Proximity in time between protected
activity
and an adverse action is solid evidence of causation. Bechtel Construction Company v.
Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995).
White has also shown that the reasons given by the OTC for his dismissal
are not worthy of credence and are, therefore, pretextual. Disbelief of the reasons proffered by
a respondent together with temporal proximity may be sufficient to establish the ultimate fact of
discrimination. Bechtel, 50 F.3d, at 934. An examination of the OTC's
[Page 5]
stated reasons, disloyalty and misconduct, for dismissing White strongly supports the ALJ's
finding of pretext.
The OTC's first complaint of disloyalty and misconduct is contained in a
letter dated March 5, 1995 from George Neff (Neff), of R & N Oil Company, to the Osage
Mineral Council. Complainant's Exhibit (CX) 2. Neff was a leaseholder on the Osage estate and
had been cited for serious violations by White and Sanborn. Neff's company lost a substantial
sum of money because of an EPA enforcement action initiated by White. CX 7 and 8. In the
letter, which apparently was solicited by the OTC, Neff first thanks the Tribe for the opportunity
to assist in the employment dispute with White and then writes:
Your concern for the freedom of operation by the producers in Osage County is
very admirable and to ensure their operation are not hindered by the actions of an
overzealous EPA employee.
Later in the letter Neff notes his concern, which he had earlier relayed to White, that "EPA
was creating many undo hardships on the independent producers . . . ."
In comparison, the letter's complaints about White's alleged misconduct
and disloyalty are, to put it generously, trivial. The essence of those complaints was that White
was not particularly friendly, bordering on rude, during his inspection of Neff's well site. Neff
further complains that White displayed disloyalty by remarking to him that the recently
constituted
Osage National Council might more vigorously enforce environmental law than the old Tribal
Council. Other evidence in the record cited by the ALJ and available to the OTC put into serious
question the completeness and accuracy of Neff's account of White's conduct. The fact that the
OTC took these statements of an individual, who clearly had his own ax to grind with White and
the EPA, at face value, and acted upon them with haste, strongly supports the ALJ's finding of
pretext. R. D. and O. at 41.
Neff's letter of complaint provides no legal basis upon which a reasonable
employer would dismiss a competent employee, and the complaints from Paul Hopkins
(Hopkins) of Marmac Resource Company are even flimsier. The gist of Hopkin's complaint is
that some of the gauges on wells that White inspected were broken or reinstalled facing the
wrong
direction. There was no evidence that this was a widespread, costly or serious problem. The
letter relied on by the OTC was very short on specifics and did little to establish White's
responsibility for the alleged problem. CX 3. As evidenced by the letter which was sent to
Sanborn and "cc'd" to the OTC, the dispute was basically between Marmac
Resources
and the EPA. The OTC's action in relying on this letter in dismissing White, without even
investigating its accuracy, buttresses the finding of pretext.
[Page 6]
Next, the OTC cited an alleged instance of White aggressively and vocally
confronting Bill Lynn (Lynn) of Lamamco, another leaseholder. This accusation was set out in
the March 15th termination memorandum from the OTC to Beasley. CX 13. According to the
memo's account of this event, White accused Lynn of advocating running full out production
with
no controls for protecting the environment. Such confrontational methods by tribal employees,
the memo concludes, brings "disrepute to the tribal organization." The Board notes
that strained relations between regulators and producers are to be expected. A reasonable person
must assume that some tension will exist. In this case the pretextual nature of the OTC's claim
is persuasively established by Lynn's testimony that the confrontation never occurred. T.
245-253.
The remaining instance of alleged misconduct hardly merits comment.
The
allegation is based on uninvestigated hearsay. For the record, the essence of the complaint is that
White told Goad, an agricultural leaseholder on the estate, that he was responsible for cleaning
up trash and other debris found in the gullies on his leased property. By informing Goad of his
legal duty, White supposedly unnecessarily frightened Goad.
