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Stephen D. Bartos v. Commonwealth of Pennsylvania

April 13, 2012

STEPHEN D. BARTOS, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM ORDER

Before the Court are four motions in limine: three filed by Defendants (Doc. Nos. 146, 150, 153) and one filed by Plaintiff (Doc. No. 148). Defendants have also filed a fourth motion in limine (Doc. No. 165), to which Plaintiff has not yet responded and which the Court will address in a separate order. The Court will first address Defendants' motions, and will then address Plaintiff's 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, Department of Environmental Protection (DEP) for improper reasons. After the parties took part in discovery, Defendant filed a motion for summary judgment, which the Court granted in part and denied in part. The Court found that material issues of fact existed as to Plaintiff's First Amendment petition claim, brought pursuant to 42 U.S.C. § 1983, and as to Plaintiff's Pennsylvania whistleblower claim, brought pursuant to 43 Pa.C.S. § 1423, et seq.

Plaintiff, who had worked for DEP in various roles since 1997, commenced his role as Environmental Group Manager (EGM) on August 25, 2006. In his role as EGM, Plaintiff served as DEP's proxy on the board of Keep Pennsylvania Beautiful (KPB), a non-profit corporation that facilitated anti-litter activities and programs. Early in 2007, Plaintiff determined that KPB was being funded in part by DEP grants reserved for municipal recycling programs. On February 28, 2007, Plaintiff completed a report on the KPB funding, which he turned over to Defendant Reisinger, his supervisor's supervisor. The report was highly critical of the funding scheme.

Plaintiff alleges that, after communicating his findings to Defendant Reisinger, Mr. Reisinger began to harass him and to engage in retaliatory behavior against him. In June of 2007, Plaintiff was being considered for promotion to a position in DEP that was overseen by Defendant Reisinger, and which was held by Lawrence Holley. Defendant Reisinger asserts that Mr. Holley, who is African-American, approached him and reported that several DEP staff members had informed Mr. Holley that Plaintiff was using racial slurs towards him. Thereafter, Defendant Reisinger conducted a personnel investigation, which allegedly corroborated the allegations of racist remarks. Specifically, Patricia Olenick, Donald Hagerich, Mark Voterro, and Todd Miller reported that Plaintiff used racial slurs. After a pre-disciplinary conference, in which Plaintiff denied each of the allegations leveled against him, Defendant Reisinger recommended that Plaintiff be disciplined. On August 30, 2007, Plaintiff was suspended for "inappropriate workplace behavior." Plaintiff contends that his suspension was because of his opposition to the KPB funding scheme, and that such a causal link was suggested by the manner in which Defendant Reisinger communicated the suspension to Plaintiff.

After serving his three-day suspension, Plaintiff challenged his suspension, filing an appeal with the State Civil Service Commission (SCSC) on September 14, 2007. In his appeal, Plaintiff alleged that his suspension was related to his whistleblower status with respect to the KPB funding scheme. Thereafter, Defendant Reisinger instituted two additional disciplinary actions against Plaintiff, including a disciplinary conference on October 18, 2007, and another on December 4, 2007, leading to Plaintiff's termination from DEP. Plaintiff was informed that his termination was because of objectionable workplace behavior, harassing and threatening co-workers, retaliating against co-workers and making objectionable gender-based and sexual comments to and about co-workers. Plaintiff alleges, however, that he was disciplined for appealing his suspension.

After filing this lawsuit, in January 2009, Plaintiff commenced employment with State Representative Todd Eachus, in the Pennsylvania House of Representatives. Shortly after he commenced his employment, an anonymous letter was sent to Representative Eachus's office, informing him of Plaintiff's discipline at DEP. During the June 2009 depositions of Plaintiff's former subordinates at DEP, Patricia Olenick and Donald Hagerich, the witnesses stated that they were not involved with the transmission of the anonymous letter. In September 2009, defense counsel learned that Ms. Olenick and Mr. Hagerich had sent the anonymous letter along with Mark Vottero. Defense counsel immediately caused errata sheets to be filed by Ms. Olenick and Mr. Hagerich. Subsequent depositions revealed that Ms. Olenick, Mr. Hagerich, and Mr. Vottero had agreed to lie if they were ever questioned about the anonymous letter.

II. DEFENDANTS' MOTIONS

A. Defendants' Motion to Preclude Reference to Defense Counsel's Representation of Perjured Witnesses at Deposition (Doc. No. 146)

Defendants moved to preclude reference to the fact that Attorney Joseph Goldberg of the law firm Weber Gallagher Simpson Stapleton Fires & Newby LLP represented Ms. Olenick and Mr. Hagerich at their initial depositions. (Doc. No. 146.) Defendants argue that such evidence should not be admitted because it is irrelevant. (Id. at 5.) In the alternative, Defendants argue that even if the Court finds that the information is relevant, its probative value is outweighed by the prejudicial effect that the information could have. (Doc. No. 5.) In response, Plaintiff filed a brief, arguing that a motion excluding reference to Mr. Goldberg's representation of the witnesses should be narrowly crafted, because such information may be relevant or probative if, for example, Plaintiff's counsel attempts to assert a privilege as to a communication that either made in his presence. (Doc. No. 169.) The Court agrees with Defendants that the evidence should be excluded.

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. "All relevant evidence is admissible." Fed. R. Evid. 402. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403. Here, Mr. Goldberg promptly remedied the witnesses' perjury upon learning of it. The fact that Mr. Goldberg represented Ms. Olenick and Mr. Hagerich is not relevant to any issues to be decided at trial. To the extent that defense counsel attempts to assert a privilege in the form of an objection, such an objection can be made and responded to without reference to the fact that Mr. Goldberg represented the perjured witnesses at their initial depositions. Thus, the Court will grant Defendants' motion to preclude evidence regarding Mr. Goldberg's representation of Ms. Olenick and Mr. Hagerich. (Doc. No. 147.)

B. Defendants' Motion to Preclude Introduction of Evidence Related to Discipline of Other DEP Employees (Doc. No. 150)

Defendants moved to preclude introduction of evidence related to the discipline of other DEP employees who violated workplace policies. (Doc. No. 150.) In his complaint, Plaintiff alleges that he was suspended for authoring his report about the KPB funding scheme and ultimately terminated in retaliation for his SCSC appeal of the suspension. Defendants assert that Plaintiff was suspended for using racially objectionable language and was terminated for violating workplace policies, including harassing and threatening co-workers, retaliating against co-workers, and making objectionable gender-based and sexual comments to and about co-workers. At trial, one of the issues for the jury to decide is whether the reasons cited by Defendants for Plaintiff's discipline were pretextual. To support his argument that the reasons cited by Defendants were pretextual, Plaintiff seeks to introduce evidence relating to the discipline of other DEP employees found to have violated workplace policies. Specifically, Plaintiff seeks to introduce: (1) a document identifying other employees who were disciplined as a result of violating DEP policy; (2) two letters related to the discipline of William D., an ...


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