FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

 

ROBERT THOMAS :

 : 

v. : Docket Nos. WEST 2018-0402-DM

 : WEST 2019-0205

CALPORTLAND COMPANY :

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

DECISION

BY: THE COMMISSION

This discrimination proceeding, arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), is on remand to the Commission 

pursuant to a decision of the United States Court of Appeals for the Ninth Circuit. Thomas v. 

CalPortland Co., 993 F.3d 1204 (9th Cir. 2021), rev’g Thomas v. CalPortland, 42 FMSHRC 43 

(Jan. 2020) (“CalPortland I”). The Court rejected the Commission’s application of the PasulaRobinette 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 

1

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

No person shall discharge or in any manner discriminate against 

. . . any miner . . . because such miner . . . filed or made a 

complaint under or related to this Act, including a complaint 

notifying the operator or the operator’s agent . . . of an alleged 

danger or safety or health violation in a coal or other mine, . . . or 

because such miner . . . has instituted or caused to be instituted any 

proceeding under or related to this Act . . . .

30 U.S.C. § 815(c)(1). The Commission’s Pasula-Robinette test is described infra. Slip op. at 3 

n.3.

March 1, 2024
2

Thomas back pay, lost benefits, interest, attorney’s fees, and any additional fees incurred during 

the appeals process. Thomas v. CalPortland, 43 FMSHRC 531, 550 (Dec. 2021) (ALJ).

For the reasons discussed below, we hold that substantial evidence did not support the 

Judge’s conclusion that Thomas was discharged for his protected activity. In fact, the substantial 

evidence can only be fairly interpreted to indicate that Thomas was discharged for unprotected 

activity alone. Accordingly, we reverse the Judge’s decision on remand and dismiss this case. 

I.

Factual and Procedural Background

The background facts are fully set forth in CalPortland I and are summarized here. In 

the months leading up to Thomas’s suspension and subsequent termination, Thomas complained 

to his Supervisor Dean Demers about working long hours and about substitute miners not being 

properly trained. In January 2018, an investigator from the Department of Labor’s Mine Safety 

and Health Administration (“MSHA”) saw Thomas not wearing his personal flotation device 

(PFD) while over open water on a dredge. Thomas’s action resulted in the issuance of an 

unwarrantable failure citation for violating MSHA regulations. 

CalPortland subsequently suspended Thomas pending an investigation into the incident. 

The company later determined that Thomas had voluntarily resigned from his position after 

Thomas refused to communicate with CalPortland during that investigation. Thomas filed a 

discrimination complaint with MSHA, but MSHA declined to pursue a complaint with the 

Commission on his behalf. Thomas proceeded to file this complaint with the Commission 

pursuant to section 105(c)(3), 30 U.S.C. § 815(c)(3).2 

Following an evidentiary hearing on the merits, the Judge issued a decision finding that 

CalPortland had discriminated against Thomas in violation of the Mine Act. 40 FMSHRC 1503, 

1517-18 (Dec. 2018) (ALJ). On review, the Commission unanimously determined that 

substantial evidence did not support the Judge’s finding that Thomas had established a prima 

facie case of discrimination. The Commission reversed the Judge’s decision and dismissed the 

case. CalPortland I, 42 FMSHRC at 54. Thomas appealed the Commission’s decision to the 

Ninth Circuit.

On appeal, the Ninth Circuit rejected the application of the Commission’s 40-year-old

Pasula-Robinette framework to cases brought under section 105(c) of the Mine Act. Thomas v. 

2

 30 U.S.C. § 815(c)(3) states that:

Within 90 days of the receipt of a complaint filed under paragraph 

(2), the Secretary shall notify, in writing, the miner . . . of his 

determination whether a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions of this 

subsection have not been violated, the complainant shall have the 

right, within 30 days of notice of the Secretary’s determination, to 

file an action in his own behalf before the Commission, charging 

discrimination or interference in violation of paragraph (1).
3

CalPortland Co., 993 F.3d at 1208-09.

3

 Relying on Supreme Court precedent, the Court 

reasoned that the framework conflicts with the Supreme Court’s instruction that the ordinary 

meaning of “because” requires application of a “but-for” test.4 CalPortland Co., 993 F.3d at 

1208-11. It determined that the Mine Act’s language is clear and contained no textual or 

contextual indication that “because” means anything other than “but-for.” Id. The Court then 

remanded the case to the Commission for further proceedings consistent with its opinion. Id. 

