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SULLIVAN v. HOUSTOUN

June 14, 1996

OWEN SULLIVAN, Plaintiff
v.
FEATHER HOUSTOUN, et al., Defendants



The opinion of the court was delivered by: MCCLURE

 June 14, 1996

 BACKGROUND:

 On June 19, 1995, plaintiff Owen Sullivan initiated this action with the filing of a complaint pursuant to 42 U.S.C. § 1983. Sullivan alleges that his right to free speech under the First Amendment was violated by the termination of his employment by the Pennsylvania Department of Public Welfare, Office of Hearings and Appeals. The termination occurred after Sullivan directed a letter to Governor Thomas Ridge. Sullivan also asserts a supplemental claim under the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. Ann. § 1421.

 Before the court is a motion by defendants for summary judgment.

 DISCUSSION:

 I. STANDARD OF REVIEW

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added).

 
... The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex at 323, 325.

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).

 From June 28, 1993, to May 26, 1995, Sullivan was an employee of the Department of Public Welfare, Office of Hearings and Appeals, in the position of Attorney Examiner 2. Defendants are: Feather Houstoun, Secretary of the Department of Public Welfare; Larry Toth, Director of the Department's Bureau of Personnel; and Peter Speaks, Director of the Office of Hearings and Appeals. Speaks was plaintiff's supervisor.

 After an initial period of two or three months in which his work performance was good, Sullivan was disciplined on a number of occasions. What followed was a series of incidents in which Sullivan allegedly was insolent toward and uncooperative with Speaks. These incidents included Sullivan's refusal to turn off a tape recorder during discipline-related conferences with Speaks as well as to make changes in memorandum ...


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