Robert Thomas v. CalPortland Company

Plain-English summary

The Ninth Circuit directed the Commission to apply but-for causation to Robert Thomas's claim that CalPortland retaliated for safety complaints and protected activity. The ALJ again found discrimination, but the Commission concluded that substantial evidence did not connect Thomas's protected activity to his suspension or separation. It found that CalPortland suspended Thomas after he failed to wear a personal flotation device over open water and treated his later refusal to communicate as a voluntary resignation under its attendance policy. The Commission rejected the ALJ's findings of protected-activity animus, disparate treatment, and pretext, identifying record evidence it found had been omitted or mischaracterized. It reversed the discrimination finding and dismissed the case.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c); 30 C.F.R. § 56.15020
• Outcome: The ALJ's discrimination finding was reversed and the complaint was dismissed.
• Key point: Under the Ninth Circuit's but-for test, the Commission found the adverse actions resulted from the flotation-device violation and refusal to communicate, not protected safety activity.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW,
SUITE 520N

WASHINGTON, D.C. 20004-1710

ROBERT THOMAS
:

:

                    v.

: Docket Nos. WEST 2018-0402-DM

: WEST
2019-0205

CALPORTLAND
COMPANY :

BEFORE: Jordan,
Chair; Althen, Rajkovich, and Baker, Commissioners

DECISION

BY: THE COMMISSION

This
discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), is on remand to the Commission pursuant to a decision of
the United States Court of Appeals for the Ninth Circuit. Thomas v.
CalPortland Co ., 993 F.3d 1204 (9th Cir. 2021), rev’g Thomas v.
CalPortland , 42 FMSHRC 43 (Jan. 2020) (“ CalPortland I ”). The Court
rejected the Commission’s application of the Pasula-Robinette causation
standard to section 105(c) cases. [1]
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.

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).

For
the reasons discussed below, we hold that substantial evidence did not support
the Judge’s conclusion that Thomas was discharged for his protected activity. In
fact, the substantial evidence can only be fairly interpreted to indicate that
Thomas was discharged for unprotected activity alone. Accordingly, we reverse
the Judge’s decision on remand and dismiss this case.

I.

Factual and
Procedural Background

The background
facts are fully set forth in CalPortland I and are
summarized here. In the months leading up to Thomas’s suspension and subsequent
termination, Thomas complained to his Supervisor Dean Demers about working long
hours and about substitute miners not being properly trained. In January 2018,
an investigator from the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) saw Thomas not wearing his personal flotation device
(PFD) while over open water on a dredge. Thomas’s action resulted in the
issuance of an unwarrantable failure citation for violating MSHA regulations.

CalPortland
subsequently suspended Thomas pending an investigation into the incident. The
company later determined that Thomas had voluntarily resigned from his position
after Thomas refused to communicate with CalPortland during that investigation.
Thomas filed a discrimination complaint with MSHA, but MSHA declined to pursue
a complaint with the Commission on his behalf. Thomas proceeded to file this
complaint with the Commission pursuant to section 105(c)(3), 30 U.S.C. §
815(c)(3). [2]

Following an evidentiary hearing on the merits, the Judge issued a
decision finding that CalPortland had discriminated against Thomas in violation
of the Mine Act. 40 FMSHRC 1503, 1517-18 (Dec. 2018) (ALJ) . On
review, the Commission unanimously determined that substantial evidence did not
support the Judge’s finding that Thomas had established a prima facie case of
discrimination. The Commission reversed the Judge’s decision and dismissed the
case. CalPortland I , 42 FMSHRC at 54. Thomas
appealed the Commission’s decision to the Ninth Circuit.

On appeal, the Ninth Circuit rejected the application of the
Commission’s 40-year-old Pasula-Robinette framework to cases brought
under section 105(c) of the Mine Act. Thomas v. CalPortland Co. , 993
F.3d at 1208-09. [3] Relying on Supreme Court precedent,
the Court reasoned that the framework conflicts with the Supreme Court’s
instruction that the ordinary meaning of “because” requires application of a
“but-for” test. [4] CalPortland Co. , 993 F.3d at
1208-11. It determined that the Mine Act’s language is clear and contained no
textual or contextual indication that “because” means anything other than
“but-for.” Id. The Court then remanded the case to the Commission for
further proceedings consistent with its opinion. Id .

The Commission subsequently remanded
the case to the Judge to first consider Thomas’s claim under the newly imposed
“but-for” causation test. Applying the new standard of review, the Judge again
found that CalPortland had discriminated against Thomas in violation of the
Mine Act. 43 FMSHRC at 550. The operator now seeks review of the Judge’s
determination.

II.

Disposition

In the
Commission’s initial consideration of this case, it carefully and extensively
reviewed the facts. The Commission unanimously held:

Thomas
failed to introduce any evidence
that his suspension and eventual discharge
were in any way motivated by protected activity . In fact, the available evidence strongly suggests that the adverse
actions he experienced were direct results
of his own unprotected and dangerous activity of failing to wear a PFD and his walking
away from the operator’s necessary investigation.

CalPortland
I ,
42 FMSHRC at 5 (emphasis added).

No additional evidence was available on
remand. Of course, if a claimant does not prove protected activity motivated
adverse action in any way, the claimant has not demonstrated that the adverse
action would not have occurred “but-for” protected activity. The Commission has
again carefully reviewed the facts and the Judge’s decision to determine if
Thomas proved the operator discriminated under the but-for test. As set forth
below, Thomas did not carry that burden.

