Robert Thomas v. CalPortland Company

Plain-English summary

Miner Robert Thomas alleged that CalPortland suspended and terminated him because of protected safety activity. After multiple Commission and Ninth Circuit decisions, the court held that the Commission had misapplied substantial-evidence review and that the ALJ's findings established Thomas's discrimination claim under the required but-for causation standard. The Ninth Circuit vacated the Commission's contrary decision and returned the case. The Commission then remanded to the Chief Administrative Law Judge to calculate the damages and interest owed to Thomas. The release identifies back pay, lost benefits, interest, attorney fees, and appeal-related fees as relief previously awarded by the ALJ.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination matter was remanded for calculation of damages and interest.
• Key point: After the Ninth Circuit held the discrimination claim proven under but-for causation, only the amount of monetary relief remained to be resolved.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

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ROBERT THOMAS
v.
CALPORTLAND COMPANY |
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Docket No. WEST 2018-0402-DM WEST 2019-0205 |
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BEFORE: Rajkovich, Chair; Jordan, Baker, and Marvit, Commissioners

ORDER

BY: THE COMMISSION

This
discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine Act” or “Act”), is[]on remand to the Commission for the second time
pursuant to a decision of the United States Court of Appeals for the Ninth
Circuit. During its first review, the Court rejected the Commission’s
application of the Pasula-Robinette causation standard[1]
to section 105(c) cases.[2]Thomas v. CalPortland Co., 993 F.3d 1204 (9th Cir. 2021), rev’g
Thomas v. CalPortland, 42 FMSHRC 43 (Jan. 2020) (“CalPortland I”). The
Ninth Circuit then remanded the case to the Commission to apply a “but-for”
causation standard.

The Commission
subsequently remanded the case to the Administrative Law Judge to reexamine the
facts of this case consistent with the Ninth Circuit’s instructions. 43 FMSHRC
314 (June 2021). On remand, the Judge concluded, as she had prior to the
remand, that CalPortland had discriminated against miner Robert Thomas in
violation of the Mine Act. She again awarded Thomas back pay, lost
benefits, interest, attorney’s fees, and any additional fees incurred during
the appeals process. Thomas
v. CalPortland,
43 FMSHRC 531, 550 (Dec. 2021) (ALJ). CalPortland filed a petition for
discretionary review with the Commission challenging the Judge’s decision,
which the Commission granted.

On review, the Commission reversed the Judge’s remand decision and concluded that Thomas had failed to show that, but for his protected activity, he would not have been suspended or terminated. 46 FMSHRC 119, 133 (Mar. 2024). Thomas again appealed the Commission’s decision to the Ninth Circuit.

In an unpublished decision, the Ninth Circuit concluded
that the Commission misapplied the substantial evidence standard and that,
based on the Judge’s findings, the miner had succeeded in his claim. Thomas
v. FMSHRC and CalPortland Co., No. 24-1442, 2025 WL 2651299, at 1 (9th Cir.
Sep. 16, 2025) (“CalPortland II”). The Court vacated the Commission’s
decision and remanded it stating that “[t]he matter of the ALJ’s supplemental
order regarding the amount of damages remains to be conclusively resolved.” Id.
at 3. On
October 3, 2025, the court issued its mandate returning the case to the
Commission’s jurisdiction.

Accordingly, we remand this matter to the Chief Administrative Law Judge for a calculation of any damages and interest owed to the complainant Robert Thomas consistent with the Ninth Circuit’s decision.

/s/
Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chair

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Brian P. Lundgren, Esq.

Jackson Lewis P.C.

520 Pike Street, Suite 2300

Seattle, WA 98101

[email protected]

Jessica M. Cox, Esq.

520 Pike Street, Suite 2300

Seattle, WA 98101

[email protected]

M. Christopher Moon, Esq.

Jackson Lewis P.C.

215 South State Street, Suite 760

Salt Lake City, UT 84111

[email protected]

Dylan B. Carp, Esq.

Jackson Lewis P.C.

50 California Street, 9th Floor

San Francisco, CA 94111-4615

[email protected]

Colin F. McHugh, Esq.

McHugh Law, PLLC

1207 Washington Street, Suite 225

Vancouver, WA 98660

[email protected]

Trevor J. Cartales, Esq.

Navigate Law Group

1310 Main Street

Vancouver, WA 98660

[email protected]

Alexander Higgins, Esq.

Law Offices of Alex J. Higgins

2200 Sixth Avenue, Suite 500

Seattle, WA 98121

[email protected]

Thomas A. Paige, Esq.

Deputy Associate Solicitor

US Department of Labor

Office of the Solicitor

[Division of Mine Safety and Health]

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

Jennifer A. Ledig

US Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

Susannah M. Maltz, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington, DC 20210

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Law Judge

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[1] See Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct.
1980), rev’d on other grounds, 663 F.2d 1211 (3d.Cir. 1981); Sec’y of
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr.
1981).

[2] Section 105(c) of
the Mine Act states in pertinent part that:

No person shall discharge or in any manner discriminate against . . . any miner . . . because such miner . . . filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator’s agent . . . of an alleged danger or safety or health violation in a coal or other mine, . . . or because such miner . . . has instituted or caused to be instituted any proceeding under or related to this Act . . . .

30 U.S.C. § 815(c)(1).