The Commission subsequently remanded the case to the Judge to first consider Thomas’s

claim under the newly imposed “but-for” causation test. Applying the new standard of review, 

the Judge again found that CalPortland had discriminated against Thomas in violation of the 

Mine Act. 43 FMSHRC at 550. The operator now seeks review of the Judge’s determination.

II.

Disposition

In the Commission’s initial consideration of this case, it carefully and extensively 

reviewed the facts. The Commission unanimously held:

Thomas failed to introduce any evidence that his suspension

and eventual discharge were in any way motivated by protected

activity. In fact, the available evidence strongly suggests that

the adverse actions he experienced were direct results of his

own unprotected and dangerous activity of failing to wear a

PFD and his walking away from the operator’s necessary

investigation.

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

No additional evidence was available on remand. Of course, if a claimant does not 

prove protected activity motivated adverse action in any way, the claimant has not 

demonstrated that the adverse action would not have occurred “but-for” protected activity.

The Commission has again carefully reviewed the facts and the Judge’s decision to 

determine if Thomas proved the operator discriminated under the but-for test. As set forth 

below, Thomas did not carry that burden.

3 The Pasula-Robinette framework is a burden shifting test that requires a complainant to 

prove a prima facie case of discrimination and then provides operators an opportunity to rebut 

that case or provide an affirmative defense. Sec’y of Labor on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom; 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 805, 817-18 (Apr. 1981).

4

 Gross v. FBL Fin. Servs., 557 U.S. 167, 176-78 (2009); Univ. of Sw. Tex. Med. Ctr. v. 

Nassar, 570 U.S. 338, 347-48 (2013); Burrage v. United States, 571 U.S. 204, 212-17 (2014);

Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020).
4

APPLICABLE LAW

1. But-for Causation

According to the Ninth Circuit, the Supreme Court has instructed “that the word 

‘because’ in a statutory cause of action requires a but-for causation analysis unless the text or 

context indicates otherwise.” Thomas, 993 F.3d at 1211. The Supreme Court has explained that 

the ordinary meaning of “because of” is that the protected activity or class was the “reason” the 

employer decided to act. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Under the 

but-for standard the plaintiff retains the burden of persuasion and must prove by a preponderance 

of the evidence (which may be direct or circumstantial), that the protected activity was the “butfor” cause of the challenged employer decision. Id. at 176-78.5

 

2. Substantial Evidence

When reviewing an Administrative Law Judge’s factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 

823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable mind 

might accept as adequate to support [the Judge’s] conclusion.”’ Rochester & Pittsburgh Coal 

Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 

229 (1938)); Sec’y of Labor on behalf of Price v. JWR, 12 FMSHRC 2418, 2420 (Nov. 1990). 

The record as a whole must be considered, including evidence in the record that fairly detracts. 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Black Castle Mining Co., 36 

FMSHRC 323, 328 (Feb. 2014). Agency findings that are grounded upon conjecture or 

suspicion are unreasonable under substantial evidence review. Bussen Quarries, Inc. v. Acosta, 

895 F.3d 1039, 1045 (8th Cir. Aug. 2018).

3. Abuse of Discretion

When reviewing a Judge’s evidentiary ruling, the Commission applies an abuse of 

discretion standard. See In Re: Contests of Respirable Dust Sample Alteration Citations, 17 

FMSHRC 1819, 1873-75 (Nov. 1995), aff'd on other grounds sub nom Sec’y of Labor v. 

Keystone Coal Mining Corp. 151 F.3d 1096 (D.C. Cir. 1998). Abuse of discretion may be found 

when “there is no evidence to support the decision or if the decision is based on an improper 

understanding of the law.” Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 n.5 (Feb. 1997) 

(citing Utah Power & Light Co., Mining Div., 13 FMSHRC 1617, 1623 n.6 (Oct. 1991)); Cyprus 

Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000).

5 In this case, the Commission applies the but-for standard at the direction of the Ninth 

Circuit. Pasula-Robinette remains the standard in cases arising under other jurisdictions. 

Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1920 (Aug. 2016); Sec’y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on 

other grounds sub nom; Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); 

Robinette, 3 FMSHRC at 817-18.
5

4. Credibility Findings

It is well settled that a Judge’s credibility determinations are entitled to great weight and 

may not be overturned lightly except under exceptional circumstances. Sec’y on behalf of 

Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1924, (Aug. 2016) (citations omitted). 

However, the Commission will not affirm credibility determinations that ignore extensive record 

evidence that tends to call the Judge’s findings into question. Morgan v. Arch of Illinois, 21 

FMSHRC 1381, 1391–92 (Dec. 1999).

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 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

1. Animus

a) Cooperation with MSHA Inspection

Thomas initially claimed that the inspection by Inspector Johnson was the only activity 

that he believed motivated the adverse actions against him. Thomas Ex. 46 (Discrimination 

6 As a general evidentiary matter, a finding of discrimination under either “but-for” or 

Pasula-Robinette still turns on a finding of causation. Accordingly, many of the same categories 

of evidence, such as animus and disparate treatment, may remain relevant as circumstantial 

evidence of a causal nexus.

7 We also note that the Judge made several highly questionable credibility 

determinations. Among them, she generally found that Demers and McAuley were not credible

witnesses, describing Demers as “rehearsed and disingenuous in his statements.” 43 FMSHRC at 

545-48. However, there were very few instances where the witnesses’ testimonies conflicted, 

and nearly all the witness testimony was consistent regarding the material facts. Additionally, 

much of Demers’s and McAuley’s testimony went undisputed. Nevertheless, because 

CalPortland’s evidence consisted of more than the testimonies of Demers and McAuley, we need 

not disturb the Judge’s credibility determinations.
6

Complaint); Tr. 207-08. However, Thomas presented no evidence that CalPortland interfered in 

any way with his participation in the MSHA discussions surrounding his PFD violation or 

otherwise exhibited hostility towards his discussions with the inspector. In fact, Thomas 

admitted that the company did not display any animus regarding his participation in the 

inspection. Tr. 208. Beyond noting that Demers recommended Thomas’s termination 

immediately after Thomas’s PFD violation, the Judge failed to identify any signs of hostility 

displayed by CalPortland towards Thomas’s protected activity in speaking with the MSHA 

inspector about the January 24 inspection. Therefore, substantial evidence does not support the 

Judge’s finding that CalPortland was hostile toward Thomas’s protected activity in speaking with 

MSHA. 

b) Safety Complaints

There is no evidence of hostility regarding Thomas’s safety complaints. In fact, Thomas 

provided evidence to the contrary. Thomas testified that when he complained to Demers about 

the long hours, Demers responded that he was “working on it.” Tr. 120. According to the 

testimony at hearing, Thomas initially believed Demers was ignoring the miners’ complaints. 

Tr. 120. However, Thomas went on to testify that he only believed that Demers was blowing 

them off because Thomas “knew [Demers] had a lot on his plate. . . . He was trying to man—

take care of three barges, shorthanded, and taking care of a new item, the dredge, Sanderling.” 

Tr. 120-21. When asked if Demers did anything to alleviate his concerns about the hours, 

Thomas said: “Yes, he started bringing out the rock barge guys . . . .” Tr. 121. Thomas 

conceded that Demers’s response to his request to work less hours was not one of animosity or 

hostility and that Demers’s solution relieved the excessive hours issue for him. Tr. 208-11. That 

is, rather than demonstrate animus towards Thomas’s protected activity, CalPortland took 

Thomas’s safety complaints seriously and ameliorated the condition at issue.

There is also no evidence demonstrating that Demers resented Thomas’s complaint about 

the lack of task training for the rock barge miners or his refusal to sign task training sheets. On 

the contrary, Thomas testified that he did not sense animus from Demers regarding his safety 

complaints, and he agreed that he did not believe anything MSHA-related motivated CalPortland 

to take an adverse action against him. Tr. 208-11. The Judge failed to consider this 

uncontradicted evidence. In order to affirm a Judge on substantial evidence, the record 

evidence “must do more than create a suspicion of the existence of the fact to be established.” 

Bussen Quarries, Inc. v. Acosta, 895 F.3d 1039, 1045 (8th Cir. 2018), quoting NLRB v. 

Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939). We “must [also] take into 

account whatever in the record fairly detracts from the weight of the evidence that supports the 

finding.” Id., citing Plateau Mining Corp. v. FMSHRC, 519 F.3d 1176, 1194 (10th Cir. 2008) 

(internal citation omitted). It is also persuasive that McMillan too complained of long hours and 

refused to sign the task training sheets, yet he did not suffer an adverse action. See Metz v. 

Carmeuse Lime, Inc., 34 FMSHRC 1820, 1827 (Aug. 2012) (finding operator lacked animus 

against complainant’s safety-related complaints where other employees complained of the same 

safety issue and none of them experienced retaliation).

Finally, the Judge relies heavily on comments made by Demers during the relevant period 

to establish animus and timing. In particular, she notes that Thomas introduced evidence 
7

showing that, after he had complained of his hours and workload, Demers remarked to McMillan

that “Rob Thomas was done, he was . . . done at CalPortland. Tr. 48.” 43 FMSHRC at 544, 548. 

However, her finding not only takes Demers’s statement out of context, but also mischaracterizes 

the witness’ testimony. To begin, it suggests that Demers’s statement directly followed and was 

the result of Thomas’s safety complaints in November 2017. However, undisputed witness 

testimony clearly indicates that the statement was made the morning after a heated argument 

between Demers and Thomas about the latter’s request for sick leave. During that conversation, 

Thomas hung up the phone on Demers (his supervisor), which Thomas admitted to doing at the 

hearing, and which was corroborated by McMillan. Tr. 47-48, 88, 123-24. McMillan stated that 

he heard about the conversation from both Thomas and Demers “and both of them told me the 

same thing.” Tr. 47. 

Additionally, the argument led to a meeting between Thomas, Demers, and Candy 

Strickland in CalPortland’s Human Resources Department to resolve the incident, which 

included discussing protocol, the proper way to call out sick, and how to communicate with 

one’s manager and peers in a professional manner. Tr. 124, 445. Thomas’s behavior during this 

phone call was not disputed. Tr. 47-48, 123-124. However, the Judge completely overlooks the 

evidence of Thomas’s insubordinate conduct toward his manager during the relevant time period. 

Next, the Judge repeatedly omits a material portion of McMillan’s testimony in which he 

speaks directly to Demers’s attitude towards Thomas. The testimony demonstrates that Demers 

was angered by the way Thomas talked to him on the phone rather than any protected activity. 

Specifically, McMillan testified that “Dean told me that . . . after the way Rob talked to him on 

the phone that Rob Thomas was done, he was . . . done at CalPortland.” Tr. 48 (emphasis 

added). McMillan’s full testimony here directly contradicts the conclusion drawn by the Judge. 

The Judge improperly 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 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

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 
8

question regarding Thomas’s normal PFD practices was “pointed,” neither he nor Thomas 

testified that Woods was aggressive during the meeting. Tr. 144-45; 385-86. 

c) The Threat of Legal Action

Contrary to the Judge’s conclusion, substantial evidence does not support a finding that 

Thomas’s discharge was caused by his notice that he was filing a discrimination claim regarding 

his suspension. Record evidence shows that CalPortland became aware of Thomas’s

discrimination claim on February 6, 2018, while two of the alleged discriminatory events 

occurred prior to the date (the January 25 suspension and January 30 accidental discharge email). 

Moreover, Thomas did not offer evidence that anyone in CalPortland management harbored 

animus towards him or terminated him due to his filing once they became aware of the claim. 

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. 

2. Disparate Treatment

A complainant alleging disparate treatment bears the burden of proof. Byrd v. Ronayne, 

61 F.3d 1026, 1032 (1st Cir. 1995). To that end, the Commission has held that “it is incumbent 

on the complainant to introduce evidence showing that another employee guilty of the same or 

more serious offense escaped the disciplinary fate suffered by the complainant.” Dreissen v. 

Nevada Goldfields, Inc., 20 FMSHRC 324, 332 n.14 (citing Sec’y of Labor on behalf of Chacon 

v. Phelps Dodge Corp., 3 FMSHRC 2508, 2512 (Nov. 1981). 