APPLICABLE
LAW

1. But-for Causation

According to the
Ninth Circuit, the Supreme Court has instructed “that the word ‘because’ in a
statutory cause of action requires a but-for causation analysis unless the text
or context indicates otherwise.” Thomas , 993 F.3d at 1211. The Supreme
Court has explained that the ordinary meaning of “because of” is that the
protected activity or class was the “reason” the employer decided to act. Gross
v. FBL Fin. Servs., Inc ., 557 U.S. 167, 176 (2009). Under the but-for standard t he plaintiff retains the burden of
persuasion and must prove by a preponderance of the evidence (which may be
direct or circumstantial), that the protected activity was the “but-for” cause
of the challenged employer decision. Id. at 176-78. [5]

2. Substantial
   Evidence

When reviewing an
Administrative Law Judge’s factual determinations, the Commission is bound by
the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.”’
Rochester & Pittsburgh Coal Co ., 11 FMSHRC 2159, 2163 (Nov. 1989) ( quoting
Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)); Sec’y of Labor on
behalf of Price v. JWR , 12 FMSHRC 2418, 2420 (Nov. 1990). The record as a
whole must be considered, including evidence in the record that fairly
detracts. Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951); Black
Castle Mining Co ., 36 FMSHRC 323, 328 (Feb. 2014). Agency findings that are
grounded upon conjecture or suspicion are unreasonable under substantial
evidence review. Bussen Quarries, Inc. v. Acosta , 895 F.3d 1039, 1045 (8th
Cir. Aug. 2018).

3. Abuse of
   Discretion

When reviewing a Judge’s evidentiary ruling, the Commission
applies an abuse of discretion standard. See In Re: Contests of
Respirable Dust Sample Alteration Citations , 17
FMSHRC 1819, 1873-75 (Nov. 1995), aff'd on other grounds sub nom
Sec’y of Labor v. Keystone Coal Mining Corp. 151 F.3d 1096 (D.C. Cir. 1998). Abuse of discretion may
be found when “there is no evidence to support the decision or if
the decision is based on an improper understanding of the law. ” Mingo Logan Coal Co. , 19 FMSHRC 246, 249-50 n.5 (Feb. 1997) (citing Utah
Power & Light Co., Mining Div. , 13
FMSHRC 1617, 1623 n.6 (Oct. 1991)); Cyprus Plateau Mining Corp. ,
22 FMSHRC 1361, 1366 (Dec. 2000) .

4. Credibility Findings

It is well settled that a Judge’s credibility determinations are
entitled to great weight and may not be overturned lightly except under
exceptional circumstances. Sec’y on behalf of Riordan v. Knox Creek Coal
Corp ., 38 FMSHRC 1914, 1924, (Aug. 2016) (citations omitted). However, the
Commission will not affirm credibility determinations that ignore extensive
record evidence that tends to call the Judge’s findings into question. Morgan
v. Arch of Illinois , 21 FMSHRC 1381, 1391–92 (Dec. 1999).

ANALYSIS

In CalPortland I , the Commission
disagreed with the Judge’s findings of animus and
disparate treatment. 42 FMSHRC at 51- 53. After reviewing the record in
its entirety, we conclude, for the second time, that substantial evidence does
not support the Judge’s findings of animus or disparate treatment, and that
Thomas has failed to produce any evidence to support unlawful discrimination
under any causation standard. [6]

Where the Judge
sought to ground her reasoning and inferences on the testimony of Thomas or his
coworker Joel McMillan, she either fragmented the witnesses’ testimonies or neglected
to reconcile conflicting evidence elsewhere in the record. S everal
of the Judge’s factual
findings indicate that she failed to consider or weigh certain probative
evidence that fairly detracted from her inferences. We
will discuss the necessary instances as we address the Judge’s remand findings
below. [7]

1. Animus

a) Cooperation
with MSHA Inspection

Thomas initially claimed that the inspection by Inspector
Johnson was the only activity that he believed motivated the adverse actions
against him. Thomas Ex. 46 (Discrimination Complaint) ; Tr.
207-08. However, Thomas presented no evidence that CalPortland interfered
in any way with his participation in the MSHA discussions surrounding his PFD
violation or otherwise exhibited hostility towards his discussions with the
inspector. In fact, Thomas admitted that the company did not display any animus
regarding his participation in the inspection. Tr. 208 . Beyond
noting that Demers recommended Thomas’s termination immediately after Thomas’s
PFD violation, the Judge failed to identify any signs of hostility displayed by
CalPortland towards Thomas’s protected activity in speaking with the MSHA
inspector about the January 24 inspection. Therefore,
substantial evidence does not support the Judge’s finding that CalPortland was
hostile toward Thomas’s protected activity in speaking with MSHA.

b) Safety
Complaints

There is no evidence of hostility regarding Thomas’s safety
complaints. In fact, Thomas provided evidence to the contrary. Thomas testified
that when he complained to Demers about the long hours, Demers responded that he
was “working on it.” Tr. 120. According to the testimony at hearing, Thomas
initially believed Demers was ignoring the miners’ complaints. Tr. 120. However,
Thomas went on to testify that he only believed that Demers was blowing them
off because Thomas “knew [Demers] had a lot on his plate. . . . He was trying
to man—take care of three barges, shorthanded, and taking care of a new item,
the dredge, Sanderling.” Tr. 120-21. When asked if Demers did anything to
alleviate his concerns about the hours, Thomas said: “Yes, he started bringing
out the rock barge guys . . . .” Tr. 121. Thomas conceded that Demers’s
response to his request to work less hours was not one of animosity or
hostility and that Demers’s solution relieved the excessive hours issue for
him. Tr. 208-11. That is, rather than demonstrate animus towards Thomas’s protected
activity, CalPortland took Thomas’s safety complaints seriously and ameliorated
the condition at issue.

