Sandra S. Smith v. Ted W. Sushka , 117 F.3d 965 ( 1997 )

BOGGS, J., delivered the opinion of the court, in which NORRIS, J., joined. LIVELY, J. (pp. 971-974), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

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

I

In November 1981, Smith began working as an administrative assistant to the Washington County engineer, who at that time was Paul Junk. Sushka, however, defeated Junk in the 1992 Democratic primary and ultimately prevailed in the general election. In March 1993, after two months in office, Sushka fired Smith. On May 28,1993, Smith filed a two-count complaint in federal court, alleging termination without due process of law and on the basis of her political affiliation. In this suit, Smith soüght reinstatement, a permanent injunction, compensatory and punitive damages, and attorney’s fees.

While the suit was pending, Smith brought an action before the SPBR, contesting her dismissal. The parties agreed to stay discovery in the federal suit pending a decision by the SPBR concerning the status of Smith’s former job. The SPBR ruled that Smith was an unclassified employee, as defined by Ohio Rev.Code § 124.11(A)(9),² and dismissed her action for lack of jurisdiction.³ The Administrative Law Judge issued a 28-page opinion, finding the following facts:

I find that, during the pertinent approximate one year period prior to her removal, Appellant served as the Administrative Assistant to the Washington County Engineer. I further find that, during that period, a large portion of Appellant’s work was divided into two general areas, fiscal and administrative.

In regard to the fiscal area, ... appellant kept the accounts for the WCE, was privy to all information concerning the fiscal aspects of the WCE and was more knowledgeable concerning those accounts than any other Washington County em-ployee_ I also find that on a continuing basis, Appellant advised WCE Junk concerning the availability of funds, transfers, budget allocations and projections, et cetera. Among her other duties ... were to provide explanations or embellishments along a spreadsheet column providing the WCE with vital information concerning his decision making regarding budgetary allocations for the entire Office of the Engineer.

Further ... Appellant was authorized to and on occasion did certify the entire payroll and each separate line item therein as accurate using her signature. Further, ... .there were a number of times when that payroll, which was initially prepared by Appellant, or by the Account Clerk under [her] supervision ... would not again cross Mr. Junk’s desk once it had been approved. As well, ... Appellant had the authority to open accounts on behalf of the WCE.

I find that, while carrying out these responsibilities and other fiscal and administrative responsibilities, Appellant had significant interaction with the Washington County Commissioners, themselves, with the Washington County Commissioners’ Prevailing Wage Coordinator, and with the Washington County Auditor or the Auditor’s Bookkeeper_ Appellant accompanied the Engineer to meetings with the Washington County Commissioners and' provided him with data and provided responses to questions concerning the WCE’s budget. Further, ... there would have been times when the Commissioners would have gone directly to Appellant with questions concerning the budget.

Additionally, ... Appellant interacted with both township trustees and with the township Board’s clerks during this period. That interaction included answering telephone inquiries or face-to-face inquiries from trustees or their respective clerks regarding various activities of the WCE’s office and assisting the trustees to process funds or order various items including piping and road signs. I also find that Appellant set up the procedure to and assisted in collecting payments for Frost Law exemptions, which funds were later distributed to the township trustees.

Further, ... during this period, Appellant had the authority to and did approve various requests for leave for various employees within the office ... and had the authority to deny that leave_ Additionally, ... Appellant had the authority to and did approve expenditure requests and purchases of under one hundred-fifty dollars for various employees of the WCE. Also, ... under extraordinary circumstances, Appellant ... had the authority to approve purchase of greater than one hundred fifty dollars. Additionally, ... in late December, 1992, Mr. Junk designated Appellant as the employee in charge of the WCE’s office staff....

... [I]n late December, 1988, Appellant, ... had an oath of office administered to her by the Honorable Robert Rawson.... [The oath] was administered ... [because] Mr. Junk ... wished to publically recognize her.

