Robert Thomas v. CalPortland Company

Plain-English summary

Robert Thomas claimed that CalPortland suspended and discharged him because of safety concerns, training complaints, cooperation with MSHA, and his intent to pursue a discrimination claim. An ALJ found discrimination and awarded back pay, benefits, and attorney's fees. The Commission unanimously reversed, finding no substantial evidence that any protected activity motivated CalPortland's actions. The record instead showed that the company suspended Thomas after an MSHA inspector found him working without a required flotation device, investigated his conduct, and later treated him as voluntarily resigned after he refused calls and mail seeking further discussion. Commissioners Mary Lu Jordan and Arthur Traynor agreed with dismissal but clarified that a miner may offer additional protected activities tied to the same adverse action even if those activities were not specifically listed in the initial MSHA complaint.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: The ALJ's discrimination finding and remedies were reversed, and the case was dismissed.
• Key point: Suspicious timing and employer knowledge are not enough without evidence that protected activity actually motivated the adverse action.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

ROBERT
THOMAS                                         :

:                               

v.                                              
 :        Docket No. WEST
2018-402-DM

:           

CALPORTLAND
COMPANY                        :

BEFORE: Rajkovich,
Chairman; Jordan, Young, Althen, and Traynor, Commissioners

DECISION

BY: Rajkovich,
Chairman; Young and Althen, Commissioners

This case arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(2018) (“Mine Act” or “Act”). It involves a complaint filed by miner Robert
Thomas alleging that CalPortland Company (“CalPort”) discriminated against him
in violation of the Mine Act. [1]
After a Commission Administrative Law Judge found that CalPort discriminated
against Thomas, CalPort filed a petition for discretionary review challenging
the Judge’s decision on the ground that the miner had failed to establish a
prima facie case of discrimination.  

For
the reasons discussed below, we hold that the Judge erred in concluding that
Thomas established a prima facie case of discrimination. Accordingly, we reverse
the Judge’s decision and dismiss this case.

I.                   

Factual and
Procedural Background

A.     Factual Summary

The Sanderling Dredge is a
surface sand mine located in Vancouver, Washington. CalPort is the owner and
operator of the dredge and is a mine operator subject to the jurisdiction of
the Mine Act. Robert Thomas worked for CalPort in Oregon and Washington from
March 2002, through the beginning of 2018. At the beginning of 2018, Thomas
worked as a dredge operator on the Sanderling dredge with deckhand Joel
McMillan and Roger Ison, a contractor and captain of the Johnny Peterson
tugboat. The Johnny Peterson pulls the Sanderling Dredge up and down the
Columbia River between Vancouver, Washington, and Scappoose, Oregon. The Dredge
requires two miners to operate it, and one person to operate the tugboat. Thomas
was the most senior of the two dredge miners and was designated the Person in
Charge (“PIC”). [2] Tr. 40, 289; 40 FMSHRC 1503,
1504 (Dec. 2018) (ALJ) .

At the beginning of 2017,
when the mine changed from two shifts to a single day shift, the miners on the
Sanderling Dredge began working long hours, sometimes around 80 hours per week.
40 FMSHRC at 1504. In July 2017, Dean Demers took over the job as Marine
Manager, which gave him management authority over four sand and gravel barges,
as well as the Sanderling Dredge. The barges under Demers’ management are subject
to the jurisdiction of the Occupational Safety and Health Administration
(“OSHA”) and the Sanderling Dredge is subject to the jurisdiction of the Mine
Safety and Health Administration (“MSHA”).

1. Thomas’ Concerns and the Phone Call Hang-up

Thomas and McMillan grew
concerned that working so many hours had resulted in them being exhausted,
which caused difficulty in paying attention while working with equipment. The
two men eventually voiced their concerns to Demers and asked for help to avoid
the long days and safety concerns. Id . Thomas had expressed his concerns
to Demers as recently as November 2017. Tr. 118-20; 40 FMSHRC at 1504. Demers
responded that he “was working on it” and subsequently brought in personnel
from the rock barges to work some of the shifts. This alleviated the problem of
long hours for Thomas. Tr. 120-21.  

Thomas also believed that
the barge workers were not receiving adequate task training to safely perform
their work on the Dredge. Tr. 121-22. When asked by Demers to sign the task
training sheets of the barge workers, Thomas refused, responding that the barge
workers were not being properly trained in his view. [3]
Tr. 122.

In November 2017, Thomas
called Demers saying that he would not be coming into work the following day and
would be taking a sick day. Tr. 123-24. A disagreement ensued and Thomas abruptly
hung up the phone on Demers. Tr. 47-48, 123-24, 371, 445. McMillan testified
that the next day Demers said to him that “after the way Rob talked to him on
the phone that Rob Thomas was done, he was f** done at CalPortland.” Tr.
48, 88. Thereafter, Thomas met with Demers and Candy Strickland in CalPort’s
Human Resources Department (“HR”) to resolve the incident, which included
discussing protocol, the proper way to call out sick, and how to communicate
with your manager and peers in a professional manner. Tr. 445. CalPort did not discipline
Thomas for this incident, and Thomas testified at the hearing that after the
meeting “everything was fine.” Tr. 202.

