Petition for Writ of Certiorari — CalPortland Company, Petitioner v. Robert Thomas, et al.

Supreme Court briefFeb 13, 2026

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APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Order by the United States

Court of Appeals for the Ninth Circuit

Denying Petition for Rehearing En Banc

(Sept. 16, 2025) .................................................... 1a

APPENDIX B: Opinion of the United States

Court of Appeals for the Ninth Circuit

(May 7, 2025) .................................................... 14a

APPENDIX C: Commission Opinion

(Mar 1, 2024) ..................................................... 27a

APPENDIX D: ALJ Order (Dec. 2, 2021) ............. 57a

APPENDIX E: Commission Remand Order

(June 11, 2021)................................................... 99a

APPENDIX F: Opinion of the United States

Court of Appeals for the Ninth Circuit

(Apr. 14, 2021) ................................................. 108a

APPENDIX G: Commission Opinion

(Jan. 29, 2020).................................................. 126a

APPENDIX H: ALJ Opinion (Dec. 10, 2018) ...... 156a

APPENDIX I: Statutory Provisions .................... 191a

_____________________

APPENDIX A

_____________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Robert THOMAS,

Petitioner,

No. 24-1442

FEDERAL MINE SAFETY

AND HEALTH REVIEW

COMMISSION; and

CalPortland Company,

Respondents.

Submitted September 15, 2025 * San Francisco,

California

FILED SEPTEMBER 16, 2025

On Petition for Review of an Order of the Federal Mine

Safety and Health Review Commission, Agency Nos.

WEST 2018-0402-DM, WEST 2019-0205

Attorneys and Law Firms

Colin McHugh, McHugh Law, PLLC, Vancouver, WA,

Trevor Cartales, Navigate Law Group, Portland, WA,

* The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

Alexander J. Higgins, Law Offices of Alex J. Higgins,

Seattle, WA, for Petitioner.

Thaddeus Jason Riley, General Attorney, Federal

Mine Safety & Health Review Commission,

Washington, DC, for Respondent Federal Mine Safety

and Health Review Commission.

Brian P. Lundgren, Jessica Cox, Jackson Lewis, PC,

Seattle, WA, Dylan Bradley Carp, Jackson Lewis, PC,

San Francisco, CA, Michael Christopher Moon,

Jackson Lewis, Salt Lake City, UT, for Respondent

CalPortland Company.

Before: McKEOWN, FORREST, and BUMATAY,

Circuit Judges.

ORDER

The memorandum filed on May 7, 2025, is amended as

follows: on page two, delete footnote one.

Judge Forrest votes to deny the Petition for

Rehearing En Banc (Dkt. 38) and Judge McKeown so

recommends. Judge Bumatay votes to grant the

petition. The full court has been advised of the petition

for rehearing en banc, and no judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 40. The petition is therefore DENIED, and no

further petitions for rehearing will be accepted.

Dissent by Judge BUMATAY.

AMENDED MEMORANDUM**

Petitioner Robert Thomas seeks review of a decision

of the Federal Mine Safety and Health Review

Commission denying his retaliation claim brought

** This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

under the Mine Act, 30 U.S.C. § 815(c)(1), (3). We

assume the parties’ familiarity with the facts. For the

second time, see Thomas v. CalPortland Co. (Thomas

I), 993 F.3d 1204 (9th Cir. 2021), and because the

Commission misapplied the substantial evidence

standard, we grant Thomas’s petition and vacate and

remand.

Standard of Review. The Mine Act instructs

that “[t]he findings of the Commission with respect to

questions of fact, if supported by substantial evidence

on the record considered as a whole, shall be

conclusive.” 30 U.S.C. § 816(a)(1); see also Miller Min.

Co. v. Fed. Mine Safety & Health Rev. Comm’n, 713

F.2d 487, 490 (9th Cir. 1983) (“This court will uphold

the factual findings of the administrative law judge if

there is substantial evidence to support them.”). It also

defines the Commission’s review authority over the

decisions of its administrative law judges (ALJ). 30

U.S.C. § 823(d). As relevant here, the Commission may

only review an ALJ’s factual findings for substantial

evidence, id. § 823(d)(2)(A) (ii)(I), (d)(2)(A)(iii), and it

commits legal error if it does not apply this standard.

Thomas 1, 993 F.3d at 1211 n.4; accord, e.g., Donovan

ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 91–

92 (D.C. Cir. 1983); Sec’y of Lab. v. Knight Hawk Coal,

LLC, 991 F.3d 1297, 1306 (D.C. Cir. 2021).

The dissent argues that because § 816(a)(1) only

allows us to review the Commission’s factual findings

for substantial evidence, we cannot assess whether the

Commission applied the correct standard when

reviewing the ALJ’s factfinding. We disagree. As the

D.C. Circuit has explained, § 816(a)(1)’s reference to

“Commission” refers to the agency generally —not just

the Commission—because “in many cases the ALJ’s

decision will become the decision of the Commission.”

