On Smith complaint court, filed a two-count in federal alleging termination without process due law and the basis of her affilia- suit, tion. In this soüght reinstate- ment, permanent injunction, compensatory punitive damages, attorney’s and fees. Coco, briefed, Harris, argued Mark S. While pending, brought the suit was McClellan, Cox, OH, Columbus, Binau & for SPBR, an action before the contesting her Plaintiff-Appellant. parties agreed stay dismissal. The discov- Lambert, briefed, Randall argued ery Lee in the federal pending suit a decision Ironton, OH, Defendant-Appellee. concerning the SPBR the status of Smith’s parties agreed plenary magistrate judge jurisdiction, 636(c). pursuant § to 28 U.S.C. open be- had the accounts on that Smith was job. The SPBR ruled former half of the WCE. employee, as defined Ohio an unclassified 124.11(A)(9),2 § and dismissed that, these carrying Rev.Code find while out jurisdiction.3 Adminis- for lack of action responsibilities other fiscal admin- opinion, 28-page Judge Law issued Appellant sig- trative responsibilities, istrative finding following the facts: Washington the nificant interaction with Commissioners, themselves, pertinent approxi- County that, during the

I find with removal, County prior Washington the Commissioners’ year to her period mate one Coordinator, Prevailing Wage with the the As- and Appellant served as Administrative Washington County Engi- Washington County Auditor or the Audi- to sistant the that, accompa- peri- Bookkeeper_ Appellant during that tor’s neer. I further find Engineer the od, portion Appellant’s meetings work nied the to with large was areas, Washington County and' general fiscal Commissioners into and divided provided provided him with and re- data administrative. sponses questions concerning the to area, appel- ... regard the fiscal to Further, budget. ... would WCE’s there WCE, kept for lant the accounts the times the have been when Commissioners concerning the fis- privy to all information gone directly to with Appellant would have aspects WCE was more of the and cal budget. questions concerning the knowledgeable concerning those accounts County Additionally, Appellant any ... interacted Washington than other em- township with trustees with I find on a continu- both and ployee_ also basis, period. township during Board’s clerks this ing Appellant advised WCE Junk funds, answering interaction included tele- concerning availability of trans- That fers, phone inquiries inquiries budget projections, et or face-to-face allocations and respective or clerks ... from trustees their Among her other duties were cetera. of WCE’s regarding various activities provide explanations to or embellishments assisting process spreadsheet providing column office and trustees along a including pip- or various items concerning his funds order WCE vital information signs. Appel- budgetary ing road also find that making regarding allo- and decision up procedure lant assisted Engi- for set cations the entire Office exemp- collecting payments for Frost Law neer. tions, later which funds were distributed Appellant Further ... was authorized township trustees. pay- certify did the entire occasion Further, period, Appel- during ... this separate therein as roll and each line item Further, authority approve signature. lant did using her had accurate em- requests for leave various ... .there of times when various number ... prepared ployees office and had payroll, initially within the leave_ Addi- authority deny by Appellant, or Account Clerk authority Appellant tionally, ... had supervision ... would not under [her] approve expenditure requests and and did again cross Mr. Junk’s desk once hundred-fifty well, Appellant purchases dol- approved. As ... of under one fiduciary provision pertinent part: holding administrative relation- 2. That states officials, county ship and the to such elected (A) comprise service shall unclassified county employees officials whose fit- of such following positions, which not be shall includ- impracticable to would be determine ness service, ed in the and which shall be classified competitive examination.... required by exempt from all examinations (Banks-Baldwin 124.11(A)(9) § Ohio Rev.Code chapter: 1994). ap- (9) deputies jurisdiction an the Board lacks over of elective or Since assistants position, peal by employee principal in an unclassified authorized to act executive officers a classi- place principals, Smith was and in determination of whether for holding fiduciary their any logically principals employee fied consid- to such relations employed by directly of her claim. See persons eration of merits and those responsible § Rev.Code 124.03. to elected officials and claim, various lars for WCE. cal affiliation the federal court ease Also, extraordinary abeyance ... under would be pending circum- stances, appeal. SPBR’s decision on Appellant ... The SPBR’s had the Washington was affirmed purchase greater than approve one hun- County Court of Common Pleas and the Ohio fifty Additionally, ... dred dollars. in late result, Appeals. Court of As a December, Smith volun- designated Ap- Mr. Junk tarily process her dismissed due claim employee pellant charge against court.4 federal This left office staff.... WCE’s only affiliation claim remaining. December, 1988, Appellant, ... late [I]n appeals upheld After the court of ... of office had an oath administered to days SPBR’s decision and three before the the Honorable Robert Rawson.... political go affiliation claim was to to trial in ... [The oath] administered [because] court, federal Sushka filed second motion publically ... recog- Mr. Junk wished summary judgment, raising collateral es- nize her. toppel motion, for the first In time.5 this he performing ... well as [A]s functional firing political admitted Smith for reasons supervision over the administrative office argued political but affiliation was an staff, performed Appellant supervi- direct appropriate requirement for the effective Malster, sion over Raelene the Account performance position. Relying of Smith’s on Clerk.... decision, argued SPBR’s he that Smith Appellant’s ... administrative functions collaterally estopped litigating from interacting compen- included with workers’ factual issue her duties as administrative unemployment compensation sation and assistant under Junk and these factual processors in assisting employ- and WCE political showed that affiliation was relationships pro- in their with ees those appropriate an requirement for that cessors .... magistrate judge delayed the trial Appellant performed I also find that var- give respond Smith time to to the motion. ious other miscellaneous functions.... briefing argument, After magistrate Appellant performed including also duties judge granted Sushka’s motion and dis- answering general telephone inqui- calls or missed the action. dealing ries either over opinion, magistrate his judge held telephone person.... or in I further that Smith collaterally estopped from Appellant prepared find that various con- relitigating the factual issue of what duties WCE, usually by tracts for the amending she had as administrative assis- previous contracts submitted to vendors. tant under Junk. He found that Smith had Appellant Finally, directly ... answered issue, had a fair litigate during to Mr. Junk his tenure and later to fact, litigated fully issue be- Mr. during Ap- the remainder of fore the SPBR and the Ohio courts. Based pellant’s tenure with the WCE.... SPBR, on the facts as found Report and Recommendation of the SPBR at magistrate judge “plaintiffs concluded that (Feb. 22-24, 7, 1994). No. 93-REM-03-0182 party was one for which affiliation is decision, appealed Smith parties and the an appropriate requirement for the effective that, agreed except ruling for a performance on Sushka’s of the office.” timely summary judgment motion for politi- appealed this decision. because, dropped 4. Smith arguing this claim after the that Smith had failed to meet her burden decision, appeal's apparent court of it became showing political association was a sub- process that her due claim was untenable be- motivating stantial or factor her termination. cause unclassified state serve at the motion, finding The district court denied this appointing authority may discretion of the genuine the evidence was sufficient to raise a pleasure. at his removed Ohio Admin. Code polit- issue of material fact as to whether Smith's 124-1-01. ical affiliation with Junk was a factor in her termination. previously Sushka had filed a motion for sum- mary claim, judgment political on the association estoppel as it arguments. that the doctrine of collateral makes two appeal,

