Robert Thomas v. CalPortland Company and Secretary of Labor v. CalPortland Company

Read the official release (fmshrc.gov)

Plain-English summary

Robert Thomas worked as a dredge operator for CalPortland and raised concerns about excessive hours, understaffing, training, and safe work on the Sanderling Dredge. On remand from the Ninth Circuit, Judge Margaret A. Miller applied but-for causation and again found that Thomas's protected safety activity caused his suspension and termination. She found CalPortland's investigation and stated reasons pretextual, including its reliance on a personal-flotation-device incident and characterization of Thomas's absence as voluntary resignation. The judge ordered reinstatement, restored $76,185.67 in back pay and lost benefits plus interest, restored $74,852.05 in attorney fees, required updated awards through reinstatement, and conditionally ordered payment of a $17,500 civil penalty. The Commission reversed in 2024, but the Ninth Circuit later vacated that decision, and the Commission remanded in 2025 to calculate damages and interest.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 803, 815(c)(1), and 815(c)(3)
• Outcome: Discrimination was found under the but-for standard, with reinstatement, back pay, attorney fees, corrective relief, and a conditional $17,500 penalty ordered.
• Subsequent review: The 2024 Commission reversal was later vacated by the Ninth Circuit, and the Commission remanded for damages in west-2018-0402-commission.
• Key point: The judge found that protected safety activity was a but-for cause of discharge even if another workplace incident also contributed to the decision.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721 19th St., Suite 443

Denver, CO 80202-2500

Office: (303)
844-5266/Fax: (303) 844-5268

ROBERT
THOMAS,                                            :            DISCRIMINATION
PROCEEDING

Complainant,                    :

:     Docket
No. WEST 2018-0402 DM

v.                                                   :    

:    

:

CALPORTLAND
COMPANY,                           :     Mine: Sanderling Dredge

Respondent.                      :     Mine
ID: 45-03687

:

:

SECRETARY
OF LABOR,                                 :     CIVIL PENALTY PROCEEDING

MINE
SAFETY AND HEALTH                        :

ADMINISTRATION,
(MSHA),                         :     Docket No. WEST 2019-0205

Petitioner,                         :     MSHA
Case No. WE-MD-2018-06

:

v.                                                   :

:

CALPORTLAND
COMPANY,                           :     Mine: Sanderling Dredge

Respondent.                      :     Mine
ID: 45-03687

DECISION AND ORDER

Appearances:  Colin F. McHugh,
Navigate Law Group, Vancouver, WA, for Complainant;

Brian P.
Lundgren & Erik M. Laiho, Davis Grimm Payne & Marra, Seattle, WA, for
Respondent.

Before:                        Judge
Miller

These
cases are before me on an order of remand issued by the Commission on June 11,
2021. The cases arise out of a complaint of discrimination brought by Robert
Thomas against CalPortland Company (“CalPortland”), pursuant to Section 105(c)
of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §
815(c) (the “Mine Act” or the “Act”). Thomas alleges
that he was discharged from his employment at the mine because of his
participation in an MSHA investigation and because of safety and task-training
complaints he made to his immediate supervisor. In the initial decision, I found
that Calportland discriminated against Thomas in violation of Section 105(c) of
the Act. The case was appealed to the Commission and subsequently to the Ninth
Circuit.  The Commission then remanded this case with directions to apply the
updated standard of review outlined by the Ninth Circuit in Thomas v.
CalPortland Co ., 993 F.3d 1204, 1208-09 (9th Cir. 2021). Considering
all the evidence and testimony under this new standard, I find that Thomas was
discharged in violation of the Act and is entitled to back pay and other
relief.

I.       FACTUAL FINDINGS

The findings of fact detailed below
are based on the record as a whole and my careful observation of the witnesses
during their testimony. My credibility determinations are based in part on my
close observation of the witnesses’ demeanors and voice intonations. In
resolving any conflicts in testimony, I have taken into consideration the
interests of the witnesses, corroboration or the lack thereof, and
consistencies and inconsistencies in each witness's testimony and among the
testimonies of the various witnesses. Any failure to provide detail on each
witness's testimony should not be deemed a failure to have fully considered it.
The fact that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel , 212 F.3d 433, 436 (8th Cir. 2000).

CalPortland is the owner and
operator of the Sanderling Dredge, a 220-foot dredge that operates on the
Columbia River near Vancouver, Washington. The Sanderling—which extracts sand
and other minerals from the riverbed and transports it to a separate, landbound
facility—is classified as a surface mine and is regulated as such under the
Mine Act. 30 U.S.C. § 803. Robert Thomas was an employee of CalPortland from
March 7, 2002, through the beginning of 2018, and he worked as a dredge operator
for the company in Oregon and Washington. Jt. Stips. ¶¶ 1.1 and 2.1. His
discharge from employment at the mine is the subject of this case.

Thomas worked at CalPortland
without any safety incident for sixteen years. He first worked as a deck hand before
becoming a dredge operator in 2015. In the latter role, he routinely operated
the Sanderling Dredge. The Sanderling is typically operated by two persons on
the barge: a dredge operator and a deck hand. The Sanderling is aided in its
movement by a towboat, the Johnny Peterson, which was manned by a captain and
sometimes a deck hand that are both employed by a contractor. The captain and
deck hands connect the towboat to the dredge each day to transport the dredge
up and down the Columbia River. For the most part, the Sanderling dredge is
docked in Vancouver, Washington. A usual run for the dredge includes a
four-hour journey in one direction on the river, and then several hours
retrieving sand from the river bottom and unloading the sand before returning
to port. Repairs and maintenance are done on the dredge often while it is
traveling on the river.

The miners who work on the
Sanderling dredge typically arrive in the early morning around 5 a.m. to do
maintenance work to prepare for the day. The captain of the towboat arrives
shortly thereafter to connect the towboat to the dredge and begin the day’s
trip on the river. Typically, the Sanderling does one load during the day and
returns to the dock around 5 p.m. Occasionally, when the dredge travels farther
on the river, it returns around 8 p.m. It is not unusual for the miners to work
12 hours per day and sometimes as much as 80 hours per week. During January
2018, Thomas was the dredge operator, and he worked on the Sanderling with Joel
McMillan, an experienced deck hand. Roger Ison captained the towboat, the
Johnny Peterson.

A.    
Understaffing
and Thomas’s complaint to management

In the months leading up to the
events at issue here, Thomas, McMillan, and other CalPortland employees were
required to work long hours, working 16-hour days and sometimes around 80 hours
per week. These long hours began in January 2017, when the operation of the
dredge changed from two daily shifts (day and night) to a single day shift.

The long hours eventually started
to wear on the miners. Both Thomas and McMillan testified that understaffing and
excessive hours affected their sleep and diminished their performance on the
job. Tr. 39-42, 119. Thomas was concerned that his lack of sleep was impacting
his ability to remain responsive and alert at work. Working on the dredge
presented its own unique challenges and safety issues, and Thomas became
concerned that the job “was getting to be a hazard with not having enough
sleep.” Tr. 119.

Thomas conveyed his concerns to
marine manager Dean Demers on two occasions. First, he contacted Demers in
October 2017 and relayed his discomfort with the long hours. Tr. 120. Then, in
November 2017, both Thomas and McMillan confronted Demers in person and asked
for additional help on the Sanderling to avoid the long days and subsequent
unsafe conditions. Tr. 42-43, 120-121. Demers responded to these complaints by
saying that he “was working on it,” but that he had a lot on his plate at the
time. Tr. 120-21.

