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Stephen D. Bartos v. Commonwealth of Pennsylvania

September 29, 2011

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: (Chief Judge Kane)

MEMORANDUM

Before the Court is Defendants' motion for reconsideration of the Court's June 16, 2011 order adopting the Report and Recommendation of Magistrate Judge Carlson, and granting in part and denying in part Defendants' motion for summary judgment. (Doc. No. 125.) For the reasons that follow, the Court will deny Defendants' motion.

I. BACKGROUND

On February 26, 2008, Plaintiff Stephen D. Bartos filed a complaint alleging that he was terminated from his employment with the Commonwealth of Pennsylvania for improper reasons. (Doc. No. 1.) Bartos brought three claims under the civil rights statute, 42 U.S.C. § 1983, including one claim against Defendants Reisinger, McDonnell and McGinty, alleging that his discipline and termination was in retaliation against him for engaging in petitioning activity protected by the First Amendment. Bartos also brought claims under 42 U.S.C. § 1985(3), the Fair Labor Standards Act, 29 U.S.C. § 201, and Pennsylvania's whistle-blower statute, 43 Pa.C.S. § 1423, et seq.

In his complaint, Bartos alleges that he worked for the Pennsylvania Department of Environmental Protection (DEP), and its predecessor agency the Department of Environmental Resources, from 1987 until 1990, and again from 1997 until 2007. In August of 2006, Bartos served as an Environmental Group Manager, where he was responsible for, inter alia, development, oversight, and general management of the Cleanup Our Anthracite Lands and Streams (COALS) program. Bartos served as a liaison between the COALS program and a nonprofit organization, Keep Pennsylvania Beautiful (KPB), and was designated as proxy for DEP at KPB board meetings.

At the time of the events in this lawsuit, the Municipal Waste Planning, Recycling and Waste Reduction Act, Act of July 28, 1988, 53 P.S. § 4000.101 et seq. ("the Act"), mandated recycling in certain Pennsylvania municipalities, required counties to develop municipal waste management plans, and provided grants to offset some local government recycling expenses. Section 902 of the Act provided for grants to municipalities for development of municipal recycling programs (hereinafter "Section 902 Grants"), which were issued through grant contracts with DEP. (Doc. No. 118-2 ¶¶ 13-19.) After being designated as DEP's proxy to the KPB board, Bartos began reviewing and auditing DEP's Section 902 Grants to municipalities. (Id. ¶¶ 28-29.) Bartos found that KPB received funds from Section 902 Grants by way of pass-through funding, in other words, earmarking from recipients of the grants. (Id. ¶¶ 30-31.)

In early 2007, Bartos communicated his findings to the Bureau Director of Waste Management, Defendant Kenneth Reisinger, who supervised Bartos' immediate supervisor, Stephen Socash. (Id. ¶¶ 9, 39-48.) Bartos' findings conflicted with the views of Lawrence Holley, then Chief of the Division of Waste Minimization and Recycling, with whom Bartos allegedly had professional conflicts. (Id.) Bartos conducted an audit, and prepared a 360 page report (hereinafter "Audit Report"), in which he reported that Section 902 Grants budgeted to KPB were being spent for purposes not reasonably related to a recycling program. (Doc. No. 110 ¶¶ 34-39.) The report was ultimately forwarded to Defendant McGinty, the Secretary of the DEP at the time, who suspended the funding process. (Id.)

Bartos alleges that, after communicating his findings to Reisinger, Reisinger began to harass him and to engage in retaliatory behavior against him. (Doc. No. 118-2 ¶ 62-66.) In June of 2007, Bartos was being considered for promotion to a position in DEP that was overseen by Reisinger, and which was held by Lawrence Holley. Reisinger alleges that Holley, who is African-American, approached him and reported that three DEP staff members had informed Holley that Bartos was using racial slurs towards Holley. (Doc. No. 110 ¶ 40.) Thereafter, Reisinger conducted a personnel investigation, which allegedly corroborated the allegations of racist remarks. (Id. ¶¶ 43-53.) After a pre-disciplinary conference, in which Bartos denied each of the allegations leveled against him, Reisinger recommended that Bartos be disciplined. (Id. ¶ 66.) On August 30, 2007, Bartos was suspended for "inappropriate workplace behavior." (Id.) Bartos contends that his suspension was because of his opposition to the pass-through funding to KPB, and that such a causal link was suggested by the manner in which Reisinger communicated the suspension to Bartos. (See id. ¶ 83-90.)

After serving his three-day suspension, Bartos challenged his suspension, filing an appeal with the State Civil Service Commission (SCSC) on September 14, 2007. (Doc. Nos. 110 ¶¶ 70-71; 118-2 ¶ 89.) In his appeal, Bartos alleged that his suspension was related to his whistle-blower status with respect to the Section 902 Grants and his Audit Report. (Id.) Thereafter, Reisinger instituted two additional disciplinary actions against Bartos, including a disciplinary conference on October 18, 2007, and another on December 4, 2007, leading to Bartos' termination from DEP. (Doc. No. 118-2 ¶¶ 98-112.) Bartos was informed that his termination was because of inappropriate workplace behavior, harassing and threatening co-workers, retaliating against co-workers and making inappropriate gender-based and sexual comments to and about co-workers. (Doc. No. 110-5 at 27.) Bartos alleges, however, that he was disciplined for appealing his suspension. (See Doc. No. 118-2 ¶¶ 89-109.)

On October 7, 2010, following discovery,*fn1 Defendants moved for summary judgment on all of Bartos' claims. (Doc. No. 109.) Magistrate Judge Carlson recommended that summary judgment be entered in favor of Defendants on all claims except for Bartos' First Amendment retaliation claim against Defendant Reisinger, and his state whistle-blower claims against Defendants Reisinger and DEP. (Doc. No. 122.) Neither Plaintiff nor Defendant filed objections to Magistrate Judge Carlson's Report and Recommendations. On June 16, 2011, the Court adopted the Report and Recommendation, and ordered that summary judgment be granted in part and denied in part. (Doc. No. 123.) In its order, the Court held, inter alia, that "[d]isputed issues of material fact preclude summary judgment on Bartos' First Amendment retaliation claim against Defendant Reisinger." (Doc. No. 123.) Defendants seek reconsideration of the First Amendment claim, arguing that the Supreme Court's decision in Duryea v. Guarnieri, 131 S. Ct. 2488 (2011), "invalidates the law pertaining to the First Amendment referenced in the Report and Recommendation." (Doc. No. 125 ¶ 6.) Defendants also submit that Plaintiff's First Amendment claim should be dismissed, and that his state whistle-blower statute claim should be remanded to the Pennsylvania Commonwealth Court. (Id. ¶ 11.)

II. STANDARD OF REVIEW

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996) (citation omitted).

It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." ...


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