Armour v. Beaver

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

11-21-2001

Armour v. Beaver
Precedential or Non-Precedential:

Docket 00-3431

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Recommended Citation
"Armour v. Beaver" (2001). 2001 Decisions. Paper 273.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/273

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Filed November 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3431

DELORES ARMOUR, Appellant

v.

THE COUNTY OF BEAVER, PENNSYLVANIA, BEA
SCHULTE, COMMISSIONER, in her individual capacity

On Appeal From the United States District Court
For the Western District of Pennsylvania
Chief District Judge: Hon. Donald E. Ziegler
D.C. No. 99-cv-00669

Argued: December 12, 2000

Before: SCIRICA and AMBRO, Circuit Judges, and
POLLAK, District Judge.*

(Filed: November 21, 2001)

Samuel J. Cordes (Argued)
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

Attorneys for Appellant

_________________________________________________________________
* The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
 Neva L. Stanger (Argued)
Campbell, Durrant & Beatty
555 Grant Street, Suite 120
Pittsburgh, PA 15219

Attorneys for Appellees

OPINION OF THE COURT

POLLAK, District Judge.

In this case, plaintiff-appellant Delores Armour claims
that her First Amendment rights were violated when she
was fired from her position as secretary to defendant-
appellee Bea Schulte, then a County Commissioner of
defendant-appellee Beaver County, Pennsylvania ("the
County"). Armour contends that she was terminated
because of her political beliefs, and hence that her
termination contravened the general rule against political
patronage dismissals established in Elrod v. Burns, 427
U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980).
The District Court granted summary judgment in favor of
the County and Schulte, on the ground that the County
and Schulte had satisfied the burden of establishing that
political affiliation was an appropriate requirement for the
secretarial position. Additionally, the District Court found,
sua sponte, that appellant had failed to adduce sufficient
evidence to enable a fact-finder to infer that her termination
was politically motivated--i.e., to infer that, as Armour
contended, Schulte decided to terminate her based on the
perception that Armour was supporting a candidate other
than the one backed by Schulte in a campaign for a local
judgeship.

For the reasons that follow, we reverse.

I. Factual and Procedural Overview

Armour and Schulte met when Armour volunteered to
work on Schulte's 1995 campaign as a Democratic
candidate for the office of County Commissioner. Armour
was one of a number of people working on Schulte's
campaign. As part of her involvement in the campaign,

2
Armour attended campaign committee meetings, traveled
with Schulte to polling locations and political functions,
attended fund-raising events, and placed Schulte's signs
throughout the voting district. After winning the election,
Schulte offered to hire Armour as her secretary. Armour
accepted and began her employment as Schulte's secretary
in January 1996. According to Armour's deposition
testimony, once hired, she relinquished her political role
and turned her attention to the clerical tasks of the job, at
least during work hours. Armour testified that she spent
approximately half of her time working for Schulte and
that, in the balance of her time, Armour--like the other
commissioners' secretaries--performed clerical tasks under
the supervision of the Chief Clerk of the County. Armour
testified that in January, 1999, Joseph Askar, a Democrat
seeking election to a local judgeship, approached her with
logistical questions about running a campaign; she
answered Askar's questions but took no other action on his
behalf. The parties agree that in early February Schulte
learned of Armour's contact with Askar--who was running
against the Democratic candidate supported by Schulte and
the local party establishment--and questioned Armour
about her involvement with Askar's campaign.

At about the same time, Armour proposed that the
County create a human service coordinator position and
hire her for the position. Schulte testified that she raised
the possibility with the other commissioners and that they
decided against creating the position. Instead, in late
February, 1999, Schulte offered Armour a part-time clerical
position at a geriatric center earning a lower salary and
asked Armour to go home and think about the offer. 1 The
next day Armour took a personal day off. The testimony of
Schulte and Armour indicates that, on February 26, when
Armour was next in the office, Schulte asked Armour
whether she had made a decision about taking the geriatric
center position. Schulte testified that "[Armour] told me
that I would have to speak to her attorney." Armour
testified that she told Schulte that "if [Schulte] had some
_________________________________________________________________

1. Schulte testified that she did not know at the time that the position
was part-time; however, Armour testified that she, Armour, was aware
that the position was part-time when it was offered.

3
work for me to do I'd be more than happy to go back to her
office, but if it was about the job offer, I was requesting she
wait until my attorney was present to discuss it." App. at
77 (Armour Dep. at 101). The parties are in agreement that
Schulte then advised Armour that she was terminated.

Armour filed suit under 42 U.S.C. S 1983 in the United
States District Court for the Western District of
Pennsylvania against the County and also against Schulte
in her individual capacity. The County and Schulte moved
for summary judgment on the ground that political
affiliation was an appropriate job requirement for the
position of secretary to a Beaver County Commissioner. In
their summary judgment motion, appellees acknowledged
that the question whether Armour was fired based on her
political affiliation "involve[s] disputes over issues of
material fact best left for trial." The District Court granted
summary judgment in favor of Schulte and the County
based both on the appropriateness of a political-affiliation
job requirement and on the lack of evidence that Armour's
political affiliation was the cause of her termination.

II Standard of Review

We exercise plenary review of the District Court's decision
to grant summary judgment. See Assaf v. Fields , 178 F.3d
170, 171 (3d Cir.), cert. denied, 528 U.S. 951 (1999). In
doing so, we must apply the same test that the district
court must apply. See Chipollini v. Spencer Gifts, Inc., 814
F.2d 893, 896 (3d Cir.)(en banc), cert. denied , 483 U.S.
1052 (1987). Reviewing the record as a whole, we will "draw
all reasonable inferences in favor of the non-moving party"
and will not weigh the evidence or make credibility
determinations. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150 (2000). If it appears that "there is
no genuine issue as to any material fact" and the movant
is entitled to judgment at a matter of law, we will affirm a
grant of summary judgment. Fed. R. Civ. P. 56(c). Of
course, we will give credence to " `evidence supporting the
moving party that is uncontradicted and unimpeached, at
least to the extent that evidence comes from disinterested
witnesses.' " Reeves, 530 U.S. at 151 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 300 (1986)).

4
In lawsuits such as the present one, in which the plaintiff
is a government employee raising a First Amendment
political discharge claim, the usual standard of review for
grants of summary judgment is modified in that it is up to
the defendant government employer to prove that political
affiliation is an appropriate requirement for the job. "Since
. . . it is the government's burden to demonstrate an
overriding interest in order to validate an encroachment on
protected interests, the burden of establishing this
justification" rests with the government employer. Elrod,
427 U.S. at 368. Moreover, in Zold v. Township of Mantua,
935 F.2d 633 (3d Cir. 1991), we invoked the principle that,
when the First Amendment is implicated, appellate courts
have a special responsibility to undertake an exacting
review of the whole record with a particularly close focus on
facts that are determinative of a constitutional right. Id. at
636 (citing New York Times Co. v. Sullivan, 376 U.S. 254,
285 (1964) and New Jersey Citizen Action v. Edison
Township, 797 F.2d 1250, 1259 (3d Cir. 1986)).

