SHAMOKIN - An attorney for Steve Bartos says in an appeal brief that a federal judge should not have disallowed two former coworkers from taking the stand during his client's spring trial on a civil rights claim against a state agency.
Jason P. Kutulakis, of Abom and Kutulakis LLP, Carlisle, said a ruling that depositional perjury by Patty Olenick and Don Hagerich was irrelevant prevented Bartos' trial attorney from challenging the duo's claims of alleged misconduct committed by Bartos while employed at Department of Environmental Protection.
The two were found to have committed perjury when denying involvement in an anonymous letter sent to Bartos' subsequent employer after being fired by DEP for, among other allegations, using a racial slur against his supervisor and for threatening behavior toward coworkers.
The letter said Bartos had been fired from DEP for misconduct and contained a copy of a disciplinary letter procured from the State Civil Service Commission.
Bartos claims he was fired by DEP after he says he uncovered and reported misuse of recycling grant funding by a partner organization, Keep Pennsylvania Beautiful. The misconduct claims were pretext to fire him for having been a whistleblower, he claims.
"If Hagerich and Olenick made demonstrably false accusations regarding misconduct by Bartos, but (Kenneth) Reisinger either failed to investigate with sufficient diligence to learn of the falsehood or knowingly ignored the falsehood, this would be strongly indicative of pre-textual termination of Bartos," Kutulakis writes in the brief.
"Hagerich and Olenick were to be called regarding the allegations they made to, and which were considered by, Reisinger. Only after eliciting this testimony would their prior inconsistent statements be relevant and admissible."
Reisinger was a superior to Bartos' supervisor. Bartos' suit claims Reisinger, after being presented a 360-page report on alleged findings of misuse of grant money, was retaliatory towards Bartos, having disciplined him on separate occasions leading up to his termination from DEP.
The whistleblower suit was filed in February 2008 against Reisinger, the state, DEP and its former secretary, Kathleen McGinty, and another agency official. After more than four years of legal wrangling, including narrowing the suit's claims and removing McGinty and others from the case, it went to trial for six days in April, with a federal jury eventually ruling in favor of the defendants.
An appeal was filed on Bartos' behalf in July seeking a new trial and an instruction to admit evidence of perjury and resulting sanctions on Olenick and Hagerich.
In the brief filed Tuesday, Kutulakis also contends that the court dismissed evidence that two DEP employees received "substantially less discipline" than Bartos for comparable misconduct, that damaging hearsay was unjustly permitted during trial, and that a "limited purpose" instruction should have been read to the jury if the hearsay was to be properly admitted.
If a retrial were granted, it is also sought that out-of-court statements, or hearsay, be omitted unless directly testified to by a witness other than the declarant, and if these statements are permitted, that the jury receive special instructions regarding their use.