Robert Thomas v. Calportland Company

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERT THOMAS,                          No. 20-70541
                         Petitioner,
                                          MSHR No.
                v.                        WEST 2018-
                                           402-DM
CALPORTLAND COMPANY; FEDERAL
MINE SAFETY AND HEALTH REVIEW
COMMISSION,                                OPINION
                    Respondents.

       On Petition for Review of an Order of the
  Federal Mine Safety and Health Review Commission

       Argued and Submitted December 10, 2020
                 Seattle, Washington

                 Filed April 14, 2021

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

              Opinion by Judge Hunsaker
2                  THOMAS V. CALPORTLAND

                          SUMMARY *


                 Mine Safety and Health Act

    The panel granted a petition for review of a decision of
the Federal Mine Safety and Health Review Commission
that concluded that the petitioner failed to prove a prima
facie case of discrimination under Section 105(c) of the
Mine Safety and Health Act, and remanded for further
proceedings.

    Petitioner is a dredge operator who claimed that his
former employer CalPortland Company discriminated
against him for engaging in protected activities related to
safety issues. The Mine Act subjects mine operators, like
CalPortland, to a variety of requirements, including safety
standards and employment practices. Petitioner filed a
Section 5(c)(3) action with the Commission, and, after an
administrative law judge found for petitioner, the
Commission reversed the administrative law judge’s finding
of discrimination and dismissed the case.

    In discrimination cases under Section 5(c) of the Mine
Act, the Commission has applied the Pasula-Robinette
framework. Interpreting Section 105(c) in light of recent
Supreme Court precedent, the panel concluded the
Commission applied the wrong causation standard, and
granted the petition for review and remanded. The panel held
that Section 105(c)’s unambiguous text required a miner
asserting a discrimination claim to prove but-for causation.

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 THOMAS V. CALPORTLAND                        3

Therefore, the panel rejected the Pasula-Robinette
framework. The panel held that it was for the Commission
to apply the but-for standard to this case in the first instance
on remand.


                         COUNSEL

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.


                          OPINION

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.
4               THOMAS V. CALPORTLAND

                   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
                 THOMAS V. CALPORTLAND                      5

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.
6               THOMAS V. CALPORTLAND

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
                 THOMAS V. CALPORTLAND                      7

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.
8                THOMAS V. CALPORTLAND

              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 (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
                 THOMAS V. CALPORTLAND                        9

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 motivated by the miner’s protected activity.”
Cumberland River, 

712 F.3d at 318

. Or, if the mine operator
cannot rebut the prima facie case, it may assert an
affirmative defense by demonstrating—by a preponderance
of evidence—that: (1) the adverse action was also motivated
by the miner’s unprotected activity; and (2) the adverse
action would have been taken in response to the unprotected
activity alone. 

Id. at 319

.

    We have never adopted the Pasula-Robinette framework
in a published opinion. Indeed, it appears we have resolved
only two discrimination appeals under Section 105(c) of the
Mine Act, which both resulted in unpublished dispositions.
Bennett v. Fed. Mine Safety & Health Rev. Comm’n, 

12 F. App’x 492

 (9th Cir. 2001); Jaxun v. Fed. Mine Safety &
Health Rev. Comm’n, 

408 F. App’x 70

 (9th Cir. 2011). And
of these two cases, only Bennett explicitly cites and applies
the Pasula-Robinette framework. 

12 F. App’x at 494

.

    On appeal, CalPortland argues that the Pasula-Robinette
standard should no longer apply to Section 105(c) cases. In
his reply brief, Thomas agreed that Pasula-Robinette
conflicts with Supreme Court precedent. Specifically, in
their briefing, both parties urged us to construe the word
“because” in Section 105(c) to mean “but-for” causation,
rather than the Pasula-Robinette partially motivated
10                    THOMAS V. CALPORTLAND

standard. Citing Burrage, 1 Nassar, 2 Gross, 3 and Bostock, the
parties claimed that the Pasula-Robinette standard conflicts
with the Court’s instruction that the ordinary meaning of
“because” incorporates the “simple and traditional standard
of but-for causation.” Bostock v. Clayton Cnty., 

140 S. Ct. 1731, 1739

 (2020) (internal quotation marks omitted) (citing
Nassar, 570 U.S. at 346, 360). At oral argument, however,
Thomas changed his position and now argues that we should
apply the Pasula-Robinette standard.