Neither individually, nor collectively, do the complaints of misconduct
and
disloyalty provide a believable basis for White's termination. The ALJ's finding of pretext is,
therefore, well supported by the record. The pretextual nature of the OTC's stated reasons for
discharging White, and the temporal proximity between White's protected activity and OTC's
termination decision, constitute sufficient evidence for White to show that he was discharged in
violation of the SDWA. In addition, the discriminatory motivation behind the OTC's action is
clearly shown by Neff's letter of March 5. In that letter Neff complains bitterly of White's
conscientious and vigorous enforcement of the SDWA. It was White's dogged enforcement of
the SDWA that distinguished him from the other investigators and singled him out for dismissal
in contravention of the employee protection provisions of the law. The Board is convinced of the
correctness of the ALJ findings in this regard. R. D. and O. at 41.
A. TRIBAL IMMUNITY
Before this Board can find in favor of White, we must grapple with the
claim of sovereign immunity raised by the OTC. As the duly elected government of the Osage
Nation, the OTC has standing to claim sovereign immunity. Fletcher v. the United States of
America, No. 95-5208 (10th Cir. June 10, 1997). It is well settled that Indian Tribes possess
the common law immunity from suit traditionally enjoyed by sovereign powers. Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Equally well settled is that the immunity that
Indian Tribes enjoy is subject to the superior and plenary control of Congress. Id. at 58.
Any waiver of that immunity by Congress cannot be implied but must be unequivocally
expressed. Id.
[Page 7]
The issue for the Board then is whether the SDWA contains an
express waiver of the OTC's sovereign immunity. We begin our analysis by noting that the
SDWA is not silent with regard to its coverage of Indian Tribes. The SDWA's Section 1401, 42
U.S.C. §300f(10), defines "municipality" to include "an Indian
Tribe." "Municipality" is in turn included in the definition of
"person," under 42 U.S.C. §300f(12), which establishes the parameters of the
Act's coverage. Congress, reflecting the national concern for safe drinking water and aware that
the conditions that determine the quality of the nation's drinking water supply cannot be confined
within traditional governmental boundaries, intended comprehensive national coverage. As the
Circuit Court remarked in Phillips Petroleum Company v. United States Environmental
Protection Agency, 803 F.2d 545, 553 (10th Cir. 1986):
It is readily apparent from the legislative history that the underground drinking
water provisions of the SDWA apply throughout the country, border to border,
ocean to ocean.
To find that Congress did not appreciate the full consequence of extending coverage to Indian
Tribes would mean, as the Tenth Circuit noted, that Congress intended to leave "vast areas
of the nation devoid of protection from groundwater contamination." Id. at 555.
The Board finds the Tenth Circuit's reasoning in Phillips persuasive and joins in its
judgment that the SDWA covers Indian lands.
Our analysis does not end here because the Board must still decide
whether
the SDWA authorizes private whistleblower suits against Indian Tribes. See
Oklahoma Tax Commission v. Potawomi Indian, 498 U.S. 505, 509 (1991). On this
point the Board finds the Eighth Circuit's decision in Blue Legs v. United States Bureau of
Indian Affairs, 867 F.2d 1094 (8th Cir. 1989), very instructive. The issue before the court
in Blue Legs was whether language in the Resource Conservation and Recovery Act of
1976 (RCRA), Pub. L. No. 94-580, 90 Stat. 2795, codified at 42 U.S.C. §§6901
et seq., which is in relevant part remarkably similar to the language of the SDWA,
authorized suits against Indian Tribes for violations of the RCRA. The Eighth Circuit employed
the following logic to find such authorization:
Under the RCRA, citizens are permitted to bring compliance suits "against
any person (including (a) the United States and (b) any other governmental
instrumentality or agency * * *) who is alleged to be in violation * * *." 42
U.S.C. § 6972 (a)(1)(A) n.2. "Person" is subsequently defined
to include municipalities. 42 U.S.C. § 6903(15). Municipalities include
"an Indian tribe or authorized tribal organization * * *." 42 U.S.C.
§ 6903(13)(A). See also House Report, supra note 1, at 37, USCAN 6275
[Page 8]
(specific examples of harm to be avoided, including Indian children playing in dumps on
reservations); State of Washington Dep't of Ecology v. E.P.A., 752 F.2d 1465, 1469-71
(1985) (RCRA applies to Indian tribes). It thus seems clear that the text and history of the
RCRA
clearly indicates congressional intent to abrogate the Tribe's sovereign immunity with respect to
the violations of the RCRA. (Footnote omitted.)
