Further, the Tribal Council expressly consented to allow Complainant to
file suit and present his case before an administrative agency or the appropriate federal or state
courts which waived the Tribal Council's right to claim protection under the doctrine of
sovereign immunity. As argued by Complainant, when the Osage Tribe began contracting with
the United States in 1979, the Tribal Council adopted the policies and procedures which are set
out in the Osage National Federal Programs Policies and Procedures Manual which is still in
force. (CX 30). The Tribal Council reported that the Manual was to assure compliance with the
Equal Opportunity Act as well as State and Federal Employment laws. (CX 18, 30). The Tribal
Council admitted that the Manual applied in
[Page 15] this
case in its memorandum to Ms. Beasley, Complainant's nominal supervisor, in which the Tribal
Council recommended that Complainant be terminated. (CX 13). The Manual has a provision
that allows employees to file a claim in the appropriate administrative agency or before the
appropriate federal or state court. (CX 30 p. 31, 34). Therefore, the Tribal Council waived
sovereign immunity by granting authority in the Manual for Complainant to file a claim with the
appropriate administrative agency, in this case, the United States Department of Labor.
Consequently, there is no question that the Act which includes that employee protection
provision, applies to the Tribal Council.
Finally, in its post hearing brief, the Tribal Council asserts a primary
jurisdiction argument that Complainant was required to exhaust all of his administrative
remedies before filing a federal or state claim. This contention is without merit. In
Greenwald v. City of North Miami Beach, Fla. , 587 F.2d 779 (5th Cir. 1979), the
United States Fifth Circuit Court of Appeals held that the Safe Drinking Water Act does not
require exhaustion of state or local remedies prior to filing a complaint with the Secretary of
Labor under the whistleblower provisions, and that the remedy provided by the Safe Drinking
Water Act is entirely independent of any local remedies. As a result, Complainant was not
required to exhaust all of his administrative remedies before he filed a claim with the Department
of Labor, and in fact, he had to file his claim with the Department of Labor thirty days after he
was terminated according to the regulations. (Tr. 22-24).
Second, Complainant must establish that he engaged in protected activity.
The primary purpose of the employee protection provisions are to ensure that violations of the act
are reported. Marshall v. Intermountain Electric Co. , 614 F.2d 260, 262 (10th Cir.
1980). To constitute protected activity, "the employee's complaints must be grounded on
the conditions constituting reasonable perceived violations of the environmental laws.
Minard v. Nerceo Delmar Co. , 92-SDW-1 (Sec'y January 25, 1994 slip op. at 8).
Although he was an employee of the Tribal Council, Complainant worked under the direction of
the EPA. His job duties as an field inspector consisted of performing mechanical integrity
inspections of sites associated with the Osage UIC program suggested by the EPA and making
inspection reports concerning violations of the environmental regulations with the EPA. (Tr. 54-
56, 60-61, 66, 207) (CX 3). Thus, Complainant's inspection reports were based on reasonable
perceived violations of environmental laws in accordance with Minard . 92-SDW-1.
The fact that an employee reports safety violations in the course of his regular duties does not
remove that activity from categorization as protected activity. Japson v. Omega Nuclear
Diagnostics , 93-ERA-54 (Sec'y Aug. 21, 1995). Accordingly, Complainant was engaged in
protected activity as part of his job duties when he filed his inspection reports concerning
violations of environmental regulations with the EPA, a federal agency, that could initiate
enforcement activity against the oil operators on the Osage Mineral Reserve who violated the
regulations.
Third, Complainant must establish that the Tribal Council knew that he
had engaged in protected activity. The Tribal Council was aware of Complainant's contacts with
[Page 16]
the EPA and the filing of his reports containing violations of the oil operators on the Osage
Mineral Reserve because these activities were part of his job duties as a field inspector of the
UIC program with the Tribal Council. Moreover, each of the incidents reported in the Tribal
Council's termination memorandum related to one or more protected activities engaged in by
Complainant. Thus, the Tribal Council clearly had knowledge that Complainant was engaged in
protected activities.
Fourth, Complainant must prove that the Tribal Council took some adverse
action against him as the result of his protected activities. Complainant alleges that the adverse
action against him was his termination. This clearly constitutes adverse action. See
Assistant Secretary & Brown v. Besco Steel Supply , 93-STA-30 (Sec'y January 24,
1995).
Finally, Complainant must establish that a nexus exists between his
protected activities and the adverse action. Complainant may prove the causal link by producing
evidence which raises a "reasonable inference" the adverse action was the result of
his participation in protected activities. See Goldsmith v. City of Atmore ,
996 F.2d 1155 (11th Cir. 1993); Etachason v. Carry Companies of Illinois , 92-STA-12
(Sec'y Mar. 20, 1995).