... [A]s well as performing functional supervision over the administrative office staff, Appellant performed direct supervision over Raelene Malster, the Account Clerk....

... Appellant’s administrative functions included interacting with workers’ compensation and unemployment compensation processors and in assisting WCE employees in their relationships with those processors ....

I also find that Appellant performed various other miscellaneous functions.... Appellant also performed duties including answering general telephone calls or inquiries and dealing with the public either over the telephone or in person.... I further find that Appellant prepared various contracts for the WCE, usually by amending previous contracts submitted to vendors.

Finally, ... Appellant answered directly to Mr. Junk during his tenure and later to Mr. Sushka during the remainder of Appellant’s tenure with the WCE....

Report and Recommendation of the SPBR at 22-24, No. 93-REM-03-0182 (Feb. 7, 1994). Smith appealed the decision, and the parties agreed that, except for a ruling on Sushka’s motion for summary judgment on the political affiliation claim, the federal court ease would be held in abeyance pending the SPBR’s decision on appeal. The SPBR’s decision was affirmed by the Washington County Court of Common Pleas and the Ohio Court of Appeals. As a result, Smith voluntarily dismissed her due process claim against Sushka in federal court.⁴ This left only the political affiliation claim remaining.

After the court of appeals upheld the SPBR’s decision and three days before the political affiliation claim was to go to trial in federal court, Sushka filed a second motion for summary judgment, raising collateral es-toppel for the first time.⁵ In this motion, he admitted firing Smith for political reasons but argued that political affiliation was an appropriate requirement for the effective performance of Smith’s position. Relying on the SPBR’s decision, he argued that Smith was collaterally estopped from litigating the factual issue of her duties as administrative assistant under Junk and that these factual findings showed that political affiliation was an appropriate requirement for that position. The magistrate judge delayed the trial to give Smith time to respond to the motion. After briefing and argument, the magistrate judge granted Sushka’s motion and dismissed the action.

In his opinion, the magistrate judge held that Smith was collaterally estopped from relitigating the factual issue of what duties she had performed as administrative assistant under Junk. He found that Smith had had a fair opportunity to litigate this issue, and in fact, had litigated the issue fully before the SPBR and the Ohio courts. Based on the facts as found by the SPBR, the magistrate judge concluded that “plaintiffs position was one for which party affiliation is an appropriate requirement for the effective performance of the office.” Smith timely appealed this decision.

On appeal, Smith makes two arguments. First, she argues that the issues of collateral estoppel and political affiliation as an appropriate job requirement were waived by Sush-ka because he never pled or properly relied on them prior to his second motion for summary judgment. Second, she argues that the district court improperly applied collateral estoppel to her ease.

II

Plaintiff begins her attack on the judgment by raising a technical point of pleading, arguing that Sushka has waived his right to raise either the affirmative defense of collateral estoppel or political affiliation as an appropriate job requirement. Although Sushka did not raise either defense before the second motion for summary judgment, we do not believe this is fatal. Failure to raise an affirmative defense by responsive pleading does not always result in waiver. See Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir.1993). The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to give the opposing party notice of the affirmative defense and a chance to respond. Ibid. While we agree that Sushka should have been more diligent in raising these defenses, we do not believe that the district court abused its discretion by permitting them to-be raised in the second motion for summary judgment. Sushka’s failure to raise either affirmative defense did not result in surprise or unfair prejudice to Smith, especially since the district court extended the trial date in order to give Smith the opportunity to fully respond to and brief the issues. Additionally, both parties understood that the decision by the SPBR could determine some of the issues in this case. In fact, the SPBR decision led Smith to drop her due process claim altogether. Moreover, by admitting that he discharged Smith for political reasons, Sushka narrowed the remaining issues in the case. Thus, Smith needed only prove that her job was protected by the First Amendment, lessening her burden.

