Charvat v. Eastern Ohio Regional Wastewater Authority, ARB Nos. 98-147 and 98-148, ALJ No. 96-ERA-37 (ARB Nov. 15, 2000)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NOS. 98-147
    98-148
ALJ CASE NO. 96-ERA-37
DATE: November 15, 2000

In the Matter of:

DAVID CHARVAT,
    COMPLAINANT,

   v.

EASTERN OHIO REGIONAL
WASTEWATER AUTHORITY,
   RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Michael D. Kohn, Esq.,
       Kohn, Kohn & Colapinto, P.C., Washington, DC
    Richard R. Renner, Esq.,
       Dover, Ohio
    E. Dennis Muchnicki, Esq.,
       Dublin, Ohio

For the Respondent:

       Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio
    Gerald P. Duff, Esq.,
      Hanlon, Duff, Paleudis & Estadt Co., LPA, St. Clairsville, Ohio

   By motion filed October 5, 2000, Respondent Eastern Ohio Regional Wastewater Authority ("EORWA") requests that this Board Stay This Appeal Pending Resolution of Parallel Action in the Sixth Circuit. In addition to the motion, we have before us Complainant David Charvat's Memorandum in Opposition, EORWA's Response

thereto, and Charvat's Reply to EORWA's Response. We construe the Motion as a motion to hold these consolidated cases in abeyance pending disposition of the Sixth Circuit proceeding.

   The "parallel action" to which EORWA refers is a statutory tort claim brought by Charvat against EORWA pursuant to 42 U.S.C.A. §1983 (West 1994 & Supp. 2000) in the United States District Court for the Southern District of Ohio, Case No. C-2- 97-1035. In Case No. C-2-97-1035, Charvat alleges in part that during his employment with EORWA, EORWA violated his right to freedom of expression in violation of §1983. In the case sub judice Charvat charges that EORWA's decision to terminate his employment was in violation of whistleblower protection provisions in the Clean Water Act, 33 U.S.C.A. §1367 (West 1986), and in the Safe Drinking Water Act, 42 U.S.C.A. §300j-9(i) (West 1991 & Supp. 2000).

   On March 2, 2000, the District Court in Case No. C-2-97-1035 denied EORWA's Motion for Summary Judgment based on EORWA's qualified immunity and the contention that the whistleblower provisions of the Clean Water Act and the Safe Drinking Water Act preclude Charvat's §1983 action. EORWA has filed for interlocutory review by the Sixth Circuit.

   EORWA has advanced no reason why the action in the Court of Appeals is relevant to the proceeding before this Board. Moreover, the administrative proceeding here is far advanced. A hearing on the merits of Charvat's environmental whistleblower claims has been held, the administrative law judge has issued a recommended decision, and the parties' objections thereto have been fully briefed. Under these circumstances, we see no reason for holding the case before us in abeyance.

   Accordingly, the motion is DENIED.

   SO ORDERED.

      PAUL GREENBERG
      Chair

      CYNTHIA L. ATTWOOD
      Member

      RICHARD A. BEVERLY
      Alternate Member