Donovan ex rel Chacon, 709 F.2d at 91 n.7; see also 30

U.S.C. § 823(d)(1). But more crucially, the statute

plainly provides that the Commission, in and of itself,

has no fact finding authority when it reviews decisions

of its ALJs. 30 U.S.C. § 823(d)(2)(A)(ii)(I), (iii). The

Commission is to review an ALJ’s factual findings for

substantial evidence and Section 816(a)(1) “does not

supersede the statutory limits on the Commission’s

own powers of discretionary review.” Donovan, 709

F.2d at 91 n.7. Whether an administrative review body

has complied with its statutory scope of review is a

question of law that we review de novo. E.g., Rodriguez

v. Holder, 683 F.3d 1164, 1169–70 (9th Cir. 2012); see

also Loper Bright Enters. v. Raimondo, 603 U.S. 369,

392 n.4 (2024).

Here, the Commission purported to review the

ALJ’s decision for substantial evidence. Thus, we must

determine whether the Commission erred in

concluding that the ALJ’s decision did not meet this

standard. Substantial evidence “means only [ ] ‘such

relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Biestek v.

Berryhill, 587 U.S. 98, 103 (2019) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It

requires “review of the whole record.” Kyung Park v.

Holder, 572 F.3d 619, 624 (9th Cir. 2009) (citation

omitted). When “the evidence can reasonably support

either affirming or reversing” the factfinder’s

conclusion, then the Commission, like a reviewing

court, “may not substitute its judgment” for that of the

factfinder. See Flaten v. Sec’y of Health & Hum. Servs.,

44 F.3d 1453, 1457 (9th Cir. 1995).

Retaliation. A retaliation claim under §

815(c)(1) has three elements: (1) the claimant engaged

in protected activity; (2) the employer discharged or

discriminated against the claimant; and (3) a causal

connection between the two. 1 The first two elements

are not at issue here.

In Thomas I, we held that the third element

requires a claimant to prove but-for causation. 993

F.3d at 1209–11. But-for causation requires courts “to

change one thing at a time and see if the outcome

changes. If it does, [the court has] found a but-for

cause.” Bostock v. Clayton County, 590 U.S. 644, 656

(2020). And because causation for retaliation boils

down to the employer’s motivations, where direct

evidence of retaliation is lacking, analogous cases have

considered: (a) the employer’s knowledge of the

protected activity; (b) the timing of the discriminatory

act relative to the protected activity; (c) the employer’s

hostility or animosity towards the claimant; (d) the

employer’s differential treatment of the claimant; and

(e) the employer’s explanation for the alleged

discriminatory act, and whether that explanation is

merely pretextual. E.g., Maner v. Dignity Health, 9

F.4th 1114, 1127–28 (9th Cir. 2021); Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam);

Winarto v. Toshiba Am. Elecs. Components, Inc., 274

F.3d 1276, 1285–86 (9th Cir. 2001); Miller v. Fairchild

1 The statute reads: “No person shall discharge or in any manner

discriminate against ... any miner ... because such miner ... has

filed or made a complaint under or related to this chapter,

including a complaint notifying the operator ... of an alleged

danger or safety or health violation ....” 30 U.S.C. § 815(c)(1).

Indus., Inc., 885 F.2d 498, 506 (9th Cir. 1989); Kama

v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024).

The ALJ found four sets of protected activity and

three adverse actions. After reviewing the decisions

below and the entire factual record, we conclude that

the Commission failed to limit its review to whether

the ALJ’s findings are supported by substantial

evidence. Thus, regardless of whether the

Commission’s view of the facts might also be

supported by substantial evidence, as the dissent

contends, the Commission erred.

To demonstrate the validity of the ALJ’s findings,

we highlight some key pieces of evidence. Relevant to

Thomas’s suspension and termination, the ALJ found

that Dean Demers—Thomas’s supervisor—knew of

Thomas’s safety complaints and that the timing of the

discharge was suspicious. The ALJ also credited

testimony suggesting that Demers was happy to have

suspended Thomas and that Demers himself engaged

in similar safety violations to the one allegedly

motivating the action taken against Thomas. This is

particularly relevant because Demers drafted the

initial termination letter that was “accidentally” sent

to Thomas, which caused Thomas’s eventual

“voluntary resignation.”

The ALJ also found that CalPortland’s investigation

was rushed, evidencing pretext. Although the

Commission voiced some valid concerns with this and

other evidence, they were insufficient to overcome the

evidence cited by the ALJ. Instead, the Commission

repeatedly substituted its view of certain evidence for

that of the ALJ. That was error under 30 U.S.C. §

823(d)(2)(A)(iii).

We do not address Thomas’s remaining arguments,

as they would have no impact on our decision.

The petition for review is GRANTED, the

Commission’s decision is VACATED, and the matter

is REMANDED to the Commission. The matter of the

ALJ’s supplemental order regarding the amount of

damages remains to be conclusively resolved.

BUMATAY, Circuit Judge, dissenting:

Because the Federal Mine Safety & Health

Commission’s factual findings must be treated as

“conclusive” if supported by substantial evidence, I

respectfully dissent.

Robert Thomas challenges the Commission’s

finding that he failed to prove that CalPortland

Company fired him in retaliation for his protected

activity and the Commission’s finding that the

administrative law judge (“ALJ”) in the case failed to

consider all the evidence in ruling for Thomas. We

should have denied the petition on both claims.

The Mine Act is crystal clear on our review of

Commission decisions. As its title suggests, § 816

governs the “Judicial review of Commission orders.”