Complainant contends that he was unlawfully discharged because of his
protected activities of filing environmental violation reports on operators on the Osage Mineral
Reserve which would adversely affect production of the tribal mineral estate and thereby reduce
the royalty payments from the estate. Both Mr. Sanborn and Mr. Edmondson testified that the
Tribal Council did not want the environmental regulations interfering with the oil production on
the estate. Further, one of the primary functions of the Tribal Council was to protect and exploit
the oil and gas productions for the tribal mineral reserve. Mr. Neff testified that the Tribal
Council told him that Complaint's activities were not consistent with the intent and purpose of
the tribal contract.
The intent and purpose of the tribal contract was evidenced by the BIA
mineral branch's activities of not reporting all of the violations in an effort to maximize oil
production. The violation reports for surface problems filed by Complainant and the other field
inspectors were contrary to the surface reports filed by BIA employees who examined the same
site shortly before the UIC field inspectors. Mr. Sanborn asserted that the BIA mineral branch
was not performing up to their full potential because there was some laxity in reporting
violations. Further, Mr. Barker, the head of the BIA mineral branch, told Mr. Edmondson told
that the Tribal Council "threatened to run him off" if oil production was not
maintained. (Tr. 377). In fact, Mr. Harris, a BIA field man, suggested to Complainant to look
the other way and not to report activities that would stop production. (Tr. 201, 220). It appears
that the BIA mineral branch and the Tribal Council had a very close working relationship and
cooperated to insure mineral production was maximized.
[Page 17]
The filing of reports by Complainant of violations of the regulations could
and often did lead to initiation of enforcement activity by the EPA of oil operators on the mineral
reserve. In some cases such as on the Marmac and R&N Oil leases, the mineral production and
royalty payments from the mineral estate could be adversely affected by such reports in
opposition to the goals of the Tribal Council. Further, Mr. Sanborn confirmed that
Complainant's reports of EPA violations could result in diminished oil production due to shutting
down of production to correct EPA violations. Thus, there is a reasonable inference that
Complainant's protected activities were perceived by the Tribal Council as a threat to oil
production of the mineral estate and resulted in his termination because if he was no longer
working and issuing violation reports on the operators of the mineral reserve, then the oil
production on the mineral estate would not be affected, and the goals of the Tribal Council would
remain intact.
Further, Complainant alleges that the adverse action was due to his
protected activities because of the temporal proximity between the two activities. The causal
connection may be proved circumstantially by proof that the discharge followed the protected
activity so closely in time as to justify an inference of retaliatory motive. Rath v. Selection
Research, Inc. , 978 F.2d 1087, 1090 (8th Cir. 1992). A finding that adverse action closely
followed the protected activity gives rise to a reasonable presumption that the protected activity
caused the adverse action.
Complainant asserts that the temporal proximity between his protected
activities and the adverse action is evidenced in the following facts. Although the BIA was
primarily responsible for reporting surface pollution, in June and August of 1994, the EPA
inspectors were directed to also inspect for surface problems and to report such problems to the
Muskogee area office of the BIA. In November and December of 1994, Complainant inspected
leases operated by R&N Oil Company and Marmac Resources where he found and reported
violations of the EPA regulations in both leases. In February of 1995, Ms. Wood, a member of
the Tribal Council, reported to Ms. Beasley, Complainant's nominal supervisor, that the Tribal
Council had received complaints from two or three operators as well as from BIA employees
about Complainant. Ms. Beasley testified that she did not start receiving complaints about
Complainant until he was directed to send a copy of his reports to the BIA office. About the
same time, Ms. Beasley told Complainant that she was receiving complaints from the Tribal
Council that he was harassing the oil operators and performing unauthorized inspections. Ms.
Beasley asked the Tribal Council to submit written complaints to her. Instead, she received the
Tribal Council's termination memorandum. (Tr. 398) (CX 13).
Based on the above, the evidence establishes a temporal proximity between
Complainant's reports being sent to the BIA office, the onset of complaints from the BIA and the
later complaints from oil operators and other citizens about Complainant, and his subsequent
termination all of which occurred over approximately a seven month period. Because the
adverse action, the discharge, closely followed Complainant's protected activities of
conscientiously reporting violations of SDWA, there is a reasonable presumption that the
protected activities caused the adverse action. It is noteworthy that prior to Complainant sending
[Page 18]
his reports to the BIA office, there had been no complaints about him or his job duties in the
previous six months that he worked as a field inspector for the UIC program. This circumstance
alone establishes the inference of a retaliatory motive, especially in light of the fact that both Mr.
Sanborn and Mr. Edmondson, the EPA personnel that worked with Complainant, both
considered Complainant to be an excellent inspector who performed his job duties by the book.
Indeed, they considered Complainant to be the best field inspector employed by the Tribal
Council. Even Ms. Beasley stated that she was satisfied with Complaint's work performance.
Thus, Complainant has shown a reasonable inference that the adverse action was the result of his
protected activities.
