Robert Thomas v. Calportland Company

Plain-English summary

Robert Thomas alleged that CalPortland suspended and terminated him because he exercised rights protected by the Mine Act. The Commission had reversed an Administrative Law Judge's finding of discrimination and dismissed the case for lack of evidence that protected activity motivated the adverse action. The Ninth Circuit then rejected the Commission's Pasula-Robinette causation framework and directed use of but-for causation. Following the court's mandate, Commissioners William Althen and Marco Rajkovich remanded the claim to the Judge for reconsideration under that standard. Chair Arthur Traynor concurred only in the result, stating that the existing record lacked evidence of causation under any standard and cautioning against interpreting section 105(c) without the Secretary's position.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination claim was remanded to the Administrative Law Judge for reconsideration under but-for causation.
• Key point: A court mandate required the Commission to replace its prior causation analysis with a but-for inquiry in this case.

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                                          :        Docket No. WEST
2018-402-DM

:       

v.                                              
 :        Mine
ID: 4503687

:           

CALPORTLAND
COMPANY                         :

BEFORE: Traynor,
Chair; Althen and Rajkovich, Commissioners

ORDER OF REMAND

BY: Althen and
Rajkovich, Commissioners

This case arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)
(“Mine Act” or “Act”). It involves a complaint filed by miner Robert Thomas
alleging that CalPortland Company (“CalPort”) discriminated against him in
violation of the Mine Act. After a Commission Administrative Law Judge found
that CalPort unlawfully discriminated against Thomas, CalPort filed a petition
for discretionary review challenging the Judge’s decision on the ground that
the miner had failed to establish a prima facie case of discrimination.  

On
review, the Commission determined that the Judge erred in concluding that Thomas
had established a prima facie case of discrimination, reversed the Judge’s
decision, and dismissed the case.

Thomas
subsequently filed a petition for review of the Commission’s decision in the United
States Court of Appeals for the Ninth Circuit on the grounds that the
Commission had erred in its determination and asserted, along with Respondent
CalPort, that the Commission’s long-standing precedent under Pasula-Robinette
should no longer apply to section 105(c) cases, as it misconstrues the word
“because” in the statute. [1]
See Sec’y of Labor on behalf of Pasula v. Consolidation
Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub.
nom. Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3rd Cir. 1981). Citing
several Supreme Court decisions, [2]
the parties argued that the Pasula-Robinette standard conflicts with
Supreme Court instruction that the ordinary meaning of “because” required
application of the simple and traditional standard of “but-for causation.” [3]   Thomas v.
CalPortland Co. , 993 F.3d 1204, 1208-09 (9th Cir. 2021).

Applying
step one of Chevron v. Natural Resources Defense Council , 467 U.S. 837,
842–44 (1984), the Circuit Court ultimately found the statute clear and
rejected the Pasula-Robinette standard of review concluding that 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.” 993 F.3d at 1211. It remanded the case to the Commission with
instructions to apply the “but-for” causation analysis to Thomas’ claim of
discrimination. Id .

On
June 7, 2021, the court issued its mandate in this matter, thereby returning
the case to the Commission’s jurisdiction. Accordingly, we remand this matter
to the Judge for reconsideration of Mr. Thomas’ claim of discrimination under
the “but-for” causation standard consistent with the Ninth Circuit’s decision.

/s/ William I.
Althen

William I. Althen, Commissioner

/s/ Marco M.
Rajkovich, Jr.

Marco M. Rajkovich,
Jr. , Commissioner

Chair Traynor, concurring in result only:

This
case is already over.

It
began with a complaint filed by miner Robert Thomas alleging that CalPort
discriminated against him for his exercise of protected rights in violation of
the Mine Act. After a Commission Administrative Law Judge found that CalPort
unlawfully discriminated against Thomas, CalPort filed a petition for
discretionary review challenging the Judge’s decision on the ground that the
miner had failed to establish a prima facie case of discrimination.  

On
review, the Commission determined that the Judge erred in concluding that miner
Thomas had established a prima facie case of discrimination. None of the five
Commissioners found that protected activity in any way motivated Thomas's
suspension and termination. Thus, the Commission unanimously reversed the
judge’s decision for lack of any evidence of unlawful motivation. 1
The Commission was unanimous in concluding that under any causation
standard, the case must be dismissed.

Thomas
subsequently filed a petition for review of the Commission’s decision in the
United States Court of Appeals for the Ninth Circuit on the grounds that the
Commission had erred in its determination. Initially, Thomas joined Respondent
CalPort’s assertion that the Commission’s long-standing precedent under Pasula-Robinette
should no longer apply to section 105(c) cases, claiming various Supreme Court
holdings require application of some version of a “but-for” test when analyzing
whether an adverse action is motivated by protected activity. Thomas v.
CalPortland Co. , 993 F.3d 1204, 1209 (9th Cir. 2021).. At oral argument,
however, Thomas changed his position and argued that the Court should apply the
Pasula-Robinette standard instead. Id . It is of great
significance that the Secretary of Labor—the indispensable party charged with
interpretation of the Mine Act—was not a party to this case and did not
participate at any of the stages of this proceeding, including at argument
before the Ninth Circuit.