On First, applies litigating collateral argues that the issues of in Ohio bars Smith from she appro- as an estoppel duties federal court and that these job requirement SPBR, were waived Sush- priate duties, as found show that pled properly he relied ka because never appropriate require- an affiliation is motion for sum- them his second ment for the of administrative assis- Second, argues she that the mary judgment. engineer. Washington County tant to the applied collateral improperly district court estoppel her ease. estoppel, also called Collateral preclusion, prevents claim relit II of fact or which were igating issues law begins her on the Plaintiff attack by previous judg final necessarily decided point judgment by raising a technical court, required ment. we are As federal arguing that Sushka has waived his pleading, apply estoppel in the doctrine of collateral the affirmative defense right to raise either manner courts in the same state affiliation as judgment was ren state which the earlier job requirement. Although Migra dered. See v. Warren Sch. Dist. not raise either defense before Sushka did Educ., 75, 81, Bd. U.S. judgment, summary motion for the second (1984). 896, L.Ed.2d 79 56 Failure to we do not believe this is fatal. responsive defense raise an affirmative Ohio, estoppel re- collateral bars always in pleading does not result waiver. a final litigation of claims on which those Owen, Moore, Coffey, Thomas & v. See Co. entered, judgment the merits has so been (6th Cir.1993). 1439, pur The 1445 992 F.2d long opportunity has a “fair as there 8(c) the Rules of pose of Rule Federal fully litigate” the v. McDon claim. Goodson party the give opposing is to Civil Procedure Inc., 193, 2 ough St.3d Equip., Power Ohio affirmative and a notice of the defense 978, party “[T]he 443 N.E.2d 985 agree respond. Ibid. While we chance to preclusion prove that the asserting the must diligent have been more that Sushka should actually directly litigated, identical issue was defenses, we raising in these do believe determined, judgment the essential discretion district court abused its Ibid, (citations omitted). prior action.” in the by permitting them to-be raised sec Thus, relitigation collateral bars summary judgment. ond motion for Sush actually only when identical issue affirmative defense ka’s failure raise either 443 at in the case. Id. N.E.2d decided prejudice surprise in or unfair did not result however, requirement, not so 987. This Smith, especially since district court require the courts have narrow as give in the trial order to Smith extended date in exact their conclusion same framed respond fully to and brief manner. Additionally, parties both the issues. under [Rather,] Supreme [has] decision could Court stood that the SPBR Ohio case. In determine some of the issues to be used in determin- stated that test fact, drop led ing identity the SPBR decision Smith issues involves consid- Moreover, altogether. process claim presented sup- her due eration of evidence discharged for admitting that he Smith port If same facts or evidence of each: reasons, both, narrowed re two actions would sustain Thus, case. maining issues rule within the the same considered job only prove protected that her needed is a bar to the judgment in the former Amendment, lessening her however, the First bur If, the two subsequent action. facts, den. upon states actions rest different required to proofs or if different would III actions, in one judgment sustain the two the oth- maintenance of is no bar assignment of error is more diffi- next Nevertheless, er.... we believe cult to answer.