Since Complainant has established a prima facie case of
discrimination, the burden shifts to his employer, the Tribal Council, to present evidence that the
alleged adverse action was motivated by legitimate, non discriminatory reasons. See
Mangus v. Director, OWCP , 882 F.2d 1527 (10th Cir. 1989); Varnadore v. Oak
Ridge Nat'l Lab. , 92-CAA-2, 5 and 93-CAA-1 (Sec'y Jan. 26, 1996). The employer need
not persuade the factfinder that it was actually motivated by the proffered reasons, but it is
sufficient if the employer's evidence raises a genuine issue of fact as to whether it discriminated
against the complainant. To accomplish this, the employer must clearly set forth, through the
introduction of evidence, the reasons for their adverse employment action. Texas Dept. of
Community Affairs v. Burdine , 450 U.S. 248, 252-256 (1981).
It is first argued on behalf of the Tribal Council that the reasons for
Complainant's termination are those contained in the Tribal Council's March 15, 1995
memorandum to Ms. Beasley directing her to inform Complainant of the Council's decision to
terminate his employment immediately. (CX 13). It is next argued that the Council did not
terminate Complainant but that, instead, he was terminated by Ms. Beasley for the reasons she
described during her testimony at the hearing. Respondent's Brief at 24. These articulated
reasons shall be addressed in the order presented in Respondent's Brief.
The Tribal Council contends that Complainant's termination had nothing to
do with any of his reports he made of environmental violations. Instead, it is contended that
Complainant was fired for the reasons of misconduct and disloyalty. (CX 13). The reasons for
terminating Complainant proffered by the Tribal Council begins with the claim that Complainant
exhibited disloyalty to the Osage Tribal Council by comments attributed to him by an operator,
Mr. George F. Neff, in his March 5, 1995, letter attached to the Tribal Council's March 15, 1995
memorandum. (CX 13). The specific comments attributed to Complainant there are:
[Complainant] informed me he felt the power of the mineral's trust might be
weakening even to the degree of extinction. Also, insinuating the demise of the
mineral estate was due primarily to the ignorance of the people vested with the
power to oversee the estate.
(CX 13 at 4-5).
[Page 19]
It is argued that these comments attributed to Complainant are grounds for
his immediate termination under § XV (2) of the Tribal Personnel Policies and Procedures
(CX 30 at 27), namely, that Complainant's actions constituted "disloyalty to the
organization."
The Tribal Council also presented evidence of another incident which is
claimed to also constitute acts of disloyalty to the Tribal Council by Complainant. According to
a BIA employee, Mr. Kenneth Bighorse, Jr., a friend of Complainant's, Complainant made
disparaging remarks to him concerning his father, Mr. Kenneth Bighorse, Sr., and Mr. Ed Red
Eagle, Sr., both of whom were members of the Tribal Council. (Tr. 639, 641). These remarks
were made to Mr. Bighorse during private telephone conversations with Complainant during
office hours. (Tr. 639, 643).
Complainant acknowledged that he had a discussion with Mr. Neff during
which Complainant indicated to Mr. Neff that the environmental program might be transferred
from the Tribal Council to the National Council and that if such transferred occurred, operators
such as Mr. Neff should be aware that the National Council would likely be more
environmentally conscious than the Tribal Council. (Tr. 86). Complainant testified that he made
these comments to Mr. Neff "in the line of advise" so that operators such as Mr. Neff
would be aware that "things can change." (Tr. 86). This last quoted phrase
obviously meant that the enforcement of the environmental laws would likely become more
rigorous if the National Council took over the environmental program. (Tr. 568). Complainant
further testified that during his conversation with Mr. Neff, he did not make any disparaging
remarks about the Tribal Council nor did he refer to them as being ignorant. (Tr. 87).
It is unnecessary to enter factual findings as to which account of the
conversation between Complainant and Mr. Neff is accurate. If Mr. Neff's account of that
conversation is accepted, then all that Complainant did was speak out on an issue of public
importance to the Osage Tribe. Under the circumstances presented here, such an expression of
opinion by Complainant would be constitutionally protected as free speech and cannot serve as a
basis for his dismissal. See Pickering v. Board of Ed. of Township High School
Dist. 205, Will County, Ill. , 391 U.S. 563 (1968). If, on the other hand, Complainant's
account of his statements to Mr. Neff are accepted, then Complainant's statements cannot
reasonably be construed as expressions of disloyalty towards his employer.
Likewise, expressing derogatory opinions about Tribal Council members in
a private conversation cannot serve as a basis for Complainant's termination. Complainant does
not lose his first amendment rights of free speech merely because his free speech expressions
were communicated in a private conversation. See Givhan v. Western Line
Consol. School Dist. , 439 U.S. 410 (1978). Indeed, it is clear that the critical comments
Complainant made about the two Tribal Council members were made by Complainant in his
capacity as a private citizen and not as an employee of the Tribal Council. Therefore, such
expressions enjoyed the full protection under the first and fourteenth amendments. See
Connick v. Myers , 461 U.S. 146 (1983). Thus, neither of the first two asserted reasons
for terminating Complainant are legitimate.