Over time, Demers, who was
relatively new to the Sanderling, attempted to address the miners’ concerns by
bringing in personnel from CalPortland’s other operations to fill shifts on the
Sanderling. However, the practice resulted in an exchange of one problem for
another. Many of the transferees were previously rock barge workers, who did
not have experience with the tasks performed on the dredge and who were
unfamiliar with MSHA regulations. Tr. 121, 363. Despite their lack of
familiarity with the dredge, Demers did not assign the transferees to shadow
the more-experienced crew members. Instead, crew members like Thomas were
expected to operate the dredge single-handedly while simultaneously training
the transferees on deckhand duties. Tr. 44, 122. Thomas and McMillan were not
satisfied with this arrangement. In essence, the experienced dredge employees
were being asked to perform additional duties (training the transferees) on top
of their already-exacting jobs, and the transferees were not receiving adequate
training because Thomas and McMillan were overstretched. So, when Demers asked
Thomas to certify that the transferees had received sufficient task training,
Thomas refused to sign off.  Tr. 122. For the most part, Demers was the one who
signed off on the task training, even though he did not conduct the training
himself and was not present when the training occurred. 

Thomas
and McMillan agreed at hearing that in the year leading up to Thomas’s
termination, the Sanderling dredge was understaffed. Demers stepped in to help
occasionally when they were shorthanded or when one of the crew members was out
on leave. While no testimony was presented as to how Demers felt about stepping
in to help, he did have a disagreement with Thomas about sick time in November
2017. Thomas had requested a sick day and received push-back from Demers. McMillan
testified at hearing that, immediately following that disagreement, Demers
indicated to him that “Rob Thomas was done, he was fucking done at CalPortland.”
Tr. 48.

B.    
The events
of January 24, 2018

On
the afternoon of January 24, 2018, the Sanderling Dredge had completed a run to
CalPortland’s Blue Lake facility and was headed back downstream on the Columbia
River to return to port in Vancouver, Washington. Thomas and McMillan manned
the Sanderling that day, and Roger Ison captained the Jonny Peterson towboat.

As
the dredge approached Vancouver, Thomas and McMillan were working to replace a
malfunctioning valve. They used air wrenches to remove the bolts and extracted
the valve from in between the pipes to lower the valve onto the deck. See
Compl. Ex. 14 (showing the bow of the Sanderling dredge, where the valve was
changed out). Thomas stood on the ladder to help lower the valve down from its
position. Thomas and McMillan testified that they were both wearing their
personal flotation devices (PFDs) during the change out. Tr. 55, 125. Thomas then
used an acetylene torch to work on a part needed for the valve replacement. Tr.

131. Hoping to avoid heat damage to his personal flotation device, Thomas
     removed his PFD “for seven to nine minutes” while using the torch. Tr. 131; see
     also tr. 24, 62.

As
the two miners worked to replace the valve, Roger Ison noticed that the
transmission on the Johnny Peterson’s portside motor was malfunctioning, which
drastically hampered the towboat’s steering capability. Ison radioed the
workers on the Sanderling and notified them that the transmission had gone out.
Thomas had just finished his work with the acetylene torch, and he quickly put
on his PFD before going to assist McMillan in addressing the transmission
issue. Tr. 57-58, 134. It was at this juncture that the miners noticed the MSHA
inspector standing up on the dock, about 200 or 300 yards upriver. Tr. 57.

From
the dock, Inspector Johnson called out and asked if it was company policy to not
wear a PFD. Thomas responded that CalPortland’s policy requires miners to wear
PFDs. Once in port, Thomas admitted to Inspector Johnson that he had not worn
his PFD for a short period while operating the cutting torch at the welding
table in the middle of the deck. Tr. 136-38. McMillan testified that he
corroborated this with the inspector during their January 24 conversation and
told the inspector that he had only seen Thomas without his PFD while Thomas
was at the center of the ship (far from the edges) using the cutting torch. Tr.

62. Thomas also indicated that he and McMillan had been on the ladder while
    working that day, and that they had been on the ladder up to the third rung. Tr.
    137.

Following
his conversation with the miners, Inspector Johnson asked to speak to a
supervisor, so Thomas called Demers, who was working at a different location. Tr.
137-38. After some discussion with Demers, Thomas handed the phone to the
inspector. Demers was aware that Thomas had provided information to the
inspector prior to handing over the phone. Tr. 138. After hanging up, Inspector
Johnson completed his inspection of the barge with Thomas, finding no
additional violations. Tr. 138. The inspector then issued a Section 104(d)
citation to CalPortland for a miner failing to wear a safety device or be tied
off while working on the open portion of a dredge. See Resp. Ex. I. Inspector
Johnson told the miners that he probably would not have issued the citation if
the workbench was more than twenty feet from the edge of the barge (instead of
eighteen) and that he did not expect Thomas to be fired for this infraction
given his track record of safety. Tr. 62-63.

Thomas
returned to work around 6 a.m. the next morning and began to repair the
transmission on the dredge. Dean Demers arrived shortly after 7:30 a.m. Demers
accompanied Thomas and McMillan to the dredge’s engine room and conducted a
refresher PFD training to terminate the citation. Following the training,
Thomas explained to Demers that he was not on the ladder without his PFD and
that no one on board had witnessed him on the ladder without his PFD. Tr.
139-40. McMillan agreed with Thomas’s statement, adding that he was the one who
had used the ladder to return the valve. Tr. 66. At around 8:30 a.m., Inspector
Johnson returned to the dock area and met with Demers to discuss the previous
day’s violation. Thomas joined the meeting so that he could respond to further
questioning by Inspector Johnson. Once the inspector left the dock, Thomas
returned to work.

C.    
CalPortland
begins an investigation into the violation

Later
in the morning on January 25, Demers met with Dave McAuley, CalPortland’s
regional operations manager, and the two men decided to suspend Thomas without
pay pending further investigation into the incident. Tr. 295-96. Following that
decision, Demers called McMillan to tell him he was coming down to the dredge
to “get rid of” Thomas. Tr. 67. At about 10:30 a.m., Demers pulled up to the
dock and suspended Thomas. Thomas asked Demers if he was being fired, and
Demers said no. Tr. 142. Thomas then gathered his things and punched out for
the day.

On
the morning of January 26, Demers contacted Thomas and asked him to provide a
written statement about the incident that led to the citation. Thomas prepared
and emailed his statement to Demers on January 28. See Compl. Ex. 19. Demers
also requested that Thomas come into the CalPortland offices on Monday, January
29 at 8 a.m. When Thomas arrived on Monday morning, he met with Demers and Jeff
Woods, the safety manager. Demers proceeded to read the narrative portion of
the MSHA citation aloud to Thomas. After hearing what the inspector had
written, Thomas asserted that the inspector’s statement was not correct. Woods
followed up with aggressive questioning regarding Thomas’s PFD usage. Tr. 145. Demers
admitted at hearing that these questions were “pointed.” Tr. 385. Thomas tried
to explain further but, at some point, felt it was not productive to respond to
Woods’ follow-up questions. Woods left the meeting, and Demers asked Thomas to
fill out an employee incident report. Thomas complied and submitted an
additional, lengthier statement later that day at CalPortland’s request. See
Compl. Ex. 22. At some time that same day, McMillan was also asked to complete
an employee incident report. See Compl. Ex. 5.

Later,
the same day, Demers and McAuley met with Candy Strickland, a human resources
manager, in order to seek advice on next steps. In their view, Thomas had
become uncooperative with the investigation when he failed to respond to the
last questions Woods had asked. McAuley noted at hearing that it was unusual to
involve Strickland at this point, but he insisted that no disciplinary
decisions had been made at that time. Tr. 304-05. However, shortly after the
meeting ended, Demers sent Strickland a corrective action form that contained
Demers’ recommendation that Thomas be fired from his employment for violating
the PFD rule and for his lack of cooperation with the company investigation. See
Resp. Ex. N.