There
is also no evidence demonstrating that Demers resented Thomas’s complaint about
the lack of task training for the rock barge miners or his refusal to sign task
training sheets. On the contrary, Thomas testified that he did not sense animus
from Demers regarding his safety complaints, and he agreed that he did not believe
anything MSHA-related motivated CalPortland to take an adverse action against
him. Tr. 208-11. The Judge failed to consider this uncontradicted evidence. In order to
affirm a Judge on substantial evidence, the record evidence “must do more than
create a suspicion of the existence of the fact to be established.” Bussen
Quarries, Inc. v. Acosta , 895 F.3d 1039, 1045 (8th Cir. 2018), quoting NLRB
v. Columbian Enameling & Stamping Co ., 306 U.S. 292, 300 (1939). We
“must [also] take into account whatever in the record fairly detracts from the
weight of the evidence that supports the finding.” Id ., citing Plateau
Mining Corp. v. FMSHRC , 519 F.3d 1176, 1194 (10th Cir. 2008) (internal
citation omitted). It is also persuasive that McMillan too complained of long hours
and refused to sign the task training sheets, yet he did not suffer an adverse
action. See Metz v. Carmeuse Lime, Inc. , 34 FMSHRC 1820, 1827 (Aug. 2012)
(finding operator lacked animus against complainant’s safety-related complaints
where other employees complained of the same safety issue and none of them
experienced retaliation).

Finally, the Judge
relies heavily on comments made by Demers during the relevant period to
establish animus and timing. In particular, she notes that Thomas introduced
evidence showing that, after he had complained of his hours and workload,
Demers remarked to McMillan that “Rob Thomas was done, he was . . . done at
CalPortland. Tr. 48.” 43 FMSHRC at 544, 548. However, her finding not only
takes Demers’s statement out of context, but also mischaracterizes the witness’
testimony. To begin, it suggests
that Demers’s statement directly followed and was the result of Thomas’s safety
complaints in November 2017. However, undisputed witness testimony clearly
indicates that the statement was made the morning after a heated argument
between Demers and Thomas about the latter’s request for sick leave. During that
conversation, Thomas
hung up the phone on Demers (his supervisor), which Thomas admitted to doing at
the hearing, and which was corroborated by McMillan. Tr. 47-48, 88, 123-24. McMillan
stated that he heard about the conversation from both Thomas and Demers “and
both of them told me the same thing.” Tr. 47.

Additionally, the
argument led to a meeting between Thomas, Demers, and Candy Strickland in CalPortland’s
Human Resources Department to resolve the incident, which included discussing
protocol, the proper way to call out sick, and how to communicate with one’s
manager and peers in a professional manner. Tr. 124, 445. Thomas’s behavior
during this phone call was not disputed. Tr. 47-48, 123-124. However, the Judge
completely overlooks the evidence of Thomas’s insubordinate conduct toward his
manager during the relevant time period.

Next, the Judge
repeatedly omits a material portion of McMillan’s testimony in which he speaks
directly to Demers’s attitude towards Thomas. The testimony demonstrates that
Demers was angered by the way Thomas talked to him on the phone rather than any
protected activity. Specifically, McMillan testified that “ Dean told me that
. . . after the way Rob talked to him on the phone that Rob Thomas
was done, he was . . . done at CalPortland.” Tr. 48 (emphasis added). McMillan’s
full testimony here directly contradicts the conclusion drawn by the Judge. The
Judge improperly o mitted
direct evidence of Demers’s reason for wanting Thomas gone and then drew an improper
inference that his reason was because of Thomas’s protected activity. Her reliance on fragmented
testimony as proof of animus towards Thomas’s protected activity was an abuse
of discretion.

The Judge also
infers animus from Demers’s
remark to McMillan in March 2018 that he “got rid” of Thomas, which she
believed indicated that Demers viewed Thomas as a problem that he jettisoned.
43 FMSHRC at 544, citing Tr. 71. However , she again failed to consider the
context provided by McMillan. Specifically, McMillan testified that
although Demers said that he “got rid” of Thomas for McMillan (insinuating that
it was due to Thomas’s alleged mistreatment of McMillan), McMillan believed
that Thomas’s exit from the company was because of the way Thomas had talked to
Demers on the phone months earlier. Tr. 88. Thomas failed to introduce any evidence
demonstrating that Demers’s comment was related to any of his safety complaints
made four months prior or because he spoke with the MSHA inspector in January.