[Page 20]
It is also claimed, on behalf of the Tribal Council, that Complainant was
terminated for the additional reason that his actions constituted serious personal misconduct that
brought disrepute to the Tribal Council. In support of this argument, it is shown that such
misconduct also constitutes grounds for terminating a Tribal Council employee. (CX 30 at 27).
The actions proffered as serious personal misconduct fall into five categories. Four of these
relate to the performance of Complainant's inspection duties. It is first claimed that Complainant
broke pressure gauges on oil field equipment in the course of his inspections. Secondly, it is
claimed that he reinstalled gauges improperly by facing them the wrong way.
Misconduct is defined in WEBSTER'S DICTIONARY, 9th Ed. as one 1:
mismanagement especially of governmental or military responsibilities, 2: intentional wrong
doing specifically: deliberate violation of a law or standard especially by a government official....
Since it is personal misconduct which is at issue, it is the second definition which is relevant
here. Under this definition, misconduct must include an element of intentional or deliberate
action and also must be a violation or deviation from an applicable standard.
Neither of these elements are present here. Both Complainant and his
technical supervisor, Mr. Sanborn, testified that it was impossible to remove the gauges on
injection wells as field inspectors were frequently required to do during the course of their
inspections without occasionally breaking one of the gauges. According to Mr. Sanborn, the
breaking of gauges is attributable to fluid being trapped between the value and the gauge. It is
further Complainant's testimony that he did not deliberately break gauges and that any gauge he
broke was accidental. It was further Complainant's testimony that he was informed by Mr. Van
Wyke, an EPA employee, that the regulations do not require field inspectors to turn the gauges
back in any particular direction. Instead, the direction of the gauges were dictated by the
necessity, on the one hand, to screw the gauge on tightly so that the pressure would not cause it to
blow off while, on the other hand, not screw it on so tightly as to strip the threads.
It appears that Complainant removed and reinstalled the gauges in
accordance with the training and instructions given to him by his EPA technical supervisors. No
instructions were ever given to Complainant by the Tribal Council or Ms. Beasley on any aspect
of how Complainant was to perform his inspections. It is further found that those standards, as
distinguished from the standards the regulated operators might wish to impose, are the applicable
standards. Finally, it is found that Complainant did not intentionally deviate from those
applicable standards. Therefore, it is found that Complainant's activities with respect to the
gauges did not constitute personal misconduct which could warrant his termination.
It is further claimed, on behalf of the Tribal Council, that another incident
evidencing serious personal misconduct by Complainant is that he reported gauges as defective
when they were operational. There is, however, no evidence supporting this claim. The origins
of this claim is the February 9, 1995 letter from Mr. Hopkins which is attached to the Tribal
Council's March 15, 1995 termination memorandum. (CX 13 at 6). The specific complaint
[Page 21]
related to gauges made in that letter is: "reports from [Mr. Sanborn's] office of bad values
which turn out to be operational...." Id. The citation to Mr. Hopkins' testimony
in support of the claim that Complainant reported bad gauges as operational, is misplaced. Mr.
Hopkins testimony does not constitute evidence that it was Complainant rather than someone in
Mr. Sanborn's office that reported bad gauges as operational. Mr. Hopkins' testimony shows that
he misread his own complaint letter. He testified that the letter said "Chris White had
reported bad values which turn out to be operational..." when the letter does not so state.
(Compare Tr. 594 and CX 13 at 6).
Even if the evidence were to be construed as supporting the claim that
Complainant reported bad gauges which were operational, there is no evidence that Complainant
intentionally mislead anyone about the condition of gauges or that he deviated from any
applicable performance standard. Thus, Complainant's actions cannot be construed as serious
personal misconduct.
It is also claimed that Complainant failed to give advance notice of his
field inspections and that this failure constituted serious personal misconduct. Again, the record
shows that neither the Tribal Council nor Mrs. Beasley ever gave Complainant any instructions
on this subject and that the only instructions he received were from his EPA technical
supervisors. Mr. Sanborn was aware of Complainant's inspection activities and believed that
Complainant complied with the instructions given to him. (Tr. 272, 305-306). Mr. Sanborn
testified that there was no requirement that operators be given advance notice of an inspection.
(Tr. 271). Indeed, the claim by Mr. Hopkins that field inspectors were required to give advance
notice of their inspections is based on a misreading of the Marmac Area Injection Permit. That
permit, which was read into the record, does not require advance notification. (Tr. 583-586).
Thus, the evidence here shows that Complainant did not deviate from any requirement that he
give advance notice of his field inspections because there was no such requirement.
The final reason ascribed by the Tribal Council for terminating
Complainant was that he had "been rude, verbally threatening and confrontational with
Marmac and Marmac employees." (CX 13 at 1). This ascribed reason for terminating
Complainant is based on the letter from Mr. Hopkins attached to the Tribal Council's termination
memorandum wherein Mr. Hopkins complains Complainant "has spoken rudely to some of
my employees and they have reported to me they were quite upset about it." (CX 13 at 6).
