By Willa B. Perlmutter
Well, guys, I hate to say I told you so, but…well, I told you so. A few months back, I wrote about a whistleblower retaliation case that had just come out of the Federal Mine Safety and Health Review Commission, and shared with you that I thought the Commission’s reasoning gave cause for alarm. (I know, right? Bold move for someone who regularly appears as a lawyer before them.)
It turns out that not only were my concerns legit, the appellate court saw the same problems I did. But wait, it gets even better. I didn’t just call the case right, but the outcome (and more importantly, the reasoning) will be good news for mine operators. I know you’ve got a million questions, but hold on and I’ll explain.
Last summer, I told you about the Continental Cement Company case, which had just come out of the Commission. As a reminder, here’s what happened there: A miner, Tara Otten, worked as a laborer at a limestone mine in Hannibal, Mo. Occasionally, the company asked one of its laborers to fill in as a heavy equipment operator, and the laborer would get a few extra bucks an hour. Since Otten had the most seniority, she was the first person who would be offered that job and that bonus pay.
She was also a representative of miners, and in that capacity, she walked around with MSHA when they were there to inspect the mine. At first, the company would pay her the bumped-up hourly wage for the time she was traveling with MSHA, but at some point, the company’s HR manager left his job and the replacement decided the mine’s collective bargaining agreement actually required Otten to be paid the lower rate. Continental started paying her the reduced wage when she exercised her § 103(f) walkaround rights. Otten filed a § 105(c) discrimination complaint with MSHA, and the Secretary of Labor brought suit against Continental on her behalf, arguing that by paying the lower laborer rate, the company had unlawfully interfered with her right under the Mine Act to walk with MSHA without losing pay.
At trial, Otten won. After the company appealed, the Commission decided that Continental had indeed violated § 103(f) of the Mine Act by not paying her the bumped-up rate. The Commission went one step further, though, and decided that because it found there was a §103(f) violation, Otten did not also have to meet the traditional test by proving that Continental was unlawfully motivated by her miners rep activities to have violated § 105(c) as well.
In other words, the Commission effectively found two violations at once: first, that Continental violated § 103(f) by not paying Otten the higher rate when she walked with MSHA; and second, that since § 103(f) had been violated, the company must also have discriminated against her in violation of § 105(c).
When I wrote about this case last year, I sounded the alarm about what it would mean for the Commission to throw out long-standing legal precedent by finding discrimination had occurred without first examining the mine operator’s motivation just because the operator had violated a different section of the Mine Act. I echoed Commissioner Althen’s concerns that the Commission was opening a door to legal liability that had historically and properly stayed closed until now.
Continental appealed the Commission’s ruling to the U.S. Court of Appeals for the Eighth Circuit in St. Louis. The Eighth Circuit sided with the company, in part for the reason that both Commissioner Althen and I raised: “It’s true that Otten wrongly suffered a loss of pay and so Continental violated § 103(f),” it wrote. “But it cannot be that Continental’s violation for § 103(f) necessarily means that it violated § 105(c)(1) as well.” (That’s where the “I told you so” comes in.)
But the Eighth Circuit went even further. In another old column, I told you about a decision by the Ninth Circuit in Thomas v. CalPortland Company that eased the burden of proof that miners claiming discrimination have to meet to win their cases, eliminating the need to prove retaliatory motivation and instead just requiring them to show that the unlawful retaliation would not have happened “but for” the miner’s protected activity. The Eighth Circuit looked at that recent decision and held that such “but for” causation was not enough.
Rather, the court wrote, the miner has to show that the company retaliated against her (or him, if that’s all you’ve got) because they had engaged in protected activity. In other words, the Eighth Circuit decision will make it harder for miners to prove unlawful discrimination, since they will need to prove that their protected activity motivated the company to retaliate against them. In the Otten case, the court found that the decision to pay her less than she wanted had nothing to do with Otten’s exercise of her walkaround rights. They found that the record showed that the HR manager simply didn’t care why Otten couldn’t be a step-up heavy equipment operator. They just knew that she couldn’t.
So, this is really good news for mine operators. First, the Eighth Circuit headed off the Commission’s dangerous suggestion that when an operator violates a provision of the Mine Act that violation alone could substitute for proof of unlawful motivation in § 105(c) cases. (Phew. That’s a relief.)
Second, the court distanced itself from the Ninth Circuit’s position in the CalPortland case, and reinforced that in future cases, a miner has to prove that the company was unlawfully motivated by his or her protected activity and can’t get away with showing only that the discriminatory action would not have occurred “but for” that activity.
One word of caution, though. Technically, the Otten decision is binding only in that circuit, which means that in theory, only mines in the Dakotas, Nebraska, Minnesota, Iowa, Missouri and Arkansas have to follow the Eighth Circuit’s guidance. And as I’ve said, the holding in the Otten case is at odds with the CalPortland case, which applies on the West Coast, as well as in Alaska, Hawaii, Montana, Idaho, Nevada, and Arizona. Typically, disagreements between circuits get resolved by the U.S. Supreme Court, but at this point I would be surprised if anybody plans to ask the Supreme Court to hear their case. (Stranger things have happened, of course, but still.) So, the law of § 105(c) is still in flux – but the Otten case could have been a disaster for mine operators, and we’ve managed to dodge that bullet. For now, anyway.
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].