The more things change, the more they remain the same…maybe

By Willa B. Perlmutter

A couple of weeks ago, I attended a conference on occupational safety and health law sponsored by the American Bar Association for lawyers from the government, labor and private employers. (Admit it. The idea of hanging out with a bunch of lawyers for five days in a hotel ballroom thrills you, doesn’t it?) The first day of the conference was devoted to issues in mine safety law, and one of the features of the day was a mock trial of a § 105(c) whistleblower retaliation case, presented for the purpose of demonstrating various trial techniques to an audience of lawyers who practice in the MSHA space. Two lawyers from the Solicitor’s Office “represented” MSHA and I took the part of the company’s counsel. The mock trial was presided over by one of the administrative law judges who actually hears these cases at the Federal Mine Safety and Health Review Commission. (Now are you sorry you missed the conference? Thought so.)

Of course, as we were preparing for the demonstration, one of the things we discussed was the traditional analytical framework by which the commission and its judges review retaliation cases. That approach is generally called the Pasula-Robinette framework, named after a couple of commission cases that were decided shortly after the Mine Act was written. Under Pasula-Robinette, in order to win a whistleblower case, the miner has to prove that he engaged in protected activity (like making safety complaints), that he experienced adverse action (like getting fired) and that the adverse action had been motivated, at least in part, by the protected activity. 

Since it’s hard to prove it directly, the miner can point to indirect evidence like the employer’s knowledge of or hostility toward his protected activity, or suspiciously coincidental timing or unequal treatment, to show that the employer was improperly motivated to take the adverse action. Once he makes that initial case (a prima facie case, if you want to get all Latin about it) the burden shifts to the employer, who can dodge a finding of unlawful retaliation if the employer proves either that the adverse action was also motivated by the miner’s unprotected activity, or that it would have taken the adverse action in response to the unprotected activity alone. For example, the employer can win the case by showing that even if it resented the miner’s constant safety complaints, it actually fired him because he got caught working on energized equipment without locking and tagging.

That’s the traditional analysis that has governed § 105(c) cases for more than 40 years. But as we were preparing our demonstration, the ALJ “presiding” over our mock case noted that we were in California and thus our fictional case was pending in the Ninth Circuit, the appellate court with jurisdiction over the far western states. The judge pointed out that in 2021 the Ninth Circuit adopted a test for unlawful retaliation different from what the commission uses and different from what all the other appellate courts use. 

In a whistleblower case out of Vancouver, Wash., the miner (last name Thomas) alleged that he had been fired for complaining about his work schedule and for talking with an MSHA inspector. The company (CalPortland) said no, he was fired because he was caught (by MSHA) working on a dredge without proper PPE. The miner complained about his termination to MSHA, which investigated and found that no unlawful retaliation had occurred. He then sued the company directly, and the ALJ hearing the case found in his favor. The company appealed to the commission, which reversed the ALJ’s decision and held in favor of the employer. The miner then sought relief from the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit (which, truth be told, is widely recognized in legal circles for its sometimes-iconoclastic approach to the law) tossed out the Pasula-Robinette framework against which retaliation cases have been judged for all these years. In language emphatically unkind to the commission, the Ninth Circuit looked to a couple of U.S. Supreme Court cases that had nothing to do with the Mine Act, announced that the commission has been applying the wrong standard, and held that the language of the Mine Act really means that a miner has to prove only that the employer would not have taken the adverse action “but for” his protected activity. Although it discussed at length what it believed to be flaws in the commission’s consistent application of Pasula-Robinette, the Ninth Circuit did not tell the commission how the “but for” analysis should be applied in Mr. Thomas’s case. (Indeed, it wrote “[a]nd we drop anchor there because it is for the Commission to apply the but-for standard to this case in the first instance on the remand.” Yikes.)

So, the Ninth Circuit remanded the case to the commission, which in turn sent the case back to the ALJ who initially found in favor of the miner. Although she acknowledged the Ninth Circuit’s ruling, she tiptoed around it as much as she could and ultimately ruled in the miner’s favor a second time. The mine operator again appealed to the commission. That appeal is currently pending. The ALJ has since retired.

So, what does all this mean, really? Well, right now and for the very short term, not much. Technically, the Ninth Circuit’s analysis only applies to cases that arise in that circuit. The commission is free to continue to use the longstanding Pasula-Robinette framework in cases from anyplace else in the country. But that’s not really a workable solution, and it’s very likely that the commission will try to thread the needle and craft a new analysis that will take into account the Ninth Circuit’s “but for” language but not burn the historical Pasula-Robinette framework to the ground, either. What’s more, as a practical matter, it’s difficult to say that the “but for” analysis would actually make it easier or harder for a complainant to prove a case of unlawful retaliation under § 105(c). If I were being cynical, I’d say that regardless of which test is being applied, a judge will listen to the parties and take a look at the facts of the case, decide who’s right and who’s wrong – and then justify the result using whichever test the commission ultimately settles on.

Hey, as long as I’ve got you. It’s really fun for me to be able to write regularly about topics in mine safety law that I find interesting. But it would also be fun for me to take up topics you might be thinking about as well. If you have ideas for future columns, or if you want me to talk about specific issues, would you please let me know? You can reach me at
[email protected].

Willa Perlmutter
Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at  [email protected].

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