F.3d at 1272. There can be no question that some degree of disruption would
occur where a high ranking official such as Plaintiff complains of sexual
harassment and discrimination by a superior. The question is whether the
interest in the government in being free from this disruption outweighs
Plaintiff's right to her speech in the matter.
Defendants cite a Middle District of Pennsylvania case where this
balancing was resolved in favor of the government. Poteat v. Harrisburg
Sch. Dist., 33 F. Supp.2d 384 (M.D.Pa. 1999). In Poteat, the court held
that a policymaker's public speech opposing policies of the school board
was not protected by the First Amendment because the Board's interests
outweighed the interests of the policymaker. Id. at 395-96. The
policymaker's high-level position, and the Board's need to have a
policymaker who agrees with the Board's policy are factors that weighed
heavily in this decision. The present case, however, does not involve a
public dispute regarding a department's policy. Instead, Plaintiff alleges
that a high-ranking official was discriminating against her because of
her sex, and that both the official and a Secretary in the Governor's
cabinet retaliated against her after she complained about the
discrimination, by continuing the discrimination and by terminating her
employment. Even taking into account the disruption that would
necessarily occur in the workplace when a Deputy Executive Director
accuses the Executive Director of the Lottery of sex discrimination, the
Court cannot find that the Government's interests outweigh the
Plaintiff's interests here. Plaintiff has a strong interest in working in
an environment free from discrimination, and the public has an interest
in permitting the exposure of such discrimination when it occurs in a
state office. Because this Court finds that the balancing of the
interests weighs in favor of the Plaintiff, the Court finds as a matter
of law that Plaintiff's speech was protected by the First Amendment.
There remains a genuine dispute of facts regarding whether Plaintiff's
speech was a motivating factor in the decision to terminate her
employment, and whether Plaintiff would have been terminated in the
absence of her speech. Such issues are for a jury to decide and preclude
entry of summary judgment.
D. Equal Protection
Finally, Plaintiff asserts that Defendants violated her equal
protection rights. Discrimination in employment based on sex or other
protected characteristic can constitute a violation of equal protection.
Davis v. Passman, 442 U.S. 228, 234-35 (1979); Andrews v. City of
Philadelphia, 895 F.2d 1469, 1479 (3d Cir. 1990). To prevail, Plaintiff
must first establish a prima facie case by showing that (1) she is in a
protected class; (2) she suffered an adverse employment action; and (3)
non-members of the protected class were treated more favorably. Stewart
v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997).
As a woman, Plaintiff is in a protected class. Secretary Judge's
discharge of Plaintiff was an adverse employment action, as was the
allegedly pervasive harassment by Cook, including Cook's failure to
include Costenbader-Jacobson in meetings and other actions he allegedly
took to subvert her authority and remove her ability to perform her
duties. Further, it is disputed whether men were treated better than
women by Cook. Finally, when firing Costenbader-Jacobson rather than
Cook, Secretary Judge chose to fire a woman instead of a man. This is
sufficient to establish a prima facie case.
Having established a prima facie case, there is a presumption of
discriminatory intent by the employer, which the employer may refute by
proffering a legitimate, nondiscriminatory reason for its actions.
Stewart, 120 F.3d at 432. Defendants assert that Cook's treatment of
Costenbader-Jacobson was not discriminatory, as he treated male employees
equally poorly. These are issues of fact for a jury to determine.
Similarly, Defendants' assertion that Secretary Judge fired
Costenbader-Jacobson in order to maintain harmony among his high-level
employees, and selected Cook to remain at the Lottery because he had more
experience may be refuted by Plaintiff at trial, should the jury believe
her version of events, that the Lottery was a "good-old-boys-club" and
that the men stuck together. See, e.g., depo. of Sally Danyluk. It is
possible that Plaintiff may be able to establish that Secretary Judge
failed to stop Cook's harassment and discriminatory actions towards
Plaintiff, and in the end picked the harasser to remain at the Lottery,
ostensibly in the interest of staff harmony. As there remain genuine
issues of fact for trial, the Court will deny Defendant's motion for
summary judgment on Count VI of the complaint.
E. Qualified Immunity
Finally, Defendants assert the defense of qualified immunity.
Government officials enjoy qualified immunity from suit under § 1983
when their conduct does not violate clearly established statutory and
constitutional rights, the existence of which a reasonable person would
have known. Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818) (1982)). The Third
Circuit has articulated a three part test to use in determining whether
Defendants are entitled to qualified immunity:
(1) whether the plaintiff alleged a violation of
[her] constitutional rights; (2) whether the right
alleged to have been violated was clearly established
at the time of the violation; and (3) whether a
reasonable official knew or should have known that the
alleged action violated the plaintiff['s] rights.
Rouse v. Plantier, 182 F.3d 192, 196-97 (3d Cir. 1999). Plaintiff has
alleged constitutional violations. The law is clearly established that a
public employee cannot be subjected to adverse employment action in
retaliation for engaging in protected First Amendment activity. See
Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987). It is similarly well
established that sex discrimination may violate equal protection
guaranteed by the Constitution. Davis v. Passman, 442 U.S. 228 (1979).
Normally, a court should make the determination required by the third
prong of the test articulated in Rouse — whether a reasonable
official knew or should have known that the alleged action violated the
Plaintiff's rights. Sharrar v. Felsing, 128 F.3d 810, 828 (3d Cir.
1997). However, a court cannot make this legal determination where
critical facts that underly the dispute remain at issue. Karnes v.
Strutiski, 62 F.3d 485, 492 (3d Cir. 1995). Here, the very nature of the
Defendants' actions is disputed. Absent a factual determination of why
Plaintiff was terminated by Defendants, this Court cannot determine
whether Defendants' conduct was objectively reasonable. The factual
determination regarding the reasons for Plaintiff's termination, and
hence whether Plaintiff's constitutional rights were violated, is the
central issue in this dispute, and one for a jury to decide. Therefore,
the Court will deny Defendants' motion for summary judgment on qualified
AND NOW, therefore, IT IS ORDERED THAT Defendants' motion for summary
judgment is GRANTED in part and DENIED in part, as follows:
1. Summary judgment is GRANTED for the Defendants and
against Plaintiff on Counts I and II of the
2. Counts III and IV of the complaint are deemed
3. Summary judgment is DENIED with respect to Counts
V and VI of the complaint;
4. The Clerk of Court shall withhold entry of judgment
pending the conclusion of this case;
5. A scheduling order shall issue forthwith.