An Ohio court of appeals has issued an extraordinary writ, requiring a state judge to proceed with a whistleblower’s wrongful termination case.  The Court of Appeals for Stark County, Ohio (part of the Fifth Appellate District in Ohio) issued the writ of procedendo on November 3, 2008.

In the case of State ex rel. Carpenter v. Brown, 2008-Ohio-5687, James Carpenter asked for the writ to compel Ohio Common Pleas Judge Charles Brown to lift a stay and proceed with his lawsuit. Judge Brown had stayed the case in September 2007 to wait for a decision in Carpenter’s Department of Labor (DOL) case.  The DOL’s Administrative Review Board (ARB) has had Carpenter’s case pending for over a year. Carpenter has asked the ARB to dismiss his DOL case "without prejudice" so that he can seek a jury trial in the Ohio state court.

James Carpenter had worked for 12 years with Bishop Well Services Corp. when a burst hose permanently injured his back, and released toxins into the environment.  Carpenter called OSHA to complain about safety at the company, and he was fired a week after OSHA conducted a surprise inspection.  In defending the DOL case, the company claimed it did not fire Carpenter because of the OSHA inspection, but rather because his workers compensation case became contentious. Ohio law prohibits retaliation either for calling OSHA or for filing a workers compensation claim.

It is ironic that Judge Brown would stay the case when part of the reason for bringing the case was so we would not have to wait for the ARB.  The Court of Appeals opinion says, "the delay which has been imposed in the case before Respondent, coupled with the potential length of time in reaching a resolution in the ARB case, unjustifiably interferes with Petitioner’s right to have his claim litigated."  The Court added, "Although the claims in both the Common Pleas case and the federal court case may be factually interrelated, state claims can exist independent of those in federal court."

This case demonstrates the hardship for whistleblowers, and for state courts, that arise from the ARB’s slow pace in issuing decisions.

Click here for the court’s opinion and judgment entry issuing the writ of procedendo.