Finally, the Judge
concluded that Woods’s “aggressive and ‘pointed’ approach” with Thomas during
the company investigative meeting was an indication of further hostility
towards the Complainant. [8]
43 FMSHRC at 544–45, citing Tr. 385. While Demers testified that Woods’s
question regarding Thomas’s normal PFD practices was “pointed,” neither he nor
Thomas testified that Woods was aggressive during the meeting. Tr. 144-45; 385-86.

c)
The Threat of Legal Action

Contrary to the
Judge’s conclusion, substantial evidence does not support a finding that
Thomas’s discharge was caused by his notice that he was filing a discrimination
claim regarding his suspension. Record evidence shows that CalPortland became
aware of Thomas’s discrimination claim on February 6, 2018, while two of the
alleged discriminatory events occurred prior to the date (the January 25
suspension and January 30 accidental discharge email). Moreover, Thomas did not
offer evidence that anyone in CalPortland management harbored animus towards
him or terminated him due to his filing once they became aware of the claim. T homas further conceded
that he did not believe he was discriminated against because he testified in or
was about to testify at an MSHA proceeding. Tr. 206-07.

We do agree with the Judge that there is sufficient evidence in
the record to support a finding that Demers harbored animus towards Thomas. Contrary
to the Judge’s inferences, however, substantial evidence suggests that any animus
was likely the result of Demers’s dislike of Thomas due to what Demers saw as
his insubordinate behavior during the relevant time, rather than any protected
activity. There are several instances in the record where Thomas exhibited
defiant conduct. For example, in November 2017, Thomas argued with Demers,
refused to report to work, and hung up the phone on him. There was also Thomas’s
disagreement with Inspector Johnson in front of Demers about being on the ladder
without his PFD, as well as his behavior during the investigative meeting.

We conclude that Thomas failed to introduce any evidence
establishing a nexus between Demers’s animus and Thomas’s protected activity. Further,
the Judge drew unnecessary and unsupported inferences of a causal nexus in the
face of uncontradicted evidence that more than fairly detracted from her
conclusions.

2. Disparate
   Treatment

A complainant alleging disparate treatment bears the burden of
proof. Byrd v. Ronayne , 61 F.3d 1026, 1032 (1st Cir.
1995) . To that end, the Commission has held that “it is incumbent on
the complainant to introduce evidence showing that another employee guilty of
the same or more serious offense escaped the disciplinary fate suffered by the
complainant.” Dreissen v. Nevada Goldfields, Inc. , 20 FMSHRC 324, 332 n.14
(citing Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2512 (Nov. 1981) .

Here, the Judge determined that Thomas introduced
evidence that other CalPortland employees who had committed similar PFD
misconduct had not been punished equivalently . In particular, she
noted that McMillan testified that Demers would routinely
unfasten his PFD and remove his hardhat while working aboard the Sanderling. 43
FMSHRC at 544, citing Tr. 50.

Several
factors distinguish this from Thomas’s situation. First, Thomas did not introduce
evidence that Demers was ever reported for the one dredge incident described by
McMillan or that upper management or HR was otherwise aware of it. The operator
cannot be found to have disparately treated two miners when it was only
actually aware of the actions of one of those miners. See e.g. Pollock v.
Kennecott Utah Copper Corp. , 26 FMSHRC 52, 63 (Jan. 2004) (ALJ Manning). Further,
and more importantly, the Judge overlooked key details of McMillan’s testimony.
Section 56.15020 of the Secretary’s regulations states that “[l]ife jackets or
belts shall be worn where there is danger from falling into water .” 30
C.F.R. § 56.15020 (emphasis added). McMillan testified that on the day Demers
worked with him, Demers boarded the dredge, took his hard hat and life jacket
off, threw them on the floor in the lever room, and sat down in the operating
chair. Tr. 50; 89-90. “If [Demers] got up to leave the lever room, he put his
life jacket back on, he’d just toss it back on real quick, but he didn’t zip it
up or buckle it or anything.” Tr. 50-51.

In
other words, this incident did not occur on the deck of the dredge while over
open water. Demers only had his life jacket off while inside the lever
room, where there is no danger of falling into the water. McMillan further
indicated that it was not uncommon for the miners to remove their PFDs in
certain circumstances, including when in the lever room. Tr. 72-73. Thomas did
not introduce evidence that miners working inside the lever room without
their PFDs normally faced discipline or were reported to management. M oreover,
CalPortland indicated that it had never had a miner disciplined or cited for
not wearing a PFD when required so it had no comparable circumstances showing
how a miner would have been disciplined under similar facts. Tr. 72-73; 280,
376.

The Judge went on to find disparate treatment when Demers and
McAuley referred the matter to HR after the investigative meeting. She found
that the move was unusual at that stage of dealing with an employee. 43 FMSHRC
at 544. Even though the Judge generally found McAuley not credible, she appeared
to rely on McAuley’s testimony that involving HR at that stage was unusual. However,
the Judge ignored McAuley’s explanation that it was unusual because CalPortland typically
completes the investigation before it starts discussing discipline and
involving HR. But because of Thomas’s refusal to answer questions and his
behavior at the investigative meeting, they decided to get HR involved earlier
than normal. Tr. 304-05. Thomas did not dispute McAuley’s testimony.

