**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

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ROBERTTHOMAS,                                            :            DISCRIMINATIONPROCEEDING

                                    Complainant,                    :

                                                                              :     DocketNo. WEST 2018-0402 DM

                        v.                                                   :     

                                                                              :     

                                                                              :

CALPORTLANDCOMPANY,                           :     Mine: Sanderling Dredge

                                    Respondent.                      :     MineID: 45-03687

                                                                              :

                                                                              :

SECRETARYOF LABOR,                                 :     CIVIL PENALTY PROCEEDING

 MINESAFETY AND HEALTH                        :

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

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

                                                                              :

                        v.                                                   :

                                                                              :

CALPORTLANDCOMPANY,                           :     Mine: Sanderling Dredge

                                    Respondent.                      :     MineID: 45-03687 

 

** **

**DECISION AND ORDER**

 

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

 

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

 

Before:                        JudgeMiller

 

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

 

 

**I.     ****FACTUAL FINDINGS**

 

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

 

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

 

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

 

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

 

**A.   ****Understaffingand Thomas’s complaint to management**

 

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

 

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

 

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

 

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

 

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

 

**B.   ****The eventsof January 24, 2018**

 

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

 

            Asthe dredge approached Vancouver, Thomas and McMillan were working to replace amalfunctioning valve. They used air wrenches to remove the bolts and extractedthe valve from in between the pipes to lower the valve onto the deck. *See*Compl. Ex. 14 (showing the bow of the Sanderling dredge, where the valve waschanged out). Thomas stood on the ladder to help lower the valve down from itsposition. Thomas and McMillan testified that they were both wearing theirpersonal flotation devices (PFDs) during the change out. Tr. 55, 125. Thomas thenused an acetylene torch to work on a part needed for the valve replacement. Tr.131. Hoping to avoid heat damage to his personal flotation device, Thomasremoved his PFD “for seven to nine minutes” while using the torch. Tr. 131; *seealso* tr. 24, 62. 

 

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

 

            Fromthe dock, Inspector Johnson called out and asked if it was company policy to notwear a PFD. Thomas responded that CalPortland’s policy requires miners to wearPFDs. Once in port, Thomas admitted to Inspector Johnson that he had not wornhis PFD for a short period while operating the cutting torch at the weldingtable in the middle of the deck. Tr. 136-38. McMillan testified that hecorroborated this with the inspector during their January 24 conversation andtold the inspector that he had only seen Thomas without his PFD while Thomaswas at the center of the ship (far from the edges) using the cutting torch. Tr.62.  Thomas also indicated that he and McMillan had been on the ladder whileworking that day, and that they had been on the ladder up to the third rung. Tr.137. 

 

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

 

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

 

**C.   ****CalPortlandbegins an investigation into the violation**

 

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

 

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

 

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

 

**D.   ****Demerssends an email containing a corrective action form**

 

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

 

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

 

            Thenext morning, February 1, Thomas received a call on his personal phone fromMcAuley. Thomas did not recognize the number, but he asked his stepdaughter toreturn the call on his behalf to determine who had called. She hung up whenMcAuley identified himself on speaker phone. With his stepdaughter in the room,Thomas called McAuley back and said, “[y]ou have no business calling me on mypersonal phone, I don’t know how you got it, you need to contact my attorney.” Tr.157. McAuley denied at hearing that Thomas mentioned an attorney during theFebruary 1 phone call, but Thomas and his stepdaughter remember it being a partof the conversation. Tr. 97-98. Immediately following the phone call withThomas, McAuley contacted Strickland to discuss the matter. Together theydetermined that the issue of Thomas’ employment was now one for human resourcesto address.  

 

**E.   ****CalPortlandinitiates the “voluntary resignation” process**

 

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

 

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

 

            MSHAspecial investigator Diane Watson contacted Dean Demers on February 5, 2018. Shetold Demers that MSHA would not be opening a separate investigation againstThomas, that she understood he had been fired, and that he may be pursuing alegal claim against the company. Demers noted at the time that Thomas had hiredan attorney and that he intended to file a “discrimination lawsuit.” Compl. Ex.61. Nevertheless, it seems that CalPortland did not make any attempts tocontact Thomas’s attorney before the February 8 “voluntary resignation”deadline. 

 

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

 

**II.  ****PROCEDURAL POSTURE**

 

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

 

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

 

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

 

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

 

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

 

**III.****ANALYSIS**

 

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

 

**A.   ****The Ninth Circuit’s decision**

 

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

 

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

 

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

 

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

 

**B.   ****The prima facie case and burdenshifting**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

 

 

**C.   ****Therestated test for discrimination**

 

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

 

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

 

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

 

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

 

*1.    **Thomas’sprima facie case*

 

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

 

i.              Protectedactivity

 

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

 

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

 

ii.             Adverseaction

 

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

 

iii.           Discriminatorymotive

 

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

 

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

 

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

 

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

 

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

 

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

 

The final circumstantial indicatorof discrimination is hostility. Thomas has introduced evidence showing that,after he had complained of his hours and workload, Demers remarked to acoworker that “Rob Thomas was done, he was fucking done at CalPortland.” Tr.48. Then, after Thomas’s separation from CalPortland, Demers made anotherremark indicating that he “got rid” of Thomas, indicating that Demers viewedThomas as a problem that he jettisoned. Tr. 71. Finally, the aggressive and“pointed” approach that Woods took with Thomas in the post-citation interviewindicates further hostility towards the Complainant. Tr. 385.

 

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

 

*2.    **CalPortland’s rebuttal*

 

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

 

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

 

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

 

*3.    **Disposition*

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

**IV.         ****PENALTY**

 

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

 

**V.            ****DAMAGESAND RELIEF**

 

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

 

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

 

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

 

 

**VI.         ****ORDER**

 

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

 

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

 

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

 

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

 

 

 

 

/s/Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

 

 

 

 

 

Distribution:(Electronic and Certified Mail)

 

Colin F. McHugh, Navigate LawGroup, 1310 Main Street, Vancouver, WA 98660, cmchugh@navigatelawgroup.com (Attorney for Robert Thomas)

 

Trevor J. Cartalis, Navigate LawGroup, 1310 Main Street, Vancouver, WA 98660, tcartales@navigatelawgroup.com (Attorney for Robert Thomas)

 

Alexander Higgins, Law Offices ofAlex J. Higgins, 2200 Sixth Avenue, Suite 500, Seattle, WA 98121, alex@alexjhiggins.com (Associated Counsel for RobertThomas)

 

Brian P. Lundgren, Jackson LewisP.C., 520 Pike Street, Suite 2300 Seattle, WA 98104 brian.lundgren@jacksonlewis.com (Attorney for Calportland Company)

 

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

 

EmilyToler Scott, U.S. Department of Labor, Office of the Solicitor, Division ofMine Safety and Health, 201 12th Street South, Suite 401, Arlington,VA 22202, scott.emily.t@dol.gov

 

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

 

----

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

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

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

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

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

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

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