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Bartos v. Commonwealth

April 23, 2010

STEPHEN D. BARTOS, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; KATHLEEN A. MCGINTY, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; PATRICK MCDONNELL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND KENNETH R. REISINGER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS



The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

(Chief Judge Kane)

(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER

I. STATEMENT OF FACTS AND OF THE CASE

This case is an employment discrimination lawsuit brought by a former employee of the Commonwealth of Pennsylvania, Department of Environmental Protection. This matter comes before the Court on a Motion to Strike Errata Sheet, a motion which documented a disturbing and mendacious pattern of misconduct allegedly undertaken by two state employees who were deposed as witnesses in the course of discovery in this case.

The background of this tale of mendacity can be simply stated: On February 26, 2008 the plaintiff, a former employee of the Pennsylvania Department of Environmental Protection (DEP) initiated this lawsuit by filing a complaint in federal court. (Doc. 1) In this complaint, Bartos alleged, in part, that he was suspended by DEP in August 2007, and later terminated by that agency in December 2007, in retaliation for reporting alleged waste and wrongdoing in the agency. (Id.)

While Bartos was employed at DEP his subordinates included two individuals, Patricia Olenick and Donald Hagerich. As this litigation progressed, Olenick and Hagerich were identified by the defendants as potential witnesses, who possessed information pertinent to Bartos' termination from the agency and the issues set forth in Bartos' complaint against DEP. Accordingly, as part of the pre-trial discovery in this case, Bartos resolved to depose both Olenick and Hagerich.

Following the filing of this lawsuit, in January of 2009 Bartos secured employment with State Representative Todd Eachus, in the Pennsylvania House of Representatives, performing special projects at the direction of State Representative Robert Belfanti. Shortly after Bartos began work in Representative Eachus' office an ugly episode ensued. An anonymous letter was sent to Representative Eachus' office. That anonymous letter informed the Representative that Bartos had been disciplined for alleged misconduct while he was employed with DEP and attached a copy of a disciplinary letter that had been served on Bartos by DEP in December 2007.

In a case which involved claims by Bartos that he had subjected to acts of retaliation by DEP officials, the sudden, anonymous appearance of this DEP disciplinary letter at the office of his current employer had a potentially retaliatory aspect to it, and was a matter of immediate concern and relevance for the plaintiff. Thus, the genesis of this anonymous letter became a topic of testimony in discovery depositions, including the depositions of Bartos' former DEP subordinates, Olenick and Hagerich.

Hagerich was deposed on June 10, 2009. Olenick, in turn, was deposed on June 23, 2009. In both of their depositions, Olenick and Hagerich were asked a series of questions regarding their knowledge of this anonymous letter and whether they had played any role in its preparation or surreptitious delivery to Bartos' current employer. In response to this series of direct questions, Olenick and Hagerich repeatedly and explicitly denied under oath playing any role in the delivery of the letter, and disclaimed any knowledge of the letter.

These sworn statements are now acknowledged to have been lies. This deceit by these deponents did not come to light through some immediate and wholly voluntary disclosure by the witnesses. Quite the contrary, the sworn, but false, testimony of these witnesses remained uncorrected for three months, until September 2009.

The events which led to disclosure of this deceit began in September 2009, when Bartos noticed a deposition of the chief of the Appeals Division of the State Civil Service Commission for September 30, 2009. Bartos noticed this deposition because the plaintiff had determined that the disciplinary letter that was anonymously leaked to Representative Eachus had come from the Commission's files, and Bartos intended through the deposition to confirm how that letter made its way from these files to become an attachment on an anonymous letter.

In preparation for this defending this deposition, counsel for DEP met with the proposed deponent on or about September 17, 2009. At that time defense counsel received information which indicated that Olenick and Hagerich had retrieved the anonymous letter from state files shortly before it was delivered, raising the clear inference that they had also participated in the submission of the anonymous letter, something they had repeatedly denied under oath in June, 2009.

Defense counsel acted promptly after learning this disturbing information, and by September 24, 2009 the defendants caused errata sheets to be filed by Olenick and Hagerich, errata sheets that attested to material and troubling changes in the sworn testimony of these two witnesses. Thus, for deponent Donald Hagerich, the proposed alterations in his prior sworn testimony regarding the provenance of the anonymous letter were profound, and completely altered the meaning of his prior testimony.

These material changes are illustrated by following excerpt from that testimony where the original sworn answers are displayed in bold and the proposed errata are shown in italics:

Q: Yes. Have you seen Page 1 of this exhibit before?

A: I participated in its creation. In a newspaper article.

Q: I'm not asking you about the allegations contained in this. I'm asking you if you've ever seen this piece of paper before.

A: No. Yes

Q: Did you play a role in the preparation of this letter?

A: No. Yes

Q: Are you aware of anybody at DEP who played a role in the preparation of this letter?

A: Nope. Yes

Q: Are you aware of anybody who has played a role in the preparation of this letter?

A: Nope. Yes

Q: I want to turn your attention to Page 2. Have you seen Page 2 before today?

A; No. Yes

Q: I want to turn your attention to Page 3 of this exhibit. Have you seen this page before today?

A: No. Yes

Q: I want you to turn to the last page of this exhibit. .... Did you ...


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