Here, the Judge determined that Thomas introduced evidence that other CalPortland 

employees who had committed similar PFD misconduct had not been punished equivalently. In 

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.”
9

particular, she noted that McMillan testified that Demers would routinely unfasten his PFD and 

remove his hardhat while working aboard the Sanderling. 43 FMSHRC at 544, citing Tr. 50.

Several factors distinguish this from Thomas’s situation. First, Thomas did not introduce 

evidence that Demers was ever reported for the one dredge incident described by McMillan or 

that upper management or HR was otherwise aware of it. The operator cannot be found to have 

disparately treated two miners when it was only actually aware of the actions of one of those 

miners. See e.g. Pollock v. Kennecott Utah Copper Corp., 26 FMSHRC 52, 63 (Jan. 2004) (ALJ 

Manning). Further, and more importantly, the Judge overlooked key details of McMillan’s

testimony. Section 56.15020 of the Secretary’s regulations states that “[l]ife jackets or belts shall 

be worn where there is danger from falling into water.” 30 C.F.R. § 56.15020 (emphasis added). 

McMillan testified that on the day Demers worked with him, Demers boarded the dredge, took 

his hard hat and life jacket off, threw them on the floor in the lever room, and sat down in the 

operating chair. Tr. 50; 89-90. “If [Demers] got up to leave the lever room, he put his life jacket 

back on, he’d just toss it back on real quick, but he didn’t zip it up or buckle it or anything.” Tr. 

50-51. 

In other words, this incident did not occur on the deck of the dredge while over open 

water. Demers only had his life jacket off while inside the lever room, where there is no danger 

of falling into the water. McMillan further indicated that it was not uncommon for the miners to 

remove their PFDs in certain circumstances, including when in the lever room. Tr. 72-73. 

Thomas did not introduce evidence that miners working inside the lever room without their PFDs 

normally faced discipline or were reported to management. 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 investigation before it starts discussing discipline 

and involving HR. But because of Thomas’s refusal to answer questions and his behavior at the 

investigative meeting, they decided to get HR involved earlier than normal. Tr. 304-05. Thomas 

did not dispute McAuley’s testimony.

The Judge next implied that Demers misrepresented Thomas’s behavior as “not being 

cooperative” during the meeting (see 43 FMSHRC at 544) and later found “that both McAuley 

and Demers were not credible witnesses when it came to discussing the incidents with Thomas.” 

Id. at 537. However, there is ample testimony in the record corroborating the accounts of 

Demers and McAuley, including the testimony of Thomas. For example, Woods asked Thomas

if it was common practice to not wear his PFD. Tr. 145, 385-86. Thomas stated:

I told him, I said I wasn’t going to answer that question . . . 

[b]ecause it was obvious that they weren’t going to listen to what I 
10

had to say, they had—only wanted to listen to what they wanted. I 

told them, I said I wasn’t going to incriminate myself.

Tr. 145. Strickland similarly testified that after the January 29 safety investigation meeting, 

Woods contacted her due to “Thomas not being cooperating, refusing to answer questions.”9 Tr. 

438, 448. However, the Judge does not mention this other witness testimony, which supports 

Demers’s and McAuley’s description of Thomas’s behavior. The Judge also relied on the 

distribution of Demers’s termination email, which she described as another unusual practice by 

the operator. However, the record shows that Demers’s email was a draft recommendation 

distributed by accident, a fact the Judge herself seemed to accept. See 43 FMSHRC at 543, 547. 

Furthermore, CalPortland introduced its “Attendance and Reporting to Work” policy

(“ARW Policy”), which states that if an employee is absent three or more consecutive days 

without calling, he or she “will be considered to have voluntarily resigned in the absence of a 

compelling excuse for having failed to do so.” Calport. Ex. FF at 3. It then submitted four 

examples of former employees processed out of the company as having voluntarily resigned 

when the employees ceased communicating with CalPortland. Calport. Exhibit FF; Tr. 468-70. 

The Judge did not discuss this evidence.

Regarding disparate treatment, the Judge overlooked the lack of evidence offered by 

Thomas. Thomas failed to introduce evidence that would show that other miners cited for failure 

to wear a PFD escaped a suspension pending investigation, or that any miner under suspicion of 

similar violative conduct or a more serious offense did not receive any form of reprimand at all. 