30 U.S.C. § 816. It allows a person aggrieved by a

Commission order to appeal to a federal court of

appeals. Id. § 816(a)(1). Section 816 then prescribes a

limited role for federal courts over fact findings. It

instructs that “[t]he findings of the Commission with

respect to questions of fact, if supposed by substantial

evidence on the record considered as a whole, shall be

conclusive.” 30 U.S.C. § 816(a)(1) (emphasis added). So

Congress’s command is straightforward. When

reviewing the Commission’s findings of fact, we must

review only for “substantial evidence.” If the

Commission’s factfinding clears that low bar, its

findings are “conclusive.” And the provision doesn’t

leave wiggle room for us to do anything otherwise. See

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26, 35 (1998) (using the mandatory term shall

“normally creates an obligation impervious to judicial

discretion”); Fejes v. FAA, 98 F.4th 1156, 1161 (9th Cir.

2024) (“ ‘Shall’ indicates mandatory action.”). Thus,

“the Commission’s factual findings must be upheld if

they are supported by substantial evidence.” D.H.

Blattner & Sons, Inc. v. Sec. of Lab., Mine Safety and

Health Admin., 152 F.3d 1102, 1108 (9th Cir. 1998).

Under this “highly deferential” standard of review,

G.C. v. Garland, 109 F.4th 1230, 1239 (9th Cir. 2024),

we should have easily denied Thomas’s first and

second claims. It is uncontested that, in January 2018,

a government inspector alleges observing Robert

Thomas working on a ladder on a barge over open

water without a personal flotation device—in violation

of government regulations. It is also uncontested that

the government inspector issued a citation to

CalPortland, Thomas’s employer, for Thomas’s failure

to wear a safety device. The inspector viewed Thomas’s

actions as aggravated and a substantial violation that

could reasonably likely result in a fatality.

CalPortland then suspended Thomas and eventually

discharged him.

Given these uncontested facts, substantial evidence

supports the Commission’s finding that Thomas failed

to show a causal nexus between any protected activity

and an adverse action. For example, while Thomas

established that his supervisor, Dean Demers, had

animus toward him, the Commission reasonably

concluded that the animus resulted from Thomas’s

perceived disrespectful behavior toward Demers

rather than from Thomas’s safety complaints,

cooperation with the government inspector, or threats

of legal action. Indeed, Thomas admitted hanging up

on Demers during a heated phone call and that

Demers made the comments allegedly showing

animus toward Thomas the next morning. A

reasonable mind could accept the Commission’s

conclusion considering the record. See Biestek v.

Berryhill, 587 U.S. 97, 103 (2019).

The Commission also found that Thomas couldn’t

identify similarly situated employees not punished as

Thomas was for his misconduct—thus, failing to show

disparate treatment. While Thomas complained that

another employee failed to wear a flotation device

while indoors on a boat, he could not show that any

employee was similarly reported for failing to wear a

life jacket over open water who was not suspended.

Substantial

evidence

also

supports

the

Commission’s finding that CalPortland’s justifications

for firing Thomas weren’t mere pretext. First, evidence

showed that CalPortland made several efforts to

contact Thomas but that Thomas was unresponsive.

Further, evidence showed that Thomas only offered to

provide information in written statements and didn’t

fully cooperate with CalPortland’s investigation. But

even if CalPortland fired Thomas for the misconduct

citation and following investigation, the Commission

reasonably found the firing justifiable because, based

on the mine’s violation history, it “was by far the most

serious violation the company had dealt with.”

For the same reasons, substantial evidence also

supports the Commission’s finding that ALJ in the

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case didn’t consider the totality of the evidence in

initially ruling for Thomas.

The majority doesn’t disagree that substantial

evidence supports the Commission’s findings. Rather,

the majority reasons that when § 816(a)(1) limits our

review to the findings of fact of the “Commission” it

does not mean the “Commission” at all, but instead

“refers to the agency generally.” Maj. Op. 3. But as

judges, our job is to follow the statute’s plain meaning

and presume that Congress “says what it means and

means what it says.” Oklahoma v. Castro-Huerta, 597

U.S. 629, 642 (2022). Yet despite § 816(a)(1)’s clear

command, the majority insists that we must go beyond

the Commission’s factfinding and also look at what the

ALJ found in the case. And in analyzing the record,

the majority picks the ALJ’s version of the facts—

which teeters close to de novo factfinding. But that’s

not what § 816(a)(1) requires.

Rather than relying on the Mine Act’s provision

governing judicial review, see 30 U.S.C. § 816, the

majority seizes on a phrase in the Act’s provision

governing administrative review, see id. §

823(d)(2)(A)(ii)(I). The majority believes this

administrative review provision gives our court

plenary authority to overturn the Commission’s

factfinding. But that’s not the congressional design.

Under § 823(d), Congress gives broad powers to the

Commission over ALJ decisions. Congress grants the

Commission authority to “prescribe rules of procedure

for its review of decisions of” ALJs and makes the

Commission’s review of ALJ decisions discretionary.

Id. § 823(d)(2)(A)(i). Congress expressly authorizes the

Commission to “affirm, set aside, or modify the

decision or order of the administrative law judge in

11a

conformity with the record.” Id. § 823(d)(2)(C).

Congress then limited the grounds for appeal of ALJ

decisions to the Commission, including the ground

that a “finding or conclusion of material fact is not

supported by

substantial

evidence.”

Id.

823(d)(2)(A)(ii)(i).