867 F.2d at 1097.
Under the SDWA, "any employee who believes that
he has been discharged or otherwise discriminated against by any person "
may file a complaint with the Department of Labor (emphasis added). 42 U.S.C.
§900j-9(i)(2)(A). As noted above, for the purposes of the SDWA, Indian Tribes are
persons. Like the
Eighth Circuit in Blue Legs , the Board is constrained by the language actually employed
by Congress. The OTC would have the Board find that Congress intended, but did not expressly
state, that Indians are persons for some purposes of the SDWA, but not for others. Congress
does
not convey meaning by creative telepathy. Nor will the Board assume Congressional inattention
on such an important matter.
Congress has regarded whistleblower protection to be an important
component of our nation's environmental laws, including provisions in nearly all major
environmental protection statutes.3 Under
the SDWA, the Department of Labor has exclusive jurisdiction over such claims. The Board is
in no position to presume that Congress intended to leave any class of aggrieved employees
without recourse to the remedies that it provided for violations of the SDWA. Congress intended
Indians to enjoy the benefits of safe drinking water along with all other citizens. The explicit
language of the SDWA constrains the Board to find that Congress intended to protect
conscientious tribal employees who assist in securing those benefits for Indians and others. The
Board cannot find equivocation where none has been expressed.
The OTC confuses certainty of intention with ambiguity in expression.
The
Board cannot be certain of what Congress intended to do. Indeed that question is open to the sort
of speculative journey that the OTC urges the Board to undertake. However, the legal question
for the Board is a very different one -- that is, whether the language employed by Congress is
ambiguous, i.e. capable of more than one meaning. To that question the Board answers,
without hesitation, no. The SDWA provides that "any employee" may bring a claim
against "any person" for a violation of its whistleblower protection provisions. The
parties to this proceeding clearly and expressly fall within the statutory definitions of
"employee" and "person."
[Page 9]
Respondent relies on Phillips to argue that the SDWA is
ambiguous in several respects. It is true that Tenth Circuit found that the Act was ambiguous in
its use of the term "State." Phillips Petroleum, supr at 803 F.2d 554. The
Tenth Circuit resolved that ambiguity against the Tribe, finding EPA jurisdiction over the Osage
Mineral Reserve. Id. at 553. Ambiguity in one section of a statute, however,
does not suggest, let alone establish, ambiguity in other provisions of the same statute. The
Board
does not quarrel with the OTC's contention that Congress could have chosen a more direct route
in expressly waiving the Tribe's immunity. Why Congress chose to use the definitional
provisions
rather than separately address the sovereign immunity issue is a question to which the Board
does
not have an answer. But that does not matter, because the language Congress did use clearly
defines tribal organizations under the SDWA as "persons" that are subject to suit for
violations of the Act's whistleblower protection provisions. Therefore the Board rejects the
OTC's
claim of sovereign immunity.
B. EXHAUSTION OF TRIBAL REMEDIES
The OTC urges the Board to find that White was required to exhaust his
tribal remedies before filing his claim with the Department of Labor. We agree that tribal courts
are presumed to have civil jurisdiction over the actions of non-tribal members on reservation
lands
absent the affirmative limitation of federal treaties and statutes. Iowa Mutual Ins. Co. v.
Laplante, 480 U.S. 9, 15 (1987). Our examination of the SDWA leads us to conclude that
exhaustion of tribal remedies is not required under that statute. The SDWA invests exclusive
jurisdiction in the Department of Labor for violations of its whistleblower protection provisions.
As the Fifth Circuit has noted, the remedy provided by the SDWA is
entirely independent of any other remedy. Greenwald v. City of North Miami Beach, Florida,
587 F.2d 779, 781 (5th Cir. 1979). The SDWA does not require the exhaustion of state or
local remedies prior to the filing of a complaint with the Department of Labor. Id. at
781.