He also failed to introduce evidence showing that an employee who refused to communicate with 

CalPortland for seven days escaped termination from the company by voluntary resignation. In 

contrast, CalPortland showed that Thomas received the same treatment as other employees who 

refused to communicate. As with animus, based on the lack of evidence presented by Thomas, 

substantial evidence does not support the ALJ’s conclusion that Thomas suffered disparate 

treatment. Accordingly, substantial evidence does not support the Judge’s overall conclusion 

that Thomas’s suspension and termination would not have occurred but for any protected 

activity. 

3. Pretext

The ALJ’s determination that CalPortland’s justifications for Thomas’s discharge were 

pretext is not supported by substantial evidence. Complainant failed to produce any substantial 

evidence that the legitimate, nondiscriminatory reasons for taking adverse action presented by 

CalPortland were pretextual.

The Judge determined that a preponderance of the evidence showed that CalPortland’s 

explanations of events were pretextual. First, the Judge erroneously found that the only proven 

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). 
11

communications after February 1 were the “voluntary resignation” letters that were returned to 

CalPortland unopened. 43 FMSHRC at 546. 

The Judge overlooks the operator’s undisputed evidence in the form of contemporaneous 

notes (sent via internal email communications), which detailed the company’s efforts to reach 

Mr. Thomas between January 31 and February 2. Ex. P. In particular, Strickland asked 

McAuley and Demers to provide her with information on their attempted communications so that 

she could include it in her January 5 letter to Thomas. Tr. 453-54; Ex. P at 3-4. According to 

McAuley’s February 2 email to Strickland, he called Thomas three times and left two voice 

messages. Ex. P at 2. Thomas also testified that he returned McAuley’s call. Before hanging up

on McAuley, Thomas told him that he had no business calling his personal cell and to contact his 

attorney. Tr. 156-57, 186, 318-19, 452; CalPort. Ex. P at 2; Ex. R. 

According to Demers’s email detailing his attempts to reach Thomas, he responded to 

Thomas’s cancellation text asking him “[i]s there a time that is better?” Thomas did not respond. 

CalPort Ex. P at 4; Ex. R. In addition to several phone calls made by Demers, Strickland also 

sent Thomas a letter via standard mail and UPS on February 5 and 8 warning that if he did not 

contact human resources by Thursday, February 8, “he will be considered to have voluntarily 

resigned.” Tr. 456-57; CalPort Ex. R at 2. Thomas refused receipt of both copies and did not 

forward them on to his attorney. Tr. 162, 189-91, 457-61; 40 FMSHRC at 1507-08; 43 

FMSHRC at 536, n.1. Further contradicting the Judge’s finding is an email sent to Demers by 

Thomas’s own Counsel on February 13, 2018, stating that: “It is my understanding that since 

[February 2, 2018], you have continued to try to contact our client directly.” CalPort Ex. W at 1. 

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).

Next, the Judge concluded that after Thomas’s suspension, he “continued to participate 

fully in CalPortland’s investigation, . . . even submit[ing] a more-detailed written statement, as 

requested by the company, following the heated interview.” 43 FMSHRC at 546. The Judge 

found that Thomas only stopped participating in the investigation because he reasonably believed 

that his employment was terminated. Id.

We find that the record cannot support these conclusions. As previously discussed, 

Thomas admitted that he refused to answer questions regarding his PFD practices and testified 

that he called the investigatory meeting “a sham” and the MSHA Inspector’s statement 

“completely false.” Tr. 145. He refused to answer questions about key details and safety 

practices likely not discussed in those statements for fear that he would “incriminate [him]self.” 

Id. A willingness to offer only written statements that do not respond to important management 

questions does not constitute cooperation with an investigation. On this record, it is difficult to 

find that Thomas fully participated in the company’s investigation solely based on his 

willingness to write statements. 
12

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 evidence at the hearing of a screenshot taken by CalPortland’s Information Technology

department showing that Thomas did in fact receive and open the “sent by mistake” email. This 

evidence spoke directly to the reasonableness of Thomas’s “belief” that he had been terminated. 

However, the Judge excluded the evidence on the grounds that Demers testified that he sent it, 

and she did not believe it to be a “big deal.” Tr. 477-479. This was an abuse of discretion given 

that the Judge relied on the reasonableness of Thomas’s belief to reach her conclusion here.10

Additionally, during his deposition, Thomas stated that after receiving the second email, 

“[t]he damage ha[d] already been done,” and he conceded that after that, he refused to 

communicate with CalPortland.