Based on the language of § 823(d)(2)(A)(ii)(i), the

majority thinks that we can disregard the plain text of

§ 816(a) (1) and that we must pierce the Commission’s

factfinding even if it’s supported by substantial

evidence. But the language of § 823(d)(2)(A)(ii)(i) says

no such thing. It only lists a ground of appeal of an

ALJ decision—it says nothing about our review of

Commission’s factfinding. Further, even if the two

statutory provisions conflict, “[i]t is a commonplace of

statutory construction that the specific governs the

general.” State v. Su, 121 F.4th 1, 13 (9th Cir. 2024).

So no matter the majority’s broad interpretation of §

823(d)(2)(A)(ii)(i), Congress directly and expressly

cabins our authority here. We should have followed

the plain text of § 823(d)(2)(A)(ii)(i).

Contrary to supporting the majority, Bumble Bee

Seafoods v. Dir, Off. of Workers’ Comp. Programs, 629

F.2d 1327, 1329 (9th Cir. 1980), counsels that we

follow the plain text of § 816(a)(1). In that case, the

Longshoremen’s and Harbor Workers’ Compensation

Act directed the Benefits Review Board to treat the

“findings of fact in the decision under review” as

“conclusive if supported by substantial evidence in the

record considered as a whole.” 33 U.S.C. § 921(b)(3).

So the Act mandated that the Board view the ALJ’s

factfinding as “conclusive”—unlike the Mine Act. And

more importantly, Congress gave no instruction to

federal appellate courts to treat the Board’s

12a

factfinding as “conclusive” as the Mine Act does. See

id. § 921(c). So it’s no wonder that the Mine Act’s

standard of review would differ from the

Longshoremen’s Act’s.

Nor does Miller Min. Co. v. Fed. Mine Safety &

Health Rev. Comm’n, 713 F.2d 487 (9th Cir. 1983),

help the majority. In that case, we said “we will uphold

the factual findings of the administrative law judge if

there is substantial evidence to support them.” Id. at

490. But the Commission there “adopted the decision”

of the ALJ, so the Commission’s factual findings were

the ALJ’s factual findings. Id. at 489. When the

Commission and ALJ fully agree on the facts, our

substantial evidence review is the same no matter

what. But when the Commission and the ALJ disagree,

Congress said we must review the Commission’s

version.

Thomas also challenges the Commission’s

application of the but-for causation standard. “[A] butfor test directs us to change one thing at a time and

see if the outcome changes.” Bostock v. Clayton County,

590 U.S. 644, 656 (2020). Though Thomas argues that

the Commission misapplied but-for causation by

“really looking for a ‘sole cause’ of adverse action,” the

record shows otherwise. The Commission found that

“Thomas failed to prove that his discharge was in any

way caused by any protected activity.” It concluded

that Thomas would have been suspended for his

safety-device misconduct and considered resigned

after his refusal to communicate with CalPortland

even if Thomas had not engaged in protected activity.

So rather than find that Thomas’s protected activity

wasn’t the “sole cause” of his termination, the

Commission found that his protected activity wasn’t a

13a

cause at all. Though Thomas may disagree with the

Commission’s findings, he cannot argue that it

incorrectly applied but-for causation. We should have

denied the petition on this claim as well.

14a

_____________________

APPENDIX B

_____________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Robert THOMAS,

Petitioner,

No. 24-1442

FEDERAL MINE SAFETY

AND HEALTH REVIEW

COMMISSION;

CalPortland Company,

Respondents.

Submitted May 6, 2025 * San Francisco, California

FILED MAY 7, 2025

On Petition for Review of an Order of the Federal Mine

Safety and Health Review Commission, Agency Nos.

WEST 2018-0402-DM, WEST 2019-0205

Attorneys and Law Firms

Colin McHugh, McHugh Law, PLLC, Vancouver, WA,

Trevor Cartales, Navigate Law Group, Portland, WA,

* The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

15a

Alexander J. Higgins, Law Offices of Alex J. Higgins,

Seattle, WA, for Petitioner.

Thaddeus Jason Riley, General Attorney, Federal

Mine Safety & Health Review Commission,

Washington, DC, for Respondent Federal Mine Safety

and Health Review Commission.

Brian P. Lundgren, Jessica Cox, Jackson Lewis, PC,

Seattle, WA, for Respondent CalPortland Company.

Before: McKEOWN, FORREST, and BUMATAY,

Circuit Judges.

Dissent by Judge BUMATAY.

MEMORANDUM **

Petitioner Robert Thomas seeks review of a

decision of the Federal Mine Safety and Health Review

Commission denying his retaliation claim brought

under the Mine Act, 30 U.S.C. § 815(c)(1), (3). We

assume the parties’ familiarity with the facts. For the

second time, see Thomas v. CalPortland Co. (Thomas

I), 993 F.3d 1204 (9th Cir. 2021), and because the

Commission misapplied the substantial evidence

standard, we grant Thomas’s petition and vacate and

remand.

Standard of Review. The Mine Act instructs

that “[t]he findings of the Commission with respect to

questions of fact, if supported by substantial evidence

on the record considered as a whole, shall be

conclusive.” 30 U.S.C. § 816(a)(1); see also Miller Min.