The Judge next
implied that Demers misrepresented Thomas’s behavior as “not being cooperative”
during the meeting (see 43 FMSHRC at 544) and later found “that both McAuley
and Demers were not credible witnesses when it came to discussing the incidents
with Thomas.” Id. at 537. However, there is ample testimony in the
record corroborating the accounts of Demers and McAuley, including the
testimony of Thomas. For example, Woods asked Thomas if it was common practice
to not wear his PFD. Tr. 145, 385-86. Thomas stated:

I told him, I said I wasn’t going to answer that
question . . . [b]ecause it was obvious that they weren’t going to listen to
what I had to say, they had—only wanted to listen to what they wanted. I told
them, I said I wasn’t going to incriminate myself.

Tr.

145. Strickland similarly testified that after the January 29 safety
     investigation meeting, Woods contacted her due to “Thomas not being
     cooperating, refusing to answer questions.” [9] Tr. 438, 448. However, the Judge does
     not mention this other witness testimony, which supports Demers’s and McAuley’s
     description of Thomas’s behavior. The Judge also relied on the distribution of
     Demers’s termination email, which she described as another unusual practice by
     the operator. However, the record shows that Demers’s email was a draft recommendation
     distributed by accident, a fact the Judge herself seemed to accept. See
     43 FMSHRC at 543, 547.

Furthermore, CalPortland introduced
its “Attendance and Reporting to Work” policy (“ARW
Policy”), which states that if an employee is absent three or more consecutive
days without calling, he or she “will be considered to have voluntarily
resigned in the absence of a compelling excuse for having failed to do so.” Calport.
Ex. FF at 3. It then submitted four examples of
former employees processed out of the company as having voluntarily resigned when
the employees ceased communicating with CalPortland. Calport. Exhibit FF; Tr.
468-70. The Judge did not discuss this evidence.

Regarding disparate treatment, the Judge overlooked the lack of
evidence offered by Thomas. Thomas failed to introduce evidence that would show
that other miners cited for failure to wear a PFD escaped a suspension pending
investigation, or that any miner under suspicion of similar violative conduct
or a more serious offense did not receive any form of reprimand at all. He also
failed to introduce evidence showing that an employee who refused to
communicate with CalPortland for seven days escaped termination from the
company by voluntary resignation. In contrast, CalPortland showed that Thomas received
the same treatment as other employees who refused to communicate. As with
animus, based on the lack of evidence presented by Thomas, substantial evidence
does not support the ALJ’s conclusion that Thomas suffered disparate treatment.
Accordingly, substantial evidence does not support the Judge’s overall
conclusion that Thomas’s suspension and termination would not have occurred but
for any protected activity.

3.
Pretext

The ALJ’s
determination that CalPortland’s justifications for Thomas’s discharge were
pretext is not supported by substantial evidence. Complainant failed to produce
any substantial evidence that the legitimate, nondiscriminatory reasons for
taking adverse action presented by CalPortland were pretextual.

The
Judge determined that a preponderance of the evidence showed that CalPortland’s
explanations of events were pretextual. First, the Judge erroneously found that
the only proven communications after February 1 were the “voluntary
resignation” letters that were returned to CalPortland unopened. 43 FMSHRC at
546.

The Judge overlooks the operator’s undisputed
evidence in the form of contemporaneous notes (sent via internal email
communications), which detailed the company’s efforts to reach Mr. Thomas
between January 31 and February 2. Ex. P. In particular, Strickland asked
McAuley and Demers to provide her with information on their attempted
communications so that she could include it in her January 5 letter to Thomas. Tr.
453-54; Ex. P at 3-4. According to McAuley’s February 2 email to Strickland, he
called Thomas three times and left two voice messages. Ex. P at 2. Thomas also testified that he returned McAuley’s call. Before
hanging up on McAuley, Thomas told him that he had no business calling his
personal cell and to contact his attorney. Tr. 156-57, 186, 318-19, 452 ; CalPort.
Ex. P at 2; Ex. R.

According to Demers’s email detailing his attempts to reach
Thomas, he responded to Thomas’s cancellation text asking him “[i]s there a
time that is better?” Thomas did not respond. CalPort Ex. P at 4; Ex. R. In
addition to several phone calls made by Demers, Strickland also sent Thomas a
letter via standard mail and UPS on February 5 and 8 warning that if he did not
contact human resources by Thursday, February 8, “he will be considered to have
voluntarily resigned.” Tr. 456-57; CalPort Ex. R at 2. Thomas refused receipt
of both copies and did not forward them on to his attorney. Tr. 162, 189-91,
457-61; 40 FMSHRC at 1507-08; 43 FMSHRC at 536, n.1. Further contradicting the
Judge’s finding is an email sent to Demers by
Thomas’s own Counsel on February 13, 2018, stating
that: “It is my understanding that since [February 2, 2018], you have continued
to try to contact our client directly.” CalPort Ex. W at 1. A lthough
Thomas testified that he was not aware that CalPortland tried to reach him (Tr.
186), he did not dispute the attempts to reach
him outlined above nor did he introduce contradictory evidence.

The Judge failed to provide any explanation as to why this undisputed
evidence is not credible nor does she even acknowledge the evidence
substantively in her analysis. It is reversible error for an
ALJ to reject uncontradicted evidence. Jim Walter Res. v. Sec’y of Labor ,
103 F.3d 1020, 1027 (D.C. Cir. 1997).

Next, the Judge concluded that after Thomas’s suspension, he
“continued to participate fully in CalPortland’s investigation, . . . even submit[ing]
a more-detailed written statement, as requested by the company, following the
heated interview.” 43 FMSHRC at 546. The Judge found that Thomas only stopped
participating in the investigation because he reasonably believed that his
employment was terminated. Id .

