117 F.3d 965

LIVELY, Circuit Judge,
dissenting.
In my opinion this court has not been consistent in its treatment of eases involving political firings. In fact, it seems to me that the court often goes out of its way to deny to fired public employees the benefit of the holdings by the Supreme Court in the Elrod-Branti-Rutan trilogy. The present case is, I believe, an example of the court’s tendency to eviscerate the protection afforded public employees in these decisions by finding that “party affiliation is an appropriate requirement for the effective performance,” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980), of every public job except those at the very lowest level.
I.
The Elrod-Branti-Rutan trilogy establishes that public employees continue to enjoy First Amendment freedoms of political belief and associational activity save in the narrow exception 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. The majority opinion in the present case is this court’s most recent effort to allow this narrow exception to swallow the broad general rule that dismissal of government employees on the basis of political affiliation runs afoul of the First Amendment by restraining freedom of political belief and infringing upon the right to associate with others to advance those beliefs. Elrod v. Burns, 427 U.S. 347, 355-60, 96 S.Ct. 2673, 2680-83, 49 L.Ed.2d 547 (1976).
In Williams v. City of River Rouge, 909 F.2d 151 (6th Cir.1990), this court stated: “When examining a public office for first amendment protection against politically-motivated dismissal, the relevant focus of analysis is the inherent duties of the position in question, not the work actually performed by the person who happens to occupy the office.” Id. at 154. (citation omitted). The Williams court reasoned that consideration of the position itself “rather than the position as performed by appellant” was important because “[a]ny other approach would tend to bind a later [employer] to employ the [appellant] in the way that the official had been employed in the past.” Id. at 155. After Williams, this court broadened the narrow exception, indicating that the determination of whether political affiliation is an appropriate basis for personnel decisions is dependent upon “the inherent duties of that position and the duties that the new holder of that position will perform.” Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 913 (6th Cir.1991) (emphasis in original).
The Faughender court indicated that this two-pronged test was derived from Elrod and Branti reasoning that “a position that controls the lines of communication of a political actor must be inherently political” because political action cannot occur without communication, id. at 914, and that “[p]ermit-ting elected officials entrusted with administrative duties to reorganize their staffs according to their wishes is also derived from Elrod and Branti.” Id. at 915. The court later relied on Faughender to uphold the finding that an administrative assistant position at the Ohio Department of Transportation sought by the plaintiff was one that could be filled on a political patronage basis without violating the constitutional rights of unsuccessful candidates. Rice v. Ohio Dep’t of Transportation, 14 F.3d 1133 (6th Cir.1994).
In the present case, the majority finds the issue of whether Ms. Smith had a “fiduciary or administrative relationship” to the Washington County Engineer for purposes of Ohio law identical to the issue of whether political affiliation is an appropriate consideration in staffing Ms. Smith’s position. I disagree. The majority’s determination is based, in part, on its erroneous recitation of the two prongs of Faughender as: “the job as actually performed” and “the job as envisioned.” Under the Faughender standard, and the express language of Williams, the appropriateness of basing a personnel decision on political considerations is not tested by the actual work performed by the plaintiff. While Faughender teaches that the facts relating to the position as performed may be useful in determining whether the position is one for which political affiliation is an appropriate consideration, consideration of the “job as actually performed” is different from consideration of the inherent duties, although the two may certainly overlap.
To reach its result in the present case, the majority relies heavily on McCloud v. Testa, 97 F.3d 1536 (6th Cir.1996), where the court stated: “There can be no doubt about the essence of the rough distinction that the Supreme Court was trying to create in the Elrod-Branti-Rutan trilogy of cases: “grunt” or “line” workers are entitled to First Amendment protection, but workers analogous to a cabinet secretary to a chief executive, along with the confidential advis-ors and administrative assistants of such executives and cabinet secretaries, are not entitled to First Amendment protection.” Id. at 1556. (footnote and citation omitted). The McCloud opinion discovered four categories of employees to whom no First Amendment protection from patronage dismissal is owed. Resort to category three, as the majority does in the present case, deprives public employees of First Amendment protection merely on the basis of their relationship as advisors or controllers of communications to supervisors and superiors in their chain of command. The present ease illustrates the fallacy of such a categorical approach.
Reliance solely on the job as actually performed is improper in this case because it is clear from the record that Ms. Smith had a very close relationship with the former county engineer, Paul Junk, and his assistant, Dale Cottrill. It is quite possible that these two men, because of the personal confidence they had in her based on this relationship, may have given Ms. Smith assignments and responsibilities not inherent in the position of an administrative assistant. The decision of the Ohio State Personnel Board of Review (SPBR) contains voluminous factual findings concerning the actual duties performed by Ms. Smith in the one-year period immediately prior to her termination, but it contains no findings respecting the inherent nature of the position apart from the actual work performed by the plaintiff, and the SPBR did not consider the impact of Ms. Smith’s personal relationship with Junk and Cottrill.