Co. v. Fed. Mine Safety & Health Rev. Comm’n, 713

F.2d 487, 490 (9th Cir. 1983) (“This court will uphold

** This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

16a

the factual findings of the administrative law judge if

there is substantial evidence to support them.”). It also

defines the Commission’s review authority over the

decisions of its administrative law judges (ALJ). 30

U.S.C. § 823(d). As relevant here, the Commission may

only review an ALJ’s factual findings for substantial

evidence, id. § 823(d)(2)(A) (ii)(I), (d)(2)(A)(iii), and it

commits legal error if it does not apply this standard.

Thomas I, 993 F.3d at 1211 n.4; accord, e.g., Donovan

ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 91–

92 (D.C. Cir. 1983); Sec’y of Lab. v. Knight Hawk Coal,

LLC, 991 F.3d 1297, 1306 (D.C. Cir. 2021). 1

This is consistent with our opinions focusing on similar

statutory regimes that specify an administrative tribunal is

bound to apply a particular standard of review to ALJ decisions.

See Bumble Bee Seafoods v. Dir., Off. of Workers’ Comp.

Programs, 629 F.2d 1327, 1329 (9th Cir. 1980) (relying on 33

U.S.C. § 921(b)(3) to conclude that because the Benefits Review

Board reviews decisions of its ALJs for substantial evidence, “the

Board may not substitute its views for those of the [ALJ] or

engage in a de novo review of the evidence” and “[t]he only way

we can ascertain whether the Board has adhered to this standard

is to conduct an independent review of the administrative

record”). And the inverse is true as well. Where a statute creating

an administrative review tribunal does not mandate a particular

standard of review, the tribunal may review the ALJ's findings

de novo and rely on its own view of the facts. See, e.g., NLRB v.

Int'l Bhd. of Elec. Workers, Loc. 77, 895 F.2d 1570, 1573 (9th Cir.

1990); 29 U.S.C. § 160(c)–(e) (requiring the court to review

findings of the NLRB for substantial evidence, but permitting the

NLRB to modify or set aside decisions of its ALJs “at any time

upon reasonable notice and in such manner as it shall deem

proper”).

In contrast to the statute governing the National Labor Relations

Board, the Commission may only “affirm, set aside, or modify the

decision or order of the [ALJ] in conformity with the record.” 30

U.S.C. § 823(d)(2)(C) (emphasis added). We also observe that §

17a

The dissent argues that because § 816(a)(1) only

allows us to review the Commission’s factual findings

for substantial evidence, we cannot assess whether the

Commission applied the correct standard when

reviewing the ALJ’s factfinding. We disagree. As the

D.C. Circuit has explained, § 816(a)(1)’s reference to

“Commission” refers to the agency generally —not just

the Commission—because “in many cases the ALJ’s

decision will become the decision of the Commission.”

Donovan ex rel. Chacon, 709 F.2d at 91 n.7; see also 30

U.S.C. § 823(d)(1). But more crucially, the statute

plainly provides that the Commission, in and of itself,

has no fact-finding authority when it reviews decisions

of its ALJs. 30 U.S.C. § 823(d)(2)(A)(ii)(I), (iii). The

Commission is to review an ALJ’s factual findings for

substantial evidence and Section 816(a)(1) “does not

supersede the statutory limits on the Commission’s

own powers of discretionary review.” Donovan, 709

F.2d at 91 n.7. Whether an administrative review body

has complied with its statutory scope of review is a

question of law that we review de novo. E.g., Rodriguez

v. Holder, 683 F.3d 1164, 1169–70 (9th Cir. 2012); see

also Loper Bright Enters. v. Raimondo, 603 U.S. 369,

392 n.4 (2024).

Here, the Commission purported to review the

ALJ’s decision for substantial evidence. Thus, we must

determine whether the Commission erred in

concluding that the ALJ’s decision did not meet this

823 expressly rejects application of 5 U.S.C. § 557(b), which

provides that “[o]n appeal from or review of the initial decision

[by the ALJ], the agency has all the powers which it would have

in making the initial decision.” See 30 U.S.C. § 823(d)(2)(C).

Therefore, the Mine Act creates an internal review process

dissimilar from that governing other agencies.

18a

standard. Substantial evidence “means only [ ] ‘such

relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’ ” Biestek v.

Berryhill, 587 U.S. 98, 103 (2019) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It

requires “review of the whole record.” Kyung Park v.

Holder, 572 F.3d 619, 624 (9th Cir. 2009) (citation

omitted). When “the evidence can reasonably support

either affirming or reversing” the factfinder’s

conclusion, then the Commission, like a reviewing

court, “may not substitute its judgment” for that of the

factfinder. See Flaten v. Sec’y of Health & Hum. Servs.,

44 F.3d 1453, 1457 (9th Cir. 1995).

Retaliation. A retaliation claim under §

815(c)(1) has three elements: (1) the claimant engaged

in protected activity; (2) the employer discharged or

discriminated against the claimant; and (3) a causal

connection between the two. 2 The first two elements

are not at issue here.

In Thomas I, we held that the third element

requires a claimant to prove but-for causation. 993

F.3d at 1209-11. But-for causation requires courts “to

change one thing at a time and see if the outcome

changes. If it does, [the court has] found a but-for

cause.” Bostock v. Clayton County, 590 U.S. 644, 656

(2020). And because causation for retaliation boils

down to the employer’s motivations, where direct

evidence of retaliation is lacking, analogous cases have

2 The statute reads: “No person shall discharge or in any manner

discriminate against ... any miner ... because such miner ... has

filed or made a complaint under or related to this chapter,

including a complaint notifying the operator ... of an alleged

danger or safety or health violation ....” 30 U.S.C. § 815(c)(1).

