1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th St., Suite 443

Denver, CO 80202-2500

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

December 2, 2021

ROBERT THOMAS, : 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. 
2

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 
3

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 moreexperienced 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 pushback 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 
4

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
5

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 
6

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. 

1 Thomas was sent two copies of this letter and refused to accept delivery on both copies. 
7

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. 
8

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 
9

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 view2 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

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 
10

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.”). 

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 antiretaliation 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). 
11

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 

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. 
12

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, 
13

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 
14

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, 
15

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. 
16

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 
17

of questionable veracity6) 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 

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.
18

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 hisstrong 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 

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. 
19

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. 
20

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. 

Margaret A. Miller

Administrative Law Judge
21

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