III

The next assignment of error is more difficult to answer. Nevertheless, we believe that the doctrine of collateral estoppel as it applies in Ohio bars Smith from litigating her job duties in federal court and that these job duties, as found by the SPBR, show that political affiliation is an appropriate requirement for the position of administrative assistant to the Washington County engineer.

Collateral estoppel, also called claim preclusion, prevents a party from relitigating issues of fact or law which were necessarily decided by a previous final judgment. As a federal court, we are required to apply the doctrine of collateral estoppel in the same manner as the state courts in the state in which the earlier judgment was rendered. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984).

In Ohio, collateral estoppel bars re-litigation of those claims on which a final judgment on the merits has been entered, so long as there has been a “fair opportunity to fully litigate” the claim. Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 443 N.E.2d 978, 985 (1983). “[T]he party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment of the prior action.” Ibid, (citations omitted). Thus, collateral estoppel bars relitigation only when the identical issue was actually decided in the prior case. Id. 443 N.E.2d at 987. This requirement, however, is not so narrow as to require the courts to have framed their conclusion in the exact same manner.

[Rather,] the Ohio Supreme Court [has] stated that the test to be used in determining the identity of issues involves a consideration of the evidence presented in support of each: If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different states of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other....

Monahan v. Eagle Picker Indus., 21 Ohio App.3d 179, 486 N.E.2d 1165, 1168 (1984) (quoting Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943) (internal quotations omitted)). “It is [thus] the differences in the focus of evidence and proof that determine the dissimilarity of issues and requires that a judgment in one action not be a bar to the maintenance of the other.” Id. 486 N.E.2d at 1169.

Necessary to the state court decision in this case was the determination of whether Smith had, in the language of the Ohio statute, a “fiduciary or administrative relationship” to the Washington County engineer. We hold, upon de novo review, that this issue is identical, for purposes of collateral estoppel, to the issue of whether political affiliation is an appropriate consideration in staffing Smith’s position. While the ultimate conclusions are framed differently, the “same facts or evidence ... sustain both.” Id. at 1168.

The Supreme Court trilogy of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); and Rutan v. Republican Party, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), establishes the boundaries for determining when political affiliation is an appropriate consideration for staffing a position. In Branti, a majority of the Court reaffirmed the holdings of the Elrod plurality that patronage dismissal violates the First Amendment and that permitting politically motivated dismissals of persons in certain politically sensitive positions is necessary to uphold vital governmental interests. 445 U.S. at 513-16, 100 S.Ct. at 1292-94.⁶ The Court in Branti, however, reformulated the scope of permissible patronage, holding that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. at 1295.⁷

Determining whether political affiliation is an appropriate basis for a personnel decision depends upon “the inherent duties of that position and the duties that the new holder of that position will perform. A plaintiffs failure to meet either part of this test would cause the claim to be dismissed.” Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 913 (6th Cir.1991) (emphasis in original). The two tests outlined in Faughender, “the job as actually performed” and “the job as envisioned,” are not completely separate and independent. Rather, if one or the other test is clearly and directly applicable, the other is not independently necessary, although it may be somewhat informative. See McCloud v. Testa, 97 F.3d 1586, 1561 (6th Cir.1996).

And while Faughender states that a court must examine the position itself, not just the position as performed, an employer’s prior duties can be used “as a way to gather evidence that the person’s position was one affecting policy.” Faughender, 927 F.2d at 915. We believe that the SPBR’s findings of “the job as actually performed” by Smith shows the “inherent duties” of her position are political in nature. Therefore, we do not believe that this case needs to be remanded for a determination of the duties of the position as envisioned by the new county engineer, especially since the record does not indicate that Sushka intended to make the duties of the administrative assistant any different.⁸

The evidence of Smith’s job duties as performed clearly shows that her position was political, as it falls squarely within the “Category Three” positions discussed in McCloud.⁹ As administrative assistant to the Washington County engineer, Smith was a “confidential employee[ ] who controlled] the lines of communications to [a] category one position!;].”¹⁰ McCloud, 97 F.3d at 1557. And there is nothing in the inherent nature of the position of administrative assistant to contradict her previous duties.