The
Commission had unanimously ruled that there was no evidence whatsoever that
CalPort’s termination of Thomas was motivated at all by protected activity. Thus,
it is immaterial to the resolution of this case whether in future cases the
Commission and Courts should require the Secretary to offer an interpretation
of section 105 that replaces the Pasula-Robinette test with a more
stringent “but-or” test of causation. We know with certainty that the miner in
this case failed to introduce evidence that would satisfy any test of causation—from
the Pasula-Robinette test’s requirement of “some motivation” to the most
stringent conceivable application of a “but-for” causation standard. The
Commission found and the Ninth Circuit did not disagree that there is simply no
evidence of causation in this case. Yet rather than affirm the Commission, the
Court purported to “reverse” the Commission (even though it did not disagree
with our review of the evidence in the case or our decision to dismiss it) in
an opinion directing the Commission to revise its interpretation of section
105(c) as applied in discrimination cases and first announced in Pasula-Robinette .
Unfortunately, that direction results from some confusion as to the role of the
Secretary and Commission under the Mine Act’s somewhat unique split-enforcement
scheme.

The
Ninth Circuit panel wrote that under the well-known Chevron doctrine it “need
not consider the Commission’s interpretation because the statutory text is
unambiguous.” 993 F.3d at 1211. Of course, the Commission is not responsible
for interpreting section 105(c) of the Mine Act, its role is to review the
Secretary of Labor’s interpretation. “Since the Secretary of Labor is charged
with responsibility for implementing this Act . . . the Secretary's
interpretations of the law and regulations shall be given weight by both the
Commission and the courts.” S. Rep. No. 95-181, at 49 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977 , at 637 (1978). Because the Secretary
has not yet proffered an interpretation of section 105(c) in light of case law
purportedly requiring a ‘but-for’ standard of causation, the Ninth Circuit in
this case did not (and could not have) correctly applied the Chevron doctrine
in this case. 2 This confusion manifested itself again
in the Court’s final direction to the Commission on remand in which they state
that it “is for the Commission to apply the but-for standard to this case in
the first instance on remand.” 993 F.3d at 1211.  Of course, it is not for the
Commission but for the Secretary of Labor to interpret section 105(c) in the
first instance. The Commission and Courts are to provide deferential review. 3

The
Secretary of Labor is not a party to this case, and this is therefore not an
appropriate case to litigate or announce a revised interpretation of section
105(c), especially since this case can (and has been) resolved without engaging
in such reinterpretation. The Commission has already unanimously held that this
case should be dismissed for lack of evidence of unlawful motivation under any
standard of causation—whether Pasula-Robinette , or some yet to be
articulated version of the “but-for” test. The Ninth Circuit did not disagree.

On
remand, the Judge must be cautious not to usurp the Secretary’s role
interpreting section 105(c).  The Judge need not stray far from the
Commission’s prior decision, undisturbed by the Ninth Circuit’s review, [4] to
demonstrate that Thomas’ complaint fails for lack of any evidence of
unlawful motivation under any conceivable formulation of the “but-for”
causation requirement. But interpreting section 105(c) in the first instance to
arrive at a new test for discrimination that includes a “but-for” causation
requirement is the role of the Secretary, not the Judge, Commission or Courts.

/s/ Arthur R.
Traynor, III

Arthur R. Traynor, III, Chair

Distribution:

Demian Camacho,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

350 South Figueroa
Street, Suite 370

Los Angeles, CA
90071-1202

[email protected]

Brian P. Lundgren,
Esq.

Jackson Lewis P.C.

520 Pike Street,
Suite 2300

Seattle, WA 98104

[email protected]

Colin F. McHugh,
Esq.

Navigate Law Group

1310 Main Street

Vancouver, WA
98660

[email protected]

Archith Ramkumar,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th Street
South, Suite 401

Arlington, VA
22202

[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]

Melanie Garris

U.S. Department of
Labor

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Administrative Law
Judge Margaret Miller

Federal Mine
Safety and Health Review Commission

Office of
Administrative Law Judges

721 19th Street,
Suite 443

Denver, CO
80202-2536

[email protected]

[1]   The
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)
(emphasis added).

[2] Burrage v.
United States , 571 U.S. 204, 212-17 (2014); Univ. of Sw. Tex. Med. Ctr.
v. Nassar , 570 U.S. 338, 346-60 (2013); Gross v. FBL Fin. Servs .,
557 U.S. 167, 174-80 (2009).

[3] At oral argument,
however, Thomas changed his position and argued that the Court should apply the
Pasula-Robinette standard instead.  Thomas v. CalPortland Co. ,
993 F.3d 1204, 1209 (9th Cir. 2021).

1 The two concurring
Commissioners explained that they had “considered whether Thomas’ putatively
protected complaints about inadequate training and excessive work hours
motivated in any way the same adverse action referenced in his administrative
complaint - his suspension and ultimate termination” to conclude that “[a]long
with the majority, we find no proof that they did.” 42 FMSHRC 43, 58
(Jan. 2020) (Jordan and Traynor, concurring) (emphasis added).

2 The Court
addressed the precise question of whether the existing legal standard for
making a prima facie case under section 105(c)—the Pasula-Robinette
standard—was incompatible with recent caselaw addressing the text of the Mine
Act and answered in the affirmative. What the Court did not do (and could not
have done) is apply Chevron review to the Secretary’s new interpretation
of section 105(c) accommodating a but-for causation element.

3 We cannot in this
litigation know how the Secretary might choose to interpret section 105(c) in a
future case in which he must demonstrate “but-for” causation to make out a
prima facie case of discrimination.

[4] The Court did not
find any error with the Commission’s unanimous conclusion that the record in
this case is devoid of any evidence that protected activity motivated the
miner’s termination.