    The recent Supreme Court precedent cited above
strongly supports reading “because” to require a “but-for”
causation analysis. In Burrage, Nassar, Gross, and Bostock,
the Court considered the meaning of “because of” and
similar phrases in various statutory schemes and concluded
that the ordinary meaning mandates but-for causation. The
Court noted, however, that the ordinary meaning may not
control when there is “textual or contextual indication to the
contrary.” Burrage, 571 U.S. at 212. For example, in
Bostock, the Court explained that Congress can avoid
imposing liability under a but-for causation theory by
drafting legislation that uses terms like “solely” and
“primarily” to modify “because of.” Bostock, 

140 S. Ct. at 1739

. Such terms would modify the traditional but-for
standard, indicating respectively that “actions taken
‘because of’ the confluence of multiple factors do not violate
the law” or “the prohibited factor had to be the main cause
of the defendant’s challenged employment decision.” 

Id.

     1
         Burrage v. United States, 

571 U.S. 204

, 212–17 (2014).
     2
      Univ. of Sw. Tex. Med. Ctr. v. Nassar, 

570 U.S. 338

, 346–60
(2013).
     3
         Gross v. FBL Fin. Servs., 

557 U.S. 167

, 174–80 (2009).
                 THOMAS V. CALPORTLAND                     11

(noting that Congress can also draft a statute that uses a
“motivating factor” causation standard). But absent such
modifiers, the Court instructs us that “because of” means
“but for.” 

Id.

 And—at least in the Title VII context—a “but-
for causation standard means a defendant cannot avoid
liability just by citing some other factor that contributed to
its challenged employment decision.” 

Id.

    Because we have not previously addressed the
applicability of the Pasula-Robinette standard in the context
now before us, the horizon is clear of binding precedent.
Pedroza v. BRB, 

624 F.3d 926, 931

 (9th Cir. 2010)
(explaining “an unpublished decision is not precedent”). We
begin our interpretive exercise with the plain text of Section
105(c). See Bottinelli v. Salazar, 

929 F.3d 1196, 1199

 (9th
Cir. 2019) (beginning and ending its statutory interpretation
with the plain text). Section 105(c) prohibits a mine operator
from discriminating against a miner “because” the miner
engaged in protected activity. 

30 U.S.C. § 815

(c)(1). It
protects against discrimination via the following language:

       No person shall discharge or in any manner
       discriminate against or cause to be
       discharged or cause discrimination against or
       otherwise interfere with the exercise of the
       statutory rights of any miner, representative
       of miners or applicant for employment in any
       coal or other mine subject to this chapter
       because such miner, representative of miners
       or applicant for employment has filed or
       made a complaint under or related to this
       chapter, including a complaint notifying the
       operator or the operator’s agent, or the
       representative of the miners at the coal or
       other mine of an alleged danger or safety or
12              THOMAS V. CALPORTLAND

       health violation in a coal or other mine, or
       because such miner, representative of miners
       or applicant for employment is the subject of
       medical evaluations and potential transfer
       under a standard published pursuant to
       section 811 of this title or because such
       miner, representative of miners or applicant
       for employment has instituted or caused to be
       instituted any proceeding under or related to
       this chapter or has testified or is about to
       testify in any such proceeding, or because of
       the exercise by such miner, representative of
       miners or applicant for employment on
       behalf of himself or others of any statutory
       right afforded by this chapter.

Id.

 (emphasis added). We note that Section 105(c) uses the
term “because” four times, and each time without any
modifiers. We also note that no other provision in Section
105(c) expands upon, or modifies, the substantive
protections in the above quoted language—they merely
describe the enforcement and adjudication process. See 

id.

§ 815(c)(2), (3).

     The lack of modifiers before or after “because,” and the
ordinary meaning of “because,” plainly indicate that Section
105(c) incorporates the “simple and traditional standard of
but-for causation.” Bostock, 

140 S. Ct. at 1739

 (internal
quotation marks omitted) (citation omitted). Had Congress
wished to deviate from this “traditional background
principle[] against which [it] legislate[s],” it would have
provided a “textual or contextual indication.” Burrage,
571 U.S. at 212–14 (internal quotation marks omitted)
(citing Nassar, 

570 U.S. at 347

). Yet nothing in the text of
Section 105(c) or the surrounding provisions indicates that
                 THOMAS V. CALPORTLAND                      13

Congress attempted to deviate from the customary meaning.
See generally 

30 U.S.C. § 815

. Section 105(c)’s plain
meaning then requires a but-for causation standard for
employment discrimination under the Mine Act.

