Costenbader-Jacobson v. Pennsylvania

• Decision Date: 06 June 2002
• Docket Number: No. CIV.A.1:CV 00-1269.,CIV.A.1:CV 00-1269.
• Citation: 227 F.Supp.2d 304
• Parties: Robin COSTENBADER-JACOBSON, Plaintiff, v. Commonwealth Of PENNSYLVANIA, Department of Revenue, Pennsylvania Lottery, Robert A. Judge, Sr., and Daniel L. Cook, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

227 F.Supp.2d 304

Robin COSTENBADER-JACOBSON, Plaintiff, v. Commonwealth Of PENNSYLVANIA, Department of Revenue, Pennsylvania Lottery, Robert A. Judge, Sr., and Daniel L. Cook, Defendants.

No. CIV.A.1:CV 00-1269.

United States District Court, M.D. Pennsylvania.

June 6, 2002.

COPYRIGHT MATERIAL OMITTED

Andrew N. Howe, AHowe@HHHA.com, Hartman, Hartman, Howe & Allerton, Reading, PA, for Plaintiff.

R. Douglas Sherman, Office of Attorney General, Harrisburg, PA, for Defendants.

MEMORANDUM AND ORDER

KANE, District Judge.

Plaintiff, formerly Assistant Director of the Pennsylvania Lottery ("Lottery"), alleges that during the course of her employment she was discriminated against because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiff also alleges that she was ultimately discharged in retaliation for the claim of discrimination she filed with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission, and that the discharge thus violated Title VII and the First Amendment to the United States Constitution.¹ The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331, and venue is proper. Defendants have filed a motion for summary judgment, which has been fully briefed and is ripe for disposition. For the reasons discussed below, the motion will be granted in part and denied in part.

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.

B. Title VII

Counts I and II of Plaintiff's complaint allege that Plaintiff was discriminated against because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII provides that an employer may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Title VII defines "employee" broadly as "an individual employed by an employer" but exempts several groups from its protection including:

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 subject to the civil service laws of a State government, governmental agency, or political subdivision ....

42 U.S.C. § 2000e(f).

Defendants assert that Plaintiff was an appointee on the policymaking level, and thus exempt from the protections of Title VII. Plaintiff's status as an employee is a question of federal law, and the exemption is to be narrowly construed. E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985) (citation omitted). However, "[s]tate law is relevant insofar as it describes the Plaintiff's position, including [her] duties and the way [she] is hired, supervised and fired." Calderon v. Martin County, 639 F.2d 271, 273 (5th Cir. 1981). See also Lee v. Wojnaroski, 751 F.Supp. 58, 60 (W.D.Pa.1990) (examining statutory powers of office to determine whether the post falls into the policymaking level for Title VII purposes).

Courts have considered a number of factors when determining whether a given position is subject to the policymaking exception to the Title VII or ADEA definition of employee.² First among these factors is whether the appointee has discretionary rather then solely administrative powers. Stillians v. State of Iowa, 843 F.2d 276, 278 (8th Cir.1988), abrogated on other grounds, Astoria Fed. Sav. and Loan Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991); E.E.O.C. v. Board of Trustees of Wayne County Cmty. Coll., 723 F.2d 509, 511 (6th Cir.1983). Second, courts look to whether the appointee serves at the pleasure of the appointing authority. Stillians at 278; E.E.O.C. v. Reno, 758 F.2d at 584. A third factor for consideration is whether the appointee has "meaningful input into governmental decision making on issues where there is room for principled disagreement on goals or their implementation," or, put another way, whether...