D.    
Demers
sends an email containing a corrective action form

Early
in the morning on January 31, Robert Thomas received a call from his colleague,
Roger Ison. Ison told Thomas to check his email. Upon opening his CalPortland
email, Thomas saw a message from Dean Demers—addressed to all of Thomas’s
coworkers and other contractors—with an attached corrective action form. The
form included Thomas’s name, underscored, at the top. Directly under his
personal information was a section titled Record of Counseling with a tick mark
next to word “TERMINATION.” Resp. Ex. N 4-6.

Thomas
believed that the email was sent as a notice of termination. Tr. 149, 154. He
had awoken with the intent to attend a meeting that Demers had scheduled, but
after seeing the email he sent Demers a text message indicating that he would
not be in attendance for the meeting. Tr. 155.  Later that day, Thomas hired an
attorney. Tr. 155.  

The
next morning, February 1, Thomas received a call on his personal phone from
McAuley. Thomas did not recognize the number, but he asked his stepdaughter to
return the call on his behalf to determine who had called. She hung up when
McAuley identified himself on speaker phone. With his stepdaughter in the room,
Thomas called McAuley back and said, “[y]ou have no business calling me on my
personal phone, I don’t know how you got it, you need to contact my attorney.” Tr.

157. McAuley denied at hearing that Thomas mentioned an attorney during the
     February 1 phone call, but Thomas and his stepdaughter remember it being a part
     of the conversation. Tr. 97-98. Immediately following the phone call with
     Thomas, McAuley contacted Strickland to discuss the matter. Together they
     determined that the issue of Thomas’ employment was now one for human resources
     to address.  

E.    
CalPortland
initiates the “voluntary resignation” process

On
February 2, human resource manager Candy Strickland spoke with a CalPortland HR
supervisor about Robert Thomas’s employment. Tr. 454. She was advised to begin
the process of “voluntary resignation” based on a violation of the company’s
attendance policy. Tr. 454-55. At this point, Thomas remained on suspension and
believed he had been terminated based upon the email he received from Demers. He
had not been asked to return to work. Nevertheless, Strickland initiated the
voluntary resignation process and drafted a letter to Thomas indicating that,
if he did not contact company representatives by February 8, CalPortland will
consider Thomas as “voluntarily resigned.” [1]
Resp. Ex. R. at 2.

Meanwhile,
Robert Thomas had directed his attorney to notify Demers and CalPortland about
Thomas’s intent to file a claim of discrimination against the company. The
letter was dated February 2, 2018. At hearing, Demers asserted that he did not
receive the letter from Thomas’s attorney until February 13, 2018. He did not,
however, indicate when he first learned that Thomas had hired an attorney.

MSHA
special investigator Diane Watson contacted Dean Demers on February 5, 2018. She
told Demers that MSHA would not be opening a separate investigation against
Thomas, that she understood he had been fired, and that he may be pursuing a
legal claim against the company. Demers noted at the time that Thomas had hired
an attorney and that he intended to file a “discrimination lawsuit.” Compl. Ex.

61. Nevertheless, it seems that CalPortland did not make any attempts to
    contact Thomas’s attorney before the February 8 “voluntary resignation”
    deadline.

Strickland
did not hear back from Thomas, and she sent him a second letter, dated February
9, to notify him of his voluntary resignation. CalPortland asserts that Thomas
abandoned his employment and voluntarily resigned effective February 8, 2018. Thomas
filed his written discrimination complaint with MSHA on February 13, 2018. Joel
McMillan testified that, at a later point in time, Dean Demers told McMillan,
“I got rid of Rob.” Tr. 71.

II.    PROCEDURAL POSTURE

Robert Thomas’s discrimination case
began nearly four years ago when he filed a complaint of discrimination with
MSHA on February 13, 2018. MSHA declined to prosecute Thomas’s discrimination
claim after the agency’s investigation, and so Thomas retained independent
counsel and initiated his own complaint of discrimination against CalPortland before
the Commission on May 23, 2018, pursuant to section 105(c)(3) of the Mine Act. See
30 U.S.C. § 815(c)(3).

The parties presented testimony and
documentary evidence at a hearing commencing on September 4, 2018, in Portland,
Oregon. After considering the parties’ evidence and arguments, I issued a
decision on December 10, 2018, sustaining Thomas’s charge of discrimination and
ordering reinstatement and other relief for Thomas. 40 FMSHRC 1503 (Dec. 2018).
My analysis was conducted under the Commission’s well-established Pasula-Robinette
framework for discrimination cases. Sec’y on behalf of Robinette v. United
Castle Coal Co. , 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y on behalf of
Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799-2800 (Oct. 1980). I found
that Thomas had successfully established his prima facie case of discrimination
by a preponderance of the evidence by showing that he engaged in protected
activity and that the adverse action complained of was motivated at least in
part by that activity. See 40 FMSHRC at 1513. I also found that both
McAuley and Demers were not credible witnesses when it came to discussing the
incidents with Thomas.  Further, CalPortland failed to rebut Thomas’s prima
facie case by showing either that no protected activity occurred or that the
adverse action was in no part motivated by that activity. Id . at 1512. Finally,
CalPortland failed to establish an affirmative defense that its adverse action
was also motivated by the miner’s unprotected activity and that the company
would have taken the action for the unprotected activity alone. Id . at
1513.

CalPortland filed a petition for
discretionary review with the Commission, and the Commission granted review on
January 17, 2019. After oral argument, the Commission reversed the original
decision and dismissed the case on January 29, 2020. Thomas v. CalPortland Co. ,
42 FMSHRC 43 (Jan. 2020). Dismissal was proper, according to the Commission,
because the substantial evidence did not sustain Thomas’s prima facie case of
discrimination. Id . To reach that conclusion, the Commission performed
an extensive reevaluation of the facts of the case and departed from the factual
findings and credibility determinations in the original decision.

Thomas then filed a petition for
review with the United States Court of Appeals for the Ninth Circuit. Thomas
argued on appeal that the Commission improperly disregarded the ALJ’s findings.
CalPortland countered that the Pasula-Robinette standard of review
should no longer apply to 105(c) discrimination cases because it is out-of-step
with current Supreme Court case law. On April 14, 2021, the Ninth Circuit granted
review and rejected the Pasula-Robinette framework. Thomas v.
CalPortland Co ., 993 F.3d 1204 (9th Cir. 2021). The Ninth Circuit determined
that, not only did the Commission improperly ignore the facts found by the ALJ,
but that the Mine Act’s prohibition of discrimination against a miner “because”
of protected activity denotes that the miner must prove discrimination based on
a “but-for” causation standard. Id . at 15. The Ninth Circuit remanded
the case to the Commission for further proceedings consistent with the new
standard of review. Id .

The Commission, in turn, remanded
the case to my docket on June 11, 2021 “for reconsideration of Mr. Thomas’
claim of discrimination under the ‘but-for’ causation standard consistent with
the Ninth Circuit’s decision.”  Order of Remand, Thomas v. CalPortland Co .,
43 FMSHRC ___, slip op. at 2, No. WEST 2018-0402-DM (June 11, 2021). The
parties were given the opportunity to submit additional post-remand briefing on
the new legal issues at play.