    In interpreting a different statute, we recently relied on
Gross and Nassar to discard circuit precedent requiring a
“motivating factor” test for causation. Murray v. Mayo
Clinic, 

934 F.3d 1101, 1106

 (9th Cir. 2019). In Mayo Clinic,
the underlying statute, the ADA, used a phrase that
“indicate[d] but-for causation” and did “not contain any
explicit motivating factor language.” 

Id.

 (internal quotation
marks omitted). In holding that the relevant ADA provision
required but-for causation, we looked only to the text of the
provision at issue. 

Id.

 (noting also that “[the Court] must be
careful not to apply the rules applicable under one statute to
a different statute without careful and critical examination”
(quoting Gross, 

557 U.S. at 174

)). As Mayo Clinic extended
the holdings of Gross and Nassar to a statute not at issue in
those cases, we do not venture into uncharted waters by
applying the “because means but-for” rule to the Mine Act.
Indeed, as Mayo Clinic predated Bostock—which reinforced
and amplified the holdings of Gross and Nassar—Bostock
placed an additional marker by which to navigate.

    Still, we consider the decisions of our sister circuits and
the Commission. It appears that no circuit has considered
whether to reject Pasula-Robinette based on the cases cited
above, see, e.g., Hopkins Cnty. Coal, LLC v. Acosta,

875 F.3d 279

, 288–89 (6th Cir. 2017); Harrison Cnty. Coal
Co. v. Fed. Mine Safety & Health Rev. Comm’n, 

790 F. App’x 210

, 213 (D.C. Cir. 2019). However, in 2016, the
Commission reconsidered Pasula-Robinette in light of
Gross and Nassar and declined to change direction. Riordan
v. Knox Creek Coal Corp., 

38 FMSHRC 1914

, 1920, 2016
14               THOMAS V. CALPORTLAND

WL 5594252, at *6 (August 23, 2016). Under Chevron, we
need not consider the Commission’s interpretation because
the statutory text is unambiguous, but we nonetheless
explain why we find unpersuasive the Commission’s
decision not to adopt but-for causation despite Nassar and
Gross.

    In Riordan, the Commission stated that “[i]n both Nassar
and Gross, the Supreme Court emphasized that the
legislative history and context of the discrimination
provisions were essential to interpreting what standard of
causation applies” and concluded “the legislative history of
the Mine Act affirmatively demonstrates that Congress
envisioned such a burden-shifting framework when drafting
the discrimination protections of section 105(c)(1).” 

Id.

Even assuming the legislative history of the Mine Act
weighs as strongly in favor of Pasula-Robinette as the
Commission asserts, its premise for looking to the legislative
history was flawed. In neither Nassar nor Gross did the
Court look to the legislative history to determine the
causation standard—much less “emphasize[]” it as the
Commission claimed. See Nassar, 

570 U.S. at 346

; Gross,
557 U.S. at 175–76. Neither decision even used the phrase
“legislative history.” Instead, both decisions considered the
text of the provision at issue and its context, e.g., how it fits
into the statute as a whole and how the statute at issue
compares to other similar statutes. See Nassar, 

570 U.S. at 360

 (“Based on these textual and structural indications,
the Court now concludes [but-for causation applies]. . .”);
Gross, 557 U.S. at 175–76 (“[The Court’s] inquiry. . . must
focus on the text.”). Thus, the Commission overstated those
decisions by arguing that their holdings flow from an
analysis of legislative history.
                   THOMAS V. CALPORTLAND                            15

                      IV. CONCLUSION

     In the end, the only question we must answer is simple.
Section 105(c)’s unambiguous text requires a miner
asserting a discrimination claim under Section 105(c) to
prove but-for causation. Therefore, as the parties both
requested originally, we reject the Pasula-Robinette
framework. The Supreme Court has instructed multiple
times that the word “because” in a statutory cause of action
requires a but-for causation analysis unless the text or
context indicates otherwise. Section 105(c) contains no such
indication. And we drop anchor there because it is for the
Commission to apply the but-for standard to this case in the
first instance on remand. 4

   The petition for review is GRANTED and
REMANDED to the Commission for further proceedings
consistent with this opinion.




    4
      We further note the Commission is statutorily bound to review the
ALJ’s factual findings for substantial evidence, and it errs if it
“substitute[s] a competing view of the facts for the view the ALJ
reasonably reached.” Donovan ex rel. Chacon, 

709 F.2d at 92

. Although
we do not reach the issue, the Commission on remand should pay
particular attention to Thomas’s argument regarding whether the
Commission appropriately deferred to the ALJ’s factual findings and
credibility determinations.