19a

considered: (a) the employer’s knowledge of the

protected activity; (b) the timing of the discriminatory

act relative to the protected activity; (c) the employer’s

hostility or animosity towards the claimant; (d) the

employer’s differential treatment of the claimant; and

(e) the employer’s explanation for the alleged

discriminatory act, and whether that explanation is

merely pretextual. E.g., Maner v. Dignity Health, 9

F.4th 1114, 1127¬28 (9th Cir. 2021); Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam);

Winarto v. Toshiba Am. Elecs. Components, Inc., 274

F.3d 1276, 1285-86 (9th Cir. 2001); Miller v. Fairchild

Indus., Inc., 885 F.2d 498, 506 (9th Cir. 1989); Kama

v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024).

The ALJ found four sets of protected activity and

three adverse actions. After reviewing the decisions

below and the entire factual record, we conclude that

the Commission failed to limit its review to whether

the ALJ’s findings are supported by substantial

evidence. Thus, regardless of whether the

Commission’s view of the facts might also be

supported by substantial evidence, as the dissent

contends, the Commission erred.

To demonstrate the validity of the ALJ’s findings,

we highlight some key pieces of evidence. Relevant to

Thomas’s suspension and termination, the ALJ found

that Dean Demers—Thomas’s supervisor—knew of

Thomas’s safety complaints and that the timing of the

discharge was suspicious. The ALJ also credited

testimony suggesting that Demers was happy to have

suspended Thomas and that Demers himself engaged

in similar safety violations to the one allegedly

motivating the action taken against Thomas. This is

particularly relevant because Demers drafted the

20a

initial termination letter that was “accidentally” sent

to Thomas, which caused Thomas’s eventual

“voluntary resignation.”

The ALJ also found that CalPortland’s investigation

was rushed, evidencing pretext. Although the

Commission voiced some valid concerns with this and

other evidence, they were insufficient to overcome the

evidence cited by the ALJ. Instead, the Commission

repeatedly substituted its view of certain evidence for

that of the ALJ. That was error under 30 U.S.C. §

823(d)(2)(A)(iii).

We do not address Thomas’s remaining arguments,

as they would have no impact on our decision.

The petition for review is GRANTED, the

Commission’s decision is VACATED, and the matter

is REMANDED to the Commission. The matter of the

ALJ’s supplemental order regarding the amount of

damages remains to be conclusively resolved.

BUMATAY, Circuit Judge, dissenting:

Because the Federal Mine Safety & Health

Commission’s factual findings must be treated as

“conclusive” if supported by substantial evidence, I

respectfully dissent.

Robert Thomas challenges the Commission’s

finding that he failed to prove that CalPortland

Company fired him in retaliation for his protected

activity and the Commission’s finding that the

administrative law judge (“ALJ”) in the case failed to

consider all the evidence in ruling for Thomas. We

should have denied the petition on both claims.

The Mine Act is crystal clear on our review of

Commission decisions. As its title suggests, § 816

21a

governs the “Judicial review of Commission orders.”

30 U.S.C. § 816. It allows a person aggrieved by a

Commission order to appeal to a federal court of

appeals. Id. § 816(a)(1). Section 816 then prescribes a

limited role for federal courts over fact findings. It

instructs that “[t]he findings of the Commission with

respect to questions of fact, if supposed by substantial

evidence on the record considered as a whole, shall be

conclusive.” 30 U.S.C. § 816(a)(1) (emphasis added). So

Congress’s command is straightforward. When

reviewing the Commission’s findings of fact, we must

review only for “substantial evidence.” If the

Commission’s factfinding clears that low bar, its

findings are “conclusive.” And the provision doesn’t

leave wiggle room for us to do anything otherwise. See

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26, 35 (1998) (using the mandatory term shall

“normally creates an obligation impervious to judicial

discretion”); Fejes v. FAA, 98 F.4th 1156, 1161 (9th Cir.

2024) (“ ‘Shall’ indicates mandatory action.”). Thus,

“the Commission’s factual findings must be upheld if

they are supported by substantial evidence.” D.H.

Blattner & Sons, Inc. v. Sec. of Lab., Mine Safety and

Health Admin., 152 F.3d 1102, 1108 (9th Cir. 1998).

Under this “highly deferential” standard of review,

G.C. v. Garland, 109 F.4th 1230, 1239 (9th Cir. 2024),

we should have easily denied Thomas’s first and

second claims. It is uncontested that, in January 2018,

a government inspector alleges observing Robert

Thomas working on a ladder on a barge over open

water without a personal flotation device— in

violation of government regulations. It is also

uncontested that the government inspector issued a

citation to CalPortland, Thomas’s employer, for

22a

Thomas’s failure to wear a safety device. The inspector

viewed Thomas’s actions as aggravated and a

substantial violation that could reasonably likely

result in a fatality. CalPortland then suspended

Thomas and eventually discharged him.