II.
I find it particularly disturbing that the majority bases its affirmance on the conclusion that Ms. Smith was collaterally estopped from asserting her claim in district court by reason of the administrative decision of the SPBR. Collateral estoppel prevents a party from relitigating issues of fact or law which were necessarily decided by a previous final judgment. Federal courts are required to apply the doctrine of collateral estoppel in the same way as the state courts apply it in the state in which the earlier judgment was rendered. See Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984).
Under Ohio law, the doctrine of collateral estoppel bars relitigation 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 (1983). “[A]n absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action.” Id. at 201, 443 N.E.2d 978 (citing Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943); First Nat’l Bank v. Berkshire Life Ins. Co., 176 Ohio St. 395, 199 N.E.2d 863 (1964); Ohio Finance Co. v. McReynolds, 27 Ohio App. 42, 160 N.E. 727 (1927)). Collateral estoppel bars relitigation only when the identical issue was actually decided in the prior case. Id. at 203, 443 N.E.2d 978. Determination of whether a subsequent suit is based upon the same cause of action as a prior suit requires a court to consider the facts necessary to sustain each of the claims. Duncan v. Peck, 752 F.2d 1135, 1139 (6th Cir.1985) (applying Ohio law).
The district court granted summary judgment on the basis of the SPBR’s findings concerning the work actually performed by Ms. Smith during the year immediately prior to the time the new county, engineer took office. Based on the administrative record of the SPBR proceedings alone, the magistrate judge had no basis for determining that the position of administrative assistant to the county engineer is inherently political under either prong of the Faughender test. This would have required an inquiry beyond the factual findings of the SPBR because that body never considered the inherent nature of the position. Its only purpose was to determine whether the job, as performed by Ms. Smith, should be denominated classified or unclassified. Thus, neither the legal issue determined by the SPBR nor the factual findings on which its decision was based is relevant to Ms. Smith’s claim that the position from which she was fired was protected by the First Amendment from a politically motivated discharge. For this reason, collateral estoppel should not bar Ms. Smith’s pursuit of her claim in this action.
The record before the SPBR does not answer the “inherent duties” prong, as discussed above, and it is totally silent with respect to the other prong of the Faughender test — the duties of the position as envisioned by the new county engineer, Mr. Sushka. In a letter to Ms. Smith advising her that she was being terminated, Mr. Sushka stated that the position of administrative assistant was being abolished in a reorganization of the county engineer department. In a discovery deposition before conclusion of the SPBR proceedings, the defendant testified that while an office as small as the county engineer’s did not need an administrative assistant, he contemplated hiring a “confidential secretary.” The position of confidential secretary would “most definitely” be different from the plaintiffs position, according to the defendant. He gave no description, however, of what the duties of the new position would be, and Branti teaches that the label “confidential” does not resolve the question of whether party affiliation is an appropriate requirement for the effective performance of a public office. 445 U.S. at 518, 100 S.Ct. at 1294-95.
Neither of the two essential issues of fact required to be resolved in determining whether the holder of a public job is protected from dismissal — whether the duties of the position held by the plaintiff are inherently political and whether the duties envisioned for the new holder of that position are inherently political, Faughender, 927 F.2d at 913—was addressed by the SPBR. Furthermore, Mr. Sushka never described to the district court the duties that he envisioned for the new holder of the substituted position. Relying as it did solely on the SPBR’s findings concerning the duties performed by Ms. Smith while working under the previous county engineer, the district court made no determination of whether the position of administrative assistant was inherently political. The record contains no written job description for the position, and it is not clear from the record whether Ms. Smith’s other activities in support of the county engineer and in communication with persons outside the office were required by the job or merely entrusted to her because of her close relationship with the two top officials in the department.
CONCLUSION
I believe Ms. Smith was short-changed. She was entitled to an opportunity to show, either in response to a motion for summary judgment or at trial, that she was entitled to First Amendment protection from a political firing. But she should not have been foreclosed by improper application of collateral estoppel. It was unfair and impermissible to shut her off on the basis of an administrative determination based on a totally different inquiry. This is just the latest example of this court’s increasingly hostile attitude toward the First Amendment claims of public employees who suffer political firings.
I respectfully dissent.
. Category One: positions specifically named in relevant federal, state, county, or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted;
Category Two: positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated; or positions not named in law, possessing by virtue of the jurisdiction’s pattern or practice the same quantum or type of discretionary authority commonly held by category one positions in other jurisdictions;
Category Three: 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;
Category Four: positions that are part of a group of positions filled by balancing out political party representation, or that are filled by balancing out selections made by different governmental agents or bodies.
McCloud, 97 F.3d at 1557. (emphasis in original; footnotes omitted).

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