ARB CASE NO. 00-078
(Formerly ARB Case No. 96-137)
ALJ CASE NO. 95-SDW-1
DATE: April 8, 2003
In the Matter of:
CHRIS WHITE,
COMPLAINANT,
v.
THE OSAGE TRIBAL COUNCIL
ON BEHALF OF THE OSAGE NATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
John T. Edwards, Esq., Oklahoma City, Oklahoma
For the Respondent:
Bradley D. Brickell, Esq., Andrew J. Waldron, Esq., Brickell & Associates, P.C., Oklahoma City, Oklahoma
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i)(2000). Complainant Chris White filed a complaint alleging that Respondent The Osage Tribal Council (Osage Council) violated the SDWA when it terminated his employment as an environmental inspector responsible for monitoring the Osage Council's compliance with certain provisions of the SDWA.
On May 31, 1996, a Department of Labor Administrative Law Judge (ALJ) issued a Recommended Decision and Order finding in White's favor and ordering the Osage Council to reinstate him with back pay, and awarding him compensatory and punitive damages, attorney's fees, costs and expenses. The Osage Council appealed the ALJ's Recommended Decision and Order to the Administrative Review Board. On August 8, 1997, the Board issued a Decision and Order of Remand affirming the ALJ's ruling on the merits, reversing the award of punitive damages, and remanding the case for the sole purpose of calculating back pay, fees and costs. See White v. The Osage Tribal Council, ARB No. 96-137, ALJ No. 1995-SDW-1 (ARB Aug. 8, 1997).1[Page 2]
1 After the Board remanded the case, the Osage Council filed an interlocutory appeal with the United States Court of Appeals for the Tenth Circuit challenging the Board's determination that the Osage Council was not entitled to tribal immunity. The Tenth Circuit affirmed the Board's conclusion that the Osage Council is a covered employer and is not entitled to such immunity. The Osage Tribal Council v. U.S. Dep't of Labor, 187 F.3d 1174 (10th Cir. 1999).
2 The ALJ who had issued the initial Recommended Decision and Order had left the Department of Labor, so the case was assigned to another ALJ on remand.
3 In Huffman v. Saul Holdings Ltd. Partnership, 262 F.3d 1128, 1133 (2001), the Tenth Circuit recognized that courts may deviate from the law of the case doctrine under exceptional circumstances involving "(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) if blatant error from the prior . . . decision would result in serious injustice if uncorrected."
4 White did not petition for review of the R. D. & O. on Rem. However, White notes his continued disagreement with the Board's determination that the Osage Council was not liable for punitive damages, "and requests the final decision of this Board be entered so that an appropriate appeal can be taken." Reply Brief of Complainant Chris White at 3.
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DATE ISSUED: August 10, 2000
CASE NO.: 1995-SDW-1
In the Matter of
CHRIS WHITE
Complainant
v.
THE OSAGE TRIBAL COUNCIL
ON BEHALF OF THE OSAGE TRIBE OF INDIANS
Respondent
DECISION AND ORDER ON REMAND
AND
ORDER DENYING RESPONDENT'S MOTION FOR ADDITIONAL DISCOVERY
AND/OR BRIEFING AND JOINDER OF ADDITIONAL PARTY
Background
On May 31, 1996, Judge Quentin P. McColgin, formerly of this office, issued a
Recommended Decision and Order finding that Respondent violated the employee protection provisions
of the Safe Drinking Water Act (SDWA) when it terminated Complainant for engaging in reporting
activity protected by the SDWA. In his Decision and Order, Judge McColgin required reinstatement of
Complainant with back pay and benefits, awarded Complainant compensatory damages of $40,000.00
and punitive damages of $60,000.00 and required the expungement of Complainant's wrongful
termination from his personnel file. By order dated July 9, 1996, Complainant was also awarded costs,
expenses and attorney's fees of $25,281.19.
On August 8, 1997, the Administrative Review Board (ARB) issued a Decision and
Order generally adopting Judge McColgin's recommendations as to Complainant's entitlement to
reinstatement, back pay, compensatory damages and fees, costs and expenses, but remanded the case to
the Office of Administrative Law Judges (OALJ) for the limited purpose of determining the precise
amount of Complainant's back pay, fees, expenses and costs. The ARB let stand the award of
compensatory damages in the amount of $40,000.00 but reversed the award of punitive damages. The
expungement of Complainant's personnel records was affirmed.
Respondent filed a collateral appeal to the United States Court of Appeals for the
Tenth Circuit asking that Court to determine whether the SDWA abrogated tribal immunity. On August
4, 1999, the Tenth Circuit issued a ruling upholding the ARB's findings that the Tribal Council is a
[Page 2]
covered employer and not entitled to tribal sovereign immunity. The case was returned to the ARB, and
by order dated September 29, 1999, the matter once more was remanded to the OALJ, just as it originally
had been on August 8, 1997, for the same limited purpose of determining the precise amount of damages
and costs previously awarded by Judge McColgin.1
1 Subsequent to the Tenth Circuit's ruling,
Respondent sought certiorari to the United States Supreme Court which was denied.
2 By request of Complainant's counsel's office
the deadline for additional briefing was extended to July 24, 2000.
3 Although the list identified 29 positions, the
first position listed was the position from which Complainant was terminated and several other positions were
duplicated in the report. Additionally, although Complainant acknowledged that he was aware of various
positions within the tribe held by non-tribal members, he stated that he was not of Osage preference.
4 While Complainant originally obtained
employment in Bartlesville, Oklahoma following his termination with Respondent, the position only lasted
two weeks as his job duties expanded to include solicitation, which he was original informed he would not
have to perform. Additionally, the job was located approximately thirty miles from his home and when the
family suffered the loss of one of their vehicles the distance to this employment became exceedingly difficult.
Thus, I find that Complainant's decision to end this employment does not equate with lack of a good faith
effort to locate and maintain employment. To the contrary, I find Complainant's decision to attempt
employment located far from home and earning minimum wages only offers further support of Complainant's
good faith effort to locate suitable employment.