Given these uncontested facts, substantial evidence

supports the Commission’s finding that Thomas failed

to show a causal nexus between any protected activity

and an adverse action. For example, while Thomas

established that his supervisor, Dean Demers, had

animus toward him, the Commission reasonably

concluded that the animus resulted from Thomas’s

perceived disrespectful behavior toward Demers

rather than from Thomas’s safety complaints,

cooperation with the government inspector, or threats

of legal action. Indeed, Thomas admitted hanging up

on Demers during a heated phone call and that

Demers made the comments allegedly showing

animus toward Thomas the next morning. A

reasonable mind could accept the Commission’s

conclusion considering the record. See Biestek v.

Berryhill, 587 U.S. 97, 103 (2019).

The Commission also found that Thomas couldn’t

identify similarly situated employees not punished as

Thomas was for his misconduct—thus, failing to show

disparate treatment. While Thomas complained that

another employee failed to wear a flotation device

while indoors on a boat, he could not show that any

employee was similarly reported for failing to wear a

life jacket over open water who was not suspended.

Substantial

evidence

also

supports

the

Commission’s finding that CalPortland’s justifications

for firing Thomas weren’t mere pretext. First, evidence

23a

showed that CalPortland made several efforts to

contact Thomas but that Thomas was unresponsive.

Further, evidence showed that Thomas only offered to

provide information in written statements and didn’t

fully cooperate with CalPortland’s investigation. But

even if CalPortland fired Thomas for the misconduct

citation and following investigation, the Commission

reasonably found the firing justifiable because, based

on the mine’s violation history, it “was by far the most

serious violation the company had dealt with.”

For the same reasons, substantial evidence also

supports the Commission’s finding that ALJ in the

case didn’t consider the totality of the evidence in

initially ruling for Thomas.

The majority doesn’t disagree that substantial

evidence supports the Commission’s findings. Rather,

the majority reasons that when § 816(a)(1) limits our

review to the findings of fact of the “Commission” it

does not mean the “Commission” at all, but instead

“refers to the agency generally.” Maj. Op. 3. But as

judges, our job is to follow the statute’s plain meaning

and presume that Congress “says what it means and

means what it says.” Oklahoma v. Castro-Huerta, 597

U.S. 629, 642 (2022). Yet despite § 816(a)(1)’s clear

command, the majority insists that we must go beyond

the Commission’s factfinding and also look at what the

ALJ found in the case. And in analyzing the record,

the majority picks the ALJ’s version of the facts—

which teeters close to de novo factfinding. But that’s

not what § 816(a)(1) requires.

Rather than relying on the Mine Act’s provision

governing judicial review, see 30 U.S.C. § 816, the

majority seizes on a phrase in the Act’s provision

24a

governing administrative review, see id. §

823(d)(2)(A)(ii)(I). The majority believes 2025 WL

1319429 this administrative review provision gives

our court plenary authority to overturn the

Commission’s factfinding. But that’s not the

congressional design. Under § 823(d), Congress gives

broad powers to the Commission over ALJ decisions.

Congress grants the Commission authority to

“prescribe rules of procedure for its review of decisions

of” ALJs and makes the Commission’s review of ALJ

decisions discretionary. Id. § 823(d)(2)(A)(i). Congress

expressly authorizes the Commission to “affirm, set

aside, or modify the decision or order of the

administrative law judge in conformity with the

record.” Id. § 823(d)(2)(C). Congress then limited the

grounds for appeal of ALJ decisions to the Commission,

including the ground that a “finding or conclusion of

material fact is not supported by substantial evidence.”

Id. § 823(d)(2)(A)(ii)(i).

Based on the language of § 823(d)(2)(A)(ii)(i), the

majority thinks that we can disregard the plain text of

§ 816(a) (1) and that we must pierce the Commission’s

factfinding even if it’s supported by substantial

evidence. But the language of § 823(d)(2)(A)(ii)(i) says

no such thing. It only lists a ground of appeal of an

ALJ decision—it says nothing about our review of

Commission’s factfinding. Further, even if the two

statutory provisions conflict, “[i]t is a commonplace of

statutory construction that the specific governs the

general.” State v. Su, 121 F.4th 1, 13 (9th Cir. 2024).

So no matter the majority’s broad interpretation of §

823(d)(2)(A)(ii)(i), Congress directly and expressly

cabins our authority here. We should have followed

the plain text of § 823(d)(2)(A)(ii)(i).

25a

Contrary to supporting the majority, Bumble Bee

Seafoods v. Dir., Off. of Workers’ Comp. Programs, 629

F.2d 1327, 1329 (9th Cir. 1980), counsels that we

follow the plain text of § 816(a)(1). In that case, the

Longshoremen’s and Harbor Workers’ Compensation

Act directed the Benefits Review Board to treat the

“findings of fact in the decision under review” as

“conclusive if supported by substantial evidence in the

record considered as a whole.” 33 U.S.C. § 921(b)(3).

So the Act mandated that the Board view the ALJ’s

factfinding as “conclusive”—unlike the Mine Act. And

more importantly, Congress gave no instruction to

federal appellate courts to treat the Board’s

factfinding as “conclusive” as the Mine Act does. See

id. § 921(c). So it’s no wonder that the Mine Act’s

standard of review would differ from the

Longshoremen’s Act’s.