970 Indus., Eagle v. Picker question Monahan hiring authority whether the can (1984) 179, 1165, App.3d 486 N.E.2d ap demonstrate that affiliation is an McDonald, (quoting Norwood Ohio St. propriate requirement per for the effective (1943) (internal quotations 52 N.E.2d 67 formance of the office involved.” Id. omitted)). [thus] “It is differences in the S.Ct. at 1295.7 proof focus evidence determine Determining whether affilia dissimilarity requires of issues and that a appropriate personnel tion is an basis for a judgment in one action not be a bar to the depends upon “the inherent duties of maintenance of the other.” Id. 486 N.E.2d and the duties that at 1169. of that perform. plain holder will A Necessary to the state court decision part tiffs failure to meet either of this test in this was the determination case of whether would cause the claim to be dismissed.” had, language the Ohio stat Faughender Olmsted, Ohio, North ute, “fiduciary or administrative relation (6th Cir.1991) (emphasis F.2d ship” Washington County engineer. original). The two tests outlined Fau hold, review, upon We novo de that this issue ghender, actually “the performed” identical, purposes estop envisioned,” “the completely are not pel, to the issue of whether separate Rather, independent. if one or is an in staffing consideration clearly directly other test is applica While the ultimate conclu ble, independently the other is not necessary, differently, sions are framed the “same facts although may be somewhat informative. or evidence ... sustain both.” Id. at 1168. Testa, See McCloud v. Supreme trilogy Court of Elrod v. (6th Cir.1996). Burns, 427 U.S. (1976); Finkel, L.Ed.2d 547 Branti v. And while states that a court 507, 1287, U.S. 63 itself, L.Ed.2d 574 must position examine the just (1980); Republican Party, and Rutan v. position performed, 497 as employer’s prior an 2729, U.S. S.Ct. L.Ed.2d duties can way gather be used “as a to (1990), establishes the boundaries for deter person’s evidence that position was one political mining when affiliation an appro is affecting policy.” Faughender, 927 F.2d at priate staffing position. consideration for 915. We believe that the SPBR’s of Branti, majority In of the Court reaffirmed actually performed” “the as by Smith holdings plurality pa Elrod that shows the position “inherent duties” of her tronage dismissal violates the political First Amend Therefore, in nature. we do not ment permitting politically and that motivat believe that this case needs to be remanded persons ed dismissals of politically certain for a determination of the duties of the positions necessary uphold sensitive is vi as tion envisioned engi- governmental tal neer, interests. 445 U.S. at especially 513- since the record does not S.Ct. 1292-94.6 The Court indicate that Sushka intended to make the Branti, however, scope reformulated the of duties of the administrative any assistant permissible patronage, holding that “the different.8 6.Although membership Branti concerned in dif- crats does not make the decision to terminate political parties, ferent underlying rationale any political. less has any political apply been understood this circuit to difference; thus, political affiliation this, inquiry 7. Prior to had been whether the membership political is not limited to in a position "policymaker” was one of "con- commonality political purpose includes Branti, fidential.” 445 U.S. at 100 S.Ct. at support and Testa, political candidacy. McCloud v. (6th Cir.1996) ("dicta 97 F.3d holdings strongly in our own circuit Although mainly clerical nearly exception support concept without office, appears duties after Sushka applying took this patronage the ban employment prac- non-ideological political tices been due have to her factions affiliation with within the same party”). previous Thus the fact Junk change that both the and not to Sushka’s desire to Junk, county engineer, and Sushka are Demo- duties of her per IV duties as The evidence clearly that her shows formed reasons, foregoing For district squarely it falls within “Cate political, as motion for granting Sushka’s court’s order positions discussed McCloud.9 gory Three” summary AFFIRMED. judgment is Washing assistant to As administrative engineer, a “confiden County Smith was ton DISSENT employee[ who lines ] controlled] tial LIVELY, Judge, dissenting. Circuit posit [a] communications ion!;].”10 McCloud, at 1557. And my opinion court has not In nothing nature of the there is in the inherent involving in its of eases consistent treatment assistant contra position of administrative fact, firings. seems me previous her duties. dict goes way deny court out of its often public employees fired benefit that Smith The state court’s determination holdings Supreme by the Court Elrod- an because of unclassified is, present trilogy. Branti-Rutan case sup- fiduciary of her further nature believe, example tendency to an of the court’s finding nature of ports a inherent public afforded em- eviscerate position is affiliation such finding in these ployees decisions McCloud, while the appropriate. As noted appropriate require- is an “party affiliation an in Branti was modified from Elrod test performance,” Branti ment the effective position is “confi- inquiry into whether the Finkel, 507, 518, 445 U.S. S.Ct. an “policymaking” nature to dential” or (1980), every public L.Ed.2d 574 political affiliation is an inquiry of whether job except very those at the lowest level. requirement, part” “for most old labels “remove First Amendment I. jobs.” protection from the same class McCloud, Thus, in a at 1553-54. F.3d trilogy estab Elrod-Branti-Rutan previously as- case where actual duties en lishes that continue to here, political, nothing in signed First joy Amendment freedoms position suggests the inherent nature activity save in the and associational belief otherwise, summary judgment appropriate, “party exception narrow where here, where, especially a determination appropriate requirement for the effective fiduciary position respon- one of that was performance public of office involved.” Therefore, sibility already Branti, has been made. 100 at at S.Ct. 1295. 