Anna Lea Justice v. PIKE COUNTY BOARD OF EDUCATION and FRANK WELCH

*The Honorab le George C. Steeh, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0392P (6th Cir.)
File Name: 03a0392p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ANNA LEA JUSTICE,
Plaintiff-Appellant,
v.
PIKE COUNTY BOARD OF
EDUCATION and FRANK
WELCH,
Defendants-Appellees.
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No. 01-6156
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 99-00399—Joseph M. Hood, District Judge.
Argued: March 25, 2003
Decided and Filed: November 4, 2003
Before: BOGGS, Chief Circuit Judge; SILER, Circuit
Judge; and STEEH, District Judge.*
2 Justice v. Pike County
Bd. of Educ., et al.
No. 01-6156
_________________
COUNSEL
ARGUED: Jeremiah A. Collins, BREDHOFF & KAISER,
Washington, D.C., for Appellant. Robert L. Chenoweth,
CHENOWETH LAW OFFICE, Frankfort, Kentucky, for
Appellees. ON BRIEF: Jeremiah A. Collins, BREDHOFF
& KAISER, Washington, D.C., for Appellant. Robert L.
Chenoweth, John C. Fogle III, CHENOWETH LAW
OFFICE, Frankfort, Kentucky, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Circuit Judge. Plaintiff Anna Lea Justice
appeals the district court’s grant of summary judgment to
defendants, the Pike County Board of Education (“Board”)
and its superintendent, Frank Welch, in her free speech and
disability discrimination action. Justice, a certified teacher,
worked as Grants Department Director for the Board. When
Welch became the new superintendent, after a campaign in
which Justice supported his opponents, he abolished the
grants department and reassigned Justice to the classroom.
Rather than comply, Justice sought and received a pension
based on her physical inability to perform some classroom
duties. The district court rejected Justice’s claim that she had
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.

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

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No. 01-6156 Justice v. Pike County
Bd. of Educ., et al.
5
suffered a serious car accident, resulting in multiple fractures,
contusions, and whiplash. These injuries and the subsequent
post-traumatic arthritis made it difficult for her to stand or
walk for extended periods of time, climb stairs, or run. These
disabilities did not substantially interfere with her work as a
grants director, most of which was sedentary. According to
Justice’s medical experts, these disabilities would have made
it very difficult for her to function as an effective classroom
teacher, a position requiring frequent standing and walking.
Justice also suffers from chronic depression and had been
taking medication for this condition since 1985. Justice
claims that her mental problems were triggered by a
confrontation with a student and that they render her unable
to handle classroom stress.
Justice complained about the reassignment to Welch,
alleging that it constituted punishment for her political
association with and support for Johns. She also claimed that
she was unable to perform the duties of a classroom teacher
because of her disabilities and that she had to be assigned to
a non-classroom position. When Welch was unmoved by
these complaints, Justice accepted the classroom assignment
under protest and immediately applied for disability
retirement under the Kentucky Teacher’s Retirement System.
To succeed in such an application, the claimant must
demonstrate that she is unable to perform the essential
functions of her job. On August 1, 1999, prior to her
scheduled start of work as classroom teacher, Justice was
granted disability retirement.
On October 29, 1999, Justice filed a complaint against the
Board and Welch in the United States District Court for the
Eastern District of Kentucky. In it she alleged that the
defendants had deprived her of her First and Fourteenth
Amendment rights to freedoms of expression, speech, and
association, in violation of 42 U.S.C. § 1983, denied her a
position in order to punish her for her political affiliation, in
violation of Ky. Rev. Stat. § 161.164(4), and discriminated
6 Justice v. Pike County
Bd. of Educ., et al.
No. 01-6156
against her on the basis of her disabilities, in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12112, and the Rehabilitation Act, 29 U.S.C. § 794. She
also alleged parallel state constitutional claims, under Ky.
Const. §§ 1 and 2, and state anti-discrimination claims. On
these grounds, she asked for compensatory and punitive
damages, injunctive relief, and attorney’s fees. On
August 17, 2001, the district court granted the defendants’
motion for summary judgment. The district court concluded
that the position of Grant Development Director was one for
which consideration of political affiliation or support was
appropriate, thus defeating Justice’s federal constitutional
claims, and that Justice, by applying for disability retirement,
had conceded that she was not a qualified individual within
the scope of the ADA and the Rehabilitation Act, thus
defeating her disability discrimination claims. Having
disposed of all of Justice’s federal claims, the district court
declined to exercise supplemental jurisdiction over her state
law claims. The district court also did not rule on the
defendants’ proffered Eleventh Amendment and qualified
immunity defenses. Before the court now is Justice’s timely
appeal of the district court’s grant of summary judgment on
the federal questions.
During the pendency of this appeal, we heard and decided
two factually and legally closely-related cases. In Hager v.
Pike County Board of Education, 286 F.3d 366 (6th Cir.
2002), we decided a case mirroring Justice’s constitutional
claims. Carolyn Sue Hager, too, was a teacher in the Pike
County school system. Id. at 368. Hager had publicly
supported Johns’s appointment as superintendent and Johns
had appointed Hager to the position of Gifted and Talented
Teacher/Coordinator. Ibid. After Johns retired and Welch
became superintended, he “decided to eliminate [Hager’s]
position and reassign the duties to another central office
employee in an unpaid capacity.” Id. at 369. “He believed
this arrangement was a more economic and efficient use of
district resources.” Ibid. Hager was “reassigned to classroom

