i 

December 2021 

TABLE OF CONTENTS 

COMMISSION ORDERS 

12-06-21 COOPER STONE, LLC CENT 2021-0131 Page 515 

12-06-21 LO DOWN ENERGY, INC. WEVA 2021-0180 Page 519

12-06-21 THE QUIKRETE COMPANIES YORK 2021-0034 Page 522

12-09-21 VIRGINIA DRILLING COMPANY, 

LLC 

WEVA 2019-0226 Page 525

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-02-21 ROBERT THOMAS v. 

CALPORTLAND COMPANY 

WEST 2018-0402 DM Page 531
ii 

Review was Granted in the Following Case During the Month of December 2021 

Secretary of Labor v. Solvay Chemicals, Inc., Docket No. WEST 2020-0278 

(Judge Manning, November 9, 2021) 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

December 6, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On April 19, 2021, the Commission received from Cooper 

Stone, LLC (“Cooper Stone”) a motion seeking to reopen a penalty assessment that had become 

a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a), an operator who wishes to contest a proposed penalty must notify 

the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If 

the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that the proposed assessment was delivered to the operator on November 8, 2020. The 

assessment became a final order of the Commission on December 8, 2020. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

COOPER STONE, LLC 

Docket No. CENT 2021-0131 

A.C. No. 41-03401-523770

43 FMSHRC Page 515
Cooper Stone asserts that due to ongoing issues with its mail delivery, it did not receive 

the assessment and was considering changing its mailing address to a personal address in the 

hopes that mail delivery would improve. Cooper Stone asserts that it first learned of the 

assessment when it received another statement containing the previous uncontested violations. 

Cooper Stone has not filed any other motions to reopen with the Commission in the last two 

years. The Secretary does not oppose the request to reopen but urges the operator to take steps to 

ensure that future penalty contests are timely filed in accordance with MSHA’s regulations at 30 

C.F.R. § 100.7 and the Commission’s procedural rules.

Having reviewed Cooper Stone’s request and the Secretary’s response, we find that the 

operator did not receive the penalty assessment. In the interest of justice, we hereby reopen this 

matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to 

the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, 

consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 

days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich Jr., Commissioner 

43 FMSHRC Page 516
Distribution: 

Micah Flippen 

Owner, Cooper Stone, LLC 

3786 W FM 487 

Jarrell, TX 76537 

Micah.Flippen@CooperStone.com 

Thomas Paige, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor, 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Paige.Thomas.a@dol.gov 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

43 FMSHRC Page 517
Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 518
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

December 6, 2021 

 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”).1 On February 19, 2021, the Commission received from Lo 

Down Energy, Inc. (“Lo Down”) motions seeking to reopen penalty assessments that had 

become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a). 

Under section 105(a), an operator who wishes to contest a proposed penalty must notify 

the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If 

the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEVA 2021-0180, WEVA 2021-0181, WEVA 2021-0182, and WEVA 2021-

0183, involving similar procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 

 v. 

LO DOWN ENERGY, INC. 

 

 

Docket No. WEVA 2021-0180 

A.C. No. 46-08659-512525 

Docket No. WEVA 2021-0181 

A.C. No. 46-08659-514345 

Docket No. WEVA 2021-0182 

A.C. No. 46-08659-518037 

Docket No. WEVA 2021-0183 

A.C. No. 46-08659-518826 

43 FMSHRC Page 519
observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that the proposed assessments were delivered to the operator on April 27, 2020, May 18, 2020, 

July 17, 2020, and August 13, 2020. The assessments became final orders of the Commission on 

May 27, 2020, June 17, 2020, August 16, 2020, and September 12, 2020, respectively. 

Lo Down states that due to the COVID-19 pandemic, it had changed the routing of its 

MSHA assessments to its accounting office. However, due to the pandemic, employees in that 

office had only worked in the office intermittently. The operator contends that the proposed 

assessments were misplaced due to its new pandemic mail-handling procedure. The operator 

learned of the delinquent assessments when it received notifications in the mail that penalties 

were past due. The Secretary does not oppose the requests to reopen but urges the operator to 

take steps to ensure that future penalty contests are timely filed in accordance with MSHA’s 

regulations at 30 C.F.R. § 100.7 and the Commission’s procedural rules. 

Having reviewed Lo Down’s request and the Secretary’s response, we find that the 

operator inadvertently misplaced the proposed penalty assessments. In the interest of justice, we 

hereby reopen these matters and remand them to the Chief Administrative Law Judge for further 

proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 

2700. Accordingly, consistent with Rule 28, the Secretary shall file petitions for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich Jr., Commissioner 

43 FMSHRC Page 520
Distribution: 

Christopher D. Pence, Esq. 