The evidence shows that the Tribal Council accepted this complaint at face value and even
embellished it without any investigation of its validity. The Tribal Council then ascribed this as
one of the incidents of serious personal misconduct warranting Complainant's termination.
Such precipitous action by the Tribal Council demonstrates the pretextual
nature of this ascribed reason. There is a certain tension that exists between the regulators and
the regulated in any industry. It is inconceivable that anyone would have terminated
[Page 22]
Complainant or any employee based on such a conclusory complaint emanating from a source
whose motives are so obviously suspect without investigation and without affording the accused
party an opportunity to respond to the charges. Accordingly, this ascribed reason is emphatically
rejected as pretextual and not the real reason for Complainant's termination.
The evidence presented at the hearing which was not available to the Tribal
Council when it terminated Complainant provided only marginal substantiation of Mr. Hopkins'
complaint. Moreover, this evidence shows that the remarks Complainant made to Mr. Hopkins'
employees did not rise to the level of offensive behavior warranting his termination. According
to Mr. Henley, a Marmac employee, Complainant used a loud voice while specifying to Mr.
Henley the compliance measures needed to correct an EPA violation which hurt Mr. Henley's
feelings. (Tr. 619). The other incident of claimed rudeness involved a remark made by
Complainant during a conversation he had with Mr. Hopkins the morning of December 20, 1995.
(Tr. 600-601, 603). During this conversation, Complainant asked Mr. Hopkins the question
"are [your] employees deaf or blind or just don't care." (Tr. 600). The only other
person present during this conversation was Mr. Snively, a Marmac employee. (Tr. 600).
This remark appears to have been directed towards to another Marmac
employee, Mr. Henley, who was not present when Complainant made the remark. Mr. Henley
had misinformed Complainant the day before that the reported saltwater leak was not coming
from the Marmac lease. (Tr. 101, 600). Since Complainant had subsequently located a high
pressure leak on the Marmac lease after dark based on the loud noise levels made by the leak (Tr.
103), his remark to Mr. Hopkins the next morning seemed to have evidenced some annoyance
and frustration with the false report he had previously received from Mr. Henley. Nevertheless,
when the "death or blind" remark is viewed in context, it is clear that it was not
directed to the Marmac employee who was present when the remark was made. Significantly,
there is no testimony that Mr. Snively expressed any reaction to the remark. The remark was not
intended to be offensive to anyone present when the remark was made, and Mr. Henley's
testimony does not suggest that he was even made aware of Complainant's remark. Under these
circumstances, the remark cannot be construed as sufficiently offensive or hostile to constitute
serious personal misconduct warranting Complainant's termination.
There are two other incidents of misconduct asserted in the Tribal
Council's termination memorandum which are not mentioned in its brief. Since there is no merit
in either and since they are not mentioned in Respondent's brief, it is inferred that Respondent
has withdrawn these allegations as a basis for terminating Complainant. One of these allegations
involves the claim that Complainant confronted Mr. Bill Lynn and "accused him of
advocating running full out in production with no controls for protecting the environment."
(CX 13 at 1). The proof on this issue consisted of Mr. Lynn's testimony wherein he denied that
Complainant confronted him with this accusation. The other incident concerns an elderly
gentlemen named Mr. Burl Goad. In the Tribal Council's termination memorandum,
Complainant is accused of frightening Mr. Goad with threats of fines, jail, and a discontinuation
of pasture leases. (CX 13 at 2). The credible evidence on this issue consists of Complainant's
[Page 23]
testimony that all he said to Mr. Goad was that he would be responsible for trash dumped on the
pasture he was leasing. To the extent that the statements in the memorandum from BIA
employee, Mr. RedCorn, (CX 13 at 7) suggest that Complainant's remarks to Mr. Goad were
improper, that evidence is rejected as unsubstantiated hearsay. (Tr. 464-466).
Finally, it is claimed on behalf of the Tribal Council that the Council did
not fire Complainant and that he was fired instead by his nominal supervisor, Ms. Beasley, after
she conducted her own investigation into Complainant's misconduct. If Ms. Beasley's testimony
is to believed, she misinterpreted the instructions given to her in the Tribal Council's termination
memorandum which explicitly directs her to inform Complainant of the Council's decision to
terminate him and also inform him of his appeal rights. (CX 13 at 2). Notwithstanding these
explicit directions, Ms. Beasley apparently interpreted the memorandum as directing her to
terminate Complainant which she did. (Tr. 390, 394, 399, 444, 505-506). The only explanation
she gave to Complainant for his termination was to give him a copy of the Council's termination
memorandum together with the attachments thereto. (Tr. 505-506). She did not have an
opportunity to investigate any of the allegations contained in that memorandum or its
attachments prior to terminating him, although she subsequently attempted to investigate some of
the allegations as a part of the grievance process. (Tr. 399, 446).