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

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effectiveness and efficiency. Elrod, 427 U.S. at 366.
“Limiting patronage dismissals to policymaking
positions is sufficient to achieve the valid governmental
objective of preventing holdover employees from
undermining the ability of a new administration to
implement its policies.” Id. In contrast,
“‘[n]onpolicymaking individuals usually have only
limited responsibilities and are therefore not in a position
to thwart the goals of the in-party.’” Hall v. Tollett, 128
F.3d 418, 422 (6th Cir. 1997) (quoting Elrod, 427 U.S.
at 367). Therefore, “the single substantive question . . .
is whether a nonpolicymaking, nonconfidential
government employee can be discharged or threatened
with discharge from a job that [she] is satisfactorily
performing upon the sole ground of [her] political
beliefs.” Elrod, 427 U.S. at 375 (Stewart, J., concurring).
This question extends beyond the context of firings, to
include areas such as transfers, promotions, and recalls
from layoffs. Rutan, 497 U.S. at 64. Abolition of
positions, reassignments, and/or demotions are also
included. See id.; Thaddeus-X v. Blatter, 175 F.3d 378,
396 (6th Cir. 1999) (en banc). Thus, to avoid a
constitutional violation in instances of patronage, the
hiring authority must “demonstrate that party affiliation
is an appropriate requirement for the effective
performance of the public office involved.” Branti v.
Finkel, 445 U.S. 507, 518 (1980) (emphasis added).
Hager, 286 F.3d at 371-72 (citations regularized).
To add concreteness to this exception to the First
Amendment protection of public employees, we have
established four broad categories of positions that fall within
the Elrod/Branti exception. McCloud I, 97 F.3d at 1557.
These categories are: (1) positions explicitly empowered by
law to exercise political discretion; (2) positions not explicitly
so empowered, but exercising political discretion by a
jurisdiction’s pattern or practice; (3) confidential advisors;
10 Justice v. Pike County
Bd. of Educ., et al.
No. 01-6156
1In so doing we look at Justice’s actual duties. “To determine
whether political affiliation is an appropriate req uirement, a reviewing
court ‘must look beyond the mere job title and examine the actual duties
of the specific position.’” Hager, 286 F.3d at 372 (q uoting Ha ll, 128 F.3d
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
duties, according to her own testimony, match her job description well,
this was at worst harmless error.
and (4) positions filled by balancing of affiliations. Ibid.
While a government position “need not fall neatly within one
of the categories” to fit into the exception, any position that
falls into these categories “with reasonable certainty” removes
its holder from the constitutional protection against political
dismissal enjoyed by other employees. Sowards, 203 F.3d at
435-36. The court below held that Justice’s position fell
within category two and here the Board argues that Justice’s
position falls within categories one, two, and three. That her
position is not within category four is undisputed. We
consider the applicability of the first three categories seriatim
and conclude that Justice’s position of Grants Development
Director does not fit within any of them.1
In McCloud I, we defined category one as “positions
specifically named in relevant federal, state, county or
municipal law to which discretionary authority with respect
to the enforcement of that law or the carrying out of some
other policy of political concern is granted.” 97 F.3d at 1557.
This category “captures the intuition gained from reading
Elrod, Branti, and Rutan that a chief executive’s cabinet
secretaries and similar employees fall into the Branti
exception. The proviso that the policymaking authority
possessed by a category one position-holder must be held in
relation to a matter of political concern stems from the
discussion in Branti that a football coach is a policymaker,
but not the sort of policymaker for whom political affiliation
is an appropriate requirement under the First Amendment.”
Id. at 1557 n.30. As an illustrative examples of a position