The state court’s determination that Smith held an unclassified position because of the fiduciary nature of her position further supports a finding that the inherent nature of her position is such that political affiliation is appropriate. As noted in McCloud, while the Elrod test in Branti was modified from an inquiry into whether the position is “confidential” or “policymaking” in nature to an inquiry of whether political affiliation is an appropriate requirement, “for the most part” the old labels “remove First Amendment protection from the same class of jobs.” McCloud, 97 F.3d at 1553-54. Thus, in a case where the actual duties previously assigned were political, as here, and nothing in the inherent nature of the position suggests otherwise, summary judgment is appropriate, especially where, as here, a determination that the position was one of fiduciary responsibility has already been made. Therefore, we hold that the legal issue determined by the SPBR, though framed differently, and the factual findings on which its decision was based, are identical to the issue of whether Smith’s position is one “where party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

IV

For the foregoing reasons, the district court’s order granting Sushka’s motion for summary judgment is AFFIRMED.

DISSENT

1 . The parties agreed to plenary magistrate judge jurisdiction, pursuant to 28 U.S.C. § 636(c).

2 . That provision states in pertinent part:

(A) The unclassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required by this chapter:

(9) The deputies and assistants of elective or principal executive officers authorized to act for and in the place of their principals, or holding a fiduciary relations to such principals and those persons employed by and directly responsible to elected county officials and holding a fiduciary or administrative relationship to such elected county officials, and the employees of such county officials whose fitness would be impracticable to determine by competitive examination....

Ohio Rev.Code § 124.11(A)(9) (Banks-Baldwin 1994).

3 . Since the Board lacks jurisdiction over an appeal by an employee in an unclassified position, the determination of whether Smith was a classified employee was logically prior to any consideration of the merits of her claim. See Ohio Rev.Code § 124.03.

4 . Smith dropped this claim because, after the court of appeal's decision, it became apparent that her due process claim was untenable because unclassified state employees serve at the discretion of the appointing authority and may be removed at his pleasure. Ohio Admin. Code 124-1-01.

5 . Sushka had previously filed a motion for summary judgment on the political association claim, arguing that Smith had failed to meet her burden of showing that political association was a substantial or motivating factor in her termination. The district court denied this motion, finding that the evidence was sufficient to raise a genuine issue of material fact as to whether Smith's political affiliation with Junk was a factor in her termination.

6 .Although Branti concerned membership in different political parties, the underlying rationale has been understood by this circuit to apply to any political difference; thus, political affiliation is not limited to membership in a political party and includes commonality of political purpose and support of political candidacy. McCloud v. Testa, 97 F.3d 1536, 1548 (6th Cir.1996) ("dicta and holdings in our own circuit strongly and nearly without exception support the concept of applying the ban on patronage employment practices to non-ideological factions within the same party”). Thus the fact that both the previous county engineer, Junk, and Sushka are Democrats does not make the decision to terminate Smith any less political.

7 . Prior to this, the inquiry had been whether the position was one of "policymaker” or was "confidential.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

8 . Although Smith performed mainly clerical duties after Sushka took office, this appears to have been due to her political affiliation with Junk and not to Sushka’s desire to change the duties of her position.

9 . This court in McCloud categorized certain positions as falling into the Branti exception. One of those categories, "Category Three,” includes:

confidential advisors who spend a significant portion of their time on the job advising category one or category two position-holders on how to exercise their statutory or delegated policymaking authority, or other confidential employees who control the lines of communications to category one positions, category two positions or confidential advisors.

97 F.3d at 1557.

10 . A "Category One” position includes "positions specifically named in relevant federal, state, county, or municipal law to which discretionary authority with respect tot he enforcement of that law or the carrying out of some other policy of political concern is granted.” McCloud, 97 F.3d at 1557.