Smith v. Sushka
| Decision Date | 02 July 1997 |
| Docket Number | No. 95-4261,95-4261 |
| Citation | 117 F.3d 965 |
| Parties | Sandra S. SMITH, Plaintiff-Appellant, v. Ted W. SUSHKA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark S. Coco, argued and briefed, Harris, McClellan, Binau & Cox, Columbus, OH, for Plaintiff-Appellant.
Randall Lee Lambert, argued and briefed, Ironton, OH, for Defendant-Appellee.
Before: LIVELY, BOGGS, and NORRIS, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which NORRIS, J., joined. LIVELY, J. (pp. 971-974), delivered a separate dissenting opinion.
Plaintiff Sandra S. Smith appeals from a magistrate judge's 1 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.
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 sought 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 employee.... 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 case 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 estoppel 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 "plaintiff's 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 Sushka 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 case.
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...
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