According to Ms. Beasley's testimony, she reached an independent
determination that Complainant should be terminated which was based, in part, upon the matters
contained in the Council's termination memorandum and, in part, upon two additional incidents
which she considered to be evidence of Complainant's disloyalty justifying his termination. (Tr.
488-489). The first incident involved a report made in a monthly meeting of the EPA committee
of the Tribal Council by a BIA employee identified as Paul Yates. (Tr. 455-457). The second
was the complaint made by one of Complainant's co-workers, Beverly LaCrone who reported to
Ms. Beasley that Complainant harassed and intimidated her by making unspecified political
statements to her. (Tr. 458, 462).
To the extent that Ms. Beasley accepted these two incidents as evidence of
Complainant's disloyalty to the Tribal Council warranting any form of discipline, she violated the
Council's Personnel Procedures Manual which specifies: "Supervisor must make a written
report of each offense and disciplinary measure taken." (CX 30 at 28). The alleged acts of
disloyalty reported by BIA employee, Mr. Yates, and Complainant's co-worker, Ms. LaCrone,
were not memorialized in a written report. Indeed, Complainant was not informed of these
additional asserted reasons for his termination until the hearing in this case. Thus, neither
alleged instance of disloyalty which Ms. Beasley claims constitutes additional reasons supporting
her decision to terminate Complainant justifies any form of disciplinary action against
Complainant under the Tribal Council's own personnel regulations. Accordingly, these
additional reasons are rejected as constituting legitimate reasons for her action. To the extent
that she relied upon the reasons ascribed in the Tribal Council's termination memorandum to
support her action, those reasons are also rejected for the reasons stated above.
Complainant has established that he was unlawfully terminated based on
his protected activities. The Tribal Council and Ms. Beasley have failed to establish that
Complainant was fired for legitimate, nondiscriminatory reasons. Rather, the evidence
[Page 24]
establishes that the complaints were solicited by the Tribal Council from operators and others to
justify the Tribal Council's desire to get rid of Complainant. These complaints were used as a
pretext for terminating Complainant when the real reason for doing so was to eliminate
Complainant's environmental violation reports that could result in the reduction of oil production
from the mineral reserve. Further, it appears that both the Tribal Council and Ms. Beasley had
shifting reasons for Complainant's termination which supports the conclusion made here that
their reasons were pretextual. See Hobby v. Georgia Power Co. , 90-ERA-30
(Sec'y Aug. 4, 1995) (citing Bechtel Const. Co. v. Secretary of Labor , 50 F.3d 926,
935) (11th Cir. 1995)). Furthermore, the evidence in this record compels the inference drawn
here that the real reason for Complainant's termination was his protected activities. There is
simply no other rational explanation for terminating what this record shows was the Tribal
Council's best field inspector. It is, therefore, found that the Tribal Council unlawfully
discriminated against Complainant in violation of the employee protection provisions of the
SDWA.
Due to his unlawful termination, Complainant is entitled to reinstatement
to his job as a field inspector, back pay, missed benefits he would have received had he still been
employed, and an expungement from his personnel record of any references to the prior unlawful
termination. See Smith v. Littenburg , 92-ERA-52 (Sec'y Sept. 6, 1995).
Complainant also requested compensatory and punitive damages. The SDWA authorizes the
recovery of compensatory and exemplary damages. 42 U.S.C. §300j-9(i)(2)(B)(ii) (1994).
Compensatory damages may be awarded for emotional pain and suffering,
mental anguish, embarrassment, and humiliation. Such awards may be supported by the
circumstances of the case and testimony about physical or mental consequences of the retaliatory
action; the testimony of medical or psychiatric experts is not necessary. See
Thomas v. Arizona Public Serv. Co. , 89-ERA-19 (Sec'y Sept. 17, 1993); Crow v.
Noble Roman's, Inc. , 95-CAA-8 (Sec'y Feb. 26, 1996). In Mosbaugh v. Georgia Power
Co. , 91-ERA-1, 11 (Sec'y Nov. 20, 1995), the Secretary stated that "the very fact of
being discharged in violation of ...[an employee protection provision]...may have a serious
emotional impact on a complainant."
Complainant testified that he was very upset after his termination and was
unable to sleep for a significant period of time. He became depressed and would stay awake
worrying about what he was going to do because he did not have a job. Complainant also
testified that he suffered ridicule and embarrassment as a result of the termination. Also, his
family suffered financial hardship because he has been unable to find other employment which
added to his mental suffering. (Tr. 158-160). This evidence is unrefuted, credible and is hereby
accepted. Thus, based on Complainant's mental suffering, Complainant is found to be entitled to
$40,000 in compensatory damages.