The SDWA contemplates prompt investigation and enforcement by the Department of Labor in
order to assure that aggrieved employees are able to enjoy the protections of the statute. Delay
in employment matters can result in the loss of the benefits that the statute seeks to secure. To
require exhaustion would disturb the statutory remedies that Congress so carefully crafted. Our
decision in this regard is in accord with Blue Legs v. United States Bureau of Indian Affairs,
supra at 1097, 1098, which addressed the application of exhaustion in the context of the
RCRA, a similar environmental protection statute.
[Page 10]
C. TRIBAL TRUST FUNDS
Lastly, the OTC challenges the ALJ's R. D. and O. on the ground that it
seeks impermissibly to assess a monetary judgment against funds held in trust for individual
Osage tribal members by the United States. The Board disagrees. The R. D. and O. is silent
with
regard to what funds shall be used to satisfy the judgement. The Board expects the OTC to
comply with our order using funds that are lawfully available for satisfaction of White's legal
claim. Jurisdiction for enforcement of the Board's orders is vested in the United States District
Court in which the violation was found to occur. 42 U.S.C. §300j-9(i)(4).
D. DAMAGES
Under the SDWA, the Secretary of Labor may award, in addition to
reinstatement, back pay and compensatory damages and where appropriate, exemplary damages.
42 U.S.C. §300j-9(i)(2)(B)(ii). Pursuant to this authority, the ALJ awarded White $60,000
in punitive damages. The ALJ considered punitive damages appropriate in light of his finding
of "blatant and obvious discrimination" against White. R. D. and O. at 42. Without
disagreeing with the ALJ's characterization of the OTC's misconduct in this case, the Board
believes in this instance that the purposes of the Act can be served without resort to punitive
measures. The Board finds that the OTC was wrongly operating under the assumption that it was
not subject to the employee protection provisions under the SDWA. Therefore, the OTC may
have felt no need to conform its conduct to the requirements of that portion of the statute. The
OTC is now on notice that it must comply. Because the Board fully expects future OTC
compliance, we do not believe punitive damages are necessary in this case to deter further
violations. Punishing the Osage Nation for the acts of a few of its agents would, in this case,
serve no additional purpose. Consequently, the ALJ's recommendation of punitive damages is
rejected.
The Board adopts the ALJ's general recommendation as to Complainant's
entitlement to reinstatement, back pay, compensatory damages, fees and expenses. This matter,
however, must be remanded to the ALJ to determine the precise amount of back pay, fees and
costs incurred to date.
III. ORDER
IT IS HEREBY ORDERED that the Osage Tribal Council
reinstate White to his former position with back pay from the time of his termination until his
reinstatement and provide him with such other benefits as he would have been entitled to had he
not been terminated, subject to his obligation to mitigate damages.
[Page 11]
IT IS FURTHER ORDERED that the Osage Tribal Council
pay White compensatory damages in the amount of $40,000.
IT IS FURTHER ORDERED that the Osage Tribal Council
shall expunge from White's personnel records all references to his unlawful termination.
IT IS FURTHER ORDERED that the Osage Tribal Council
reimburse White for costs and expenses, including attorney's fees, reasonably incurred in
connection with the bringing of this complaint.
IT IS FURTHER ORDERED that this matter be remanded to
the ALJ for such proceedings as are necessary to determine the precise amount of back pay,
attorney's fees and costs to which Complainant is entitled.
SO ORDERED .
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
1 The Osage mineral estate refers to
mineral
rights on Osage tribal lands. Those rights are held in trust by the OTC for the benefit of
"allotted" members of the Tribe, also referred to as "head right" owners.
The OTC
is elected by the allotted members of the Tribe and they consequently have an interest in
maximizing the
income from the estate for the benefit of their constituency.
2 From the time White began
filing
his numerous reports with the BIA to the time of his dismissal following complaints from the
BIA, the oil
lease operators and the other lease holders, approximately seven months elapsed.
3 See , Energy
Reorganization Act, 42 U.S.C. §5851; Clean Air Act, 42 U.S.C. §7622; Safe
Drinking Water
Act, 42 U.S.C. §300j-9; Solid Waste Disposal Act, 42 U.S.C. §6971; Federal Water
Pollution
Control Act, 33 U.S.C. §1367; Comprehensive Environmental Response, Compensation
and
Liability Act, 42 U.S.C. §9610; and Toxic Substances Control Act, 15 U.S.C.
§2622.