Thomas v. Calportland Co.

• Decision Date: 14 April 2021
• Docket Number: No. 20-70541,20-70541
• Citation: 993 F.3d 1204
• Parties: Robert THOMAS, Petitioner, v. CALPORTLAND COMPANY; Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

993 F.3d 1204

Robert THOMAS, Petitioner,

v.CALPORTLAND COMPANY; Federal Mine Safety and Health Review Commission, Respondents.

No. 20-70541

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2020 Seattle, Washington

Filed April 14, 2021

Colin F. McHugh (argued), Trevor Cartales, and Alex Higgins, Navigate Law Group, Vancouver, Washington, for Petitioner.

Brian P. Lundgren (argued), Jackson Lewis P.C., Seattle, Washington, for Respondents.

Before: M. Margaret McKeown, Danielle J. Hunsaker, and Patrick J. Bumatay, Circuit Judges.

HUNSAKER, Circuit Judge:

Robert Thomas—a dredge operator—claims his former employer CalPortland Company discriminated against him for engaging in protected activities related to safety issues. In this appeal, Thomas challenges the Federal Mine Safety and Health Review Commission's (Commission) conclusion that he failed to prove a prima facie case of discrimination under Section 105(c) of the Mine Safety and Health Act (Mine Act). Interpreting Section 105(c) in light of recent Supreme Court precedent, we conclude the Commission applied the wrong causation standard, and we grant the petition and remand.

I. BACKGROUND

A. The Sanderling's dredging operation

CalPortland operates the Sanderling, a 220-foot dredge, on the Columbia River. Like its much smaller avian namesake, the Sanderling sucks. Specifically, it sucks sand from the riverbed, deposits it in compartments on the deck, and—with a push from its towboat, the Johnny Peterson—transports the sand to CalPortland's Vancouver, Washington facility. Once there, the crew unloads the sand with water cannons, creating a slurry that flows from the Sanderling to a settling pond via underground pipes.

The Sanderling dredge is not just a boat—it is classified as a surface mine and, accordingly, is regulated by the Mine Act, 30 U.S.C. § 803. The Mine Act subjects mine operators, like CalPortland, to a variety of requirements, including safety standards and employment practices. CalPortland and the Mine Safety and Health Administration (MSHA) often work together collaboratively; for example, MSHA reviewed and approved CalPortland's Sanderling fall-protection safety training. To verify CalPortland's compliance, MSHA inspectors examine CalPortland's mining facilities, including the Sanderling.

The Sanderling's crew includes Thomas, dredge operator, and Joel McMillan, deckhand. Helming the towboat and rounding out the crew is the captain of the Johnny Peterson, a third-party contractor. The shore operations include CalPortland's marine manager, Dean Demers, who oversees and has management authority over the Sanderling and her crew. Demers reports to CalPortland's general manager of aggregates for Oregon material, David McAuley. McAuley works with CalPortland's safety manager, Jeff Woods, and human resources manager, Candy Strickland.

B. Work-schedule dispute

Thomas started working for CalPortland in 2002 as a deckhand. In 2015, he was promoted to dredge operator—the Sanderling's person in charge (PIC). See 30 C.F.R. § 56.18009. Two years later, in July 2017, Demers became CalPortland's marine manager. As marine manager, Demers led safety investigations involving the Sanderling and her crew. He also played a leading role in disciplining Sanderling crew members, in consultation with McAuley and Strickland, but delivering any disciplinary message, including termination, himself.

Sometime in fall 2017, Thomas and McMillan complained to Demers that the lack of other crew members forced them to work long hours, without relief. While Demers responded that "he was working on it," Thomas and McMillan did not believe he was sincere. Although Thomas testified that working such long hours was unsafe, he did not say that he told Demers about his safety concerns and Demers testified that Thomas did not. In response to Thomas's and McMillan's complaints about long hours, Demers moved several CalPortland miners from rock barges to the Sanderling to relieve Thomas and McMillan. Thomas and McMillan testified that these miners were inadequately trained, however, and they refused to sign off on the training forms for these miners.

C. Thomas's safety violation

On January 24, 2018, an MSHA inspector spotted Thomas working on the Sanderling without his personal flotation device (PFD) as the dredge arrived in Vancouver. According to Thomas, he removed his PFD while welding to prevent it from catching fire. According to the MSHA inspector, he saw Thomas on a ladder without his PFD—an egregious safety violation. The inspector and Thomas discussed the incident on deck, and Thomas admitted that he was not wearing his PFD for some period of time but disputed he was on a ladder without it on. Thomas informed Demers of his conversation with the inspector and went home.