[Page 25]
Punitive damages may also be imposed to punish unlawful conduct and
deter its repetition. The Supreme Court has held that the amount of punitive damages are
measured against the reprehensible nature of the offense, the harm suffered by the plaintiff, and
the legislative sanctions for comparable misconduct. BMW of North America, Inc. v. Ira
Gore, Jr. , 1996 U.S. Lexis 3390, 64 U.S.L.W. 4335 (May 20, 1996).
Due to the blatant and obvious discrimination that has occurred in this case
from Complainant's protected activities that stemmed from his conscientious performance of his
job duties which is precisely the type of discrimination the statute intended to prohibit, punitive
damages shall be awarded in the sum of $60,000. This award bears a reasonable relationship to
Complainant's actual damages taking into account the amount of back pay to which Complainant
is entitled as a result of the actual harm he sustained from his unlawful termination.
Additionally, the punitive damages award is modest in comparison to the $13 million dollars in
revenues received by the shareholders from the Osage Mineral Reserve (Tr. 416) but sufficient
enough to act as a deterrent of future violations of SDWA by the Tribal Council.
While SDWA also provides for the payment of Complainant's costs and
expenses (including attorney's fees), no claim for such relief has been made. 42 U.S.C.
§300j-9(i)(2)B(ii). However, pursuant to the Act, once an order awarding reinstatement
and back pay has been issued, the complainant may request the assessment of costs and expenses
against the respondent. Furthermore, the Rules of Practice and Procedure before the
Administrative Law Judge allow the administrative law judge to make part of the record any
motion for attorney fees authorized by statute, any supporting documentation, and any
determinations thereon. 29 C.F.R. §18.54(c) (1995). Accordingly, the record will be
reopened for the limited purpose of permitting Complainant to make application for his costs and
expenses and to permit Respondent an opportunity to respond thereto.
RECOMMENDED ORDER
IT IS THEREFORE ORDERED that the Osage Tribal Council shall
reinstate Complainant to his former position as a field inspector and shall pay Complainant
compensation for back pay from the time of his termination until his reinstatement and shall
provide him with such other benefits as he would have been entitled to had he not been
terminated.
IT IS FURTHER ORDERED that the Osage Tribal Council shall pay
Complainant compensatory damages in the amount of $40,000.00 and punitive damages in the
additional amount of $60,000.00.
IT IS FURTHER ORDERED that the Osage Tribal Council shall expunge
from Complainant's personnel records all references to his unlawful termination.
IT IS FURTHER ORDERED that Complainant is granted ten days from
[Page 26]
receipt of this Recommended Decision and Order in which to file and serve a fully supported
application for costs and expenses including attorney's fees. Thereafter, Respondent shall have
ten days from receipt of the application in which to file a response.
Entered this 31st day of May, 1996, at Metairie, Louisiana.
QUENTIN P. MCCOLGIN
Administrative Law Judge
QPM/tmd
[ENDNOTES]
1 In citing the record evidence, the
following abbreviations shall be used: Tr. - Hearing Transcript and CX - Complainant's exhibit.
2 The Osage Tribal Council
served as trustees for the Osage Mineral estate, and the Osage National Council administered all
other programs for the tribe and governed the rest of the affairs. (Tr. 137, 244). The Osage
Mineral estate is owned by shareholders who are members of the Osage Tribe including the
members of the Tribal Council and receive royalty payments from all of the wells on the estate
based on their percentage of ownership. These shareholders elect the members of the Tribal
Council who in turn, have an interest in maximizing production in order to satisfy their
constituency. (Tr. 219-220).
In fact, Mr. Clarence Edmondson, an environmental protection specialist
with the EPA who coordinated the UIC program with the Tribal Council, testified that when the
program was being developed in the mid 1980's, a major concern of the Tribal Council, was the
effect of the environmental regulations on the oil production. Although the environmental
conservation was, according to Mr. Edmondson, a concern, it was not a paramount concern of the
Council. According to Mr. Edmondson, the paramount concern was the potential adverse effect
these regulations might have on oil production. (Tr. 348-350, 372-373, 376, 384). The Bureau
of Indian Affairs ("BIA") mineral branch assisted the Tribal Council in maintaining
the production of oil and gas on the Osage Mineral estate and protecting the environment. (Tr.
269, 289, 351-352). Originally, all the field men with the BIA mineral branch, who inspected the
leases for violations, were tribal employees and were compensated from the mineral profits but
were later paid as federal employees. (Tr. 353-354).
3 Underground injection is
defined by the SDWA as the "subsurface emplacement of fluids by well injection"
and is a potentially widespread hazardous waste disposal practice that poses serious threat to
groundwater sources of drinking water. 42 U.S.C. §300h(d)(1). Congress was particularly
aware of the potential adverse effects of oil and gas related injections. Phillips Petroleum
Co. v. United States E.P.A. , 803 F.2d 545, 547 n. 2 (10th Cir. 1986). When drafting the
SDWA, the House Committee on Interstate and Foreign Commerce noted that "[e]nergy
production companies are using injection techniques to increase production and dispose of
unwanted brines brought to the surface during production...." H.R.Rep. No. 1185, 93d
Cong., 2d Sess. 29 (1974), U.S. Code Cong. & Admin. News 1974, pp. 6454, 6481. Thus, the
injection wells on the mineral reserve under the UIC program produced oil and gas supplies from
which the shareholders received royalty payments.