III Review of the Record

Before undertaking an analysis of the legal issues
presented on this appeal, we will set forth (1) the principal
record evidence regarding the nature of Armour's secretarial
position, (2) the principal record evidence regarding the
reason or reasons for Armour's termination, and (3) the
District Court's rationale for granting summary judgment in
favor of appellees.

A. The Nature of the Secretarial Position

None of the parties contends that Armour was a policy-
maker in her position as secretary to Schulte. But the
parties disagree as to the level of confidentiality,
loyalty, and political trust required in the position. There
are three Beaver County Commissioners. At the time in
question, there were two Democrats--Commissioner
Schulte and Commissioner Dan Donatella--and one
Republican--Commissioner Nancy Loxley. Joann Clarke
was Donatella's secretary and Jo Johnson was Loxley's
secretary.2 According to the testimony of Donatella,
_________________________________________________________________

2. Clarke and Johnson were both hired by previous commissioners and
then retained by Donatella and Loxley, respectively.

5
although as a formal matter all three commissioners had
joint authority over personnel decisions regarding the
commissioners' secretaries, it was understood among the
commissioners that each commissioner had the power to
hire and fire his or her own secretary.

The three secretaries shared the same office space and,
depending on availability, they would perform routine tasks
for any one of the commissioners. Armour testified that she
devoted fifty to sixty percent of her time to performing work
for the Chief Clerk. Clarke testified that tasks assigned to
her by the Chief Clerk filled approximately sixty percent of
her working hours. In working for the Chief Clerk and in
working for the commissioners, the secretaries spent the
bulk of their time performing such clerical tasks as typing
correspondence, resolutions and motions; answering
phones; greeting and directing visitors to the office;
handling paperwork; opening mail; making photocopies;
making travel arrangements; scheduling meetings; filing
documents; directing checks to the proper departments;
and obtaining signatures. Armour also scheduled the board
meetings which required the presence of the entire board,
made photocopies of all mail received that was relevant to
the entire board, and took minutes at public board
meetings when Johnson was not available to do so.
Additionally, she attended monthly meetings of the
Aliquippa Family Preservation Network ("AFPN") in
Schulte's stead. At these meetings she took notes and voted
as Schulte's proxy. In testimony, Armour described her role
at those meetings as follows:

[I]t was not a real important board, they didn't really
deal with a lot of issues other than trying to get
themselves established and there were things that
would have to be voted on, like paying the bills, this
person going to conference or whatever. I didn't sit in
on the executive board and have privy to the decision
making, but the regular minutes, if it called for a vote,
yes.

App. at 69 (Armour Dep. at 48). As to Armour's
participation in the AFPN meetings, Schulte testified: "[A]t
the time I didn't realize that she had the power to vote, but
I found out later that she was, indeed, voting in my stead."

6
App. at 54 (Schulte Dep. at 21). Armour maintained in her
deposition testimony that, although she did not end her
own political involvement, she stopped accompanying
Schulte to political functions at the close of the 1995
campaign. Also, Armour testified that none of the
secretaries was privy to personnel matters or files; the
testimony of Clarke and Johnson is not to the contrary.3

In 1996, Armour suggested that a position of office
manager for the commissioners be created and that she be
appointed to the position. Schulte testified that she
proposed this to the other commissioners but that they
were not in favor of the idea. App. at 56 (Schulte Dep. at
31)("I'm sure they did not want to have their secretaries
subject to my secretary."). In 1997, the commissioners
decided to create an executive administrative position
directly under the commissioners and on par with the Chief
Clerk. In her testimony, Schulte emphasized that the
person in the executive administrative position, as that
position was envisioned, would have performed "strictly
executive administrative-type duties and . . . represent the
commissioners." The position was created and funded but
never filled because, according to Schulte's testimony, the
commissioners could not decide on who should be hired.
Moreover, it seems that Armour was not seriously
considered for this position because the commissioners had
decided that a college degree--which Armour did not
have--was a requirement for the job. Schulte testified:

Delores' husband called me and wanted to know why
we had included a requirement for a college degree for
that position, because that eliminated Delores from
consideration. . . . I told him that I included--had
included that requirement, because this person would,
indeed, be representing the three commissioners, and
we felt that was a necessary--all the commissioners
had agreed that would be a necessary requirement.

App. at 56 (Schulte Dep. at 32).
_________________________________________________________________

3. However, when enumerating his secretary's duties in deposition
testimony, Donatella mentioned that his secretary had some involvement
in payroll.

7
On March 11, 1998, Armour completed a document
entitled "Class Specification Review & Comment".
Directions for completing the form stated, in pertinent part:

Please review the attached classification specification
to make sure it accurately describes the body of work
you perform. Please note that in many cases, it will not
identify every task that you specifically perform. When
you see the words: May perform other duties, including
work in other functional areas this means that within
the list of duties you should find the essential duties
that you regularly perform.

If you believe some essential duties have been
omitted, or a part of the specification is inaccurate;
please indicate this below.

App. at 93 (emphasis in original).

Appellant typed the following response on the space
provided:

Although this job may appear secretarial in nature, a
large portion of the duties fall more towards
administrative assistant. The high level of
confidentiality and responsibility reaches far beyond
the desk, often into our personal lives. A broad
background in County government is essential for even
the entry level of this position.

Id.

The form was signed by Armour and initialed by Schulte.
In deposition testimony, Armour explained this statement
by saying: "[T]he concept I was trying to get across was
what I thought the job should be more so than what the job
actually is." Asked whether she viewed her position as a
confidential position, Armour testified: "I viewed it as a
secretary. Of course all secretaries have some confidence to
their boss, regardless of their position." App. at 69 (Armour
Dep. at 49). Asked if she would describe the position as
requiring a high degree of confidentiality, Armour
responded, "I would say normal." Id.

Armour's description of the position in her deposition
testimony stands in some tension with the statements of

8
other witnesses. Schulte testified that Armour was privy to
confidential material through her access to lists of
resolutions and motions from commissioners' meetings,
correspondence among commissioners, Schulte's telephone
calls, and her personal calendar. Schulte also testified that
Armour "would often talk to department heads setting up
meetings and explaining the purpose of the meeting. That
was a very important part of her function. If she didn't
understand the purpose of the meeting, then she couldn't
explain it, and often the meetings were involving
confidential matters." App. at 54 (Schulte Dep. at 21-22).

When asked to describe the secretarial position,
Donatella testified as follows:

The secretary obviously in that capacity works very
close with the county commissioner whom she's
affiliated with because of the fact that you need a good
close relationship. As a matter of fact, I do believe that
they were classified as confidential secretaries and not
come under the realm of the union, because each
commissioner was at liberty to select that particular
employee because of the relationship that they needed
to maintain.

App. at 44 (Donatella Dep. at 6).

Donatella also testified, with respect to the duties that
his secretary performed:

She does everything from answering the telephone for
me to doing confidential letters, even sometimes
arranging meetings. Doing not only my clerical work,
but frankly, operating as my eyes and ears, both
political and otherwise. She helps me even on the
political end of it, arranging for different political
functions and so forth.

Id. (Donatella Dep. at 6-7). There may, however, be room for
more than one interpretation of Donatella's testimony
regarding the nature of the secretarial position. For
example, Donatella testified:

[B]asically, they do everything that any other
confidential secretary would do as far as even running
the office side is concerned. They do resolutions, they

9
 get signatures, payroll, act as receptionist, they do
typing and all the other secretarial skills that's
required.

