Date:      May 17, 1995
Case No.:  92-WPC-00005

In the Matter of 

RICHARD S. MARCHESE

          Complainant

     v.

CITY OF EASTON

          Respondent

        RECOMMENDED ORDER DISMISSING COMPLAINT

     This case arises under Section 1367 of the Federal Water
Pollution Control Act, as amended, 33 U.S.C. §§1251,
et seq. ("the Act").  

     On April 22, 1992, Complainant, Richard Marchese, filed a
Complaint with the Administrator of the Wage and Hour Division,
U.S. Department of Labor, alleging that Respondent had terminated
his employment in violation of the Act.  The Administrator issued
a determination that was unfavorable to Complainant and on May 27,
1992, Complainant appealed the Administrator's determination to the
Office of Administrative Law Judges.

     A formal hearing was commenced before me on September 1 and 2,
1992 and was resumed on November 9, 1992.  However, the hearing was
adjourned after Complainant moved for the exclusion of Respondent's
counsel based on the contention that the latter had represented
Complainant in another matter.  After considering the parties'
briefs on this issue, on December 24, 1992, I denied Complainant's
motion to exclude Respondent's counsel from the case and an appeal
was taken to the Secretary.[1]  

     On November 13, 1992, Complainant filed a civil action in the
Northampton County (Pennsylvania) Court of Common Pleas (Civil
Action No. 1992-C-6217) against Thomas Goldsmith and Respondent
alleging violations of 42 U.S.C. §1983 and the Pennsylvania 
[PAGE 2]
Whistleblower Act based on the same actions of Respondent alleged
as violations of the Act in the instant case.  Complainant's civil
action was removed to the United States District Court for the
Eastern District of Pennsylvania (Civil Action Nos. 92-6952 and 92-
6954) and a jury trial commenced before Chief Judge Edward N. Cahn. 
Following the jury's verdict, on March 16, 1994 Judge Cahn issued
an Order in favor of Complainant and against Respondent in the
amount of $163,800.00.  In the special verdict form attached to
Judge Cahn's Order, $93,800.00 of the $163,800.00 verdict was
allotted for past lost wages while $70,000.00 represented future
lost wages.

     On January 27, 1995, the United States Court of Appeals for
the Third Circuit affirmed the judgment of the District Court. 
Respondent requested rehearing and on February 22, 1995 the Third
Circuit denied Respondent's request.
     
     On February 27, 1995 I issued an order directing the parties
to brief the issues of whether the District Court action was
res judicata and the exclusive remedy available to
Complainant.

     In a letter dated March 3, 1995 addressed to Judge Cahn and
me, Complainant stated that an amicable resolution had been reached
between Complainant, Respondent, and Goldsmith in both the District
Court and Department of Labor actions.

     In a letter dated March 23, 1995 Complainant returned to
Respondent an executed release and various notices to withdraw and
discontinue the District Court and Department of Labor actions. 
This letter states that all of the controversies between the
parties have been settled for $205,000.00.

     On May 9, 1995, Respondent submitted a "Praecipe for
Satisfaction and/or Termination" signed by Complainant's counsel on
March 23, 1995.  This praecipe states that the Department of Labor
action shall be marked settled, discontinued, and ended, with
prejudice.  

     Complainant chose the District Court as his forum for relief
and desires to terminate his action before the Department of Labor. 
Therefore, it is appropriate to dismiss Complainant's Complaint.

                                     
                         RECOMMENDED ORDER
     
     It is hereby ORDERED that the Complaint of Richard Marchese
the Matter of Richard Marchese, Complainant v. City of Easton, 
[PAGE 3]
Respondent (92-WPC-00005) is DISMISSED.




                                                            
                                   ROBERT D. KAPLAN
                                   Administrative Law Judge
  
Camden, New Jersey


NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review by
the Secretary of Labor to the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Ave., NW, Washington, DC  20210.  The Office of
Administrative Appeals has the responsibility to advise and assist
the Secretary in the preparation and issuance of final decisions in
employee protection cases adjudicated under the regulations at 29
C.F.R. Parts 24 and 1978.  See 55 Fed. Reg. 13250 (1990).





                               [ENDNOTES]

[1]  The Secretary affirmed my order on March 10, 1994.