Nor does Miller Min. Co. v. Fed. Mine Safety &

Health Rev. Comm’n, 713 F.2d 487 (9th Cir. 1983),

help the majority. In that case, we said “we will uphold

the factual findings of the administrative law judge if

there is substantial evidence to support them.” Id. at

490. But the Commission there “adopted the decision”

of the ALJ, so the Commission’s factual findings were

the ALJ’s factual findings. Id. at 489. When the

Commission and ALJ fully agree on the facts, our

substantial evidence review is the same no matter

what. But when the Commission and the ALJ disagree,

Congress said we must review the Commission’s

version.

Thomas also challenges the Commission’s

application of the but-for causation standard. “[A] butfor test directs us to change one thing at a time and

see if the outcome changes.” Bostock v. Clayton County,

26a

590 U.S. 644, 656 (2020). Though Thomas argues that

the Commission misapplied but-for causation by

“really looking for a ‘sole cause’ of adverse action,” the

record shows otherwise. The Commission found that

“Thomas failed to prove that his discharge was in any

way caused by any protected activity.” It concluded

that Thomas would have been suspended for his

safety-device misconduct and considered resigned

after his refusal to communicate with CalPortland

even if Thomas had not engaged in protected activity.

So rather than find that Thomas’s protected activity

wasn’t the “sole cause” of his termination, the

Commission found that his protected activity wasn’t a

cause at all. Though Thomas may disagree with the

Commission’s findings, he cannot argue that it

incorrectly applied but-for causation. We should have

denied the petition on this claim as well.

27a

_____________________

APPENDIX C

_____________________

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE

520N

WASHINGTON, D.C. 20004-1710

March 1, 2024

ROBERT THOMAS

CALPORTLAND

COMPANY

: Docket Nos. WEST 20180402-DM

WEST 2019-0205

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

28a

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

1Section 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.

29a

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.

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

230 U.S.C. § 815(c)(3) states that:

30a

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 PasulaRobinette 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

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

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

the

Secretary’s

determination, to file an action in

his own behalf before the

Commission,

charging

discrimination or interference in

violation of paragraph (1).

3The 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

31a

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 120811. 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:

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).

4Gross 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).

32a

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

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 the plaintiff retains the burden of persuasion

33a

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

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).

5In 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.

34a

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).

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).

A. 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

35a

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. Several

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

Animus

Cooperation with MSHA Inspection

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.

7We 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.

36a

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. 20708. 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.

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

37a

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

38a

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

39a

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

omitted 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

40a

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; 38586.

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

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 PostHearing 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.”

41a

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. Thomas 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.

42a

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

43a

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. Moreover, 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

44a

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

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

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).

45a

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

46a

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.

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.

47a

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, 45761; 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.

Although 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).

48a

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.”

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 email, 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

49a

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

10Judges 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.

50a

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, the 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

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)).

51a

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 34, 17; CalPort. Op. Br. at 1921; 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

52a

history, this was by far the most serious violation the

company had dealt with up to that point. Finally,

Demers testified that based 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.

13According to CalPortland’s Disciplinary Policy, Sec. 2.4:

“Noncompliance 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.

53a

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.

14On 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

investigation.

Refusal

cooperate, false answers or

misrepresentations is grounds for

disciplinary action including

terminations. Dishonesty is a

54a

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.”

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

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.

55a

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.

56a

/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

57a

_____________________

APPENDIX D

_____________________

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

721 19th St., Suite 443

Denver, CO 80202-2500

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

December 2, 2021

ROBERT THOMAS,

Complainant,

CALPORTLAND COMPANY, :

Respondent.

SECRETARY OF LABOR,

MINE SAFETY AND

HEALTH

ADMINISTRATION,

(MSHA),

Petitioner,

CALPORTLAND COMPANY, :

Respondent.

DISCRIMINATION

PROCEEDING

Docket No. WEST

2018-0402 DM

Mine: Sanderling

Dredge

Mine ID: 45-03687

CIVIL PENALTY

PROCEEDING

Docket No. WEST

2019-0205 MSHA

Case No. WE-MD2018-06

58a

Mine: Sanderling

Dredge

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.

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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.

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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

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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. 3942, 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. 12021.

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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

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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.

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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

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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.

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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

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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 46.

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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

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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.

1 Thomas was sent two copies of this letter and refused to accept

delivery on both copies.

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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 wellestablished

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

71a

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

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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 20180402-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

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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 PasulaRobinette 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

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“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 butfor 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

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.

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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

While the Ninth Circuit held that the term “because”

unambiguously indicates a but-for causation standard, any other

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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

ambiguity in the Act’s text could be informed by the Secretary’s

interpretation.

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).

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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.

78a

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

79a

established

rebuttable

presumption

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

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.

80a

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.

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

81a

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

82a

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

83a

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

84a

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).

85a

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

86a

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

87a

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 nondisciplinary 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.

88a

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

89a

(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

90a

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

91a

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

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.

92a

McAuley appeared particularly well-coached and wellrehearsed 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.

93a

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.

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.

94a

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.

95a

♦

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

96a

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

97a

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

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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

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_____________________

APPENDIX E

_____________________

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE

520N

WASHINGTON, D.C. 20004-1710

June 11, 2021

ROBERT THOMAS

CALPORTLAND

COMPANY

: Docket No. WEST 2018402-DM

Mine ID: 4503687

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

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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 PasulaRobinette 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).

1The 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).

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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 “butfor” causation standard consistent with the Ninth

Circuit’s decision.

2Burrage 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).

3At 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 Ch. 2021).

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/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

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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

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).

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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

res

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