445 U.S. legal hold that the determined we issue majority opinion present case is The SPBR, differently, though framed effort to allow this this court’s most recent gen the factual on which its decision was exception swallow the broad narrow based, government of are identical to issue whether of em rule that dismissal eral position political affilia- ployees Smith’s is one “where on the of basis requirement appropriate is for the the First re tion runs afoul of Amendment in public straining political in- belief and performance effective office freedom of Branti, fringing upon right associate with volved.” 445 U.S. at v. beliefs. Elrod others advance those at 1295. categorized posi- F.3d 97 at 1557. 9. This court in McCloud certain exception. falling tions the Branti One of as into Three,” categories, "Category includes: position "posi- those "Category includes 10. A One” state, federal, spend significant specifically who confidential advisors tions named in relevant advising portion job cate- municipal discretionary of their time on the county, law to or gory category position-holders or one respect that tot he enforcement of statutory delegated how exercise their or policy carrying of out of some other law the authority, policymaking or other confidential McCloud, granted.” F.3d political is concern employees who the lines of control communi- at 1557. positions, category two cations to positions or advisors. confidential 347, 355-60, Burns, Dep’t Rice v. 427 U.S. S.Ct. unsuccessful candidates. (6th Transportation, 14 2680-83, F.3d 1133 Cir. 49 L.Ed.2d of 1994). Rouge, River Williams of present case, majority In the finds the (6th Cir.1990), this court stated: F.2d 151 whether “fiduciary issue of Ms. Smith had a examining for first office “When relationship” to the administrative Wash- against politically-mo- amendment County ington Engineer purposes of Ohio dismissal, analy- the relevant focus of tivated political law identical to the of whether issue position duties of sis is the inherent affiliation is an consideration in question, actually performed by work not the staffing Ms. disagree. person happens occupy who the of- majority’s based, The determination omitted). (citation fice.” Id. at part, its erroneous recitation of the two Williams court reasoned that consideration Faughender of prongs “the as as: actual- position “rather position itself than the ly performed” and “the as envisioned.” performed appellant” important as standard, Faughender Under and the approach “[a]ny because other would tend to Williams, express language appropri- [appel- [employer] employ bind a later basing personnel ateness decision on way lant] the official political considerations is tested past.” employed in Id. at 155. After performed by work plaintiff. actual Williams, this court the narrow broadened Faughender While that the facts teaches re- exception, indicating that the determination position lating may be appropri- whether affiliation is an determining useful in whether the personnel depen- ate basis for decisions one for which appro- affiliation is an upon dent inherent “the duties of that consideration, priate “job consideration tion holder of and the duties actually performed” is different from con- perform.” Faughender will duties, although sideration inherent Olmsted, Ohio, City North may certainly overlap. the two (6th Cir.1991) (emphasis original). case, present To reach its result court that this indicated Testa, majority heavily relies on McCloud v. two-pronged test derived from Elrod (6th Cir.1996), F.3d where the court reasoning that “a Branti stated: “There can no be doubt about the polit- controls the of a lines communication rough essence distinction that the Su- inherently political” ical actor must be- preme Court trying to create in the cause cannot action occur without trilogy Elrod-Branti-Rutan cases: communication, “[p]ermit- id. and that “grunt” or “line” workers entitled to ting elected officials entrusted with adminis- protection, First Amendment but workers reorganize trative their ac- duties to staffs analogous secretary to a cabinet to a chief cording to their wishes is also from executive, derived along with the confidential advis- Elrod Id. at The court and Branti.” ors administrative assistants of such ex- Faughender later uphold relied on to the secretaries, ecutives cabinet are not enti- finding posi- that an administrative assistant protection.” tled First to Amendment Id. at Department Transporta- (footnote omitted). tion at the Ohio of and citation plaintiff tion sought by the one that opinion categories McCloud discovered