Hardy Pence, PLLC 

10 Hale Street, 4th Floor 

PO Box 2548 

Charleston, WV 25329-2548 

cpence@hardypence.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 521
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

December 6, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On April 2, 2021, the Commission received from The Quikrete 

Companies’ (“Quikrete”) a motion seeking to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a), an operator who wishes to contest a proposed penalty must notify 

the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If 

the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that the proposed assessment was delivered to the operator on February 17, 2021. The 

assessment became a final order of the Commission on March 19, 2021. 

Quikrete asserts that as a result of an ongoing COVID-19 outbreak at its office and plant, 

the office was understaffed, and the proposed assessment was misplaced. Realizing that it did not 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

THE QUIKRETE COMPANIES 

Docket No. YORK 2021-0034 

A.C. No. 30-03558-529080

43 FMSHRC Page 522
have the proposed assessment, Quikrete states that it contacted MSHA to request a copy, which 

it received on March 26, 2021. Quikrete has not filed any other motions to reopen with the 

Commission in the last two years. The Secretary does not oppose the request to reopen but urges 

the operator to take steps to ensure that future penalty contests are timely filed in accordance 

with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s procedural rules. 

Having reviewed Quikrete’s request and the Secretary’s response, we find that the 

operator inadvertently misplaced the proposed penalty assessment. In the interest of justice, we 

hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich Jr., Commissioner 

 

43 FMSHRC Page 523
Distribution: 

Kevin Fick 

Regional Operations Manager 

Quikrete Stone, Ltd. 

4993 Limeledge Road 

Marcellus, NY 13108 

kevin.fick@quikrete.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 524
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

December 9, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

 

ORDER

BY: Althen and Rajkovich, Commissioners: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On July 23, 2019, the Commission received from Virginia 

Drilling Company, LLC (“Virginia Drilling”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the Default Order entered against it. 

 

The proposed assessment was delivered to the operator on January 25, 2019. The 

operator timely contested the assessment on February 4, 2019. MSHA issued a penalty petition 

on February 19, 2019.1

 

 

 On April 2, 2019, the Acting Chief Administrative Law Judge issued an Order to Show 

Cause in response to Virginia Drilling’s perceived failure to answer the Petition for Assessment 

of Civil Penalty, filed by the Secretary of Labor on February 19, 2019. By its terms, the Order to 

Show Cause was deemed a Default Order on April 23, 2019, when it appeared that the operator 

had failed to respond to the Show Cause Order within 20 days. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

30 U.S.C. § 823(d)(1). Consequently, here the Judge’s order became a final order of the 

Commission on June 3, 2019. On July 9, 2019, MSHA mailed a delinquency notice to the 

operator. 

1

 The penalty petition incorrectly listed the total civil penalty as $8,863, as opposed to the 

actual amount of $9,863. Pet. for Civil Penalty at 3, Ex. A; Del. Not. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

VIRGINIA DRILLING COMPANY, LLC 

 

Docket No. WEVA 2019-0226 

A.C. No. 46-09075-481854 

43 FMSHRC Page 525
The operator seeks to reopen this matter, claiming that it never received the “Secretary of 

Labor’s Order of Assignment and Pre-Hearing Order.” The operator states an intent to file an 

answer in a timely manner upon receipt of such order. The Secretary does not oppose the 

“Request to Reopen,” but requests that Virginia Drilling take its obligations seriously. 

 In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of good cause for a failure to timely respond, the 

case may be reopened and appropriate proceedings on the merits will be permitted. See Coal 

Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

In this case, we must consider whether the operator demonstrated that it acted in good 

faith, and whether the Secretary opposes the motion or alleges that the operator acted in bad 

faith. Noranda Alumina, LLC, 39 FMSHRC 441, 444 (Mar. 2017). Here, the operator 

demonstrated good faith by timely contesting the proposed penalty, and by filing its request to 

reopen within 30 days of receiving the delinquency notification. Moreover, the operator provided 

a document, entitled “Notice of Contest” and hand dated March 11, 2019, briefly stating why the 

operator disagrees with each violation. This further indicates that the operator had a desire to 

proceed with litigation. Notably, the Secretary does not oppose the motion or allege that the 

operator acted in bad faith.2

 

Having reviewed Virginia Drilling’s request and the Secretary’s response, we find that 

the evidence demonstrates the operator’s good faith and that the failure to timely file an answer 

was the result of excusable neglect. In the interest of justice, we hereby reopen the proceeding 

and vacate the Default Order. Accordingly, this case is remanded to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural 

Rules, 29 C.F.R. Part 2700. 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

2

 The Secretary makes no comment about the March 11, 2019 document, or the 

operator’s claim that it did not receive an Order of Assignment or Pre-Hearing Order for this 

proceeding. 

43 FMSHRC Page 526
Chair Traynor dissenting: 

 I dissent from the majority’s erroneous decision to reopen the final orders in this 

proceeding. The majority determines – without evidence – that Virginia Drilling has established 

“good cause” for its failure to respond to both the Secretary of Labor’s Penalty Petition and the 

Commission’s Order to Show Cause.1 Slip op. at 3. Because the operator’s motion does not 

address whether it had a “good cause” reason for its failures to respond to both aforementioned 

documents, it fails to set forth grounds for relief. That the operator has demonstrated “good 

faith” in filing its motion is not sufficient to establish “good cause.”2

My colleagues purport to ground their decision in Noranda Alumina, LLC, 39 FMSHRC 

441 (Mar. 2017). However, they do not articulate a rationale for their decision to find good cause 

for Virginia Drilling’s failure to timely respond based upon any one or more of the relevant 

factors outlined in Noranda.

3

 Under Noranda, a finding the operator has brought its motion in 

good faith, while relevant, does not by itself resolve the question of whether there was good 

cause for the failure to respond. 

 Virginia Drilling’s motion is incomplete as it does not address the critical element of 

good cause for its failure to timely respond. However, given that the operator is appearing before 

the Commission pro se and does not have a history of filing motions to reopen defaults, I would 

have remanded this matter to our Chief Administrative Law Judge and given Virginia Drilling 

the opportunity to make the necessary case regarding good cause, whether by reference to the 

Noranda factors or other considerations relevant to good cause for the failure to timely respond 

(as distinguished from the separate inquiry into whether the motion is brought in good faith). 

See, e.g., Monongalia County Coal Co., Docket No. PENN 2020-0004 et al. (Sept. 8, 2021). 

I. 

Legal Standard 

In Noranda, the Commission stated that it considers whether the operator’s motion to 

reopen a final order provides sufficient detail and explanation of facts and circumstances 

1

 More specifically, the majority finds that the operator established that its failure to 

respond to the Secretary or the Commission was the result of “excusable neglect.” Slip op. at 3. 

Notably, the operator’s motion references neither the receipt nor processing of either document. 

2

 Stated another way, the operator’s prompt remedial efforts do not excuse its prior 

failures to respond in the absence of a sufficient accounting of whether there was “good cause” 

for that failure. 

3

 The hand-dated document referenced by the majority in their decision is a copy of the 

original letter contesting the civil penalties. Sec’y’s Response (exhibit, page 13). Furthermore, 

the majority notes that the Secretary did not respond to Virginia Drilling’s claim that it did not 

receive an Order of Assignment or Pre-Hearing Order from the Commission. Slip op. at 2 n.2. Of 

course, no response was necessary; the case was not assigned to a Judge because Virginia 

Drilling did not file the required Answer to the Penalty Petition and thus was in default. 

43 FMSHRC Page 527
surrounding the movant’s default to determine whether there is “good cause” to reopen the case. 

The opinion in that case clearly distinguishes between the concepts of good cause and good faith 

as applied in the contexts of motions to reopen and so I quote it extensively as follows: 

Reopening a penalty that has become final is extraordinary relief. 

Thus, the operator has the burden of showing that it is entitled to 

such relief, through a detailed explanation of its failure to timely 

contest the penalty and any delays in filing for reopening: 

At a minimum, the applicant for such relief must provide all 

known details, including relevant dates and persons involved, and 

a clear explanation that accounts, to the best of the operator’s 

knowledge, for the failure to submit a timely response and for any 

delays in seeking relief once the operator became aware of the 

delinquency or failure. Higgins Stone Co., 32 FMSHRC 33, 34 

(Jan. 2010). 

In reviewing an operator’s explanation, we consider the entire 

range of factors relevant to determining whether the operator’s 

error was the result of mistake, inadvertence, surprise, excusable 

neglect, or another good faith reason. No precise formula exists for 

weighing the factors, and the analysis is conducted on a case-bycase basis. However, key factors are identifiable. The Commission 

has provided guidance to operators on its website explaining the 

factors that will generally be considered in determining whether to 

grant relief: 

The Commission has considered a number of factors in 

determining whether good cause exists: (1) the error does not 

reflect indifference, inattention, inadequate or unreliable office 

procedures or general carelessness; (2) the error resulted from 

mistakes that the operator typically does not make; (3) procedures 

to prevent, identify and correct such mistakes have been adopted or 

changed, as appropriate; (4)... A proper motion must also provide 

all relevant documentation and identify the persons who have 

knowledge of the circumstances.... Your motion should also be 

supported by affidavit(s) of (a) person(s) with direct knowledge of 

the underlying facts. Motions for relief must identify and explain: 

(1) why a timely contest was not filed; (2) how and when you first 

discovered the failure to timely contest the penalty and how you 

responded once this was discovered. (3) If the motion to reopen 

was filed more than 30 days after you first learned that the penalty 

was not timely contested, you must provide a reasonable 

explanation for the delay or your motion may be DENIED. 

In addition, it is important to consider the good faith of the 

operator’s actions and whether MSHA opposed the motion to 

43 FMSHRC Page 528
reopen. To justify reopening, an operator’s detailed recounting of 

the circumstances should demonstrate that the operator acted at all 

times in good faith and without any purpose of evasion or delay, 

taking into account the nature of the violation, the amount of the 

penalty, and the circumstances of receipt and processing of the 

proposed assessment. The operator’s motion should also address 

whether errors were within the operator’s control, and the reasons 

for any delay in filing the motion itself, especially after notice of 

the delinquency. 

Noranda, 39 FMSHRC at 443-444 (some internal citations omitted). 

 

 II. 

Virginia Drilling’s Motion to Reopen 

 On February 19, 2019, the Secretary of Labor issued the operator the Petition for 

Assessment of Civil Penalties. On April 2, 2019, having not received the required Answer to the 

Petition, the Commission’s Acting Chief Administrative Law Judge issued an Order to Show 

Cause. Virginia Drilling did not respond to the Order to Show Cause, and thus by terms of the 

Order was in default on April 23, 2019. On July 9, 2019, the Secretary issued a delinquency 

notice to the operator. On July 23, 2019, the operator filed its motion to reopen. 

 Virginia Drilling’s motion fails to address its receipt or processing of either the Penalty 

Petition or the Order to Show Cause. It contains none of what we said in Noranda is the 

minimum necessary to demonstrate an entitlement to relief, including “all known details, 

including relevant dates and persons involved, and a clear explanation that accounts, to the best 

of the operator’s knowledge, for the failure to submit a timely response.” Id. Accordingly, it is 

not possible to determine whether the operator’s multiple failures were the result of “excusable 

neglect” or conversely whether its neglect was the result of an inadequate or unreliable internal 

processing system. See Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). 

I would have remanded the matter to the Chief Administrative Law Judge to provide 

Virginia Drilling the opportunity to supplement its initial filing with an account of its failure to 

timely respond before default judgment was entered against it. 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

43 FMSHRC Page 529
Distribution (e-mail): 

Anthony Kidd 

Virginia Drilling Company, LLC 

P. 0. Box 1198 

Vansant, VA 24656 

Anthony.kidd@vadrillco.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 530
ADMINISTRATIVE LAW JUDGE DECISIONS

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 

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. 

ROBERT THOMAS, 

 Complainant, 

v. 

CALPORTLAND COMPANY, 

 Respondent. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

CALPORTLAND COMPANY, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2018-0402 DM 

A.C. No. 48-01295-511817

Mine: Sanderling Dredge 

Mine ID: 45-03687 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2019-0205 

MSHA Case No. WE-MD-2018-06 

Mine: Sanderling Dredge 

Mine ID: 45-03687 

43 FMSHRC Page 531
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 

43 FMSHRC Page 532
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 

43 FMSHRC Page 533
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 

43 FMSHRC Page 534
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 

43 FMSHRC Page 535
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. 

43 FMSHRC Page 536
 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 

43 FMSHRC Page 537
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 

43 FMSHRC Page 538
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 

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. 

43 FMSHRC Page 539
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.”). 

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). 

43 FMSHRC Page 540
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. 

43 FMSHRC Page 541
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, 

43 FMSHRC Page 542
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 

43 FMSHRC Page 543
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, 

43 FMSHRC Page 544
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. 

43 FMSHRC Page 545
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 

43 FMSHRC Page 546
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.

43 FMSHRC Page 547
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 

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. 

43 FMSHRC Page 548
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. 

43 FMSHRC Page 549
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 

43 FMSHRC Page 550
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 

43 FMSHRC Page 551