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June 6, 2002


The opinion of the court was delivered by: Yvette Kane, United States District Judge


I. Background

Plaintiff Robin Constenbader-Jacobson was appointed Deputy Executive Director of the Pennsylvania Lottery by Governor Tom Ridge on the recommendation of Secretary of Revenue Robert A. Judge. At the time she was appointed, Plaintiff understood that the position was considered a political appointment, and that she was to serve at the pleasure of the Secretary of Revenue. In addition, Plaintiff knew that the Senior Management Service position she accepted was not subject to a collective bargaining agreement, and was not covered by unemployment compensation. Costenbader-Jacobson began working in her position at the Lottery on December 1, 1997. She worked closely with and was supervised by her predecessor, Dan Cook, who received a promotion and, at all times relevant to this dispute, held the position of Executive Director of the Pennsylvania Lottery.

Plaintiff's complaint details a number of incidents that allegedly occurred during the course of her employment with the Lottery. First, Plaintiff claims that in a private meeting during her first week at the lottery, Cook discussed a male employee with a lump in the groin area and told Plaintiff it was her job to find out what the lump was. Second, Plaintiff alleges that at various times Cook told her a variety of sexually-oriented jokes including a joke about a male employee on the sexually stimulating drug Viagra, a joke regarding female genitalia, and sexual jokes related to reports of the Monica Lewinsky affair. Third, when Plaintiff became involved with a project at the Philadelphia Lottery office, Cook allegedly told a Philadelphia Lottery employee "[not to] worry about Costenbader-Jacobson because she just sees things through a woman's eyes." Fourth, in the same context, Plaintiff claims that Cook told another Philadelphia Lottery employee that Plaintiff was going to "stir things up" in Philadelphia and that she could go "f--- herself."

In addition to the above, Plaintiff alleges that Cook discriminated against her because of her sex when he failed to delegate responsibilities to her, excluded her from meetings, failed to tell her when meetings were being held, and did not ask her to participate in meetings. Further, Plaintiff alleges that Cook was inaccessible to her in that he canceled numerous meetings she attempted to have with him in order to discuss Lottery-related matters. This state of affairs continued until Plaintiff's termination.

Plaintiff first discussed the situation with Secretary Judge at a March 5, 1998 meeting that also included Cook and Deputy Secretary of Revenue Barry Drew. During the meeting, Secretary Judge mediated the dispute between Costenbader-Jacobson and Cook. Secretary Judge reprimanded Cook with respect to the jokes and emphasized that it was essential for Cook and Plaintiff to work together. He also told Plaintiff that meetings were regularly scheduled and that she could and should attend them without a formal invitation.

The working relationship between Plaintiff and Cook did not improve, and was the subject of additional meetings with Secretary Judge. However, despite Secretary Judge's involvement, the situation continued to deteriorate. In October 1998, Plaintiff filed a formal complaint of discrimination with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). The complaint was served on the Department of Revenue on or about December 10, 1998.

In the winter of 1998-1999, as the working relationship between Cook and Costenbader-Jacobson failed to improve, Secretary Judge decided to terminate either Cook or Costenbader-Jacobson, or both of them, in order to improve Lottery operations. Secretary Judge retained Cook, and discharged Plaintiff on February 11, 1999. The stated reasons for her termination included inadequate knowledge of the Lottery, frequent extended absences from Lottery headquarters, lack of professional conduct including displays of temper, and an unwillingness to work with Cook. Cook had no involvement in the decision to terminate Plaintiff, and was not informed of the decision until after it had occurred.

II. Discussion

A. Standard of Review

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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 a judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986). The court must view all facts and inferences in the light most favorable to the nonmoving party. See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also Williams v. Perry, 907 F. Supp. 838, 842 (M.D.Pa. 1995).

Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in her complaint; instead, she must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotations omitted). Summary judgment should be granted where a party "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 at trial." Id. at 322.

B. Title VII

any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees ...

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