four political patronage could a be filled on basis of to whom First no Amendment rights protection without the violating patronage constitutional of from dismissal is owed.1 positions law, Category specifically positions delegated; pos- named in or One: not named in state, federal, county, municipal by sessing jurisdiction’s pattern relevant or law virtue of the or discretionary authority respect to which with practice quantum type the same or of discretion- carrying the of that law or enforcement the out ary commonly by category one grant- policy of some other of concern is positions jurisdictions; in other ed; Category Three: advisors confidential who Category positions significant significant spend portion a Two: of their time which on the portion discretionary authority advising category category of the total avail- one or two category position-holders statutory able to has been on how their tion-holders to exercise or law, three, majority as the Under Ohio the doctrine collateral Resort case, estoppel relitigation bars of those deprives claims on present in the does judgment which a final on the merits has employees of First Amendment entered, long so as there has been a relationship of their as merely on the basis fully litigate” “fair the claim. of communications controllers advisors Inc., McDonough Equip., v. Goodson Power supervisors superiors in chain of their 193, 2 Ohio St.3d 443 N.E.2d 978 present ease illustrates the command. process prerequisite “[A]n absolute due approach. fallacy categorical of such a estoppel application the is that solely actually per- the as Reliance party asserting preclusion must improper in it is this case because formed actually the identical prove issue was from the record that Ms. Smith had clear determined, litigated, directly and essential relationship very close former coun- judgment prior Id. action.” Junk, assistant, ty Paul and his engineer, (citing v. N.E.2d Norwood Mc quite possible It that these Dale Cottrill. Donald, 142 Ohio 52 N.E.2d St. men, personal confidence because (1943); First Nat’l Bank v. Berkshire Life relationship, they had in her based Co., Ins. 176 Ohio St. 199 N.E.2d 863 may given assignments have Ms. (1964); McReynolds, Ohio Finance Co. inherent responsibilities not (1927)). App. N.E. Collater assistant. The decision of administrative only estoppel relitigation al when bars of Review the Ohio State Personnel Board actually identical issue was in the decided (SPBR) findings factual contains voluminous prior case. Id. at 443 N.E.2d 978. De performed concerning by the actual duties subsequent termination of whether a suit is one-year period Ms. immediate- upon the same cause of as a based action termination, ly prior to contains no but it requires suit a court to consider the findings respecting inherent nature necessary facts each of sustain the claims. apart per- work from the actual (6th Peck, Duncan v. plaintiff, formed and the SPBR did Cir.1985) law). (applying Ohio impact per- not consider the of Ms. Smith’s granted summary judg- The district court relationship with Junk and Cottrill. sonal findings ment on the basis of the SPBR’s concerning performed by actually the work II. immediately prior during year Ms. Smith particularly disturbing county, engineer I find it to the time the new took majority bases its on the conclu- office. Based on the administrative record of affirmance alone, collaterally estopped magistrate proceedings sion that Ms. Smith was the SPBR asserting judge determining from her claim in district court had no basis for that the assistant reason the administrative decision of administrative estoppel prevents engineer inherently Collateral SPBR. under relitigating prong fact law either test. This issues of necessarily previous required beyond final would have an inquiry decided required Federal factual SPBR because that judgment. courts body apply the inherent nature of doctrine collateral never considered way apply only purpose it in Its was to same the state courts deter- job, judgment mine the state in which the earlier whether Ms. Smith, School classified or Migra rendered. See should denominated Warren Ed., Thus, 75, 81, legal Dist. Bd. unclassified. neither the issue U.S. by nor the factual 79 L.Ed.2d determined SPBR authority, by delegated policymaking party representation, or other confi- cal or that are filled employees by gov- dential who the lines com- balancing out selections made different control positions, category munications agents or ernmental bodies. advisors; positions or confidential McCloud, original; (emphasis 1557. part Category positions Four: that are of a omitted). footnotes group balancing positions by politi- out filled its was based is cal. The record contains no written de- scription position, Ms. Smith’s claim that the relevant to it is not clear protected tion from which she was fired was from the record whether Ms. Smith’s other by politically support county Amendment from engineer First activities reason, discharge. For this collat- and in persons motivated communication with outside Ms. required by eral should not bar the office merely pursuit claim this action. of her entrusted to her because of her close rela- tionship top with the two officials in the before the SPBR does not an The record department. prong, “inherent duties” swer the dis above, totally cussed silent with CONCLUSION

