1 The case was mistakenly
denominated ERA, a case arising under the Energy Reorganization Act.
2 The Board of Trustees was
composed of Charles Wilson, the President of the Board, Michael Thomas, James Tekely, and
Dr. Felipe Lavapies. Wilson abstained from voting on complainant's dismissal because he had
testified at the termination hearing.
3 In its May 22, 1995 meeting the
Board evaluated complainant's performance. Charles Wilson stated that the Board was
concerned with the staff discontent attributable to the superintendent, which he felt was resulting
in poor performance and labor problems. The Board also expressed frustration with lack of
communication, plant operations and the planning for correction, and repair or replacement of
parts , systems and machinery which would correct problems and bring the plant in compliance
with EPA and OSHA regulations. The Board directed complainant to provide progress reports
and to show positive results in three months in the areas indicated.
4 A bypass occurs, for example,
when due to heavy rain the conversion manholes overflowed and sewage would bypass through a
discharge pipe into the river. (TR 1593-1594)
5 Wilson said "Dave, this
has Pandora's box written all over it", (C 370A); "I can't believe that this kind of
horseshit is going on, I mean I really can't believe it. I'm gonna take a fall because of this, and
it's, it's--I'm pissed, I mean...", (C 357); "I don't want to deal with this horseshit, you
understand what I mean? I don't want to do that. I can't have my future on the line over the sewer
authority. I can't do that. I won't do it that way." (C 367)
6 The September 6, 1995 letter
states that the Board was considering complainant's termination because of (1) Creation and
maintenance of bad relations with the majority of the staff causing the staff to investigate the
possibility of unionizing; (2) Non-use of the services, capabilities and experience of the two most
senior employees; (3) Inability to gain the respect and trust of the employees this achieving and
obtaining good performance from the staff; (4) Encouraging factionalism of the staff by displays
of favoritism; (5) Confusing the staff with frequent illogical changes in work assignments; (6)
Inability to meld the different factions together so as to create a favorable work atmosphere
which is conducive to increased efficiency by the staff; (7) Inability to communicate with the
Board of Trustees thus causing the Board concern as to the ability to communicate with vendors,
the public, and others; (8) Inability to establish priorities so that replacement or repair of
equipment is accomplished in an orderly fashion; (9) Inability or refusal to follow mandates of
the Board; (10) Inability to focus on a job assignment until its successful conclusion; (11) Willful
rejection of Board policies and rules, (12) Failure to observe normal working days and hours;
(13) Contemptuous treatment of Board members in front of the staff, and (14) Inability or refusal
to attempt to understand other members of the staff or the Board. See C 207, R 51. The parties
stipulated that reason number 15 was not a basis for complainant's termination.
7 Although the Board asked
complainant to show progress in improving plant operations and employee morale in May 1995,
there was absolutely no suggestion that Charvat would be dismissed if he failed to effectuate the
requested improvements. It does not appear that his termination was even considered until after
he transmitted his June 30, 1995 whistleblower letter.
8 Thomas's comment that Russell
followed complainant around "like a puppy dog" can be fairly read to mean that
Thomas was concerned about the influence that Russell, a known whistleblower, would have on
Charvat's reporting of environmental violations.
9 The pretextual nature of
respondent's proffered reasons for dismissing complainant is best exemplified by the reference to
the Christmas party incident. Complainant having employees sit in his lap while he was dressed
as Santa Claus and his revealing of his Ohio State boxer shorts is so insignificant and petty that it
defies belief that such innocent behavior at a holiday party could figure in his dismissal. In
addition, the party took place in December 1994 and the Board terminated complainant nine
months later, thus suggesting that their professed dismay at complainant's conduct was
10 Pollock is now the sole
superintendent of the plant.
11 Exemplary damages may be
imposed in cases arising under the SDWA. See 42 U.S.C. § 300j-9(i)(2)(B)(ii).