We find that the
record cannot support these conclusions. As previously discussed, Thomas
admitted that he refused to answer questions regarding his PFD practices and
testified that he called the investigatory meeting “a sham” and the MSHA
Inspector’s statement “completely false.” Tr. 145. He refused to answer questions
about key details and safety practices likely not discussed in those statements
for fear that he would “incriminate [him]self.” Id . A willingness to
offer only written statements that do not respond to important management
questions does not constitute cooperation with an investigation. On this
record, it is difficult to find that Thomas fully participated in the company’s
investigation solely based on his willingness to write statements.

As for the reasonableness of Thomas’s belief that he had been
terminated, the Judge did not consider the inconsistent nature of Thomas’s
evidence. She failed to reconcile Thomas’s deposition admission that he
received Demers’s follow-up email ( entitled “Please delete last
e-mail, it was sent by mistake”) with his subsequent denial at
trial of receiving it at all. Decl. of Laiho, Ex. A, Thomas Depo. at
175-77 ; Tr. 201-02. In addition, CalPortland attempted to introduce
evidence at the hearing of a screenshot taken by CalPortland’s Information
Technology department showing that Thomas did in fact receive and open the
“sent by mistake” email. This evidence spoke directly to the reasonableness of
Thomas’s “belief” that he had been terminated. However, the Judge
excluded the evidence on the grounds that Demers testified that he sent it, and
she did not believe it to be a “big deal.” Tr. 477-479. This
was an abuse of discretion given that the Judge relied on the reasonableness of
Thomas’s belief to reach her conclusion here. [10]

Additionally, during his deposition, Thomas stated that after
receiving the second email, “[t]he damage ha[d] already been done,” and he conceded
that after that, he refused to communicate with CalPortland. [11] Thomas
Depo. at 175-77. On cross-examination, CalPortland’s counsel questioned
McMillan about his deposition where he stated that he spoke to Thomas once
after Thomas was suspended, and that Thomas was upset because he saw an email
that he was not supposed to see. Tr. 84-85. If Thomas believed that he was not
supposed to see the email, one could infer that he understood the communication
was intended for management only and not yet a final action. In Morgan
v. Arch of Illinois , the Commission held that before a Judge credits any testimony,
he or she must reconcile all record evidence that is inconsistent with that
conclusion. 21 FMSHRC at 1391–92. There is no indication that
the Judge considered any of this evidence before she credited Thomas’s “belief”
that he was fired. [12]

The Judge went on to scrutinize the company’s “threadbare
investigation” into the PFD incident, which did not include statements or
interviews of certain potential eyewitnesses like the tugboat captain Roger
Ison. 43 FMSHRC at 547. She concluded that CalPortland failed to explain its
limited investigation. Id . at 545-47. However, t he record shows
that Thomas did not list Ison as a potential eyewitness on his Report of
Incident Form. He only listed McMillan. Thomas Ex. 20. Additionally, as
discussed above, CalPortland acknowledged and explained the incomplete nature
of its investigation, which resulted from the fall-out at the investigative meeting
with Thomas and his subsequent refusal to communicate. Slip op at 9; Tr.
303-04.

The
Judge also spends much time discussing the apparently inconsistent
justifications offered by CalPortland for why Thomas was terminated and why
Thomas’s PFD misconduct was insufficient to justify his termination. 43 FMSHRC at 545-

548. However, these discussions are based on a misunderstanding of the operator’s
     arguments. The company never argued that Thomas’s PFD misconduct directly caused
     his discharge. CalPortland has made it clear that Thomas’s PFD misconduct
     resulted in the first adverse act of his suspension. It has consistently
     maintained that Thomas was discharged based on his own failure to
     communicate with the company, which it construed as job abandonment. See CalPort.
     PDR at 3; CalPort. PH Br. at 3-4, 17; CalPort. Op. Br. at 19-21; CalPort. Reply
     Br. at 4-5; CalPort.
     PDR on Remand at 15, 21. Neither party offered evidence, such as a corrective action form
     or change of status form, supporting the notion that CalPortland terminated
     Thomas based on his PFD misconduct.

However, even if the company had fired Thomas for his PFD conduct,
there is sufficient evidence in the record that supports CalPortland’s
decision as a legitimate business justification. In fact, contrary to the
Judge’s summary of McMillan’s testimony in this regard (see 43 FMSHRC at
546–47), McMillan testified that Inspector Johnson told Thomas that he could be
fined for the violation and that “ it could be a fireable offense ,”
although unlikely given Thomas’s good safety record. Tr. 62 (emphasis added). Additionally,
based on a review of the mine’s violation history, this was by far the most
serious violation the company had dealt with up to that point. Finally, Demers
testified that b ased on Thomas’s comments during the investigation, he believed
that Thomas was not taking his unsafe conduct seriously and did not think it
was important. [13] Tr. 398; see also Tr. 176-77
(Thomas testifying that working without his PFD was “not a big deal.”).