respect prong other position test —the duties envisioned I Ms. short-changed. believe Smith was county engineer, Mr. Sushka. show, She was entitled to an advising letter to Ms. Smith that she response either in summary to a motion for terminated, being Sushka Mr. stated trial, judgment or at that she entitled position that the of administrative assistant First Amendment from a being reorganization in a abolished firing. But she should not have been fore- county engineer department. In a dis by improper application closed covery deposition before conclusion estoppel. impermissible It was unfair and proceedings, SPBR the defendant testified shut her off on the basis of an administrative while an office as small as the totally determination based on a different engineer’s did need administrative inquiry. just This is example the latest assistant, contemplated hiring a he “confi increasingly court’s hostile attitude to- secretary.” position dential of confiden ward the public First Amendment claims of secretary definitely” tial would “most be dif political firings. who suffer plaintiffs position, ferent from according respectfully dissent. gave description, the defendant. He no however, posi of what duties of the new be,

tion would Branti teaches that the

label does not resolve ques “confidential”

tion appro of whether affiliation is an

priate requirement perfor for the effective

mance of office. U.S. at

S.Ct. at 1294-95. Neither of two essential issues of fact America, UNITED STATES of required in determining resolved Plaintiff-Appellee, public job protect whether the holder dismissal —whether duties of ed plaintiff are inher Raynard McDOWELL, Defendant- ently political and whether the duties envi Appellant. sioned for new holder of that No. 96-3734.

inherently Faughender, 927 political, F.2d at 913 — was addressed the SPBR. Further Appeals, United States Court of more, Mr. never described to the Seventh Circuit. district court the duties that he envisioned Argued April for the posi new holder of the substituted solely tion. as it did Relying the SPBR’s Decided June findings concerning duties working previous Ms. Smith while under

county engineer, the district court made no

determination whether ad inherently politi-

ministrative assistant was

Case Details

Case Name: Sandra S. Smith v. Ted W. Sushka

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 2, 1997

Citation: 117 F.3d 965

Docket Number: 95-4261

Court Abbreviation: 6th Cir.