III.  ANALYSIS

Section 105(c)(1) of the Mine Act
prohibits a mine operator from discharging a miner, discriminating against him,
or interfering with the exercise of his statutory rights “because . . . he has
filed or made a complaint under or related to this Act, including a complaint
notifying the operator . . . of an alleged danger or safety or health
violation” or “because of the exercise of such miner . . . of any statutory
right afforded by this Act.” 30 U.S.C. § 815(c)(1).  Congress intended for the
protections of section 105(c) “to be construed expansively to ensure that
miners will not be inhibited in any way in exercising any rights afforded” by
the Mine Act. S. Rep. 95-181, at 36 , reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legis. History of the Federal
Mine Safety and Health Act of 1977, at 624 (1978) (hereinafter Leg. Hist .).

A.     The Ninth Circuit’s decision

For nearly four decades, a claim of
discrimination under the Mine Act was proven using the Pasula-Robinette
burden-shifting framework. First, the complainant was tasked with establishing
a prima facie case of discrimination by proving that he engaged in protected
activity and that an adverse action was motivated, at least in part, by that
activity. Then, once the prima facie case had been established, the burden
shifted to the operator to show either that no protected activity occurred or
that the adverse action was in no part motivated by the protected activity. If
unable to rebut the prima facie case in this manner, the operator was still
able to offer an affirmative defense that the adverse action was also motivated
by the miner’s unprotected activity and that the operator would have taken the
adverse action against the miner for the unprotected activity alone. Pasula ,
2 FMSHRC at 2799; Robinette , 3 FMSHRC at 817-18, 818 n.20.

Recently, the Ninth Circuit turned this
longstanding precedent on its head. The Court decided that the text of the Mine
Act requires a judge to apply a “but-for” causation standard to a claim of
discrimination under the Act, rather than the “motivated in part” standard
previously adopted by the Commission. Thomas , 993 F.3d 1204, 1210 (9th
Cir. 2021).

A three-judge panel relied on a
line of recent U.S. Supreme Court decisions interpreting various federal laws that prohibit discrimination “ because of ” a protected
status or activity. In Gross v. FBL Financial Services , the Supreme
Court announced, for the
first time, that this statutory language (“because of”) requires a judge
to ask whether the protected status or activity was a but-for cause of the
alleged adverse action . 557
U.S. 167, 174-80 (2009). Later cases helped flesh out the standard of
proof under this but-for test. A plaintiff must “show that the harm would not
have occurred in the absence of . . . the defendant’s conduct.” Univ. of
Tex. Sw. Medical Center v. Nassar , 570 U.S. 338, 346-47 (2013). An outcome
can have “multiple but-for causes,” and “a defendant cannot avoid liability
just by citing some  other  factor that contributed to its
challenged employment decision” once a plaintiff shows that the defendant’s illicit
motive was indeed one cause of the outcome. Bostock
v. Clayton Cty. ,
140 S. Ct. 1731, 1739 (2020) .

Based on this
precedent, the Ninth Circuit held that the plain language of the Mine
Act—barring discrimination “because” a miner has engaged in protected
activity—similarly requires a court to apply a but-for test. The Ninth Circuit determined that
this interpretation is unambiguous, and therefore the Court did not consider
the agency’s view [2]
under Chevron v. National Resources Defense Counsel . Id . at 1211
(citing Chevron , 467 U.S. 837 (1984) (holding that a court must only
defer to an agency’s interpretation of statutory text when the ordinary meaning
of the text is ambiguous)). The application of this new but-for test was left
to the Commission and its courts.

B.     The prima facie case and burden
shifting

It is clear that the Ninth Circuit
has announced a new substantive standard for discrimination under section
105(c) of the Mine Act.  Less clear, however, is how this new standard
interacts with the Commission’s discrimination case law.

It is
important to leave as much of the FMSHRC discrimination framework intact as
possible, for three reasons. First, any Commission precedent that is consonant
with the “but-for” causation analysis remains binding upon this court under the
doctrine of stare decisis —a doctrine that promotes consistency and
predictability for miners alleging discrimination as well as mine operators. Second,
the discrimination framework has been carefully crafted to encourage miners’
free engagement in protected activities without fear of reprisal. This was
Congress’s intent when drafting section 105(c) of the Mine Act, and it remains
an important consideration for judges interpreting the Act. See S. Rep.
95-181, at 36, reprinted in Leg.
Hist . at 624. Finally, it is noteworthy that the Secretary is not party
to this case and has not had an opportunity to interpret the statute in light
of the Ninth Circuit’s decision. [3]

Therefore, instead of dispensing
with the traditional prima facie case and burden shifting, this Court aims to
clarify how such a process fits with the discrimination standard articulated by
the Ninth Circuit. This clarification process will draw from longstanding
Commission precedent and will make only subtle modifications to the existing
test, to ensure that it aligns with other employment-discrimination regimes
that have been sanctioned by the U.S. Supreme Court. [4]

The Commission has defined a prima
facie case as “the establishment of a legally required rebuttable presumption”
and as “a party's production of enough evidence to allow the fact-trier to
infer the fact at issue and rule in the party's favor.” Turner , 33
FMSHRC at 1065 (internal citations omitted). In essence, the complainant has an
opportunity to make a case of first impression that would allow the court to
find in his favor, absent countervailing evidence from the respondent.

The prima facie case is a vital
instrument in the context of employment discrimination. Direct evidence of
intentional discrimination is rare, and the employer is best situated to
present evidence of its own decision-making. See Sec’y of Labor on behalf of
Johnny Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov. 1981) (“It
would indeed be the unusual case in which the link between the discharge and
the [protected] activity could be supplied exclusively by direct evidence.”) (Internal
citations omitted); Pasula , 2 FMSHRC at 2800 (“[I]t is the employer who
is in the best position to prove what he would have done.”). The prima facie concept
allows a miner to advance a case based on indirect evidence of discrimination,
therefore helping to level the playing field between employer and employee.

After the complainant proves his
prima facie case, the burden of production shifts to the employer. Cf.
McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). The employer is
tasked with offering evidence rebutting the employee’s prima facie case of
discrimination. In the Title VII context, this requirement is rather minimal. The
employer must only introduce legitimate evidence that, if taken as true, would
permit the conclusion that the employer did not discriminate. Cf. St. Mary’s
Honor Ctr. v. Hicks , 509 U.S. 502, 507 (1993). If the employer meets that
burden, the presumption dissipates, and the factfinder must adjudicate the
claim based on the typical standard for a claim of discrimination. Id. at
507-08. This final stage of analysis must give the complainant a fair
opportunity to show that the rationale offered by the employer amounts to a
pretext that obscures its intentional discrimination. Cf. McDonnell Douglas ,
411 U.S. at 804.

Importantly, even as the burden of
production may shift, the complainant always carries the “ultimate burden of
persuasion . . . as to the overall question of whether section 105(c) has been
violated.” Turner , 33 FMSHRC at 1065; see also Robinette ,
3 FMSHRC at 818 n.20; Fed. R. Evid .
301 (“[T]he party against whom a presumption is directed has the burden of
producing evidence to rebut the presumption, [b]ut this rule does not shift the
burden of persuasion, which remains on the party who had it originally.”).

C.    
The
restated test for discrimination

Therefore, the test for whether
discrimination has occurred under section 105(c) of the Mine Act is whether the
complainant has proven, by a preponderance of the evidence, an adverse action
that would not have been taken but for his engagement in protected activity.