The Judge also stated that Thomas had a 16-year
career at CalPortland with a clean safety record and without indication of
previous violations of this kind. 43 FMSHRC at 548. However, this finding is
contrary to record evidence demonstrating prior disciplinary problems. In
particular, the record reflects that Thomas had been involved in a
disciplinary incident in 2012, where he received a verbal warning, as well as a
three-day suspension for violating company work rules after it was determined
that he lied to government and CalPortland officials during an investigation
involving his prior misconduct. Decl. of Laiho, Ex. L; CalPort. Mot. in Lim. at
2-3; Tr. 203-04. While
evidence of this prior disciplinary incident was introduced into the record via
pleadings prior to hearing, the Judge refused to allow any testimony about the
matter on the grounds that it had occurred six years prior and was “not
relevant and highly prejudicial.” Tr. 203-04, 311-13, 397-98.

The Judge’s
exclusion of this evidence was an abuse of discretion. Commission
Procedural Rule 63(a) states that “[r]elevant evidence … that is not unduly
repetitious or cumulative is admissible.” 29 C.F.R. § 2700.63(a). A finding of
pretext is even more unlikely where there is evidence of “past discipline
consistent with that meted out to the alleged discriminatee, the miner’s
unsatisfactory past work record, prior warnings to the miner, or personnel
rules or practices forbidding the conduct in question.” Bradley , 4
FMSHRC at 993.

A miner’s behavior
during a post-violation investigation is just as relevant as the behavior that
led to the investigation, particularly in the context of analyzing whether the
company had justifiable reasons for terminating his employment. In the prior
incident, not only was Thomas disciplined for making false statements to
government investigators and failing to cooperate with an investigation, which
was also a violation of company policy, he was specifically warned that such
behavior could lead to termination in the future. [14] Decl.
of Laiho – CalPort. Ex. L at 1 . Therefore, because Thomas’s conduct surrounding the
investigation was a significant factor in this case of alleged discrimination,
it was improper for the Judge to exclude evidence of prior disciplinary
problems and limit the universe of relevant conduct to safety related
violations only.

Finally, the Judge found CalPortland’s claim that Thomas
voluntarily resigned to “be feeble.” 43 FMSHRC at 546. We, again, do not agree.
Thomas went a total of seven days refusing
to communicate with his employer and failing to provide a compelling excuse for
his absence. CalPortland introduced evidence
that its HR department processed Thomas’s exit from the company as a voluntary
resignation – consistent with its “personnel rules [and] practices” forbidding
employees from being absent for three or more consecutive workdays. Bradley ,
4 FMSHRC at 993 ; CalPort. Exs. FF at 3, R, U. Thomas
on the other hand did not introduce evidence that CalPortland’s Attendance
Policy was not enforced against other employees who refused to communicate or
that the policy was not enforced in general. See Ritenour v.
Tennessee Dep’t of Hum. Servs ., 497 Fed. App’x 521, 533 (6th Cir. 2012).

In summary, record evidence demonstrates that CalPortland
responded to Thomas’s failure to wear a PFD, which resulted in an unwarrantable
failure citation, by suspending him pending an investigation. When Thomas
refused to communicate, despite CalPortland’s repeated attempts to reach him,
the operator terminated him as a voluntary resignation under its attendance
policy. Thomas failed to present any evidence that this rationale for his
termination was not legitimate. Therefore, the Complainant failed to meet his
burden of establishing pretext.

III.

Conclusion

If Thomas had not made safety complaints to
Demers, if he had not spoken with Inspector Johnson regarding his PFD
violation, and if he had not filed a discrimination claim on February 13, the
record demonstrates that Thomas still would have been suspended for his PFD misconduct and later processed out as a voluntary
resignation for his refusal to communicate with his employer after January 31. CalPortland
has also produced evidence articulating a legitimate, nondiscriminatory reason
for the adverse actions, and Thomas is unable to show pretext.

We conclude that Thomas has failed to meet the burden
of proof set forth in the 9th Circuit’s remand decision. That is, he was unable
to show that, but for his protected activity, he would not have been suspended
or terminated. In fact, Thomas failed to prove that his discharge was in any
way caused by any protected activity. Thus, the Judge’s finding of
discrimination is not supported by substantial evidence. For the reasons set
forth above, we again reverse the Judge’s finding of discrimination and dismiss
this case.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I.
Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

Brian P. Lundgren, Esq.

Jackson Lewis P.C.

520 Pike Street, Suite 2300

Seattle, WA 98101

[email protected]

Colin F. McHugh, Esq.

Navigate Law Group

1310 Main Street

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]

Emily Toler Scott, Esq.

Senior Trial Attorney

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Susannah M. Maltz, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

[1] 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).
The Commission’s Pasula-Robinette test is described infra . Slip
op. at 3 n.3.

[2] 30
U.S.C. § 815(c)(3) states that:

Within 90 days of the
receipt of a complaint filed under paragraph (2), the Secretary shall notify,
in writing, the miner . . . of his determination whether a violation has
occurred. If the Secretary, upon investigation, determines that the provisions
of this subsection have not been violated, the complainant shall have the right,
within 30 days of notice of the Secretary’s determination, to file an action in
his own behalf before the Commission, charging discrimination or interference
in violation of paragraph (1).

[3] The Pasula-Robinette
framework is a burden shifting test that requires a complainant to prove a
prima facie case of discrimination and then provides operators an opportunity
to rebut that case or provide an affirmative defense. Sec’y of Labor on
behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799-2800 (Oct.
1980), rev’d on other grounds sub nom; Consolidation Coal Co. v. Marshall ,
663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v.
United Castle Coal Co. , 3 FMSHRC 805, 817-18 (Apr. 1981).