11 Thomas Depo. at 175-77. On cross-examination,

CalPortland’s counsel questioned McMillan about his deposition where he stated that he spoke to 

Thomas once after Thomas was suspended, and that Thomas was upset because he saw an email 

that he was not supposed to see. Tr. 84-85. If Thomas believed that he was not supposed to see 

the email, one could infer that he understood the communication was intended for management 

only and not yet a final action. In Morgan v. Arch of Illinois, the Commission held that before a 

Judge credits any testimony, he or she must reconcile all record evidence that is inconsistent with 

that conclusion. 21 FMSHRC at 1391–92. There is no indication that the Judge considered any 

of this evidence before she credited Thomas’s “belief” that he was fired.

12

10 Judges are granted broad discretion to decide what is, and is not, relevant to their

deliberations regarding a case. Shamokin Filler Co., Inc., 34 FMSHRC 1897, 1906-08 

(upholding Judge’s exclusion of evidence that was of “limited probative value” and would have 

“consum[ed] an inordinate amount of time.”). However, the Judge acts unreasonably and 

unfairly when she precludes a party from presenting evidence because it is irrelevant and then 

makes a substantial finding that is predicated on the lack of such evidence. See In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819 (Nov. 1995), citing Phil 

Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir. 1979) (An ALJ’s decision to 

include or exclude evidence “will usually not be disturbed unless it results in undue prejudice or 

fundamental unfairness”). 

11 Although the Judge refused to admit Thomas’s deposition at hearing, which showed 

his inconsistent testimony, the relevant evidence entered the record prior to hearing. See Decl. of 

Laiho, Ex. A, Thomas Depo. at 175-77.

12 In reviewing a Judge’s credibility determination, we may “‘refuse to follow [it] where 

it conflicts with well supported and obvious inferences from the rest of the record. Such refusal 

is particularly justified where the testimony in question is given by an interested witness and 

relates to his own motives.”’ Arch of Illinois, 21 FMSHRC at 1391, citing NLRB v. Elias Bros. 

Big Boy, Inc., 327 F.2d 421, 425-26 (6th Cir. 1964) (quoting NLRB v. Pyne Molding Corp., 226 

F.2d 818, 819 (2nd Cir. 1955)). 
13

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 from the fall-out at the investigative 

meeting with Thomas and his subsequent refusal to communicate. Slip op at 9; Tr. 303-04. 

The Judge also spends much time discussing the apparently inconsistent justifications 

offered by CalPortland for why Thomas was terminated and why Thomas’s PFD misconduct was 

insufficient to justify his termination. 43 FMSHRC at 545- 548. However, these discussions 

are based on a misunderstanding of the operator’s arguments. The company never argued that 

Thomas’s PFD misconduct directly caused his discharge. CalPortland has made it clear that 

Thomas’s PFD misconduct resulted in the first adverse act of his suspension. It has consistently 

maintained that Thomas was discharged based on his own failure to communicate with the 

company, which it construed as job abandonment. See CalPort. PDR at 3; CalPort. PH Br. at 3-

4, 17; CalPort. Op. Br. at 19-21; CalPort. Reply Br. at 4-5; CalPort. PDR on Remand at 15, 21. 

Neither party offered evidence, such as a corrective action form or change of status form,

supporting the notion that CalPortland terminated Thomas based on his PFD misconduct. 

However, even if the company had fired Thomas for his PFD conduct, there is sufficient 

evidence in the record that supports CalPortland’s decision as a legitimate business justification. 

In fact, contrary to the Judge’s summary of McMillan’s testimony in this regard (see 43 

FMSHRC at 546–47), McMillan testified that Inspector Johnson told Thomas that he could be 

fined for the violation and that “it could be a fireable offense,” although unlikely given Thomas’s

good safety record. Tr. 62 (emphasis added). Additionally, based on a review of the mine’s 

violation history, this was by far the most serious violation the company had dealt with up to that 

point. Finally, Demers testified that 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 

13 According to CalPortland’s Disciplinary Policy, Sec. 2.4: “Non-compliance and/or 

disregard of the Company safety programs, policies, and provisions set [forth] may result in 

disciplinary action based on the Company disciplinary policy.” CalPort. Ex. CC at 18.
14

matter on the grounds that it had occurred six years prior and was “not relevant and highly

prejudicial.” Tr. 203-04, 311-13, 397-98.

