I am under an admonition from the ARB to consider specific issues on remand only. Notwithstanding that directive, in my opinion, the circumstances of this case do not warrant joining additional parties and reopening the record at this time, nor do the issues on remand warrant further discovery and/or briefing.

   Following the first remand of this case to the Office of Administrative Law Judges on August 8, 1997, conference calls and letters between the undersigned and counsel for both parties focused on accumulating the additional evidence and briefs necessary to decide the issues on remand. The goal was accomplished and the matter ripe for Decision when a delay was occasioned solely by Respondent's unsuccessful appeal to the Tenth Circuit. Had such an appeal not been taken, a Decision and Order on Remand would have issued at that time based on the record that then existed. With Respondent's unsuccessful appeal now over and the matter once more before this office solely to determine the original remanded issues, it would, in my opinion, violate principals of due process and finality to join, at this late date, another party to this litigation without affording that party a trial on all issues. The joinder of an additional party could possibly have been accomplished early on when this matter was initially tried by Judge McColgin in 1995, but it was not. The issue of Respondent's liability has been established and now nothing remains but the determination of the precise amount of damages and costs to be awarded Complainant. I will now do that without further adieu.

1) Computation of Complainant's wages

   The parties computation of back wages owed to Complainant are relatively close. Respondent computed Complainant's wages, retirement, and annual leave to total $44,408.00, while Complainant's computation renders a total of $49,245.85. Based upon the evidence presented, I find Respondent's figure most persuasive based upon the explanation of the calculations provided in its brief.

   Respondent's computation is explained clearly in "Osage Tribal Council's Response to Complainant's Computation of Damages" dated November 9,1997. Therein, Respondent sets out Complainant's wages for the years 1995, 1996 and 1997 based on pay periods and hourly wage rates. The retirement benefits are based on 5 percent of the gross wages per the Tribal Retirement Plan, and the accrued leave is arrived at by use of the maximum leave permitted at 40 hours per year. Complainant's computation in his brief entitled "Computation of Damages and Brief in Support Thereof" dated October 27, 1997, by contrast is calculated on handwritten notes submitted as attachment B. The explanation lacks clarity and supporting data. In sum, Complainant's computation is not as persuasive as Respondent's calculations.

   The real issue regarding computation of wages arises because the parties are in disagreement as to whether Complainant adequately mitigated his damages following his termination. Wrongfully discharged complainants have an obligation to use reasonable efforts to mitigate their damages. EEOC v. Sandia Corporation, 639 F.2d 600, 627 (10th Cir. 1980). The 10th Circuit has held that, "once a violation has been demonstrated and back pay has been awarded, the employer has the burden of showing that the discriminatee did not exercise reasonable diligence in mitigating damages caused by the employer's illegal action." Sandia Corp., 639 at 627, citing United States v. Lee Way Motor Freight, Inc. 625 F.2d 918 (10th Cir. 1979). In defining "reasonable diligence", the 10th Circuit explained that "a claimant is required to make only reasonable exertions to mitigate damages, and is not held to the highest standards of diligence. It does not compel him to be successful in mitigation. It requires only an honest good faith effort." Id.

   In order to satisfy the burden, the Respondent must establish that (1) there were suitable positions available which Complainant could have discovered and for which he was qualified; and (2) that Complainant failed to use reasonable care and diligence in seeking such a position. Id. The Osage Tribal Council argues it has met its burden by way of Complainant's deposition taken on December 19, 1997. However, from my review of Complainant's deposition testimony, I disagree with Respondent. I find that Complainant made reasonable efforts to mitigate his damages.

and that Respondent is liable for Complainant's back wages in the amount of $44,408.00.

2) Pre-judgment Interest

   I fail to find any language in the ARB decision that would preclude an award of pre- judgment interest in this matter. As numerous decisions have noted, back pay awards are designed to make whole the employee who has suffered economic loss as a result of an employer's illegal discrimination. Because of the lapse of time in this instance, I find the assessment of pre-judgment interest is necessary to achieve this end. See Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). Therefore, I find Complainant is entitled to pre-judgment interest of his back wages.

   Regarding calculation of this interest, the ARB has previously held that "the usual interest rate employed on back pay awards under....whistleblower provisions is the interest rate for underpayment of federal taxes, set forth at 26 U.S.C. § 6621(a)(2) (short term federal rate plus three percentage points)." Doyle v. American Hydro Nuclear Services, ARB Nos. 99-041, 99- 042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000). Furthermore, the ARB observed that in whistleblower cases it awards the same rate of interest on back pay awards, both pre- and post-judgment, that is, compounded and posted quarterly. Id.

3) The Attorneys' Fees and Costs

   In his "Computation of Damages and Brief in Support Thereof" filed October 29, 1997, Complainant's counsel seeks, inclusive of the $25,281.19 awarded by Judge McColgin, $37,637.25 in attorney's fees and $514.00 in expenses. Subsequently, under cover letter dated December 30, 1997, Complainant's counsel seeks additional fees of $2,950.00 and additional expenses of $402.68. Respondent objects arguing that $200.00 an hour is inappropriate in Oklahoma, the billing should not be calculated on quarter hour increments and that no documentation was provided to support Complainant's counsel's claims for expenses.

   On July 9, 1996, Judge McColgin issued a Recommended Decision and Order Awarding costs and expenses in the aggregate amount of $25,281.19. Complainant's counsel concedes this fact in his current application and for that reason I will not examine fees and expenses itemized and/or incurred prior to July 7, 1996, inasmuch as those were the subject of Judge McColgin's decision. Subsequent to July 7, 1996, Complainant's counsel's two fee applications reflect fees totaling $15,991.25 and expenses in the amount of $568.99.

   As to an hourly rate of $200.00, given the nature and complexity of this litigation as well as Complainant's success, I do not agree with Respondent that such a rate is excessive in this instance. To the contrary, given the length of the case and the inherent risk in this type litigation, I find $200.00 per hour, where sought, to be reasonable. Likewise, I do not sustain Respondent's objection to the quarter hour billing. Respondent has provided me with no specific instances, such billing seldom appears in the application and where it does the time claimed for the task performed does not on its face unreasonable.

   Finally, as to the matter of expenses, it is my finding that telecopy, long distance expenses, postage and xerox expenses and computer research time are all part of office overhead, a cost of doing business, and should not be allowed. As to "Professional Services" used on October 9, 1997, I do not know what those services were for or about and concur with Respondent that this item should fail for lack of documentation. In sum, the only expense I find allowable is $329.30 for Freelance Reporters,

Inc., on December 29, 1997, inasmuch as that expense was obviously for the court reporting service that presided over Complainant's deposition on December 19, 1997. Therefore, based upon the foregoing, it is my determination and recommendation that in addition to the $25,281.19 previously awarded by Judge McColgin that Complainant recover additional attorney's fees in the amount of $15,991.25 and additional expenses in the amount of $329.30.

   Based upon the foregoing it is my recommended order that:

a. Respondent's Motion For Entry of Scheduling Order Setting Discovery and Briefing Deadlines, Motion for Order Requiring Joinder of Indispensable Party be DENIED;

b. Respondent pay to Complainant back wages in the amount of $44,408.00 plus prejudgment interest from date of Complainant's termination until entry of final judgment; and

c. In addition to the fees and expenses previously awarded in the amount of $25,281.19, Respondent shall pay to Complainant $16,329.55 for additional attorney fees and expenses incurred in connection with this action.

   SO ORDERED this 10th day of August, 2000, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge

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NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).