[4] Gross v. FBL Fin.
Servs .,
557 U.S. 167, 176-78 (2009); Univ. of Sw. Tex. Med. Ctr. v. Nassar , 570
U.S. 338, 347-48 (2013); Burrage v. United States , 571 U.S. 204, 212-17
(2014); Bostock v. Clayton Cnty ., 590 U.S. 644, 656 (2020).

[5] In this case, the
Commission applies the but-for standard at the direction of the Ninth Circuit. Pasula-Robinette
remains the standard in cases arising under other jurisdictions. Riordan v.
Knox Creek Coal Corp. , 38 FMSHRC 1914, 1920 (Aug. 2016); Sec’y of Labor
on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799-2800
(Oct. 1980), rev’d on other grounds sub nom ; Consolidation Coal Co.
v. Marshall , 663 F.2d 1211 (3d Cir. 1981); Robinette , 3 FMSHRC at
817-18.

[6] As a general
evidentiary matter, a finding of discrimination under either “but-for” or Pasula-Robinette
still turns on a finding of causation. Accordingly, many of the same categories
of evidence, such as animus and disparate treatment, may remain relevant as
circumstantial evidence of a causal nexus.

[7] We also note that the
Judge made several highly questionable credibility determinations. Among them,
she generally found that Demers and McAuley were not credible
witnesses, describing Demers
as “rehearsed and disingenuous in his statements.” 43 FMSHRC at 545-48. However,
there were very few instances where the witnesses’ testimonies conflicted, and nearly
all the witness testimony was consistent regarding the material facts. Additionally,
much of Demers’s and McAuley’s testimony went undisputed. Nevertheless, because
CalPortland’s evidence consisted of more than the testimonies of Demers and
McAuley, we need not disturb the Judge’s credibility determinations.

[8] On remand,
counsel for Thomas similarly described the investigative meeting as “coercive” and
an “interrogation.” Thomas Resp Br. on Remand 22-23. This conflicts with Thomas’s
previous argument that CalPortland’s investigation was inadequate because CalPortland
concluded the “alleged interview” after asking only “one question.” Thomas Post-Hearing
Br. at 11; Thomas 1st Resp. Br. at 33. The argument on remand is tenuous at
best given that “one question” hardly equates to a “coercive interrogation.”

[9] Commission
Procedural Rule 63(a) explicitly permits hearsay
evidence “that is not unduly repetitious or cumulative.” 29 C.F.R. § 2700.63(a);
Sec’y on behalf of Greathouse v. Monongalia County Coal Co ., 40 FMSHRC
679, 703 (June 2018); Mid-Continent Res., Inc., 6 FMSHRC 1132, 1135 (May
1984) .

[10] Judges are
granted broad discretion to decide what is, and is not, relevant to their
deliberations regarding a case. Shamokin Filler Co., Inc. , 34 FMSHRC
1897, 1906-08 (upholding Judge’s exclusion of evidence that was of “limited
probative value” and would have “consum[ed] an inordinate amount of time.”). However,
the Judge acts unreasonably and unfairly when she precludes a party from
presenting evidence because it is irrelevant and then makes a substantial
finding that is predicated on the lack of such evidence. See In re: Contests
of Respirable Dust Sample Alteration Citations , 17 FMSHRC 1819 (Nov. 1995),
citing Phil Crowley Steel Corp. v. Macomber, Inc. , 601 F.2d 342, 344
(8th Cir. 1979) (An ALJ’s decision to include or exclude evidence “will usually
not be disturbed unless it results in undue prejudice or fundamental
unfairness”).

[11] Although
the Judge refused to admit Thomas’s deposition at hearing, which showed his
inconsistent testimony, the relevant evidence entered the record prior to
hearing. See Decl. of Laiho, Ex. A, Thomas Depo. at 175-77.

[12] In reviewing a Judge’s
credibility determination, we may “‘refuse to follow [it] where it conflicts
with well supported and obvious inferences from the rest of the record. Such
refusal is particularly justified where the testimony in question is given by
an interested witness and relates to his own motives.”’ Arch of Illinois ,
21 FMSHRC at 1391, citing NLRB v. Elias Bros. Big Boy, Inc ., 327 F.2d
421, 425-26 (6th Cir. 1964) (quoting NLRB v. Pyne Molding Corp ., 226
F.2d 818, 819 (2nd Cir. 1955)).

[13] According to CalPortland’s
Disciplinary Policy, Sec. 2.4: “Non-compliance and/or disregard of the Company
safety programs, policies, and provisions set [forth] may result in
disciplinary action based on the Company disciplinary policy.” CalPort. Ex. CC
at 18.

[14] On the Corrective
Action Form suspending Thomas for three days for failing to fully cooperate
with an investigation and for lying in 2012, under “Supervisor Comments,” it
states:

The company has the right to require the
full cooperation from all employees during an investigation. Refusal to
cooperate, false answers or misrepresentations is grounds for disciplinary
action including terminations. Dishonesty is a serious violation of company
work rules.

Decl. of Laiho, Ex. L at 105, 111. Thomas also
testified that he was aware that CalPortland required employees to participate
in company investigations and that he had been warned previously that lying
would not be tolerated in the future. Tr. 203-04.