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

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

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No. 01-6156 Justice v. Pike County
Bd. of Educ., et al.
15
within category three because she did not “not have any
access to any confidential or political information”), and
Bauer v. Montgomery, 215 F.3d 656, 660-61 (6th Cir. 2000)
(field investigator in attorney general’s office not within
category three where there was no evidence that plaintiff
provided confidential advice or controlled the lines of
communication to anyone).
Justice did not spend a considerable portion of her time
rendering confidential advice to the superintendent. The
eight-point job description on which the Board and court
below rely so heavily does not even mention the rendering of
advice to the superintendent. While Justice did report to the
superintendent, and every subordinate will at times
communicate with a superior in a manner that can fairly be
described as giving advice, nothing in the record indicates
that Justice would spend more of her time giving advice than
any other subordinate in a hierarchical organization.
Moreover, while presumably some of the communications
between Justice and the superintendent were not meant for
public consumption, there is nothing in Justice’s duties that
renders her advice particularly sensitive or confidential.
Nor did Justice control the lines of communication between
the superintendent and the general public. While
communications between the superintendent and Justice’s two
staff persons or grantors would usually have passed through
Justice, not everyone who sometimes passes messages from
political appointees is therefore in control of the lines of
communication. To hold otherwise would put every public
employee working under a political appointee in category
three. Rather, the lines-of-communication subset of category
three focuses on those who control the lines of
communication with the general public and its
representatives. See McCloud I, 97 F.3d at 1557 n.32
(referring to those who “write speeches, explain . . . views to
the press, or communicate with the legislature” on behalf of
a political superior). Control over such lines of
16 Justice v. Pike County
Bd. of Educ., et al.
No. 01-6156
communication, even at a fairly low and non-policy making
level, will suffice to remove a position from the protection
against political dismissals. See Faughender v. City of North
Olmsted, 927 F.2d 909, 911, 913-14 (6th Cir. 1991) (allowing
political refusal to rehire mayor’s secretary who answered the
phone used by the members of the public wishing to contact
the mayor). However, Justice’s position did not control these
lines of communication, even at a low level. Therefore,
Justice’s position does not fall within category three.
In Hager, we also found Kentucky state law probative of
the question whether Hager’s position was protected from
dismissal on the basis of her political affiliation or support:
In addition to the Elrod/Branti exceptions, there is an
additional factor that the district court did not adequately
consider in its determination that politics was an
appropriate requirement for the [Gifted and Talented
Program Coordinator] position. Kentucky statutory law
clearly establishes that a teacher or employee of a school
district has the right to be free from demotion or
discrimination based on political affiliation. KRS
§ 161.164(4) (“[n]o teacher or employee of any district
board of education shall be . . . demoted or dismissed
from, any position or in any way . . . discriminated
against with respect to employment because of [her]
political . . . affiliations.”); see also Sowards, 203 F.3d at
439 n.4 (“it is important to examine the applicable state
and local law when deciding whether political
considerations may be used in employment decisions
. . . .”). The existence of the Kentucky statute as
protection against political reprisal such as occurred in
this case has been clearly established by the Kentucky
courts for many years. See Calhoun v. Cassady, 534
S.W.2d 806, 808 (Ky. 1976) (statute enacted to prevent
Superintendent and Board from perpetrating transfers and
demotions as political “vendettas” for supporting
candidates opposed to Superintendent in race for office);

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

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No. 01-6156 Justice v. Pike County
Bd. of Educ., et al.
19
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.

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