4 Because Complainant was
hired by the Tribal Council, he was considered an employee of the Tribal Council and was paid
by the Tribal Council. His immediate supervisor with the Tribal Council was Ms. Patricia
Beasley, the Director of Federal Programs for the Osage Nation, who handled all personnel
matters. However, Mr. Kent Sanborn, an EPA employee, stated that he interviewed Complainant
and recommended him for employment. The EPA trained Complainant and issued his job
assignments. (Tr. 255-257, 305).
It is clear from this record that while Ms. Beasley was Complainant's nominal supervisor, she
had no substantive knowledge of Complainant's technical duties and deferred to Mr. Sanborn,
Complaint's technical supervisor, to supervise Claimant's day to day work activities.
5 The memo was dated March
15, 1995, and Ms. Beasley stated that the Tribal Council has a meeting every third Wednesday of
the month. (Tr. 418). Official notice is taken that March 15, 1995 was the third Wednesday of
March, and that the memo was prepared the day the Tribal Council voted to terminate
Complainant.
6 According to Mr. Hopkins,
owner of Marmac Resources Company, his company experienced broken gauges which he
attributed to field inspectors of EPA Personnel. He had requested Mr. Sanborn give advance
notice of inspections and complained that Complainant failed to give advance notice and refused
to acknowledge company employees on the premises. Ms. Beasley talked to Mr. Sanborn who
told her the inspectors were not required to give advance notice generally and especially not in an
emergency situation. Ms. Beasley admitted that the first time Complaint entered the Marmac
lease, an emergency situation existed which excused Complainant's failure to give any advance
notice. She further conceded that Mr. Hopkins told her that Complainant had only broken one
gauge on one occasion. However, later, Ms. Beasley testified that she did not recall her
conversation with Mr. Hopkins about whether he alleged that Complainant broke the same gauge
or different gauges. Although Mr. Sanborn told her that gauges were always a problem, Ms.
Beasley discounted his explanation. (Tr. 473-474). Also, Mr. Hopkins did not give Ms. Beasley
the name of any Marmac employees that complained about Complainant's alleged
"rude" behavior. (Tr. 406-409, 472). However, Ms. Beasley also testified that she
did not recall the specifics of her conversation with Mr. Hopkins. (Tr. 477).
7 When asked whether
Complainant was made aware of the other reasons for terminating him for purposes of refuting
those reasons in the grievance hearing, Ms. Beasley stated that Complainant was aware of Mr.
Yates' statements and refuted the statements at an earlier meeting. (Tr. 524-525). However,
when asked how an employee was suppose to disprove claims of being too political if he did not
know all the reasons, Ms. Beasley admitted that it was unfair. (Tr. 526). Ms. Beasley did not
recall advising Complainant about the complaints from Ms. Lacrone. (Tr. 527).
8 Ms. Beasley stated that the
next appeal process in the Personnel Manual was to appeal to the federal programs committee;
however, because that committee no longer existed, and the only federal program administered
by the Tribal Council now was the EPA/UIC program, Ms. Beasley interpreted the Manual as
requiring an appeal to the Tribal Council EPA committee. (Tr. 480-482).
9 Ms. Beasley
asserted that the President of the Osage Nation refused to appoint a committee to hear the appeal
because it would interfere with operations pertaining to the mineral estate which was under the
jurisdiction of the Tribal Council. (Tr. 484).
10 In a meeting with Mr.
Paul Yates and Mr. Sanborn, Mr. Hopkins was complaining about not receiving advance notice
from the inspectors, and both Mr. Yates and Mr. Sanborn suggested that Mr. Hopkins put his
complaint in writing. (Tr. 312-313). Mr. Sanborn explained that he encouraged all operators to
file a complaint or concern in writing. (Tr. 265-266).
11 Respondent argued
that requirements enunciated in Santa Clara Pueblo v. Martinez , 436 U.S. 49, 55
(1978), regarding sovereign immunity applied in this case. However, Santa Clara
involves an Indian's tribe right to self government under the Indian Civil Rights Act. This case is
distinguished on the basis that Complainant alleges that he was fired for reporting federal
violations under a federal statute to which Indian Tribes and Indian lands are expressly subject to
the same as any other citizens. Further, the federal statute, SDWA, specifically includes Indian
tribes and lands unlike the Age Discrimination Employment Act discussed in Equal
Employment Opportunity Comm'n. v. Cherokee Nation , 871 F.2d 937 (10th Cir. 1989), and
the Occupational Safety and Health Act discussed in Donovan v. Navajo Forest Products
Indus. , 692 F.2d 709 (10th Cir. 1982).