2. The Personal Flotation Device Incident and Suspension

At the end of the shift on
January 24, 2018, the Sanderling Dredge was traveling downriver on its return
to the dock in Vancouver. Thomas and McMillan were changing out a valve above
deck on the dredge, which sits 14 feet above the waterline. Thomas stood on the
ladder to help lower the valve down from its position. He and McMillan
testified that they were both wearing their personal flotation devices (“PFDs”)
during the change out. McMillan then climbed up on the ladder in order to weld
the studs while Thomas went to perform another task. As McMillan was welding,
Thomas removed his PFD and hung it outside of the lever room, then walked over
to the welding table, in the middle of the barge, to use the cutting torch.

At some point, McMillan had
to pause his work and go over to the tugboat to help Ison with a transmission
problem. He was gone for about 30 minutes during which he did not see Thomas
working. As McMillan was returning to the dredge, and as Thomas had just
completed cutting and was putting his PFD back on, they noticed MSHA Inspector
Mathew Johnson standing on the dock. Tr. 51-57, 61, 124-25, 131-34; 40 FMSHRC
at 1505.

As the dredge neared the
dock, Inspector Johnson called out and asked if it was company policy to  not  wear
a PFD. Thomas responded that CalPort’s policy requires miners to wear PFDs. Once
in port, Thomas admitted to Inspector Johnson that he had not worn his PFD
while operating the cutting torch at the welding table. Thomas then called
Demers, who was working at a different location, to explain what had happened
and then handed the phone to Inspector Johnson. After speaking with Demers,
Inspector Johnson completed his inspection of the dredge and issued a citation to
CalPort for Thomas’ failure to wear a safety device or to be tied off while
working on the open portion of a dredge. [4] 40 FMSHRC at 1506. The inspector
determined that Thomas engaged in aggravated conduct. He deemed the action an
unwarrantable failure and a significant and substantial violation that could
reasonably likely result in a fatality. [5]

The next day, Thomas told
Demers that he was not on the ladder without his PFD. [6]   
 Tr. 139. Inspector Johnson returned that day and met with Demers to discuss
the previous day’s violation. Demers called Thomas to join them. Thomas and
Inspector Johnson disagreed about whether Thomas was on the ladder without his
PFD. Tr. 141, 380-81. After Inspector Johnson left, Thomas returned to the
tugboat to help McMillan, and Demers called David McAuley, CalPort’s Regional
Operations General Manager, to discuss the matter. Based on the differing
versions of events by Inspector Johnson and Thomas, McAuley and Demers decided
to suspend Thomas, without pay, pending further investigation. Having decided
to suspend Thomas, Demers called the dock and instructed McMillan not to let
Thomas go because he needed to come down to “get rid of him.” Tr. 67.

During the course of Thomas’
career at Calport, the record reflects that he had been involved in a previous disciplinary
incident in 2012. He received a verbal warning, as well as a three-day
suspension for violating company work rules after it was determined that he
lied to government and CalPort officials during an investigation. Decl. of Erik
M. Laiho, Ex. L at 1;   

Tr. 203-04.

3. The Draft Disciplinary Recommendation and Premature E-mail

Demers returned to the
Dredge to notify Thomas that he was suspended pending an investigation. Tr. 142, 179, 180,
182-83. Thomas gathered his things and punched out for the day. The next
morning, 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 two days later. Tr. 142; Thomas Ex. 19. On Saturday,
January 27, Demers called Thomas and asked him to come to the office on Monday,
January 29, at 8:00 a.m.

When Thomas arrived that
Monday, he met with Demers and Safety Manager Jeff Woods. Demers read the
narrative portion of the MSHA citation aloud to Thomas. Thomas disagreed with
the inspector’s statement, proclaiming that: “This whole thing is nothing but a
sham[]. . . . It’s completely false.” Tr. 145, 386. Woods asked Thomas if it
was common practice for Thomas to not wear his PFD. Thomas refused to answer
the question saying that he did not believe they would listen to him and he did
not want to “incriminate [him]self.” Tr. 145, 385-86, 438. While at the
meeting, Thomas was asked to fill out an employee incident report and to submit
a lengthier statement, which he completed at home and emailed to Demers that
afternoon. McMillan also completed an employee incident report that same day.

Following the meeting with
Thomas, Demers met with McAuley and Strickland to discuss the matter further. McAuley
asked Demers to work with Strickland to prepare a draft disciplinary
recommendation. Demers sent the first draft of his recommendation in an email
to Strickland entitled “Wordsmith Please” the same day. Tr. 306-07, 387, 443,
448; CPC Ex. N at 1. On January 30, Strickland, Demers, and McAuley
participated in a meeting with upper management to brief them on the situation
with Thomas. Demers was asked to set up another meeting with Thomas for 11:00
a.m. the next day, which he did. 

After the management meeting,
Demers sent a second draft of his recommendation to Strickland in an email
entitled “Wordsmith Take II,” attaching an unsigned and undated draft
corrective action form. CPC Ex. N at 2-7. The form contained Demers’
recommendation to discharge Thomas based on Thomas’ violation of the PFD rule,
his lack of cooperation with the company investigation, and his perceived lack
of candor. [7] CPC Ex. N at 4-5. Mistakenly, Demers’
had also sent the same email to the barge scheduling list, which included Thomas,
other employees of CalPort, and contractors. Demers attempted to recall the
email immediately. He then sent a follow-up email, which stated “Please delete
last e-mail it was sent by mistake.” Tr. 389-93; CPC Ex. N at 8. He also
contacted McAuley and Strickland to let them know what had happened. [8]

4. The
   Engagement of Thomas’ Attorney

Around 6:30 a.m. the
following morning, January 31, Thomas was preparing to go to the 11:00 a.m.
meeting when he received a phone call from Ison, the tugboat captain, telling
him to check his email. When Thomas checked, he saw the email from Demers
containing the corrective action stating “that [he] was terminated effective
immediately,” and that the email had been sent to his co-workers and to
contractors. Tr. 149; Thomas Exs. 1 and 2, 71; CPC. Ex. N at 4-6. Thomas
notified his wife that he had been terminated and then texted Demers to let him
know that he would not attend the 11:00 a.m. meeting. There is no evidence that
Thomas told Demers that he had seen his termination email. That same afternoon,
Thomas hired an attorney and directed his attorney to send a letter to Demers
and CalPort about his intent to file a discrimination claim against them. [9]
Tr. 155-56. CalPort witnesses testified that they did not receive anything from
Thomas’ counsel until February 13. Tr. 158, 191.

The following morning,
Thomas received a call from McAuley on his personal cell phone. With his
stepdaughter present, and before hanging up, Thomas told McAuley that he should
not be calling him on his personal phone, not to call him again, and to contact
him by mail or contact his attorney. [10] Tr. 156-57, 186, 318-19, 452; CPC
Ex. P. There is no evidence that the termination email was mentioned during the
call. After speaking with Thomas, McAuley contacted Strickland the same day to
discuss the situation, and they collectively determined that the matter was now
one for HR to address. In light of Thomas’ comments to McAuley and his failure
to come in for the meeting, Strickland immediately began working on a letter advising
Thomas that a failure to contact the company would result in his discharge.

5. The
   Voluntary Resignation

On February 2, Strickland
was directed to begin processing a “voluntary resignation” for Thomas based on
his actions foreshadowing violation of the company’s attendance policy. CPC Ex.
FF at 3. That same day, she drafted the letter to Thomas informing him that his
continued silence would result in his voluntary resignation. That Monday,
February 5, Strickland sent the letter to Thomas via standard mail and UPS,
which stated that if Thomas did not contact HR by Thursday, February 8, “he
will be considered to have voluntarily resigned.” Tr. 456-57; CPC Ex. R. Thomas
refused receipt of both copies of the letter and did not forward them on to his
attorney. 40 FMSHRC at 1507-08.

On February 5 and 6, Demers spoke
with MSHA Special Investigator Diane Watson who indicated that “ she wasn’t going
to open a 101 case against Rob because she knew he
had been terminated,” and that he may be filing a “decimation” law suit. [11]
Tr. 106-07, 403-05; Thomas Ex. 61. The following day, Demers called Watson
back, in accordance with McAuley’s instructions, to tell her that Thomas had
not been “terminated.” [12] On February 9, after Thomas did not
respond to the letter of February 5, CalPort sent Thomas another letter,
notifying him of his voluntary resignation. 

6. The
   Discrimination Complaint

Thomas filed his written
discrimination complaint with MSHA on February 13, 2018, pursuant to section
105(c)(2) of the Act. [13] Tr. 206; Thomas Ex. 46; 40 FMSHRC at
1508-09. He did not request temporary reinstatement. His attorney reviewed the complaint
before it was filed. Oral Arg. Tr. 63. On February 21, 2018, MSHA Investigator
Watson emailed Demers to notify CalPort that Thomas had filed a section 105(c)(2)
complaint. Two months later, on April 23, 2018, MSHA declined to pursue a
discrimination case on Thomas’ behalf. See Thomas Compl. Ex. 1. On May
23, 2018, Thomas filed a section 105(c)(3) complaint with the Commission, which
was contested by CalPort on June 18, 2018. [14]

B.      The Judge’s
Decision

After
a hearing on the merits, the Judge issued a decision finding that CalPort had
discriminated against Thomas in violation of the Mine Act and awarded Thomas
back pay, lost benefits, and attorney’s fees. 40 FMSHRC at 1517-18. The
Judge found that Thomas engaged in four activities protected by the Act. First,
she determined that Thomas’ discussions with Inspector Johnson, beginning on
January 24 arising from his unwarrantable failure to wear his PFD, were
protected . Second, she found that he complained to
Demers that he was tired from working so many hours, and that he could not
concentrate, making it unsafe. Third, she found that Thomas expressed concern
about the lack of task training for the rock barge employees. Lastly, she
determined that 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. [15] 40 FMSHRC at 1509.

The
Judge also determined that there was adverse action against Thomas demonstrated
by his suspension pending investigation, his termination under the company’s
voluntary resignation policy, and the accidental termination email sent out by
Demers . In finding the elements of knowledge and timing most persuasive,
she concluded that there was “sufficient circumstantial evidence to demonstrate
a connection between Thomas’ discharge and his protected activity.” Id .
at 1512.

II.                

The
Standard of Review

A.     Substantial
Evidence

When
reviewing an administrative law judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30
U.S.C.

§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as
a reasonable mind might accept as adequate to support [the judge’s]
conclusion.’” Rochester & Pittsburgh Coal Co. , 11 FMSHRC 2159, 2163
(Nov. 1989) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938)). Under the substantial evidence test, the “possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.” Sec’y on
behalf of Wamsley v. Mutual Min., Inc. , 80 F.3d 110, 113 (4th Cir. 1996).

B.     
Prima
Facie Case of Discrimination

The
Commission has held that a complaint alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by presenting
evidence sufficient to support a conclusion that the individual engaged in
protected activity and that the adverse action complained of was motivated in
any part by that activity. See  Jayson
Turner v. Nat’l Cement Co ., 33 FMSHRC 1059, 1064 (May 2011); Driessen v. Nev.
Goldfields, Inc. ,
20 FMSHRC 324, 328 (Apr. 1998); Sec’y on behalf of Pasula v. Consolidation
Coal Co ., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds , Consolidation
Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981); Sec’y on behalf of
Robinette v. United Castle Coal Co. , 3 FMSHRC 805, 817-18 (Apr. 1981).

The Complainant bears the burden of establishing protected
activity. Pasula , 2 FMSHRC at 2797-2800,  rev’d
on other grounds sub nom. Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3rd Cir. 1981); SOL on behalf of Riordan v. Knox Creek Coal Corp .,
38 FMSHRC 1914, 1920-21 (2016). “Direct evidence
of motivation is rarely encountered; more typically, the only available
evidence is indirect.” Sec’y of Labor on behalf
of Chacon v. Phelps Dodge Corp ., 3 FMSHRC 2508, 2510
(Nov. 1981) .

In evaluating whether there exists a causal connection
between the protected activity and the adverse action, the Commission has identified
several indicia of discriminatory intent, including: (1) knowledge of the
protected activity; (2) hostility towards the protected activity; (3)
coincidence in time between the protected activity and the adverse action; and
(4) disparate treatment of the complainant. Id.  at 2510.   

It is upon these standards that we find that the Judge
erred in concluding that Thomas had established a prima facie case of
discrimination.

III.

Disposition

Thomas
failed to introduce any evidence that his suspension and eventual discharge
were in any way motivated by protected activity. In fact, the available
evidence strongly suggests that the adverse actions he experienced were direct
results of his own unprotected and dangerous activity of failing to wear a PFD
and his walking away from the operator’s necessary investigation.

Citing
Hatfield v. Colquest Energy, Inc ., 13 FMSHRC 544 (Apr. 1991), the
operator argued before the Judge and the Commission that Thomas’ claim must be
limited to the protected activities alleged in his initial section 105(c)(2)
complaint because issues regarding his work hours,
task training, and intent to file suit were not included in his section 105(c)(2)
complaint, and thus, not investigated by MSHA. In Hatfield , the
Commission held that a miner’s section 105(c)(3) complaint could include any
matter investigated by MSHA in response to the section 105(c)(2) complaint. Id .
at 545-46. We need not address the
operator’s Hatfield objection. We do address those claims below only for
the purpose of completeness and in case of appeal to show that even were we to
consider activities beyond those arising out of Thomas’ responding to the
Inspector in January 2019, substantial evidence could not support a finding in
Thomas’ favor. Consequently, our discussion of those alleged activities does
not portend any change in Hatfield . It only demonstrates that the evidence
does not support the Judge’s decision under any conceivable theory.  

A.     Cooperation
with MSHA Inspection

The Judge found Thomas’ cooperation with
the MSHA inspection on January 24, to be protected. However, neither Thomas nor
the Judge was able to identify any signs of hostility, circumstantial or
direct, displayed by CalPort regarding Thomas’ cooperation with MSHA Inspector Johnson.
40 FMSHRC at 1510-12. Instead, CalPort engaged in the necessary task of
evaluating the circumstances resulting in issuance of an unwarrantable failure
order. [16]

Thomas conceded at the hearing that the
company did not display any animus or hostility towards his participation in
the inspection. Tr. 208 . Additionally , gi ven Inspector
Johnson’s eyewitness account of Thomas’ unsafe and violative conduct, the
circumstances compelled Thomas’ cooperation. There is no evidence that CalPort
officials were upset with or suspended him because of his necessary cooperation
in MSHA’s investigation. Clearly, their investigation and meetings with him
arose out of, and only out of, his failure to wear a PFD. [17]

B.      Complaints
about Long
Hours

The evidence does not
support a finding of any adverse action motivated by the complaint over hours. The
Judge did not consider Thomas’ continued testimony where he explained that “he
knew [Demers] had a lot on his plate. . . . [H]e was trying to man – take care
of three barges, shorthanded, and taking care of a new item, the dredge,
Sanderling.” Tr. 120-21. Demers explained to McMillan that he had a stack of
applications, that he was trying to find someone, and that several successful
applicants made it through the hiring process but turned out to be uninsurable
due to DUIs. Tr. 79. McMillan did not testify that he felt or saw animus
towards his request.

Thomas was asked if he
thought that Demers did anything to alleviate his concerns about the hours, and
even Thomas testified: “Yes, he started bringing out the rock barge guys . . .” 
Tr. 121; see also Tr. 43-44. He further stated that Demers’ solution to
this complaint resolved the issue of excessive hours for him. Tr. 210. Thomas
conceded that Demers’ response to his request to work fewer hours was not one
of animosity or hostility. Tr. 208-11. Contrary
to the Judge’s determination, there was more than ample evidence through
Thomas’ own words that Demers did not develop animus toward Thomas as a result
of his complaint about the hours being worked. [18]

C.     Complaint
about Task
Training

The Judge found
that the barge workers worked under OSHA regulations, and that they required
task-training and “an introduction to MSHA regulations.” 40
FMSHRC at 1505.
However, the record shows that while the barge workers may have required task
training for the Dredge, CalPort’s dredge and barge workers are all trained
miners. Tr. 210, 229. CalPort’s Corporate Safety Director Chad Blanchard
testified, without contradiction, that its employees undergo MSHA new
employment training during their new-hire orientation and are trained in
waterborne safety and their discrimination rights. There is undisputed
testimony that CalPort had its task training records inspected by MSHA in
December 2017 and March 2018, with no citations issued. Tr. 418; CPC Exs. DD,
EE. There is no indication that MSHA found it improper that the person
signing off on the task-training sheets was different from the “competent
person” conducting the training.

There
is no testimony or other evidence regarding Demers’ response to Thomas’
complaints about the lack of task training for the substitute miners. Obviously, there are many reasons unrelated to animus towards
safety that might lead to not discussing Thomas’ action, including, most likely,
that Demers was not concerned by Thomas’ refusal. Establishing discriminatory
motivation as part of a complainant’s  prima facie  case requires more than a lack of responsiveness
to a miner’s action. Again, it is most compelling that Thomas explicitly
testified that he did not sense animus from Demers regarding his complaints,
and he agreed that he did not believe anything MSHA-related motivated CalPort
to take an adverse action against him. Tr. 205-08.

Moreover, McMillan made the
same complaints and refused to sign task training sheets, just as Thomas. McMillan
did not suffer any adverse action by Demers or any other CalPort official. See
Metz v. Carmeuse Lime , 34 FMSHRC 1820, 1827 (Aug. 2012) (finding operator
lacked animus against complainant’s safety-related complaints where other
employees complained of same safety issue and none of them experienced
retaliation).

D.     Notice
of Legal Action

The first sign that Thomas was involving
an attorney occurred on February 1, 2018, two days after Demers had
already made his recommendation to terminate Thomas’ employment on January 30,
2018. That was also six days after he was suspended pending
investigation. Thus, any adverse action experienced by Thomas prior to February
1 cannot be attributed to Thomas’ decision to involve his lawyer. According to
the Judge’s finding of fact, CalPort became aware of the discrimination
complaint by February 6. 40 FMSHRC at 1509. That was four days after the
decision was made to process Thomas as a voluntary resignation based on the
company’s last communication with Thomas about CalPort’s attendance policy.

Thomas has not presented any evidence
demonstrating that, after his February 1 statement that he was involving his
lawyer, Demers, McAuley, Strickland, or any other CalPort official even knew of,
let alone, harbored or directed any animus towards Thomas’ decision to involve
an attorney. Since February 1, Thomas had refused to communicate with his
employer. Prior to issuing the voluntary resignation on February 9, CalPort
made several attempts to reach Thomas to resolve the communication breakdown. He
refused to communicate or even open his mail thereby choosing to forego the
possibility of being retained as an employee.   

Thus, there is insufficient evidence to
support a finding that any animus resulted from Thomas’ alleged protected
activity. To the contrary, the evidence demonstrates that Thomas’ suspension
and then discharge arose from actions other than protected activity. These
actions are, at least, the commission of an unwarrantable failure, his
uncooperative and disrespectful conduct in a meeting with company personnel,
and, ultimately, his ill-considered refusal to take or respond to calls and
mail asking that he come to the office to discuss his situation.

III.

Conclusion

In conclusion, we hold that
there is not substantial evidence in the record to establish that any protected
activity by Thomas motivated the operator in any part to take any adverse
action toward him. For the reasons set forth above, we reverse the Judge’s
finding of discrimination by CalPort and dismiss this case.  

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr. ,
Chairman

/s/
Michael G. Young

Michael G.
Young, Commissioner

/s/
William I. Althen

William I.
Althen, Commissioner

Commissioners Jordan and Traynor, concurring:

We concur with
the majority, but write separately to address more fully the Respondent’s
argument that our decision in Hatfield v. Colquest Energy Inc. , 13 FMSHRC 544
(Apr. 1991), precludes our Judges from considering evidence of certain
protected activities when examining what motivated a properly pled adverse
action.

Section 105(c) of
the Mine Act provides to miners a full administrative investigation and evaluation
of an allegation of discrimination, as well as the right to commence a private
action before the Commission in the event that the Secretary’s administrative
evaluation results in a determination that there is not evidence that the
provisions of section 105(c) were violated. Section 105(c)(2) provides that,
upon receipt of a complaint of discrimination or interference, the Secretary
“shall cause such investigation to be made as he deems appropriate,” and that
“[i]f upon such investigation, the Secretary determines that the provisions of
this subsection have been violated, he shall immediately file a complaint with
the Commission. . . . ” 30 U.S.C. § 815(c)(2). Section 105(c)(3) of the Act
provides that, if the Secretary determines he has not found evidence that a
violation has occurred, “the complainant shall have the right, within 30 days
of notice of the Secretary’s determination, to file an action in his own behalf
before the Commission, charging discrimination or interference in violation of
[section 105(c)(1)].”     30 U.S.C. § 815(c)(3). Though section 105(c) contains
no explicit restriction on the subjects a miner may include in the action he
files on his own behalf, the structure of the subsection necessarily implies
that an action a miner brings on his own behalf must be related to his initial
complaint submitted for administrative investigation.

On occasion, we must
determine whether a private action under section 105(c)(3) concerns matters
that were first submitted for investigation and evaluation as required by section
105(c)(2). In Hatfield , an operator argued on interlocutory
appeal that certain discrete allegations of protected activity a pro se
miner included for the first time in his amended section 105(c)(3) complaint
should be stricken for his failure to explicitly allege them in his initial
administrative complaint. 13 FMSHRC at 544. We interpreted section 105(c)
expansively to hold that a miner could allege in his private right of action
any matter investigated by the Secretary, not merely those allegations
explicitly alleged in the four corners of the administrative complaint. We
therefore directed the Judge to determine whether protected activities alleged
in the miner’s amended complaint “were part of the matter that was investigated
by the Secretary in connection with [the miner’s] initial discrimination
complaint to MSHA.” 1 Id . at 546. Our decision
preserved and balanced both the Secretary’s investigatory role and a miner’s
right to file and process a complaint of discrimination through a system
intended for use by laypersons unfamiliar with the technical science of
pleading.

The Hatfield decision
served to shelter from summary decision those allegations advanced in a section
105(c)(3) private right of action that were not explicitly referenced in the section
105(c)(2) complaint submitted for investigation, but were investigated. See,
e.g., Saffell v. National Cement Co., 14 FMSHRC 1053, 1055 (June 1992) (ALJ);
Womack v. Graymont Western U.S. Inc. , 25 FMSHRC 235, 248 (May 2003) (ALJ).
Under Hatfield , a miner’s lay explanation in an administrative complaint
of why he or she “believes that he has been discharged, interfered with, or
otherwise discriminated against,” 30 U.S.C. § 815(c)(2), is not scrutinized
like a formal pleading in order to preclude a miner from advancing a related
allegation the Secretary investigated. We extended this approach to hold a
section 105(c)(2) complaint filed by the Secretary on behalf of a miner could
include any allegations addressed in the administrative investigation. Sec’y
of Labor on behalf of Dixon v. Pontiki Coal Corp ., 19 FMSHRC 1009, 1017
(June 1997).

Our approach in Hatfield
and Pontiki was intended to preserve miners’ rights to an administrative
investigation and evaluation, while ensuring they are not denied their right to
pursue a private section 105(c)(3) action for reasons unrelated to the merits
of their claims. However, recent ALJ decisions applying Hatfield reveal
miners are too frequently denied access to specific proof of the scope and
content of the administrative investigation. See, e.g., Willis v. Jeffrey
Tyler for Heart of Nature (NV), LLC , 2018 WL 2529561, Unpublished Order at
3 (May 11, 2018) (ALJ) (recounting Secretary’s refusal to produce a transcript
of the investigatory interview); Justice v. Gateway Eagle Coal Co. , 36
FMSHRC 2371 (Aug. 2014) (ALJ) (renewing motion to enforce a subpoena). 2
And sometimes a complainant has no access to facts about the scope of the
administrative investigation because no adequate investigation was conducted. See,
e.g., Deuso v. Shelburne Limestone Corp. , 41 FMSHRC 232, 242 (Apr. 2019)
(ALJ); Myers v. Freeport-McMoRan Morenci, Inc. , 34 FMSHRC 1593 (July
2012) (ALJ). In these cases, Hatfield has been misapplied to the extent
miners have been barred from advancing a case of discrimination solely because
they are denied access to evidence delineating the scope of the Secretary’s
investigation of his or her protected activities, or denied an adequate
investigation.

Our holding in Hatfield
must not operate to prevent a miner complainant from identifying and offering
instances of protected activity as evidence in support of a private action. Hatfield
only precludes a miner from broadening his complaint to request relief for an adverse action that was neither
pled in the initial administrative complaint or investigated by the Secretary
after receipt of such complaint.

In the instant
case, the only protected activity explicitly referenced in the administrative
complaint filed in the wake of Thomas’ suspension is his interaction with MSHA
inspector Johnson at the dock. However, Thomas alleges in his section 105(c)(3)
private action that his reports to his supervisor of inadequate training and
excessive work hours are additional protected activities that also motivated,
at least in part, his suspension and subsequent termination. These pleaded
protected activities concern the adverse action raised in Thomas’
administrative complaint. Importantly, Thomas did not seek additional or
separate relief.

It is significant
that the protected activities not referenced in Thomas’ initial complaint but
alleged in his private action are claimed to have motivated the same adverse
action explicitly referenced in his initial complaint. The adverse action
element of a discrimination case is a particularly helpful lens for
understanding appropriate application of our Hatfield decision. A miner
can be expected to be especially familiar with the facts establishing the
adverse action prong of a discrimination case. He or she will be able to easily
identify and explain in lay terms a termination, suspension, reassignment,
threat, etc. These facts describing the adverse action are those a lay miner is
most likely to identify as salient and necessary for inclusion in the initial
filing explaining why he or she “believes that he has been discharged,
interfered with, or otherwise discriminated against.” 30 U.S.C. § 815(c)(2). By
contrast, miners are comparatively less likely to specifically reference in
their initial complaint other allegations critical to the evidentiary burden of
establishing a discrimination case, such as protected activity and unlawful
motivation, because their importance is only apparent to those familiar with
the legal requirements of our Pasula-Robinette framework. 3
These are the types of facts an effective administrative investigation and
evaluation is reasonably expected to uncover. 4

Permitting a
miner to plead other discrete instances of protected activity alleged to have
motivated a properly pled and investigated adverse action does not interfere
with or diminish the Secretary’s ability to ensure every administrative
complaint receives a full investigation. An investigator helping determine
whether Thomas’ administrative complaint makes out a case for relief would have
had a reasonable opportunity to investigate whether Thomas had engaged in other
protected activity – in addition to the interaction with the inspector - that
could have possibly motivated his suspension and termination. Though the Secretary’s
evaluation of Thomas’ administrative complaint determined there was not
sufficient evidence to establish a violation, a reasonably diligent
investigation would have thoroughly examined Thomas’ participation in protected
activity.

To resolve this
case, we considered whether Thomas’ putatively protected complaints about
inadequate training and excessive work hours motivated in any way the same
adverse action referenced in his administrative complaint - his suspension and
ultimate termination. 5 Along with the majority, we find no
proof that they did.

/s/
Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/
Arthur R. Traynor, III

Arthur R. Traynor,
III, Commissioner

[1]   The
Act states in pertinent part that:

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

30 U.S.C. § 815(c)(1).

[2] 30 C.F.R. §
56.18009 requires that: “When persons are working at the mine, a competent
person designated by the mine operator shall be in attendance to take charge in
case of an emergency.”

[3] Generally,
Demers signed off on task training records as the “person responsible for
health and safety training,” while Thomas or McMillan were the competent
persons conducting the training. Tr. 414-16.

[4] 30
C.F.R. § 56.15020 states that: “Life jackets or belts shall be worn where there is
danger from falling into water.”

[5]
McMillan
also testified that Johnson told Thomas that he could be cited personally for
the violation and that it could be a fireable offense, although unlikely, given
Thomas’ history of having no safety violations. Tr. 62.

[6] McMillan’s
position on whether or not Thomas was on the ladder without his PFD was
inconsistent. Thomas Ex. 5; Tr. 54-55, 82-83.

[7]
In part, the memorandum states:

Your explanation
of what took place does not match what others had to say. During the interview,
you were asked ‘if it was normal policy to take off your PFD to conduct hot work’
and you refused to answer the question. During the interview, you were
uncooperative and aggravated with the questioning. You also stated that you thought
that the whole process was ‘a sham.’ However, you admit to being on deck
conducting work underway without wearing a PFD. It is impossible to work on
that valve without a ladder or something to stand on.

CPC
Ex. N at 5.

[8] Demers thereafter
received a written warning from McAuley for his mishandling of the sensitive
email. Tr. 314-15; CPC Ex. O.

[9] Counsel for Thomas
alleged that on February 2, 2018, he sent an email to Demers containing a
letter notifying CalPort that Thomas was now being represented by an attorney. Demers
testified that he did not receive the email until February 13 and that it did
not have a letter attached. Tr. 157-160, 421-22.

[10] McAuley
testified that he did not recall hearing Thomas mention an attorney during that
phone call. Tr. 319-20.

[11] While the Judge
stated in her finding of facts that Watson said “discrimination” complaint,
CalPort refutes the Judge’s description and maintains that Watson said
“defamation” complaint. Demers wrote “decimation” law suit in his notes. CPC PH
Br. at 17-19; PDR at 22; CPC Op. Br. at 5, 17; Tr. 405-06; Ex. 61; 40 FMSHRC at
1508 .
The Judge did not resolve the discrepancy in her decision.

[12] The Judge inaccurately
stated that
“Demers told McAuley that Thomas thought he had been terminated based on
Demers’ January 30 email .” 40 FMSHRC at 1508 (emphasis added). According to
Demers’ testimony, which is consistent with McAuley’s, Demers simply stated
that Watson said that she understood that Thomas had been terminated. Tr.
323-24, 404. Demers never stated that Thomas believed he was terminated based
on Demers’ action.

[13] 30 U.S.C. §
815(c)(2) states that: “Any miner . . . who believes that he has been
discharged, interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary . . . shall cause such investigation
to be made as he deems appropriate.”

[14] 30
U.S.C. § 815(c)(3) states that:

Within 90 days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing, the miner . . . of his
determination whether a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this subsection have not been
violated, the complainant shall have the right, within 30 days of notice of the
Secretary’s determination, to file an action in his own behalf before the
Commission, charging discrimination or interference in violation of paragraph
(1).

[15]
The Judge did not find the call between Thomas and Demers regarding sick leave
to be protected activity.

[16] As to the
factors set forth in Chacon that might demonstrate motivation, CalPort
obviously learned almost immediately from the MSHA Inspector that Thomas had
committed a violation by failing to comply with CalPort’s PFD policy and acted,
as it should, to investigate such wrongful misconduct. Such events, therefore,
were necessarily close in time and do not indicate any discrimination.

[17] Moreover, Thomas
was well aware that company policy required his full participation with government
investigations. In the 2012 incident, Thomas was disciplined for making false
statements to government investigators and failing to cooperate with an
investigation. He was specifically warned that such behavior could lead to
termination in the future.

[18]  The Judge
relied on Demers’ statement that “Rob Thomas is f---ing done.” 40 FMSHRC at
1511. But this was not in response to the conversation involving hours. Rather,
it resulted from a discussion of a sick day not found by the Judge to be
protected activity. Moreover, the facts suggest the comment resulted from
Thomas’ insubordinate behavior of hanging up on Demers in the middle of the conversation
on the prior day. There is no evidence to link that statement to any safety
complaints. Finally, Thomas testified that after he and Demers discussed the
telephone call “everything was fine.” Tr. 202.

1 Notably, the
Secretary of Labor did not participate in the Hatfield case and had no
opportunity to file an amicus brief as the Commission granted the
operator’s petition for interlocutory review, vacated the Judge’s order, and
remanded the proceeding without taking briefs. The Secretary has not had
occasion to offer the agency’s view as to how Mine Act provisions requiring him
to investigate administrative complaints filed pursuant to section 105(c)(2)
should be interpreted to accommodate his own investigatory role with the
Congressional directive that we should “expansively” construe section 105(c)
“to assure that miners will not be inhibited in any way in exercising any
rights afforded by the legislation.” S. Rep. No. 95-181, at 35-36 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 623-24
(1978). However, this is not surprising, given miners may only file a private
action under section 105(c)(3) if and when the Secretary declines to pursue the
complainant’s case.

2  MSHA should
ensure its policies for responding to requests for information from section 105(c)(3)
complainants do not thwart their ability to advance a claim on matters
investigated by MSHA.

3 Sec’y on
behalf of Pasula v. Consolidation Coal Co ., 2 FMSHRC 2786, 2799 (Oct.
1980), rev’d on other grounds , Consolidation Coal Co. v. Marshall ,
663 F.2d 1211 (3d Cir. 1981); Sec’y on behalf of Robinette v. United Castle
Coal Co. , 3 FMSHRC 805, 817-18 (Apr. 1981).

4 This point is
echoed in both the majority and dissenting opinions accompanying our decision
in Hopkins County Coal, LLC , 38 FMSHRC 1317 (June 2016), where the
majority stated in footnote 11 of their opinion that “MSHA’s initial interview
with the miner can provide the investigator with much needed clarity regarding
the allegations, and can possibly lead to the discovery of other violative
conduct the miner did not know to allege or had trouble articulating in his
charging complaint.” The dissenters agreed, observing at footnote 2 of their
opinion that “Miners may initially fail to assert in precise legal terms the
elements of a discrimination claim in their written complaint. When, as here, a
miner’s complaint is facially invalid, MSHA is entitled to ask questions and
investigate whether any facts asserted by the miner at that point might support
a discrimination claim--that is, can the miner allege the elements of protected
activity and adverse action because of such activity.” Id . at 1339 n.2.

5 We do not
address here whether these additional activities are the type that are
protected under Pasula-Robinette .