D. CalPortland's disciplinary actions

The next morning, Thomas returned to work and discussed the incident again with Demers and the inspector. Thomas and the inspector continued to disagree about whether Thomas was on the ladder without his PFD. After the conversation, Demers and McAuley decided to suspend Thomas pending investigation. As Thomas had already returned to the Sanderling, Demers called ahead and told McMillan he was on his way to "get rid of [Thomas]," instructing McMillan to ensure Thomas did not leave.

On January 29, Demers and Woods interviewed Thomas. They provided Thomas with the MSHA inspector's statement and Thomas responded that "this whole thing is nothing but a sham." Woods left thereafter, and Thomas filled out a more detailed report. Later that afternoon, Strickland, McAuley, and Demers met to discuss the situation and decided that Demers would begin drafting a discipline recommendation. Demers sent his first draft to Strickland—recommending termination—that day.

The following afternoon, Demers mistakenly emailed the second draft of his discipline recommendation—still recommending termination—to the entire barge-scheduling email list, which included Thomas. When Thomas read the email the morning of January 31, he immediately canceled his scheduled meeting with Demers and hired an attorney, believing he had been terminated.

On February 1, McAuley called Thomas at home. Thomas instructed McAuley to direct all further communications to his attorney. That same day, Strickland decided to begin the voluntary resignation process based on Thomas's refusal to communicate. She sent two letters to Thomas indicating he had until February 8, 2018, to respond or CalPortland would consider him to have voluntarily resigned; Thomas rejected delivery of both letters. On February 9, Strickland sent Thomas another letter confirming Thomas's voluntary resignation; again, Thomas rejected it.

E. Thomas's discrimination claim

Thomas filed a written discrimination complaint with MSHA, alleging he was disciplined and ultimately terminated for engaging in protected activity regarding his safety concerns and his safety violation. MSHA declined to pursue the discrimination claim on Thomas's behalf, and Thomas filed a Section 105(c)(3) action with the Commission, which CalPortland contested. After a hearing, the Administrative Law Judge (ALJ) found for Thomas, concluding that CalPortland took adverse action against him because of his protected activity, including speaking with the MSHA inspector after the inspector observed Thomas's safety violation and reporting his concerns about safety and insufficient crew training to CalPortland. CalPortland petitioned for administrative review, which was granted, and the Commission reversed the ALJ's finding of discrimination and dismissed the case. Thomas now petitions our court for review.

II. STANDARD OF REVIEW

We review the Commission's interpretation of a statute de novo and its factual findings for substantial evidence. See Stillwater Mining Co. v. Fed. Mine Safety & Health Rev. Comm'n , 142 F.3d 1179, 1183 (9th Cir. 1998) ; Knox Creek Coal Corp. v. Sec'y of Labor , 811 F.3d 148, 157 (4th Cir. 2016). If the statute's meaning is plain, "that is the end of the matter," and we need not defer to the Commission's interpretation. Royal Foods Co. v. RJR Holdings, Inc. , 252 F.3d 1102, 1106 (9th Cir. 2001) ; Chevron v. Natural Resources Defense Council , 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; see also Local Union 1261, Dist. 22, United Mine Workers of Am. v. Fed. Mine Safety & Health Review Comm'n , 917 F.2d 42, 44 (D.C. Cir. 1990). Substantial evidence means "more than a mere scintilla[ ] but less than a preponderance;" it is an extremely deferential standard. NLRB v. Int'l Bd. of Elec. Workers, Local 48 , 345 F.3d 1049, 1054 (9th Cir. 2003) (citation omitted); Velasquez-Gaspar v. Barr , 976 F.3d 1062, 1064 (9th Cir. 2020).

III. DISCUSSION

"The purpose of the Mine Act is to ensure the safety of miners." Cumberland River Coal Co. v. Fed. Mine Safety & Health Review Comm'n , 712 F.3d 311, 317 (6th Cir. 2013) (citing 30 U.S.C. § 802 ). "The Mine Act also serves to protect against discrimination or interference with protected activity." Id. (citing 30 U.S.C. § 815(c) ). In discrimination cases under Section 105(c) of the Mine Act, the Commission has applied the Pasula-Robinette framework. Secretary ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (1980), rev'd on other grounds sub nom., Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981) ; see also Cumberland River , 712 F.3d at 317–18. Under this framework, a miner proves a prima facie case of discrimination by showing that: (1) he engaged in protected activity and (2) was subject to an adverse action motivated "at least partially ... by his protected activity." Cumberland River , 712 F.3d at 318 ; see also Donovan ex rel. Chacon v. Phelps Dodge Corp. , 709 F.2d 86, 88 (D.C. Cir. 1983). The mine operator may then rebut the prima facie case by showing: "(1) the miner was not engaged in any protected activity, or (2) the adverse employment action was not even partially...