Id.

Asked to explain what he meant when he said the
secretaries "do resolutions," Donatella clarified his
testimony by stating that the resolutions are prepared by
the law department and the secretaries' responsibilities are
limited to (a) ensuring that the commissioners sign the
completed resolutions and (b) mailing the resolutions to the
proper places.

When Donatella was asked whether political affiliation
was required for a commissioner's secretary, he testified:

Well, I don't know if it's a requirement, no; but mainly,
it is associated with that because on the campaign
trail, usually those people are directly or indirectly
involved in the campaign, helping that individual to be
elected. But I have seen where sometimes someone is
selected that is not involved in the campaign. . . . It's
whomever that commissioner feels comfortable with I
think is the bottom line. They have to be capable of
doing the job at hand, and it always helps to be
politically astute, obviously.

Id. at 45 (Donatella Dep. at 9). Amplifying the connection
between politics and the secretarial position, Donatella
explained:

[G]enerally, if a Republican is a commissioner, they are
going to hire a Republican secretary and the other way
around. I don't know of any case where it was other
than that. I do [not] remember a Democrat hiring a
Republican or vice versa, at least to my knowledge in
the 35 years I was there. They are generally the same
party, if that's the question.

Id. (Donatella Dep. at 10).

The testimony of Johnson, secretary to Commissioner
Loxley, reinforces appellees' argument that Armour's
position required a significant level of confidentiality: "The
work that I do for Nancy [Loxley] I would consider to be of

10
a confidential nature, not so much the general work that I
do for [the Chief Clerk] . . ." App. at 85 (Johnson Dep. at
36). With respect to her work for Loxley, Johnson testified:
"[I]t's a political atmosphere here, and Nancy would often
times talk to me in confidence about political issues, party
issues that I would have to keep to myself and not be able
to share with anybody else." Id. However, portions of
Johnson's testimony indicate some question as to the
substance behind her more general assertions regarding
the nature of the job. Asked whether there were any other
sources of confidential information beyond the above
referenced conversations with Loxley, such as letters or
phone calls, Johnson testified: "No. Her correspondence
that she got in typically, unless it was something political
in nature, if it was county related, all three commissioners
would get the same correspondence." Id. Additionally,
Johnson testified that she had not been questioned about
her political affiliation during her interview for the position,
that she did not consider herself a political adviser, and
that her political affiliation did not play any role in her
ability to keep information confidential. Johnson also
provided an affidavit in which she stated that Armour used
to identify herself as Schulte's "confidential secretary" when
she answered the phone. However, Armour denied having
so identified herself.

Clarke, Donatella's secretary, testified that "my
responsibility, of course, is to represent [Donatella] and to
keep all confidentiality". App. at 89 (Clarke Dep. at 9).
Clarke's testimony brings into focus the seeming ambiguity
of the term "represent" as used by the parties and
witnesses. Asked about her participation in active
campaigning, Clarke testified that she served as Donatella's
campaign treasurer (usually performing these tasks during
evening and weekend hours) and would assist Donatella
with his campaign at his request: "I represent
Commissioner Donatella mainly when I am anywhere
politically. I'm there basically to assist him, if that's--you
know, if I am to represent him at a function or if I am to be
there just to be, you know, part of the event." App. at 91
(Clarke Dep. at 34). Additional questions on this topic
resulted in the following exchange:

11
 Q: Do you consider yourself to be a political advisor to
[Donatella]?

A: Inform him of happenings or go in his behalf? I
don't understand.

Q: Do you advise him on policies for the county?

A: No.

Q: But you occasionally go to functions on his behalf?

A: Not for him. Basically, I will go part of.

Q: Do you go to tell him what happened at the
functions, or what do you mean?

A: No, I don't, I go just to represent him, be present,
that if -- there may be five or six events going on
in one evening, and so he's represented.

. . .

Q: Okay. Do you give speeches or anything of that
nature at those kinds of functions?

A: No.

Id. (Clarke Dep. at 34-35).

B. The Reason for Armour's Termination

We now turn to the evidence in the record regarding the
reason for Armour's termination.

Armour contends that rumors of her involvement with
Joseph Askar's campaign for District Justice in Centre
Township motivated Schulte to fire her. It is undisputed
that Schulte was aware of such rumors. According to
Armour's testimony, in January 1999, while Armour was
still employed as Schulte's secretary, Askar, a Democrat,
approached Armour with questions about the mechanics of
conducting his campaign. Armour contends, and appellees
do not dispute, that she merely answered Askar's questions
on topics such as how many signs were required to cover
a certain voting district. It appears to be undisputed that
Schulte was told in early February, 1999 that Armour
intended to support Askar instead of Joseph Zupsic, the
Democratic candidate supported by Schulte. Donatella

12
testified that he and Schulte were present at a rally when
someone told Donatella "that I'd better find Bea Schulte
because Joe Schaffer, the town chair, was extremely upset
because allegedly Dee [Armour] was working for Joe Askar."
App. at 47 (Donatella Dep. at 20). Donatella testified
further:

So I went and found Bea and I said, "Bea, there's a
problem, I think you better go talk to Mr. Schaffer
because he is saying that your employee is working for
Joe Askar." So I escorted her over to Mr. Schaffer and
Mr. Zupsic, who was the other candidate, and they
confronted her with and accused her that Dee
[Armour], her employee, was working for Mr. Zupsic's
opposition. Bea's comment in my presence was that
she would find out about what was going on, she was
not aware of that but she would talk to Dee.

Id. It is undisputed that on one occasion early in February
of 1999, Schulte did question Armour about her
involvement in Askar's campaign. Armour testified that
Schulte called her into Schulte's office and said:"I'm getting
flak over you supporting Joe Askar." App. at 70 (Armour
Dep. at 53). According to Armour, Schulte asked a number
of questions about Armour's involvement with Askar's
campaign. For example, Armour testified that Schulte
asked her whether she was holding "coffee klatches"--small
grass-roots meetings to introduce a candidate to voters--for
Askar, and that in reply she had explained that she was
not involved in Askar's campaign but had answered some
simple questions. Later that day, Armour approached
Schulte and told her that she was upset about being
questioned about what she did in her personal time. Some
two to three weeks later, on February 26, 1999, Schulte
discharged Armour.

Despite his acknowledgment that there was concern
regarding Armour's possible involvement with Askar's
campaign, Donatella testified that he was not under the
impression that Armour's termination was related to her
perceived support of Askar, nor had he heard rumors that
Armour lost her job for that reason. Rather, Donatella
testified that he attributed Armour's termination to a
deterioration of the relationship between Armour and

13
Schulte that, according to Donatella, had begun
approximately six months prior to Armour's termination.

C. The District Court's Opinion

With the foregoing synopsis of the record in view, we turn
to the District Court's ruling granting summary judgment
in favor of Schulte and the County. The District Court
made the following assessment of Armour's testimony about
the nature of her position:

Plaintiff completed [the March 11, 1998] job description
[in which she described the position as entailing a
"high level of confidentiality"] before any alleged
problems between herself and Schulte. We thus
consider her deposition testimony [in which she
described the position as entailing a "normal" level of
confidentiality] as contradictory and her unbiased
statement regarding her job duties as provided in
March 1998 as more significant. See, e.g., Martin v.
Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705-
06 (3d Cir. 1988)(permissible for district court to
disregard subsequent contradictory affidavit for
purposes of determining whether there was a material
dispute of fact).