The Judge’s exclusion of this evidence was an abuse of discretion. Commission 

Procedural Rule 63(a) states that “[r]elevant evidence ... that is not unduly repetitious or 

cumulative is admissible.” 29 C.F.R. § 2700.63(a). A finding of pretext is even more unlikely 

where there is evidence of “past discipline consistent with that meted out to the alleged 

discriminatee, the miner’s unsatisfactory past work record, prior warnings to the miner, or 

personnel rules or practices forbidding the conduct in question.” Bradley, 4 FMSHRC at 993.

A miner’s behavior during a post-violation investigation is just as relevant as the 

behavior that led to the investigation, particularly in the context of analyzing whether the 

company had justifiable reasons for terminating his employment. In the prior incident, not only 

was Thomas disciplined for making false statements to government investigators and failing to 

cooperate with an investigation, which was also a violation of company policy, he was 

specifically warned that such behavior could lead to termination in the future.14 Decl. of Laiho –

CalPort. Ex. L at 1. Therefore, because Thomas’s conduct surrounding the investigation was a 

significant factor in this case of alleged discrimination, it was improper for the Judge to exclude 

evidence of prior disciplinary problems and limit the universe of relevant conduct to safety 

related violations only. 

Finally, the Judge found CalPortland’s claim that Thomas voluntarily resigned to “be 

feeble.” 43 FMSHRC at 546. We, again, do not agree. Thomas went a total of seven days 

refusing to communicate with his employer and failing to provide a compelling excuse for his 

absence. CalPortland introduced evidence that its HR department processed Thomas’s exit from

the company as a voluntary resignation – consistent with its “personnel rules [and] practices” 

forbidding employees from being absent for three or more consecutive workdays. Bradley, 4 

FMSHRC at 993; CalPort. Exs. FF at 3, R, U. Thomas on the other hand did not introduce 

evidence that CalPortland’s Attendance Policy was not enforced against other employees who 

refused to communicate or that the policy was not enforced in general. See Ritenour v. 

Tennessee Dep’t of Hum. Servs., 497 Fed. App’x 521, 533 (6th Cir. 2012). 

In summary, record evidence demonstrates that CalPortland responded to Thomas’s

failure to wear a PFD, which resulted in an unwarrantable failure citation, by suspending him 

14 On the Corrective Action Form suspending Thomas for three days for failing to fully 

cooperate with an investigation and for lying in 2012, under “Supervisor Comments,” it states:

The company has the right to require the full cooperation from all 

employees during an investigation. Refusal to cooperate, false 

answers or misrepresentations is grounds for disciplinary action 

including terminations. Dishonesty is a serious violation of 

company work rules.

Decl. of Laiho, Ex. L at 105, 111. Thomas also testified that he was aware that CalPortland 

required employees to participate in company investigations and that he had been warned 

previously that lying would not be tolerated in the future. Tr. 203-04.
15

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.

_________________________________ 

Mary Lu Jordan, Chair

_________________________________

William I. Althen, Commissioner

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
16

Distribution:

Brian P. Lundgren, Esq.

Jackson Lewis P.C.

520 Pike Street, Suite 2300

Seattle, WA 98101

Brian.Lundgren@jacksonlewis.com

Colin F. McHugh, Esq.

Navigate Law Group

1310 Main Street

Vancouver, WA 98660

cmchugh@navigatelawgroup.com

Trevor J. Cartales, Esq.

Navigate Law Group

1310 Main Street

Vancouver, WA 98660

tcartales@navigatelawgroup.com

Alexander Higgins, Esq.

Law Offices of Alex J. Higgins

2200 Sixth Avenue, Suite 500

Seattle, WA 98121

alex@alexjhiggins.com

Emily Toler Scott, Esq.

Senior Trial Attorney

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Scott.Emily.T@dol.gov

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

Mine Safety and Health Division

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Nelson.April@dol.gov
17

Susannah M. Maltz, Esq.

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Maltz.Susannah.M@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov