**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

**1331 PENNSYLVANIA AVENUE, NW,SUITE 520N**

**WASHINGTON, D.C. 20004-1710**

 

 

ROBERT THOMAS                                        :         

                                                                         :         

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

                                                                         :                                 WEST2019-0205

CALPORTLANDCOMPANY                        :

 

 

 

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

** **

**DECISION**

 

BY: THE COMMISSION

 

Thisdiscrimination proceeding, arising under the Federal Mine Safety and Health Actof 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), ison remand to the Commission pursuant to a decision ofthe 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 Courtrejected the Commission’s application of the *Pasula-Robinette* causationstandard to section 105(c) cases.[1]The Ninth Circuit then remanded the case to the Commission to apply a “but-for”causation standard. 

TheCommission subsequently remanded the case to the Administrative Law Judge toreexamine the facts of this case consistent with the Ninth Circuit’sinstructions. 

Onremand, the Judge concluded, as she had prior to the remand, that CalPortlandhad discriminated against miner Robert Thomas in violation of the Mine Act. Sheagain 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).

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

**I.              **** **

**Factual andProcedural Background**

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

CalPortlandsubsequently suspended Thomas pending an investigation into the incident. Thecompany later determined that Thomas had voluntarily resigned from his positionafter Thomas refused to communicate with CalPortland during that investigation.Thomas filed a discrimination complaint with MSHA, but MSHA declined to pursuea complaint with the Commission on his behalf. Thomas proceeded to file thiscomplaint 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 adecision finding that CalPortland had discriminated against Thomas in violationof the Mine Act. 40 FMSHRC 1503, 1517-18 (Dec. 2018) (ALJ). Onreview, the Commission unanimously determined that substantial evidence did notsupport the Judge’s finding that Thomas had established a prima facie case ofdiscrimination. The Commission reversed the Judge’s decision and dismissed thecase. *CalPortland I*, 42 FMSHRC at 54. Thomasappealed the Commission’s decision to the Ninth Circuit.

 

On appeal, the Ninth Circuit rejected the application of theCommission’s 40-year-old*Pasula-Robinette* framework to cases broughtunder section 105(c) of the Mine Act. *Thomas v. CalPortland Co.*, 993F.3d at 1208-09.[3] Relying on Supreme Court precedent,the Court reasoned that the framework conflicts with the Supreme Court’sinstruction that the ordinary meaning of “because” requires application of a“but-for” test.[4]*CalPortland Co.*, 993 F.3d at1208-11. It determined that the Mine Act’s language is clear and contained notextual or contextual indication that “because” means anything other than“but-for.” *Id.* The Court then remanded the case to the Commission forfurther proceedings consistent with its opinion. *Id*. 

 

The Commission subsequently remandedthe 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 againfound that CalPortland had discriminated against Thomas in violation of theMine Act. 43 FMSHRC at 550. The operator now seeks review of the Judge’sdetermination.

 

**II.           **** **

**Disposition**

** **

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

Thomasfailed tointroduce *anyevidencethathissuspensionandeventualdischargewereinany way motivatedbyprotectedactivity*.In fact,theavailableevidence stronglysuggeststhattheadverseactions heexperiencedweredirectresultsofhisownunprotectedanddangerousactivity of failing towearaPFDandhiswalkingawayfrom theoperator’snecessaryinvestigation.

 

*CalPortlandI*,42 FMSHRC at 5 (emphasis added). 

** **

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

 

**APPLICABLELAW**

** **

**1.    ****But-for Causation**

 

According to theNinth Circuit, the Supreme Court has instructed “that the word ‘because’ in astatutory cause of action requires a but-for causation analysis unless the textor context indicates otherwise.” *Thomas*, 993 F.3d at 1211. The SupremeCourt has explained that the ordinary meaning of “because of” is that theprotected activity or class was the “reason” the employer decided to act. *Grossv. FBL Fin. Servs., Inc*., 557 U.S. 167, 176 (2009). Under the but-for standard the plaintiff retains the burden ofpersuasion and must prove by a preponderance of the evidence (which may bedirect or circumstantial), that the protected activity was the “but-for” causeof the challenged employer decision. *Id.*at 176-78.[5]

 

**2.    ****SubstantialEvidence**

 

When reviewing anAdministrative Law Judge’s factual determinations, the Commission is bound bythe 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 areasonable mind might accept as adequate to support [the Judge’s] conclusion.”’*Rochester & Pittsburgh Coal Co*., 11 FMSHRC 2159, 2163 (Nov. 1989) (*quotingConsol. Edison Co. v. NLRB*, 305 U.S. 197, 229 (1938)); *Sec’y of Labor onbehalf of Price v. JWR*, 12 FMSHRC 2418, 2420 (Nov. 1990). The record as awhole must be considered, including evidence in the record that fairlydetracts. *Universal Camera Corp. v. NLRB*, 340 U.S. 474, 488 (1951); *BlackCastle Mining Co*., 36 FMSHRC 323, 328 (Feb. 2014). Agency findings that aregrounded upon conjecture or suspicion are unreasonable under substantialevidence review. *Bussen Quarries, Inc. v. Acosta*, 895 F.3d 1039, 1045 (8thCir. Aug. 2018).

**3.    ****Abuse ofDiscretion**

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

 

**4.    ****Credibility Findings**

** **

It is well settled that a Judge’s credibility determinations areentitled to great weight and may not be overturned lightly except underexceptional circumstances. *Sec’y on behalf of Riordan v. Knox Creek CoalCorp*., 38 FMSHRC 1914, 1924, (Aug. 2016) (citations omitted). However, theCommission will not affirm credibility determinations that ignore extensiverecord evidence that tends to call the Judge’s findings into question. *Morganv. Arch of Illinois*, 21 FMSHRC 1381, 1391–92 (Dec. 1999).

 
    - ANALYSIS

** **

In *CalPortland I*, the Commissiondisagreed with the Judge’s findings of animus anddisparate treatment. 42 FMSHRC at 51- 53. After reviewing the record inits entirety, we conclude, for the second time, that substantial evidence doesnot support the Judge’s findings of animus or disparate treatment, and thatThomas has failed to produce any evidence to support unlawful discriminationunder any causation standard.[6]

 

Where the Judgesought to ground her reasoning and inferences on the testimony of Thomas or hiscoworker Joel McMillan, she either fragmented the witnesses’ testimonies or neglectedto reconcile conflicting evidence elsewhere in the record. Severalof the Judge’s factualfindings indicate that she failed to consider or weigh certain probativeevidence that fairly detracted from her inferences. Wewill discuss the necessary instances as we address the Judge’s remand findingsbelow.[7]

 

**1.    ****Animus**

 

**a)   ****Cooperationwith MSHA Inspection**

 

Thomas initially claimed that the inspection by InspectorJohnson was the only activity that he believed motivated the adverse actionsagainst him. Thomas Ex. 46 (Discrimination Complaint); Tr.207-08. However, Thomas presented no evidence that CalPortland interferedin any way with his participation in the MSHA discussions surrounding his PFDviolation or otherwise exhibited hostility towards his discussions with theinspector. In fact, Thomas admitted that the company did not display any animusregarding his participation in the inspection. Tr. 208. Beyondnoting that Demers recommended Thomas’s termination immediately after Thomas’sPFD violation, the Judge failed to identify any signs of hostility displayed byCalPortland towards Thomas’s protected activity in speaking with the MSHAinspector about the January 24 inspection.Therefore,substantial evidence does not support the Judge’s finding that CalPortland washostile toward Thomas’s protected activity in speaking with MSHA. 

 

**b)   ****SafetyComplaints**

 

There is no evidence of hostility regarding Thomas’s safetycomplaints. In fact, Thomas provided evidence to the contrary. Thomas testifiedthat when he complained to Demers about the long hours, Demers responded that hewas “working on it.” Tr. 120. According to the testimony at hearing, Thomasinitially believed Demers was ignoring the miners’ complaints. Tr. 120.  However,Thomas went on to testify that he only believed that Demers was blowing themoff because Thomas “knew [Demers] had a lot on his plate. . . . He was tryingto 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 toalleviate his concerns about the hours, Thomas said: “Yes, he started bringingout the rock barge guys . . . .” Tr. 121. Thomas conceded that Demers’sresponse to his request to work less hours was not one of animosity orhostility and that Demers’s solution relieved the excessive hours issue forhim. Tr. 208-11. That is, rather than demonstrate animus towards Thomas’s protectedactivity, CalPortland took Thomas’s safety complaints seriously and amelioratedthe condition at issue.

 

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

 

Finally, the Judgerelies heavily on comments made by Demers during the relevant period toestablish animus and timing. In particular, she notes that Thomas introducedevidence showing that, after he had complained of his hours and workload,Demers remarked to McMillan that “Rob Thomas was done, he was . . . done atCalPortland. Tr. 48.” 43 FMSHRC at 544, 548. However, her finding not onlytakes Demers’s statement out of context, but also mischaracterizes the witness’testimony. To begin, it suggeststhat Demers’s statement directly followed and was the result of Thomas’s safetycomplaints in November 2017. However, undisputed witness testimony clearlyindicates that the statement was made the morning after a heated argumentbetween Demers and Thomas about the latter’s request for sick leave. During thatconversation, Thomashung up the phone on Demers (his supervisor), which Thomas admitted to doing atthe hearing, and which was corroborated by McMillan. Tr. 47-48, 88, 123-24. McMillanstated that he heard about the conversation from both Thomas and Demers “andboth of them told me the same thing.” Tr. 47. 

Additionally, theargument led to a meeting between Thomas, Demers, and Candy Strickland in CalPortland’sHuman Resources Department to resolve the incident, which included discussingprotocol, the proper way to call out sick, and how to communicate with one’smanager and peers in a professional manner. Tr. 124, 445. Thomas’s behaviorduring this phone call was not disputed. Tr. 47-48, 123-124. However, the Judgecompletely overlooks the evidence of Thomas’s insubordinate conduct toward hismanager during the relevant time period. 

Next, the Judgerepeatedly omits a material portion of McMillan’s testimony in which he speaksdirectly to Demers’s attitude towards Thomas. The testimony demonstrates thatDemers was angered by the way Thomas talked to him on the phone rather than anyprotected activity. Specifically, McMillan testified that “*Dean told me that. . . after the way Rob talked to him**on the phone* that Rob Thomaswas done, he was . . . done at CalPortland.” Tr. 48 (emphasis added). McMillan’sfull testimony here directly contradicts the conclusion drawn by the Judge. TheJudge improperly omitteddirect evidence of Demers’s reason for wanting Thomas gone and then drew an improperinference that his reason was because of Thomas’s protected activity. Her reliance on fragmentedtestimony as proof of animus towards Thomas’s protected activity was an abuseof discretion. 

The Judge alsoinfers animus from Demers’sremark to McMillan in March 2018 that he “got rid” of Thomas, which shebelieved indicated that Demers viewed Thomas as a problem that he jettisoned.43 FMSHRC at 544, *citing*Tr. 71. However, she again failed to consider thecontext provided by McMillan. Specifically, McMillan testified thatalthough Demers said that he “got rid” of Thomas for McMillan (insinuating thatit was due to Thomas’s alleged mistreatment of McMillan), McMillan believedthat Thomas’s exit from the company was because of the way Thomas had talked toDemers on the phone months earlier. Tr. 88. Thomas failed to introduce any evidencedemonstrating that Demers’s comment was related to any of his safety complaintsmade four months prior or because he spoke with the MSHA inspector in January. 

Finally, the Judgeconcluded that Woods’s “aggressive and ‘pointed’ approach” with Thomas duringthe company investigative meeting was an indication of further hostilitytowards the Complainant.[8]43 FMSHRC at 544–45, *citing* Tr. 385. While Demers testified that Woods’squestion regarding Thomas’s normal PFD practices was “pointed,” neither he norThomas testified that Woods was aggressive during the meeting. Tr. 144-45; 385-86.****

**c)    ****The Threat of Legal Action**

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

 

We do agree with the Judge that there is sufficient evidence inthe record to support a finding that Demers harbored animus towards Thomas. Contraryto the Judge’s inferences, however, substantial evidence suggests that any animuswas likely the result of Demers’s dislike of Thomas due to what Demers saw ashis insubordinate behavior during the relevant time, rather than any protectedactivity. There are several instances in the record where Thomas exhibiteddefiant 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’sdisagreement with Inspector Johnson in front of Demers about being on the ladderwithout his PFD, as well as his behavior during the investigative meeting. 

 

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

 

**2.    ****DisparateTreatment**

 

A complainant alleging disparate treatment bears the burden ofproof. *Byrd v. Ronayne*, 61 F.3d 1026, 1032 (1st Cir.1995). To that end, the Commission has held that “it is incumbent onthe complainant to introduce evidence showing that another employee guilty ofthe same or more serious offense escaped the disciplinary fate suffered by thecomplainant.” *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 FMSHRC2508, 2512 (Nov. 1981)*. 

 

Here, the Judge determined that Thomas introducedevidence that other CalPortland employees who had committed similar PFDmisconduct had not been punished equivalently. In particular, shenoted that McMillan testified that Demers would routinelyunfasten his PFD and remove his hardhat while working aboard the Sanderling. 43FMSHRC at 544, *citing* Tr. 50.

 

Severalfactors distinguish this from Thomas’s situation. First, Thomas did not introduceevidence that Demers was ever reported for the one dredge incident described byMcMillan or that upper management or HR was otherwise aware of it. The operatorcannot be found to have disparately treated two miners when it was onlyactually 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 orbelts shall be worn *where there is danger from falling into water*.” 30C.F.R. § 56.15020 (emphasis added). McMillan testified that on the day Demersworked with him, Demers boarded the dredge, took his hard hat and life jacketoff, threw them on the floor in the lever room, and sat down in the operatingchair. Tr. 50; 89-90. “If [Demers] got up to leave the lever room, he put hislife jacket back on, he’d just toss it back on real quick, but he didn’t zip itup or buckle it or anything.” Tr. 50-51. 

Inother words, this incident did not occur on the deck of the dredge while overopen water. Demers only had his life jacket off while *inside* the leverroom, where there is no danger of falling into the water. McMillan furtherindicated that it was not uncommon for the miners to remove their PFDs incertain circumstances, including when in the lever room. Tr. 72-73. Thomas didnot introduce evidence that miners working *inside* the lever room withouttheir PFDs normally faced discipline or were reported to management. Moreover,CalPortland indicated that it had never had a miner disciplined or cited fornot wearing a PFD when required so it had no comparable circumstances showinghow a miner would have been disciplined under similar facts. Tr. 72-73; 280,376. 

The Judge went on to find disparate treatment when Demers andMcAuley referred the matter to HR after the investigative meeting. She foundthat the move was unusual at that stage of dealing with an employee. 43 FMSHRCat 544. Even though the Judge generally found McAuley not credible, she appearedto 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 typicallycompletes the investigation before it starts discussing discipline andinvolving HR. But because of Thomas’s refusal to answer questions and hisbehavior at the investigative meeting, they decided to get HR involved earlierthan normal. Tr. 304-05. Thomas did not dispute McAuley’s testimony.

 

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

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

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

 

Furthermore, CalPortland introducedits “Attendance and Reporting to Work” policy (“ARWPolicy”), which states that if an employee is absent three or more consecutivedays without calling, he or she “will be considered to have voluntarilyresigned in the absence of a compelling excuse for having failed to do so.” Calport.Ex. FF at 3. It then submitted four examples offormer employees processed out of the company as having voluntarily resigned whenthe 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 ofevidence offered by Thomas. Thomas failed to introduce evidence that would showthat other miners cited for failure to wear a PFD escaped a suspension pendinginvestigation, or that any miner under suspicion of similar violative conductor a more serious offense did not receive any form of reprimand at all. He alsofailed to introduce evidence showing that an employee who refused tocommunicate with CalPortland for seven days escaped termination from thecompany by voluntary resignation. In contrast, CalPortland showed that Thomas receivedthe same treatment as other employees who refused to communicate. As withanimus, based on the lack of evidence presented by Thomas, substantial evidencedoes not support the ALJ’s conclusion that Thomas suffered disparate treatment.Accordingly, substantial evidence does not support the Judge’s overallconclusion that Thomas’s suspension and termination would not have occurred butfor any protected activity. 

 

**3.    ****Pretext**

The ALJ’sdetermination that CalPortland’s justifications for Thomas’s discharge werepretext is not supported by substantial evidence. Complainant failed to produceany substantial evidence that the legitimate, nondiscriminatory reasons fortaking adverse action presented by CalPortland were pretextual. 

 

TheJudge determined that a preponderance of the evidence showed that CalPortland’sexplanations of events were pretextual. First, the Judge erroneously found thatthe only proven communications after February 1 were the “voluntaryresignation” letters that were returned to CalPortland unopened. 43 FMSHRC at546.  

The Judge overlooks the operator’s undisputedevidence in the form of contemporaneous notes (sent via internal emailcommunications), which detailed the company’s efforts to reach Mr. Thomasbetween January 31 and February 2. Ex. P. In particular, Strickland askedMcAuley and Demers to provide her with information on their attemptedcommunications 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, hecalled Thomas three times and left two voice messages. Ex. P at 2. Thomas also testified that he returned McAuley’s call. Beforehanging up on McAuley, Thomas told him that he had no business calling hispersonal 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 reachThomas, he responded to Thomas’s cancellation text asking him “[i]s there atime that is better?” Thomas did not respond. CalPort Ex. P at 4; Ex. R. Inaddition to several phone calls made by Demers, Strickland also sent Thomas aletter via standard mail and UPS on February 5 and 8 warning that if he did notcontact human resources by Thursday, February 8, “he will be considered to havevoluntarily resigned.” Tr. 456-57; CalPort Ex. R at 2. Thomas refused receiptof 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 theJudge’s finding is an email sent to Demers byThomas’s own Counsel on February 13, 2018, statingthat: “It is my understanding that since [February 2, 2018], you have continuedto try to contact our client directly.” CalPort Ex. W at 1. AlthoughThomas testified that he was not aware that CalPortland tried to reach him (Tr.186), he did not dispute the attempts to reachhim outlined above nor did he introduce contradictory evidence.

 

The Judge failed to provide any explanation as to why this undisputedevidence is not credible nor does she even acknowledge the evidencesubstantively in her analysis. It is reversible error for anALJ 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 theheated interview.” 43 FMSHRC at 546. The Judge found that Thomas only stoppedparticipating in the investigation because he reasonably believed that hisemployment was terminated. *Id*.

 

We find that therecord cannot support these conclusions. As previously discussed, Thomasadmitted that he refused to answer questions regarding his PFD practices andtestified that he called the investigatory meeting “a sham” and the MSHAInspector’s statement “completely false.” Tr. 145. He refused to answer questionsabout key details and safety practices likely not discussed in those statementsfor fear that he would “incriminate [him]self.” *Id*. A willingness tooffer only written statements that do not respond to important managementquestions does not constitute cooperation with an investigation. On thisrecord, it is difficult to find that Thomas fully participated in the company’sinvestigation solely based on his willingness to write statements.  

As for the reasonableness of Thomas’s belief that he had beenterminated, the Judge did not consider the inconsistent nature of Thomas’sevidence. She failed to reconcile Thomas’s deposition admission that hereceived Demers’s follow-up email (entitled “Please delete laste-mail, it was sent by mistake”) with his subsequent denial attrial of receiving it at all. Decl. of Laiho, Ex. A, Thomas Depo. at175-77; Tr. 201-02. In addition, CalPortland attempted to introduceevidence at the hearing of a screenshot taken by CalPortland’s InformationTechnology department showing that Thomas did in fact receive and open the“sent by mistake” email. This evidence spoke directly to the reasonableness ofThomas’s “belief” that he had been terminated. However, the Judgeexcluded the evidence on the grounds that Demers testified that he sent it, andshe did not believe it to be a “big deal.” Tr. 477-479. Thiswas an abuse of discretion given that the Judge relied on the reasonableness ofThomas’s belief to reach her conclusion here.[10]

 

Additionally, during his deposition, Thomas stated that afterreceiving the second email, “[t]he damage ha[d] already been done,” and he concededthat after that, he refused to communicate with CalPortland.[11] ThomasDepo. at 175-77. On cross-examination, CalPortland’s counsel questionedMcMillan about his deposition where he stated that he spoke to Thomas onceafter Thomas was suspended, and that Thomas was upset because he saw an emailthat he was not supposed to see. Tr. 84-85. If Thomas believed that he was notsupposed to see the email, one could infer that he understood the communicationwas intended for management only and not yet a final action. In *Morganv. 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 thatconclusion. 21 FMSHRC at 1391–92. There is no indication thatthe 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 “threadbareinvestigation” into the PFD incident, which did not include statements orinterviews of certain potential eyewitnesses like the tugboat captain RogerIson. 43 FMSHRC at 547. She concluded that CalPortland failed to explain itslimited investigation. *Id*. at 545-47. However, the record showsthat Thomas did not list Ison as a potential eyewitness on his Report ofIncident Form. He only listed McMillan. Thomas Ex. 20. Additionally, asdiscussed above, CalPortland acknowledged and explained the incomplete natureof its investigation, which resulted from the fall-out at the investigative meetingwith Thomas and his subsequent refusal to communicate. *Slip op* at 9; Tr.303-04.  

TheJudge also spends much time discussing the apparently inconsistentjustifications offered by CalPortland for why Thomas was terminated and whyThomas’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’sarguments. The company never argued that Thomas’s PFD misconduct directly causedhis discharge. CalPortland has made it clear that Thomas’s PFD misconductresulted in the first adverse act of his suspension. It has consistentlymaintained that Thomas was discharged based on his own failure tocommunicate 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. ReplyBr. at 4-5; CalPort.PDR on Remand at 15, 21. Neither party offered evidence, such as a corrective action formor change of status form, supporting the notion that CalPortland terminatedThomas 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’sdecision as a legitimate business justification. In fact, contrary to theJudge’s summary of McMillan’s testimony in this regard (see 43 FMSHRC at546–47), McMillan testified that Inspector Johnson told Thomas that he could befined 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 mostserious violation the company had dealt with up to that point. Finally, Demerstestified that based on Thomas’s comments during the investigation, he believedthat Thomas was not taking his unsafe conduct seriously and did not think itwas 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-yearcareer at CalPortland with a clean safety record and without indication ofprevious violations of this kind. 43 FMSHRC at 548. However, this finding iscontrary to record evidence demonstrating prior disciplinary problems. Inparticular, the record reflects that Thomas had been involved in adisciplinary incident in 2012, where he received a verbal warning, as well as athree-day suspension for violating company work rules after it was determinedthat he lied to government and CalPortland officials during an investigationinvolving his prior misconduct. Decl. of Laiho, Ex. L; CalPort. Mot. in Lim. at2-3; Tr. 203-04. Whileevidence of this prior disciplinary incident was introduced into the record viapleadings prior to hearing, the Judge refused to allow any testimony about thematter on the grounds that it had occurred six years prior and was “notrelevant and highly prejudicial.” Tr. 203-04, 311-13, 397-98.

The Judge’sexclusion of this evidence was an abuse of discretion. CommissionProcedural Rule 63(a) states that “[r]elevant evidence ... that is not undulyrepetitious or cumulative is admissible.” 29 C.F.R. § 2700.63(a). A finding ofpretext is even more unlikely where there is evidence of “past disciplineconsistent with that meted out to the alleged discriminatee, the miner’sunsatisfactory past work record, prior warnings to the miner, or personnelrules or practices forbidding the conduct in question.” *Bradley*, 4FMSHRC at 993.

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

Finally, the Judge found CalPortland’s claim that Thomasvoluntarily resigned to “be feeble.” 43 FMSHRC at 546. We, again, do not agree.Thomas went a total of seven days refusingto communicate with his employer and failing to provide a compelling excuse forhis absence. CalPortland introduced evidencethat its HR department processed Thomas’s exit from the company as a voluntaryresignation – consistent with its “personnel rules [and] practices” forbiddingemployees from being absent for three or more consecutive workdays. *Bradley*,4 FMSHRC at 993; CalPort. Exs. FF at 3, R, U. Thomason the other hand did not introduce evidence that CalPortland’s AttendancePolicy was not enforced against other employees who refused to communicate orthat 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 CalPortlandresponded to Thomas’s failure to wear a PFD, which resulted in an unwarrantablefailure citation, by suspending him pending an investigation. When Thomasrefused to communicate, despite CalPortland’s repeated attempts to reach him,the operator terminated him as a voluntary resignation under its attendancepolicy. Thomas failed to present any evidence that this rationale for histermination was not legitimate. Therefore, the Complainant failed to meet hisburden of establishing pretext. 

 

**III.         **** **

** **

**Conclusion**

 

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

 

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

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

 

 

 

/s/ William I.Althen

William I. Althen, Commissioner

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

Distribution:

Brian P. Lundgren, Esq.

Jackson Lewis P.C.

520 Pike Street, Suite 2300

Seattle, WA 98101

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

 

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

----

[1] Section 105(c) ofthe Mine Act states in pertinent part that:

No person shall discharge or in anymanner discriminate against   . . . any miner . . . because such miner . . .filed or made a complaint under or related to this Act, including a complaintnotifying the operator or the operator’s agent . . . of an alleged danger orsafety or health violation in a coal or other mine, . . . or because such miner. . . has instituted or caused to be instituted any proceeding under or relatedto this Act . . . .

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

[2]30U.S.C. § 815(c)(3) states that: 

 

Within 90 days of thereceipt of a complaint filed under paragraph (2), the Secretary shall notify,in writing, the miner . . . of his determination whether a violation hasoccurred. If the Secretary, upon investigation, determines that the provisionsof 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 inhis own behalf before the Commission, charging discrimination or interferencein violation of paragraph (1).

[3]The *Pasula-Robinette*framework is a burden shifting test that requires a complainant to prove aprima facie case of discrimination and then provides operators an opportunityto rebut that case or provide an affirmative defense. *Sec’y of Labor onbehalf 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*, 570U.S. 338, 347-48 (2013);*Burrage v. United States*, 571 U.S. 204, 212-17(2014);*Bostock v. Clayton Cnty*., 590 U.S. 644, 656 (2020).

[5] In this case, theCommission 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 Laboron 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 at817-18.

[6] As a generalevidentiary 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 ascircumstantial evidence of a causal nexus.

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

 

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

[9]  CommissionProcedural Rule 63(a) explicitly permits hearsayevidence “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 FMSHRC679, 703 (June 2018); *Mid-Continent Res., Inc.,* 6 FMSHRC 1132, 1135 (May1984). 

[10] Judges aregranted broad discretion to decide what is, and is not, relevant to theirdeliberations regarding a case. *Shamokin Filler Co., Inc.*, 34 FMSHRC1897, 1906-08 (upholding Judge’s exclusion of evidence that was of “limitedprobative value” and would have “consum[ed] an inordinate amount of time.”). However,the Judge acts unreasonably and unfairly when she precludes a party frompresenting evidence because it is irrelevant and then makes a substantialfinding that is predicated on the lack of such evidence. *See In re: Contestsof 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 usuallynot be disturbed unless it results in undue prejudice or fundamentalunfairness”). 

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

[12] In reviewing a Judge’scredibility determination, we may “‘refuse to follow [it] where it conflictswith well supported and obvious inferences from the rest of the record. Suchrefusal is particularly justified where the testimony in question is given byan 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.2d421, 425-26 (6th Cir. 1964) (quoting *NLRB v. Pyne Molding Corp*., 226F.2d 818, 819 (2nd Cir. 1955)). 

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

[14] On the CorrectiveAction Form suspending Thomas for three days for failing to fully cooperatewith an investigation and for lying in 2012, under “Supervisor Comments,” itstates:

The company has the right to require thefull cooperation from all employees during an investigation. Refusal tocooperate, false answers or misrepresentations is grounds for disciplinaryaction including terminations. Dishonesty is a serious violation of companywork rules.

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