Mem. Op. at 10.

The District Court proceeded to hold that appellees had
carried their burden of establishing that political affiliation
was properly required for the secretarial position:

We find that plaintiff's party affiliation was an
appropriate requirement for the effective performance of
the job. See [Ness v. Marshall, 660 F.2d 517, 521 (3d
Cir. 1981)]; [Brown v. Trench, 787 F.2d 167, 170 (3d
Cir. 1986)]; Waskovich v. Morgano, 2 F.3d 1292, 1303
(3d Cir. 1993); Roseman v. County of Cambria, 862
F.Supp. 19, 21 (W.D. Pa. 1993); see also Williams v.
City of River Rouge, 909 F.2d 151, 153 n.4 (6th Cir.
1990)(political affiliation is more than party politics, it
is about trust, confidence, and sharing a common
viewpoint with those to whom authority is delegated).
Plaintiff acted as liaison between department heads and
Schulte, which required knowledge of confidential

14
matters. She also had access to correspondence
containing party issues and confidential material.
Commissioner Donatella noted the importance of
loyalty and the necessity of a close relationship between
the commissioner and secretary. Johnson described the
office as a political atmosphere, and Clarke
acknowledged that she "represents" Commissioner
Donatella at political events.

Plaintiff testified that she responded to constituent
calls and handled the matter before involving Schulte.
Each time plaintiff responded to a concern of a
constituent, she was representing Schulte in a political
nature. See, e.g., Brown, 787 F.2d at 170 (while some
of [plaintiff's] duties were only technical or clerical in
nature, her principal duty was to act as spokesman for
the Commissioners). It is likely that Democratic
constituents who seek redress from their Democratic
commissioner, or simply express concerns of a political
nature, expect that the commissioners' secretary shares
their political ideology. In other words, Democratic
constituents should find comfort in expressing their
concerns to the commissioner's secretary, whom the
voters felt would express or relay the issues accurately
and compassionately to the commissioner. In essence,
plaintiff was a conduit between the Democratic
constituents and Commissioner Schulte, their elected
representative. See Waskovich, 2 F.3d at 1299-1300,
quoting Hall v. Ford, 856 F.2d 255, 263 (D.C. Cir.
1988)("high level officials must be permitted to
accomplish their organizational objectives through key
deputies who are loyal, cooperative, willing to carry out
their superior's policies, and perceived by the public as
sharing their superiors' aims").

Plaintiff attended meetings on behalf of Schulte, voted
in her stead, and attended political functions with the
Commissioner. Her own job description elevated the
position to one of "administrative assistant." Based on
the evidence of record, we find that an absence of
political cohesion would undermine the working
relationship between plaintiff and Schulte. Cf. Burns v.
County of Cambria, Pennsylvania, 971 F.2d 1015,

15
 1022-23 (3d Cir. 1992). We find that defendants have
established that political affiliation is an appropriate job
requirement for plaintiff's position.

Mem. Op. at 10-12.4

Additionally, the District Court held that Armour did not
establish the causation elements of the test set forth in
Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995)(plaintiff
must prove "that the employee maintained an affiliation
with a party" and "that the employee's political affiliation
was a substantial or motivating factor in the adverse
employment decision"). First, the District Court held that
Armour's actual political affiliation with Askar was
insufficient to meet the Robertson test because that
connection "was minor." Mem. Op. at 13. Second, the
District Court held that Armour's argument that her
" `perceived' political affiliation with Askar's campaign was a
substantial or motivating factor in Schulte's decision to
terminate her" was "without merit" because Schulte
questioned Armour about her involvement with Askar's
campaign on only one occasion. Id. Finally, the District
Court credited testimony of Donatella and Schulte that
indicated that Armour was fired because her relationship
with Schulte had deteriorated independently of any
tensions that were caused by Armour's perceived
connection with Joseph Askar.

III Discussion

First, we will consider whether, as the District Court
held, the record on appellees' motion for summary
judgment mandated a finding that political affiliation was
an appropriate requirement for Armour's job. Second, we
will consider whether, as the District Court held sua
sponte, appellees were entitled to summary judgment on
the alternate ground that Armour had failed to present any
significant evidence that her firing was attributable to
political affiliation.
_________________________________________________________________

4. Armour testified that she did not accompany Schulte to political
functions once she was hired as Schulte's secretary.

16
A. Armour's Job

At least at one time--namely, during Schulte's 1995
campaign--Delores Armour's relationship with Bea Schulte
could have been characterized as political in nature. It is
less clear that Armour's position as secretary to Schulte
required a shared political purpose. The question before
this court is whether defendants have established, beyond
factual dispute, that political agreement was an appropriate
requirement for the position of secretary to a Beaver County
Commissioner.

Adverse employment actions against government
employees that are based on political affiliation are, as a
general rule, prohibited. See O'Hare Truck Service, Inc. v.
City of Northlake, 518 U.S. 712 (1996); Rutan v. Republican
Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445
U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976). In
Elrod, a plurality of the Court first announced this rule
based on the recognition that political patronage dismissals
run counter to the First Amendment rights of free speech
and political association. See Elrod, 427 U.S. at 359. At the
same time, the Court delineated a narrowly drawn
exception for particular positions for which political
affiliation is found to be an appropriate requirement.
Applying the intermediate "exacting" level of scrutiny, the
Court explained: "The interest advanced must be
paramount, one of vital importance, and the burden is on
the government to show the existence of such an interest."
Id. at 362; see Boyle v. County of Allegheny Pennsylvania,
139 F.3d 386, 395 (3d Cir. 1998). The notion of what
constitutes a position for which political affiliation may
acceptably be required has developed over time. In Elrod,
the Court adopted an approach that distinguished between
policymaking and non-policymaking positions. Reiterating
the rule in his concurrence, Justice Stewart advised that
political affiliation could not provide a basis for adverse
actions taken against a "nonpolicymaking, nonconfidential
government employee". Id. at 375 (Stewart, J., concurring).
The Court described the inquiry into the nature of the
responsibilities and the function of a given position as
particularly fact-specific. Id. at 367-68.

17
In Branti, the Court revised the Elrod test to lessen the
emphasis on determinations of whether a position entails
policymaking and confidentiality: "the ultimate inquiry is
not whether the label `policymaker' or `confidential' fits a
particular position; rather, 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." Branti, 445 U.S. at 518. Justice
Stevens, speaking for the Court, stated: "Under some
circumstances, a position may be appropriately considered
political even though it is neither confidential nor
policymaking in character." Id. at 518 (providing an
example of a scenario in which "a State's election laws
require that precincts be supervised by two election judges
of different parties"). He continued: "It is equally clear that
party affiliation is not necessarily relevant to every
policymaking or confidential position." Id. (giving the
example of a football coach for a state university).

On the other hand, it is equally clear that the Governor
of a State may appropriately 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. The Branti Court also reiterated that in order for a
patronage dismissal to pass constitutional muster, it must
forward a governmental purpose:

The plurality [in Elrod] emphasized that patronage
dismissals could be justified only if they advanced a
governmental, rather than a partisan, interest. 427
U.S., at 362. That standard clearly was not met to the
extent that employees were expected to perform
extracurricular activities for the party, or were being
rewarded for past services to the party. Government
funds, which are collected from taxpayers of all parties
on a nonpolitical basis, cannot be expended for the
benefit of one political party simply because that party
has control of the government.

Branti, 445 U.S. at 517 n.12. The requirement of a
governmental purpose to support political patronage

18
reflects the core holding of Elrod and Branti that a long
tradition of political patronage cannot, in itself, immunize
politically motivated dismissals from scrutiny.

We have had numerous occasions to apply these
principles. In Boyle v. County of Allegheny Pennsylvania,
139 F.3d 386 (3d Cir. 1998), we charted the development of
Third Circuit case law interpreting the Elrod /Branti test.
The Boyle court canvassed Ness v. Marshall, 660 F.2d 517,
521 (3d Cir. 1981)(adopting a "functional analysis" under
which a dismissal was permissible where a difference in
party affiliation would "be highly likely to cause an official
to be ineffective in carrying out the duties and
responsibilities of the office"), Brown v. Trench, 787 F.2d
167, 168 (3d Cir. 1986)(refining the Elrod/ Branti test by
focusing the inquiry on "whether the employee has
meaningful input into decision making concerning the
nature and scope of a major [governmental]
program")(internal quotation marks omitted), and Zold, 935
F.2d at 636 (synthesizing prior decisions and holding that
appellate courts are obligated to "make an independent
examination of the whole record" with "special scrutiny").

We noted in Boyle, 139 F.3d at 396, that because the
Elrod/Branti test is flexible and entails an extremely fact-
intensive inquiry, cases such as the case at bar resist easy
generalizations. In the case at bar, we must determine
whether the District Court's grant of summary judgment
was correct as to the appellant--a nonpolicymaking,
secretary-clerk serving in roughly equal parts an elective
county executive (County Commissioner) and a non-elective
county administrator (Chief Clerk). Unsurprisingly, none of
our prior cases carries us effortlessly to a resolution;
however, we find particular guidance in Brown and Zold.

Brown arose from the dismissal of a county assistant
director of public information. In that case, we discussed
the difficulty of determining the appropriateness of political-
affiliation requirements for jobs that entail clerical tasks:

While Branti provides us with a "test" the Supreme
Court has not specified the particular factors which
indicate that a position falls within the Branti test.
Factors suggested by other courts include whether the

19
 employee's duties are simply clerical or related to law
enforcement, nondiscretionary or technical. Courts
have also considered whether the employee participates
in Council discussions or other meetings, whether the
employee prepares budgets, or has authority to hire or
fire employees, the salary of the employee, and the
employee's power to control others and to speak in the
name of policymakers. In Crisp [v. Bond, 536 F.Supp.
137, 139 (W.D. Mo. 1982)], the Court held that the
Assistant Director of the Division of Motor Vehicle and
Drivers Licensing could not be fired because he had no
confidential duties even though he supervised
employees, prepared the budget, was liaison with the
public, attended conferences, and analyzed
administrative procedures and work standards. The
key factor seems to be not whether the employee was
a supervisor or had a great deal of responsibility but
whether the employee has "meaningful input into
decision making concerning the nature and scope of a
major township program."

Brown, 787 F.2d at 169-70 (citations omitted). In Brown,
we concluded: "While some of [Brown's] duties were only
technical or clerical in nature, her principal duty was to act
as spokesman for the Commissioners and help promote
county projects. Brown could, therefore, be dismissed
because of her political affiliation without any violation of
her first amendment rights." Id. at 170.

In Zold, a deputy township clerk challenged her politically
motivated dismissal. We reversed the district court's grant
of summary judgment in favor of the township and
remanded the case for further proceedings. We observed
that the district court appeared to rely on three job
functions in finding that political affiliation was a proper
job requirement for the deputy clerk position: (1) secretary
of the Township Committee, in which capacity the deputy
clerk could have access to confidential information during
closed sessions; (2) liaison officer between government
officials and taxpayers and between the executive and the
general body of municipal personnel; and (3) public
relations figure. See Zold, 935 F.2d at 637. We
distinguished the public relations work performed by Zold

20
from that conducted by the appellant in Brown based on
the fact that Zold was not responsible for writing press
releases and speeches of elected officials, or for promoting
county projects, or for acting as spokesperson for the
county commissioners before the press and public. See id.
at 638. Instead, we reasoned:

Her contact with the press is generally limited to
informing reporters about the agenda of upcoming
meetings, and her contact with the public is, as the
district court put it, "receiving inquiries and complaints
from the electorate and responding in kind," 737
F.Supp. at 317, rather than promoting policies.
Therefore, Brown does not provide a basis to conclude
that the deputy clerk's political affiliation is a job
requirement.

Id. (citations omitted).

Additionally, we found that the deputy clerk's access to
confidential material did not justify a political affiliation job
requirement; however this holding was narrowly tailored to
the circumstances of Zold:

Arguably, even though there is no evidence that the
clerk or the deputy clerk acts as anything other than a
functionary during the closed Committee meetings, the
access to confidential information which may be
discussed on these occasions might signify that
political affiliation, translated in this case into loyalty
to the majority party, is a job requirement. Nor do we
deny that there is some sensitivity and discretion
which must be exercised when the deputy clerk is
acting as a liaison or as a spokesman. However, these
factors cannot serve to demonstrate the need for party
affiliation because virtually all of these functions are
duties that the deputy assumes from the clerk. State
law makes clear that political affiliation is not a factor
in the municipal clerk's position.

Id. at 638. Hence, we stated that "we cannot conclude that
duties fulfilled by a tenured, nonpolitical appointee
suddenly become confidential or political on those
occasions when the deputy clerk is called to substitute for
him." Id.

21
Finally, we observed:

The defendants have expressed concern that an
employee whose tasks include contact with the public
could deliberately harm the government's (and thereby
the dominant party's) image in the public eye; one who
must provide information to government officials
perhaps could deliberately undermine policy decisions
or administrative efficacy. However, any government
employee, including those with the most routine
clerical tasks, could injure the employer's efficiency or
public image. A receptionist could put callers on hold
and neglect to answer or forward their inquiries; an
office clerk could misfile forms, deliberately delay their
processing, and treat visitors rudely. The obvious
response is that employees who engage in such
behavior can be discharged on the basis of their poor
job performance. The potential that an employee may
cause havoc is in itself no basis for holding the
employee can be hired or discharged because of his or
her political affiliation.

Id. at 639.

In the present case, the District Court found, at the close
of discovery, that there were no remaining material issues
of fact as to whether political affiliation was an appropriate
requirement for Armour's position. As we explain in the
paragraphs which follow, our review of the record yields a
different conclusion.

We highlight certain factual disputes that we find
unsusceptible to resolution at the summary judgment
stage. First, we note that the District Court undertook to
weigh the credibility and relative significance of Armour's
March 11, 1998 written comments about her job
description and her subsequent deposition testimony on
the subject. Specifically, the District Court characterized
Armour's deposition testimony as "contradictory and her
unbiased statement regarding her job duties as provided in
March 1998 as more significant." We think such weighing
should have been reserved for the fact-finder.5
_________________________________________________________________

5. The District Court relied on Martin v. Merrell Dow Pharmaceuticals,
Inc., 851 F.2d 703 (3d Cir. 1988) as support for its authority to assess

22
In the same vein, we do not agree with the District Court
that Clarke's testimony that she "represented" Donatella
supports summary judgment. The theme of representation
was addressed in the testimony of a number of witnesses;
however, the content of the testimony on the concept of
representation of the commissioners is less than clear.
Whereas Clarke testified that she "represented" Donatella at
political events, a reasonable fact-finder might conclude
that the representation of which she spoke entailed little
more than her presence at certain events rather than active
participation as a spokesperson ("I go just to represent him,
be present"). For her part, Armour testified that it was not
part of her job to represent Schulte at political events.
Armour's role at the AFPN meetings--she attended in
Schulte's stead but Schulte only became aware that
Armour voted at the meetings after the fact--might also be
_________________________________________________________________

the credibility of the later deposition testimony. We find the District
Court's reliance on Martin to be misplaced. In Videon Chevrolet, Inc. v.
General Motors Corporation, 992 F.2d 482 (3d Cir. 1993), we
distinguished a situation in which a party gave ambiguous deposition
testimony from the situation in Martin and emphasized that the Martin
court had articulated a rule applicable only in extreme circumstances:

In Martin, the mother of a child born with birth defects made eight
sworn factual statements tending to negate liability on the part of
the defendant drug manufacturer. Later, facing an almost certain
loss on summary judgment, she submitted a flatly contradictory
affidavit which contained no explanation for her change in
position.
We held that on those clear and extreme facts the district court
could properly ignore the later affidavit.

Videon Chevrolet, Inc., 992 F.2d at 488. See also Farrell v. Planters
Lifesavers Company, 206 F.3d 271 (3d Cir. 2000).

Unlike Martin, in the present case appellant did provide what a fact-
finder might regard as a plausible explanation for the differences
between her 1998 written comments about the nature of the secretarial
position and her subsequent deposition testimony about the degree of
political involvement, confidentiality, and responsibility required
("[T]he
concept I was trying to get across was what I thought the job should be
more so than what the job actually is."). A fact-finder might not only
have accepted the explanation but gone on to credit the deposition
testimony of appellant that the District Court declined to give equivalent
weight to.

23
interpreted to support more than one inference regarding
the level of representation inherent in the position.

Further, Armour contends that the fact that the
commissioners created a new administrative position above
the secretaries, though they never filled that position,
would lend support to a finding that the secretarial
positions did not entail the level of confidentiality or require
the type of representation of the commissioners that would
make political affiliation a proper job requirement.
Specifically, Schulte testified that the never-filled executive
administrator position required a college degree because
the person in that position "would, indeed, be representing
the three commissioners." Of course, the fact that the
administrative position was created would not compel a
fact-finder to conclude that the work of the secretaries and
the work of the potential administrator would not have
overlapped in any respect. However, the creation of the
administrative position and the adoption of more
demanding requirements for it than for a secretarial
position might lead a fact-finder to doubt that a secretarial
position was one for which political affiliation was a proper
ingredient.

Finally, we note that the secretaries' contact with
constituents, relied on by the District Court in its summary
judgment ruling, also fails to bear the weight of the
government's burden on the appropriateness of a political-
affiliation requirement. It is undisputed that Armour and
the other secretaries responded to constituent calls
and, when possible, handled constituents' requests
without involving the commissioners. We are, however,
unpersuaded that the fact that the secretaries would
attempt to handle constituents' requests on their own
ineluctably leads to the conclusion that political affiliation
was an appropriate requirement for the job. See Zold, 935
F.2d at 638 (employee's contact with the public limited to
receiving and responding to inquiries and complaints rather
than promoting policies did not support a political-
affiliation requirement).

Neither the County nor Schulte contends that this case
implicates the central question in most political patronage
cases--whether an employee had "meaningful input into

24
decision making." Brown, 787 F.2d at 170. Instead,
appellees rely on evidence that Armour was entrusted with
access to confidential information as part of her job and
that a lack of political loyalty would interfere with the
performance of her duties. We have, indeed, acknowledged
that access to confidential information may support a
political-affiliation job requirement even in the absence of a
decision-making function. See Zold, 935 F.2d at 638-39.
However, we have also cautioned against an over reliance
on the factors of confidentiality and loyalty: "Although
loyalty and confidentiality of sheriff's deputies are desirable
attributes, those traits are needed for many working
relationships. It has never been suggested that the need for
loyalty and confidentiality alone supports politically
motivated dismissals independent of the tasks which the
employee must perform." Burns v. County of Cambria, 971
F.2d 1015, 1023 (3d Cir.), cert. denied, 506 U.S. 1081
(1993). Here we are faced with the question whether being
the personal secretary to a county commissioner is, without
more, sufficient evidence to establish as a matter of law
that political affiliation is an appropriate job requirement.
There is case law that points in this direction. For example,
in Faughender v. City of North Olmsted, 927 F.2d 909, 914
(6th Cir. 1991), the Sixth Circuit stated: "Viewed in its
functional aspect, a mayor's secretary is clearly the type of
position that involves access to confidential and political
material, and political loyalty, whether partisan or personal,
is an essential attribute of the job." But the fact-specific
approach embraced by this court in Brown and Zold and
other cases is not in harmony with such a categorical rule.

Armour's "access to confidential information . . . might
signify that political affiliation . . . is a job requirement."
Zold, 935 F.2d at 638. However, on the record before us, we
are unable to so conclude without weighing the evidence--a
task that we leave for the fact-finder. If a jury were to credit
Armour's testimony, and indeed a good deal of the
testimony of Donatella and Johnson, it could find that the
job duties of the commissioner's secretary were more
analogous to "the most routine clerical tasks," id. at 639,
than to tasks involving a high level of confidentiality.

Thus, based on our review of the record, we conclude

25
that, under Fed. R. Civ. P. 56(c), genuine disputes
regarding the nature of Armour's position remain. This
conclusion is strengthened in that, as mentioned above, the
"substantial" burden of proving that political affiliation is
an appropriate job requirement remains at all times on the
governmental entity or official seeking to justify the adverse
employment action. See Burns, 971 F.2d at 1022.6

B. The Sua Sponte Ruling That Armo ur Was Not Fired
for Political Reasons

We turn now to the District Court's alternative basis for
granting summary judgment--namely, that Armour failed
to come forward with evidence linking her termination to
her perceived political affiliation.

In order to prevail on a First Amendment claim of
discrimination, a public employee must prove "that the
employee's political affiliation was a substantial or
motivating factor in the adverse employment decision."
Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995). In this
_________________________________________________________________

6. Our dissenting colleague observes that "[w]e have previously declared
summary judgment appropriate in political dismissal cases, depending,
of course, on the facts. Boyle, 139 F.3d at 397; Ness, 660 F.2d at 522.
This is such a case."

Ness is authority for the proposition that"[w]here, as a matter of law,
a person is determined to have occupied a policymaking position, that
person's claims to protection from patronage dismissal under Elrod and
Branti are disposable on a motion for summary judgment." Id. What was
said in Ness must, of course, be read in the context of the Supreme
Court's recital in Branti "that party affiliation is not necessarily
relevant
to every policymaking or confidential position." 445 U.S. at 518. We do
not understand the dissent to contend that Armour's position could
properly be characterized as "policymaking." On the other hand, there is
certainly evidence of record that some of Armour's responsibilities were
"confidential." However, the record does not compel the inference that, as
a matter of law, the totality, or even the bulk, of Armour's
responsibilities were "confidential." Accordingly, determining whether the
defendants, on whom the burden rests, have been able to establish that
Armour's job falls outside the protections of Elrod and Branti is a matter
for the factfinder, not for the District Court on summary judgment. As
we noted in Boyle, "at the summary judgment stage, a court may not
weigh the evidence or make credibility determinations; these tasks are
left to the factfinder." 139 F.3d at 393.

26
case, appellees had submitted a summary judgment motion
to the District Court that was directed at the
appropriateness of requiring political affiliation in the
secretarial position. In that summary judgment motion
appellees acknowledged that the issue of whether Armour's
firing was politically motivated "involve[s] disputes over
issues of material fact best left for trial." Nevertheless, when
ruling on the parties' motions, the District Court sua sponte
addressed the issue of why Armour was fired.

We need not reach the merits of the District Court's sua
sponte disposition of the causation issue because the
District Court did not, prior to its ruling, notify the parties
that the issue would be addressed. Our holding in Otis
Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903
(3d Cir. 1994), is controlling. In Otis Elevator Co., "[t]he
district court not only denied [defendant's] motion for
summary judgment with respect to count IV, it granted
summary judgment for [plaintiff] with respect to that count,
sua sponte." Id. at 909. We noted that even though the
district court's decision was "understandable given the
state of the record," "it nonetheless constituted error under
Rule 56 of the Federal Rules of Civil Procedure," and,
accordingly, we vacated the order. Id. at 910.

Thus, we cannot sustain the District Court's sua sponte
ruling that appellant failed to adduce facts that would
support an inference that she was fired on the basis of her
political affiliation.

III Conclusion

Because we conclude that there are material issues of
fact for the fact-finder and because the District Court did
not provide notice to the parties that it would reach the
question of causation on summary judgment, the order of
the District Court granting summary judgment in favor of
appellees is reversed. The case is remanded to the District
Court for further proceedings consistent with this opinion.

27
SCIRICA, Circuit Judge, dissenting.

Throughout most of Pennsylvania's counties, the county
commissioners constitute both the executive and the
legislative branch of government, "generally regulating the
affairs of the county." 16 Pa. Cons. Stat. S 509(a) (1955).1
As such, the commissioners are the chief political and
governmental authorities, exercising all the corporate
powers of the county. Id. S 512. With respect to county
affairs, commissioners have long been vested with vast
discretionary powers. Kistler v. Carbon County , 35 A.2d
733, 739 (Pa. Super. Ct. 1944).

Despite their many governmental duties, Beaver County
Commissioners employ only one secretary apiece. Because
of the manifold demands placed on County Commissioner
Bea Schulte, her secretary, Dolores Armour, performed
many tasks requiring confidentiality and high levels of
responsibility. With significant political and administrative
duties, Armour functioned as more than a clerical
secretary. Armour was an integral component of the
commissioner's office, helping Schulte to serve her
constituents effectively.

In Elrod v. Burns, the Supreme Court held a political
employee who "acts as an advisor or formulates plans for
the implementation of broad goals" may be dismissed
because of her political beliefs without violating the First
Amendment. 427 U.S. 347, 368 (1976) (Brennan, J.,
plurality opinion). The Court also noted that "[n]o clear line
can be drawn between policymaking and nonpolicymaking
_________________________________________________________________

1. This is true in counties of the Third to Eighth Classes, comprising
sixty-two of Pennsylvania's sixty-seven counties. Philadelphia is
Pennsylvania's only First Class county, with more than 1,500,000
inhabitants (1,585,577 in the last census). Allegheny is a Second Class
county, with a population between 800,000 and 1,500,000 inhabitants
(1,336,449). There are three Second Class A counties, with populations
ranging from 500,000 to 800,000 inhabitants: Montgomery (678,111),
Delaware (547,651), and Bucks (541,174). Beaver is a Fourth Class
county, with a population between 150,000 and 225,000 inhabitants
(186,093). In counties from the Third to Eighth Classes, excepting home-
rule counties, the executive and legislative officers are the county
commissioners.

28
positions" and that "[t]he nature of the[employee's]
responsibilities is critical." Id. at 367. Four years later, in
Branti v. Finkel, the Supreme Court stated the ultimate
"question is whether the hiring authority can demonstrate
that party affiliation is an appropriate requirement for the
performance of the public office involved," taking into
account the "vital interest in maintaining governmental
effectiveness and efficiency." 445 U.S. 507, 517-18 (1980).

Recent cases have clarified how courts should determine
whether the dismissal of political-patronage employees, like
Dolores Armour, pass constitutional muster. This
"functional analysis" may turn, for example, on whether a
difference in political affiliation between employer and
employee will be "highly likely to cause an official to be
ineffective in carrying out" the official's duties. Ness v.
Marshall, 660 F.2d 517, 521 (3d Cir. 1981) (finding city
solicitors' party affiliations relevant to the performance of
their responsibilities). If so, the employee's dismissal does
not violate the First Amendment.2 Of course, as the District
Court here observed, "the constitutional limitations on
political patronage extend to intraparty political disputes as
well as interparty political disputes." Opinion at 3 (citing
Robertson v. Fiore, 62 F.3d 596, 601-02 (3d Cir. 1995)).

As the majority acknowledges, "access to confidential
information may support a political-affiliation job
requirement even in the absence of a decision-making
function." Supra at 25 (citing Zold v. Township of Mantua,
935 F.2d 633, 638-39 (3d Cir. 1991)). Given the sensitive
correspondence, resolutions, telephone messages, and
partisan material arriving in the commissioner's office each
day, Commissioner Schulte needed a loyal lieutenant. If
Armour's political loyalties diverged from her employer's, it
would appear that she should not be constitutionally
protected against dismissal from her confidential post.
_________________________________________________________________

2. See, e.g., Boyle v. County of Allegheny Pa., 139 F.3d 386, 396 (3d Cir.
1998); Wetzel v. Tucker, 139 F.3d 380, 384 (3d Cir. 1998); Waskovich v.
Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993). A similar test was employed
by the Court of Appeals for the Sixth Circuit in a case the majority cites
for support of a "categorical rule," Faughender v. City of North Olmstead,
927 F.2d 909, 914 (6th Cir. 1991). Faughender was also an appeal from
summary judgment.

29
The majority properly refuses to "overrel[y]" on Armour's
access to confidential information. But the testimony
unmistakably demonstrated more than Armour's access to
confidential information. It also proved that Armour
performed administrative and political tasks requiring
discretion and judgment. Armour served as Schulte's
private secretary and administrative assistant from January
1996 through February 1999. During that period, she
attended meetings of the Aliquippa Family Preservation
Network on Schulte's behalf, sometimes voting her proxy.
Whenever possible, Armour answered constituents'
requests herself. Armour also attended political functions
and fundraisers with Schulte, testifying these events were
designed "to get [Schulte's] name out." Furthermore,
Armour acted as the liaison between Schulte and
department heads. Admitting that her duties required
political acumen, Armour testified "[t]he high level of
confidentiality and responsibility reaches far beyond the
desk, often into our personal lives." Armour also conceded
that political affiliation was an appropriate requirement for
her position and that she would never have been hired had
she not actively supported Schulte's 1996 successful
campaign for office.3 As the District Court noted:

Each time [Armour] responded to a concern of a
constituent, she was representing Schulte in a political
nature. It is likely that Democratic constituents who
seek redress from their Democratic commissioner, or
simply express concerns of a political nature, expect
that the commissioner's secretary shares their political
ideology. In other words, Democratic constituents
should find comfort in expressing their concerns to the
commissioner's secretary, whom the voters felt would
express or relay the issues accurately and
compassionately to the commissioner.
_________________________________________________________________

3. Armour became involved in Schulte's campaign for county
commissioner when Schulte's husband, a Pennsylvania district justice,
asked Armour to assist his wife. Armour testified she did "[w]hatever was
asked" in the campaign, including attending organizational meetings and
functions, driving Schulte to the polling places, and posting Schulte's
signs throughout the county. After Schulte's election, the commissioner-
elect asked Armour to serve as her secretary, which Armour immediately
accepted. Armour began working the day Schulte took her oath of office.

30
Opinion at 11-12.

In addition to this evidence, the District Court considered
testimony from others regarding the role of commissioners'
secretaries. Beaver County Commissioner Dan Donatella
declared his secretary "operates as his eyes and ears, both
politically and otherwise." Jo Johnson, secretary to Beaver
County Commissioner Nancy Loxley, testified her position
required political loyalty because Loxley discussed in
confidence political as well as party issues. Both Johnson
and Joan Clarke, secretary to Commissioner Donatella,
described their jobs as "political." Clarke testified that she
represented Commissioner Donatella "when I am anywhere
politically."

In light of their duties, the Beaver County
Commissioners' secretaries functioned as political and
governmental assistants. Cf. Branti, 445 U.S. at 517. Other
Courts of Appeals have repeatedly concluded policymakers'
assistants' jobs are not protected by the First Amendment.4
The District Court correctly reached the same result in this
case.

Armour's duties were constitutionally indistinguishable
from those of a mayor's secretary. As the Court of Appeals
for the Sixth Circuit held, "Viewed in its functional aspect,
a mayor's secretary is clearly the type of position that
involves access to confidential and political material, and
political loyalty . . . is an essential attribute of the job."
Faughender, 927 F.2d at 914. It is difficult to imagine that
the Mayor of Philadelphia or Pittsburgh, or the President of
_________________________________________________________________

4. E.g., Baker v. Hadley, 167 F.3d 1014, 1019 (6th Cir. 1999) (upholding
dismissal of employees in county auditor's office where the auditor
intended the positions to be "confidential, policymaking jobs for which
political affiliation was an appropriate requirement"); Soderstrum v. Town
of Grand Isle, 925 F.2d 135, 140-41 (5th Cir. 1991) (finding a police
chief's secretary was a "confidential employee," based in part on a
"realistic understanding of the confidential relationship between
secretaries and their bosses"); Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.
1988) (noting political affiliation is "an appropriate requirement when
there is a rational connection between shared ideology and job
performance"); Santiago-Correa v. Hernandez-Colon, 835 F.2d 395, 397
(1st Cir. 1987) (observing political officials may fire "'confidential'
employees, like personal secretaries" because of"political affiliation").

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their City Councils, would be unable to employ a secretary
who was not politically loyal.5 County commissioners in
Fourth Class counties, representing the executive and
legislative branches of government, must have at least as
much right as mayors to employ secretaries who further the
commissioners' political and governmental agendas.

Nevertheless, the majority finds summary judgment
inappropriate because of conflicting evidence whether a
commissioner's secretary is "clerical" in nature. Supra at
25. As we noted in Zold, "When the issue on appeal turns
on a constitutional fact . . . appellate courts have the
obligation to give such facts special scrutiny. . . . An
appellate court in such instances may draw its own
inference from facts in the record." 935 F.2d at 636. I see
no outstanding issues that require factual resolution. That
the District Court must apply a functional, case-specific
test does not render summary judgment inapplicable. We
have previously declared summary judgment appropriate in
political-dismissal cases, depending, of course, on the facts.
Boyle, 139 F.3d at 397; Ness, 660 F.2d at 522. This is such
a case.

Applying the same test as the District Court, I find no
"genuine issue of material fact," FED . R. CIV. P. 56(c), after
affording the non-moving party all "reasonable inferences,"
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
150 (2000). Nor do I find "reasonable" an inference that
Armour's duties were primarily clerical. An officeholder's
"clerical" employees do not vote her proxies, resolve
constituents' requests, or have access to the office's most
sensitive and confidential political and governmental
information, as did Armour. The District Court held,"In
essence, plaintiff was a conduit between the Democratic
constituents and Commissioner Schulte, their elected
representative." Opinion at 12.
_________________________________________________________________

5. As noted in Faughender, "A mayor's secretary must undertake those
functions in relation to the flow of information, whether by writing,
speech, or personal visit, to and from the mayor's office, that the mayor
wants the secretary to perform. A particular secretary's duties may be
circumscribed, but the function of the office is constant." 927 F.2d at
913-14.

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6. I would also affirm the District Court's alternative holding -- that
Armour did not demonstrate her support of Joseph Askar for a local
judgeship was a "substantial or motivating factor" in her termination.
Opinion at 12-14. The evidence demonstrated Schulte only questioned
Armour once about her involvement with Askar, and Armour denied any
"direct" involvement with Askar's campaign. With no other evidentiary
support, Armour did not meet her burden of proving that her political
affiliations led to her dismissal.
The majority frames the issue as whether summary
judgment was appropriate, given Armour was a
"nonpolicymaking, secretary-clerk serving in roughly equal
parts an elective county executive (County Commissioner)
and a non-elective county administrator (Chief Clerk)."
Supra at 19. I do not read the court's opinion as an attempt
to segregate Armour's duties between the "political" and the
"nonpolitical." Of course, were that the standard, "political"
employees in state or municipal government would be
virtually nonexistent. Necessity demands the staffs of
elected officials perform several tasks -- governmental,
political, administrative, and clerical. Clerical duties, even if
they are "roughly equal" to more specialized obligations, do
not render those employees "nonpolitical."

The District Court found that an "absence of political
cohesion" between Armour and Schulte would potentially
damage the commissioner's work, rendering Armour an
employee subject to dismissal on political grounds. Opinion
at 12, quoted supra at 14-16. Having reviewed the record,
I would agree.6

Because I would affirm the judgment of the District
Court, I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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