In the absence of direct evidence
of discrimination, a complainant may assert a prima facie case of discrimination
under the Mine Act by showing (1) that he engaged in protected activity and (2)
that the adverse action complained of was motivated in any part by that
activity. This lower standard is not the ultimate standard of discrimination ,
but rather an evidentiary device that allows a poorly positioned miner to state
a claim of discrimination using indirect evidence of discrimination, such as (i)
the operator’s knowledge of the protected activity, (ii) its hostility towards
the protected activity, (iii) the coincidence in time between the protected
activity and the adverse action, and (iv) disparate treatment of the
complainant. Chacon , 3 FMSHRC at 2510. If the miner successfully states
his prima facie case, he has established a rebuttable presumption of
discrimination under the Mine Act.

The mine operator then has an
opportunity to rebut the miner’s prima facie case by producing evidence showing
(1) that no protected activity occurred or (2) that the adverse action was not
motivated by the protected activity. This is merely a burden of production, not
of persuasion. An operator’s failure to produce any legitimate evidence in
rebuttal to the prima facie case would result in a judgment in favor of the
complainant. However, when an operator produces such evidence, the presumption
of discrimination is nullified, and the judge must weigh the conflicting
evidence according to the substantive “but-for” standard. During this final
phase, the complainant must have an opportunity to show that the operator’s
explanation in rebuttal is pretextual. Throughout this entire process, the
burden of persuasion never shifts to the mine operator. [5]

D.     Application of the new test to
Thomas’s claim of discrimination

1. Thomas’s
   prima facie case

Under this newly articulated test,
Robert Thomas must prove that he suffered an adverse action and that the
adverse action would not have been taken but for his protected activity. As an
initial offering, Thomas must establish a prima facie case of discrimination. He
has clearly done so here.

i.               
Protected
activity

I find that Thomas has successfully
proven his engagement in several instances of protected activity. First, he
complained to his immediate supervisor, Dean Demers, that he was tired from
working so many hours, that it was unsafe because he could not concentrate, and
that the dredge needed more workers. The complaint centered on the safety of
his working conditions, and it is protected under the Act. Second, Thomas
expressed his concern about the lack of task training for the rock barge
employees who were moved over to work on the dredge. Several times, he refused
to sign the task training certificates because he believed the substitute
workers were not trained adequately. Third, Thomas spoke with MSHA Inspector
Johnson when he boarded the dredge on January 24, 2018, and provided
information that the inspector relied upon in issuing a citation. Finally,
Thomas let the mine know that he had hired an attorney and the mine was alerted
that Thomas was filing this discrimination complaint with MSHA. While there is
some dispute about the timing of the last activity, the mine was told to speak
to Thomas’ attorney as of a February 1 phone call and they became aware of the
discrimination complaint no later than February 6, 2018, following a call from
an MSHA supervisor. McAuley admitted at hearing that he was aware of Thomas’s
legal representation by the latter date. Tr. 322. Both of these notifications
occurred prior to the second notice of termination given to Thomas.

CalPortland argues in its
post-hearing brief that Thomas’s complaint should be dismissed because he did
not include all the above-listed protected activities in his MSHA complaint.
The mine points to Hatfield v. Colquest Energy, Inc ., 13 FMSHRC 544
(Apr. 1991) and contends that Thomas’s private Section 105(c)(3) complaint is
limited to the specific activities he identified in his original MSHA
complaint. However, recent Commission case law does not support the mine’s
narrow reading of Hatfield . In Hopkins County Coal , 38 FMSHRC
1317 (June 2016), the Commission addressed a similar argument. The majority
concluded that it is not the terms of the initial complaint that control the
scope of the Section 105(c)(3) action; it is whether the Secretary investigated
the miner’s broader claim of discrimination. Id . at 1323 n.9. Embedded
within the decision in Hopkins County Coal is an acknowledgment that
“the Secretary has the authority to investigate possible discriminatory acts,
even if the miner’s initial complaint is deficient.” Id . Here, Thomas
listed one protected activity on his MSHA complaint, and the Secretary had the opportunity
to investigate the related activities discussed above. In addition, the acts
that Thomas alleges as protected acts were all the subject of various types of
discovery in this case. The mine therefore was aware of the allegations and had
ample time to explore them and present a defense at hearing.

ii.              
Adverse
action

The Commission has defined “adverse
action” to mean “an action of commission or omission by the operator subjecting
the affected miner to discipline or a detriment in his employment relationship.”
Sec’y on behalf of Pendley v. Highland Mining Co. , 34 FMSHRC 1919, 1930
(Aug. 2012). According to this definition, Thomas has proven multiple adverse
actions taken by CalPortland. First, Thomas was suspended without pay from
CalPortland on January 25, 2018, pending an investigation into the events that
resulted in the January 24 MSHA citation. Second, Dean Demers sent a draft
termination memo to Thomas and his coworkers on January 30 that was reasonably
interpreted as a termination letter. Finally, a human resources manager at
CalPortland sent Thomas a letter on February 9 indicating that his employment
at the company had been terminated following his “voluntary resignation.” Each
of these actions represents a discipline or detriment in Thomas’s employment
relationship, and therefore Thomas has proven that he has suffered adverse
action under the Mine Act.

iii.            
Discriminatory
motive

The final component in Thomas’s
prima facie case is proof of a motivational nexus between the protected
activity and the adverse action. A miner can establish this nexus with indirect
or circumstantial evidence of discrimination, such as (i) the operator’s
knowledge of the protected activity, (ii) its hostility towards the protected
activity, (iii) the coincidence in time between the protected activity and the
adverse action, and (iv) disparate treatment of the complainant. Chacon ,
3 FMSHRC at 2510. A miner need not establish all four indicators of
discrimination, but rather each indicator proven by the miner contributes
cumulatively to his case of discriminatory motive.

Thomas has successfully shown the
presence of all four indicia of discrimination, including that the operator
knew about his protected activity. An operator’s knowledge of protected
activity “is probably the single most important aspect of a circumstantial
case.” Chacon , 3 FMSHRC at 2510. Here, Dean Demers—the marine manager at
the mine and the individual who ultimately recommended Thomas’s
termination—knew of Thomas’s protected activity. Thomas testified that he had
complained to Demers repeatedly about the long work hours and the impact those
hours had on his safety and health. (McMillian made similar complaints to
Demers.) In addition, Thomas complained about the use of workers who were not
adequately trained, and he refused to sign the task training certificates. In
some instances, Demers signed them without having worked alongside those being
trained. Demers denied that he had conversations about long hours or training,
but instead remembered a conversation about Thomas wanting a day off. McMillian
explained that shortly after the many conversations about safety and training,
Demers showed up to take Thomas’ place while he was out sick and told McMillan
at that time that Thomas was done working at CalPortland. Demers was upset
about Thomas’s actions, not only wanting a day off, but the related issues of
safety, long hours, and training. Based on my observations of the demeanor of
the witnesses at hearing, I credit the corroborated testimony from Thomas and
McMillan on this matter, over Demers’s testimony, which appeared rehearsed.

Next, Demers was aware of Thomas’s
discussions with the MSHA inspector on January 24 and 25. Thomas handed the
phone to Inspector Johnson so he could speak with Demers on January 24, and
Thomas spoke to the inspector in front of Demers on January 25, shortly before
his suspension became effective. Additionally, Demers had several follow up
discussions with the inspector wherein the information provided by Thomas was
discussed. Demers indicates that he did not tell McAuley or Strickland about
the actions taken by Thomas, but it was Demers who pushed for termination and
made the initial recommendation to fire Thomas. Under Commission case law,
Demers’ knowledge of Thomas’ protected activity is therefore imputed to McAuley
and Strickland. See Con-Ag., Inc. v. Sec’y , 897 F.3d 693, 702 (6th Cir.
2018) (finding that the ALJ reasonably imputed a mine manager’s knowledge of a
miner’s protected activity to upper management in making a termination
decision). Mine management was also aware that Thomas had acquired legal
counsel before the mine formally terminated Thomas’s employment relationship.

Timing is another factor that
points towards discriminatory motive. The Commission has noted that it “applies
no hard and fast criteria in determining coincidence in time” and that “[s]urrounding
factors and circumstances may influence the effect to be given.” Hicks v.
Cobra Mining Inc. , 13 FMSHRC 523, 531 (Apr. 1991). According to testimony
at hearing, both Thomas and McMillan made repeated safety and health complaints
to Demers in the months leading up to Thomas’ suspension and termination. During
that same time frame, they consistently complained about the lack of task
training that the temporary dredge barge workers were receiving. In November
2017, Thomas requested a sick day, but Demers was reluctant to approve the
request because he did not have enough workers for the dredge and became angry
with Thomas. McMillan testified that immediately following the sick day
disagreement, Demers wanted Thomas gone from CalPortland.

Furthermore, there is a compelling
coincidence in time between the adverse actions and both Thomas’s conversations
with the MSHA inspector and Thomas’s retention of counsel in pursuit of his
discrimination claim. Mere days passed between these events, pointing towards a
discriminatory motivation behind his suspension and firing.

Disparate treatment is a third
factor that can establish a motivational nexus. CalPortland has argued that it
did not terminate Thomas and that all its actions were motivated by his
dangerous PFD misconduct. See Resp. Br. at 15. Thomas, however, has
introduced evidence that other CalPortland employees who had committed similar
PFD misconduct had not been punished equivalently. Joel McMillan testified that
when he worked shifts with Dean Demers, Demers would routinely unfasten his PFD
and remove his hardhat while aboard the Sanderling. Tr. 50. Demers was never
suspended or terminated for his safety violations, and therefore Thomas has
submitted evidence showing that he was treated disparately. Additionally,
Demers makes much of the fact that Thomas would not answer the final, pointed
questions of Woods and therefore was not being cooperative. Demers and McAuley
then took the issue to the HR office, a move that is not usual at this point in
dealing with an employee. Demers clearly wanted Thomas gone and made that known
to McMillan before the incident with MSHA.  Demers also told McMillan that he
got rid of Thomas, when in fact, he told Thomas he was merely suspended while
the matter was being investigated. Demers then told Thomas, along with every
other employee and contractor at Calportland, that his employment was
terminated on January 31 BEFORE Thomas took any action that could be construed
as a voluntary termination. Another practice that was unusual at this company. 

The final circumstantial indicator
of discrimination is hostility. Thomas has introduced evidence showing that,
after he had complained of his hours and workload, Demers remarked to a
coworker that “Rob Thomas was done, he was fucking done at CalPortland.” Tr.

48. Then, after Thomas’s separation from CalPortland, Demers made another
    remark indicating that he “got rid” of Thomas, indicating that Demers viewed
    Thomas as a problem that he jettisoned. Tr. 71. Finally, the aggressive and
    “pointed” approach that Woods took with Thomas in the post-citation interview
    indicates further hostility towards the Complainant. Tr. 385.

Altogether, these indicia of
discrimination support a showing of discriminatory motive. Thomas has
introduced sufficient evidence to show that he engaged in a protected activity,
that he suffered an adverse action, and that there was a motivational nexus
between the two. He has therefore successfully established a prima facie case
of discrimination, giving rise of a rebuttable presumption that he was
discriminated against.

2. CalPortland’s rebuttal

CalPortland now has an opportunity
to rebut Thomas’s prima facie case by producing evidence that indicates either
(1) that no protected activity occurred or (2) that the adverse action was not
motivated by the protected activity. At hearing and in briefing, CalPortland
has made arguments that go towards the latter issue.

The company first argues that no
adverse action occurred. With regard to Thomas’s suspension, the company
submits that the suspension was non-disciplinary and was meant to promote a
robust investigation to protect miner health and safety. Then, regarding
Thomas’s termination, CalPortland describes the separation as a voluntary
resignation on the part of Thomas. This Court cannot simply accept the
operator’s characterization of its own actions, however, and must determine
whether the action constitutes “discipline or a detriment in [Thomas’s]
employment relationship.” Pendley , 34 FMSHRC at 1930. The operator
suspended Thomas without pay, which is objectively a detrimental employment
action. And the combination of sending a termination memo and formally separating
Thomas from his employment is clearly a detriment, as well. This portion of CalPortland’s
rebuttal is unavailing.

CalPortland next argues that its
actions “were motivated by [his] dangerous PFD misconduct.” Resp. Br. at 15. The
company has produced evidence showing that the mine inspector personally
witnessed Thomas aboard the Sanderling without his PFD, that the company
initiated an investigation quickly thereafter, and that the adverse actions
were proximate in time to the alleged misconduct. This explanation could stand
as a legitimate and nondiscriminatory reason for the adverse actions. However,
the mine asserted at hearing that Thomas was fired for not cooperating in an
investigation and “abandoning” his position.  Calportland did not argue that it
terminated Thomas’ employment for failing to wear his PDF.  In addition, the
mine has failed to explain why the investigation was so limited. The facts
clearly indicate that the motivation asserted by the mine has no basis in
truth. 

3. Disposition

Thomas established a prima facie
case, and CalPortland offered evidence in rebuttal. The rebuttable presumption
has dissipated, and one question remains in this case: whether Thomas has shown
by a preponderance of the evidence that his protected activity was a but-for
cause of CalPortland’s adverse action.

In many employment-discrimination
contexts, an important aspect of a complainant’s final burden is whether he or
she can show that the employer’s stated nondiscriminatory rationale is pretextual.
The complainant “must . . . have an opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the defendant were not its
true reasons but were a pretext for discrimination.” Tex. Dep't of Cmty.
Affairs v. Burdine , 450 U.S. 248, 252-53 (1981). Indeed, the Supreme Court
has held “that a plaintiff's prima facie case combined with sufficient evidence
to find that the employer's asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully discriminated.” Reeves
v. Sanderson Plumbing Prod., Inc ., 530 U.S. 133, 148 (2000) (under Title
VII).

The Commission has explained that
“pretext may be found . . . where the asserted justification is weak,
implausible, or out of line with the operator's normal business practices.” Sec'y
on behalf of Price v. Jim Walter Res., Inc ., 12 FMSHRC 1521, 1534 (Aug
1990) (internal citations omitted). In previous cases, the Commission has
described the array of evidence that may show pretext: a complainant may
demonstrate “either (1) that the proffered reasons had no basis in fact ,
(2) that the proffered reasons did not actually motivate his discharge,
or (3) that they were insufficient to motivate discharge.” Turner ,
33 FMSHRC at 1073.

In the present case, a
preponderance of the evidence shows that CalPortland’s explanation of events is
pretextual. The company claims that Thomas voluntarily resigned by violating
the company’s attendance policy, and that the steps taken by the company were a
response to Thomas’s PFD misconduct. Both justifications prove to be feeble.

First, there are many reasons to
doubt the claim that Thomas voluntarily resigned. Thomas was suspended on
January 25 and continued to participate fully in CalPortland’s investigation. Thomas
even submitted a more-detailed written statement, as requested by the company,
following the heated interview on January 29. Thomas only stopped participating
in the investigation when he received Demers’s email containing the termination
memo. I find that Thomas reasonably believed that his employment was terminated
at that juncture. Based upon this belief, Thomas cancelled the next day’s
meeting and then spoke with McAuley on February 1, when he informed McAuley
that he had hired an attorney. CalPortland claims that it directed Thomas to
return to work, but it has not produced any text messages or emails to support
the claim, even though the parties frequently communicated via email during the
investigation. It appears that Calportland asserts that Thomas failed to report
to work when asked to meet with Demers, after Thomas believes he was fired.  The
only proven communications after February 1 were the “voluntary resignation”
letters that were returned to CalPortland unopened. I thus find that there was
no reason for Thomas to believe he was supposed to return to work, and
therefore he did not “abandon” his job. Finally, comments from mine management
after Thomas’s discharge indicate that it was not a voluntary resignation: Joel
McMillan testified that, following Thomas’s termination, Demers bragged that “I
got rid of Rob.”

Second, the record is riddled with
red flags surrounding CalPortland’s claim that it was merely reacting to
Thomas’s “PFD misconduct.” For instance, the termination memo that Demers
distributed listed another reason for termination: Thomas’s failure to
cooperate in the investigation. The fact that CalPortland has alleged an
additional motivation for termination (one that, itself, is of questionable
veracity [6] )
casts doubt on truthfulness of the justification that CalPortland has offered
at hearing. Moreover, there are reasons to doubt that Thomas’s PFD conduct was
sufficient to motivate his discharge. McMillan, a witness without an interest
in the outcome of this case, testified that he had personally observed Demers
engage in the same type of conduct without facing discipline. The same witness
attested that the mine inspector had opined that, given Thomas’s tenure and
clean safety history, the citation issued should not be grounds for his
termination. Nowhere in the evidence is there any indication that Thomas was
fired for not wearing a PFD.

Relatedly, I find that
CalPortland’s witnesses on this point were overly rehearsed. The company’s
legal counsel led the witnesses with certain terminology that was coined to
spin the facts in CalPortland’s favor. This questioning elicited answers or
agreement from the witnesses endorsing these jargony terms, such as Thomas’s
“PFD misconduct” or the decision to suspend Thomas “pending investigation.”  Demers
and McAuley appeared particularly well-coached and well-rehearsed during the
hearing, and they both had an interest in seeing the demise of Thomas’s
discrimination complaint. Although Demers testified at length about his
background and experience, I cannot credit his testimony about Thomas’ actions
or the reasons for his termination.  I found Demers to have impressive credentials
but did not find him credible. Instead, he was rehearsed and disingenuous in
his statements. For these reasons, I do not find either Demers or McAuley to be
credible witnesses on these points. I credit the relatively disinterested testimony
of McMillan and the straightforward and believable testimony of Thomas over the
testimony from Demers and McAuley.

Additional red flags are found when
scrutinizing CalPortland’s “investigation” into the alleged PFD misconduct. The
company’s inquiry was not thorough. It appears Thomas himself was only asked
one question before Jeff Woods ended the interview. Furthermore, CalPortland
neglected one of the three potential eyewitnesses to the alleged misconduct;
Roger Ison was never approached to give a statement or to be interviewed. In
fact, a second eyewitness, Joel McMillan, only submitted a brief statement
(fewer than fifty words) and was never interviewed as part of the
investigation. McMillan’s statement indicated that he did not know whether
Thomas wore his PFD while on the ladder. Dean Demers relied on this threadbare
investigation—consisting in total of written statements from Thomas, a
one-question interview with Thomas, and a short-written statement from
McMillan—while writing his original corrective action form.

CalPortland conducted a rushed and
incomplete investigation of Thomas’s conduct, and within hours Demers had
drafted and distributed his recommendation that Thomas should be terminated. [7] Evidence of an inadequate
investigation can give rise to a finding that the stated reason for termination
is pretextual. See Con-Ag, Inc. , 897 F.3d at 704-05 (holding that
evidence of an “unreasonably brief” investigation can lead to an inference of
pretext); Sec’y of Labor on behalf of Robert Ribel v. Eastern Associated
Coal Corp ., 7 FMSHRC 2015 (Dec. 1985). A finding of pretext is even more
likely in the absence 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 v. Belva Coal Co. , 4 FMSHRC 982, 993 (June 1982). Here,
Thomas had a sixteen-year career at CalPortland with a clean safety record, and
without indication of previous violations of this kind.

Altogether, these defects in the
operator’s justification show that it is pretextual. While concerns about
Thomas’s PFD usage may have a basis in fact, the evidence indicates that these
concerns were insufficient to motivate his firing.

Given his strong showing of
discrimination in addition to the showing of pretext, I find that Thomas has
successfully proven by a preponderance of the evidence that his protected
activities were a “but-for” cause of the adverse actions that he suffered. Thomas
has demonstrated that he engaged in protected activity by reporting safety
issues in November 2017 and has shown that animus toward him only grew from that
point forward (“Rob Thomas was done, he was fucking done at CalPortland.”). I
find that CalPortland simply seized on the January 24 safety violation to
initiate a spurious investigation with the intent to terminate Thomas. Thomas’s
receipt of the corrective action form—and his reasonable decision to forgo the
next day’s meeting where the company seemed sure to fire him—only provided more
cover to CalPortland by allowing it to paint Thomas’s actions as “voluntary
resignation.” Based on my careful review of the evidence and my credibility
determinations of the witnesses at hearing, I find that Thomas’s suspension and
later termination would not have occurred but for his protected activities.

Even if CalPortland was motivated
in part by Thomas’s safety violation, I find that this motivation was not
sufficient to provoke his termination. As the Ninth Circuit determined, the
“but-for causation standard means a defendant cannot avoid liability just by
citing some other factor that contributed to its challenged employment
decision.” Thomas , 993 F.3d at 1209 (citing Bostock , 140 S. Ct.
at 1739). CalPortland would not have conducted such a rushed investigation and
would not have terminated Thomas, a miner with a sixteen-year tenure, in the
absence of his protected activity.

IV.          
PENALTY

Thomas originally
brought this case individually, and following the original disposition of the
case, the Secretary instituted an action for the assessment of a civil penalty
of $17,500.00. That civil penalty action remains pending in Docket No. WEST
2019-0205. On May 22, 2020, the Commission issued an order staying proceedings
in that case. That stay is hereby lifted, and the Respondent is conditionally
ordered to pay $17,500.00, pending exhaustion of its appeals, pursuant to the
Decision Approving Settlement issued on March 21, 2019.

V.             
DAMAGES
AND RELIEF

The
Mine Act gives the Commission the authority in proceedings under Section
105(c)(3) to assess against an operator “a sum equal to the aggregate amount of
all costs and expenses (including attorney’s fees) as determined by the
Commission to have been reasonably incurred by the miner.” 30 U.S.C. §
815(c)(3). The Commission has explained that back pay “is the sum a miner would
have earned but for the discrimination, less his net interim earnings. Gross
back pay encompasses not only wages, but also any accompanying fringe benefits,
payments, or contributions constituting integral parts of an employer’s overall
wage-benefit package.” Ross v. Shamrock Coal Co. , 15 FMSHRC 972, 976
(June 1993). An award of attorney’s fees is “a matter that lies within the
sound discretion of the trial judge.” Sec’y on behalf of Ribel v. E. Assoc.
Coal Corp. , 7 FMSHRC 2015, 2017 (Dec. 1985).

As
part of my previous decision in this case, the Respondent was ordered to pay
$76,185.67, plus quarterly interest at the federal underpayment rate through
the date of payment, in backpay and lost benefits to Thomas. That order is
hereby restored. Furthermore, CalPortland remains liable for Thomas’s backpay
that accrues up until the time at which he is reinstated. See Sec’y of Labor
on behalf of Bailey v. Ark.-Carbona Co. , 5 FMSHRC 2042, 2053 n.14 (Dec.
1983) (“In a discrimination case where, as here, there has been an illegal
discharge, the back pay period normally extends from the date of the
discrimination to the date a bona fide offer of reinstatement is made.”); cf.
Inda v. United Air Lines, Inc. , 405 F.Supp. 426, 435 (N.D. Cal. 1975)
(under Title VII) (“United is further liable to plaintiffs for back pay in 1975
until such time as they are reinstated pursuant to this Court's order.”). If
the prevailing employee is not reinstated during the appellate process, the
backpay period remains open and encompasses the time that the appeal was
pending. Cf. Taylor v. Philips Industries, Inc ., 593 F.2d 783, 788 (7th
Cir. 1979) (under Title VII) (“Because we hold that Taylor was the victim of
unlawful discrimination, the relief should cover the period up until the date
of her reinstatement, including the time occupied by this appeal.”). Accordingly,
the parties are ordered to submit additional documentation regarding Thomas’s
backpay that has accrued since November 30, 2019. The Complainant shall submit
his accounting of the backpay within twenty days of the date of this decision,
and the Respondent shall submit a response within twenty days of the
Complainant’s filing.

Thomas
is also entitled to reasonable attorney’s fees. 30 U.S.C. § 815(c)(3). To
evaluate reasonableness, courts typically consider an attorney’s reasonable
hourly rate and whether the number of hours expended on the case was
reasonable. See Perdue v. Kenny A. ex rel. Winn , 599 U.S. 542,
551-52 (2010). Following the original disposition of this case, the Respondent
was ordered to pay $74,852.05 in attorney’s fees. That order is hereby
reinstated. Furthermore, the Complainant shall submit itemized invoices for
additional fees incurred during the appeals process. The Complainant shall
submit his accounting of attorney’s fees within twenty days of the date of this
decision, and the Respondent shall submit a response within twenty days of the
Complainant’s filing.

VI.          
ORDER

WHEREFORE,
Respondent is hereby ORDERED to reinstate Robert Thomas to his former
position with CalPortland with the same pay and benefits as he would have
accrued had he remained employed. The mine shall remove from Thomas’ personnel
file any mention of any employment action stemming from this incident and shall
post a notice at the nearest CalPortland land-based office, in a conspicuous
location, and on paper at least 8 x 10 size, setting forth the rights of miners
protected by 105(c) of the Mine Act.

Respondent is further ORDERED
to pay back pay and lost benefits to Thomas in the amount of $76,185.67 plus
quarterly interest at the Federal underpayment rate through the date of
payment, to be calculated by the parties. All back pay and benefits’ awards,
including attorneys' fees, shall be recalculated and brought up to date with
interest as of the date paid, and shall continue until Thomas is reinstated. See
Ark.-Carbona Co. , 5 FMSHRC at 2053 n.14. Such payments shall be made within
30 days of the date of this decision.

Complainant is ORDERED to
submit, within twenty days, its updated estimates of (1) the backpay to which
he is entitled for the period between December 10, 2019, and the date of this
decision’s issuance, and (2) the reasonable attorney’s fees incurred during
that period. Respondent is ORDERED to submit its response to the
Complainant’s estimate within twenty days of service of the Complainant’s
submission.

Respondent is ORDERED to pay
the Secretary of Labor the sum of $17,500.00 within 30 days following the
exhaustion of its appeal rights in this case, if the assessment for civil
penalty remains or has otherwise not been vacated.

/s/
Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:
(Electronic and Certified Mail)

Colin F. McHugh, Navigate Law
Group, 1310 Main Street, Vancouver, WA 98660, [email protected] (Attorney for Robert Thomas)

Trevor J. Cartalis, Navigate Law
Group, 1310 Main Street, Vancouver, WA 98660, [email protected] (Attorney for Robert Thomas)

Alexander Higgins, Law Offices of
Alex J. Higgins, 2200 Sixth Avenue, Suite 500, Seattle, WA 98121, [email protected] (Associated Counsel for Robert
Thomas)

Brian P. Lundgren, Jackson Lewis
P.C., 520 Pike Street, Suite 2300 Seattle, WA 98104 [email protected] (Attorney for Calportland Company)

Karina
E. Wegman, U.S. Department of Labor, Office of the Solicitor, Division of Mine
Safety and Health, 201 12 th Street South, Suite 401, Arlington, VA
22202, [email protected]

Emily
Toler Scott, U.S. Department of Labor, Office of the Solicitor, Division of
Mine Safety and Health, 201 12 th Street South, Suite 401, Arlington,
VA 22202, [email protected]

Robert Thomas, 566 23 rd
Avenue, Longview, WA 98632

[1] Thomas was sent
two copies of this letter and refused to accept delivery on both copies.

[2] The Court erroneously mentioned
that it had no duty to “consider the Commission’s interpretation,” when it is
the Secretary of Labor whose interpretation is relevant here. 

[3] While the Ninth Circuit held that
the term “because” unambiguously indicates a but-for causation standard, any
other ambiguity in the Act’s text could be informed by the Secretary’s
interpretation.

[4] I will look toward the
burden-shifting framework that the Supreme Court developed to evaluate
disparate-treatment claims of discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (hereinafter “Title VII”), as a
model. The Commission often looks to other federal anti-retaliation legislation
like Title VII when addressing questions involving the anti-retaliation
provision of the Mine Act. See, e.g., William Metz v. Carmeuse Lime, Inc. ,
34 FMSHRC 1820, 1830 (Aug. 2012); Turner v. National Cement Company of
California , 33 FMSHRC 1059, 1065-66 (May 2011).

[5] Previously, the Commission placed
the burden of persuasion on the respondent to prove the affirmative defense
that “although part of his motive was unlawful, he was also motivated by the
miner's unprotected activities, and that he would have taken adverse
action against the miner in any event for the unprotected activities alone.” Pasula ,
2 FMSHRC at 2800. This is incompatible with the Ninth Circuit’s decision and
with the Supreme Court precedent that it cited. Under the Ninth Circuit’s test,
it is the complainant’s burden to prove that the respondent’s discrimination
was a but-for cause of the adverse action. A respondent offering the defense
stated above would merely be denying or negating the but-for causation claimed
by the complainant. Accordingly, it is improper to label this an “affirmative
defense” or to task the respondent with the burden of proving this defense. See
Gross , 557 U.S. at 177-180.

[6] The only person besides Demers and Thomas
who attended the meeting was CalPortland safety manager Jeff Woods, who did not
testify at hearing. His absence leads me to the conclusion that he may have had
some unfavorable information about the company’s investigation into the
incident. “It is well established that an adverse inference may be drawn
against a party if the party fails to call as a material witness a person who
may reasonably be assumed to be favorably disposed toward that party or a
person who is peculiarly available to that party.” Virginia Slate Co. ,
23 FMSHRC 482, 485 (May 2001). Woods was a main participant in CalPortland’s
investigation and led the January 29, 2018, meeting. While the mine
acknowledged that Woods is now a former employee, there was no indication that
the mine made any attempt to contact him.

[7] Thomas was interviewed on January

29. CalPortland requested a longer written statement, and Thomas submitted a
    statement at 12:30 PM on that same date. See Compl. Ex. 22. McMillan
    also submitted his written statement on January 29. See Compl. Ex. 5. Demers
    had completed his draft corrective action form and emailed it to Candy
    Strickland by 3:58 PM on January 29, the very same afternoon. See Resp.
    Ex. N.