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  • Writer's pictureMichael Peelish, Esq.

Ninth Circuit Enters the Arena of 105(c) and it is a Doozy

This case starts out like many other 105(c) discrimination cases. The complainant miner makes safety concerns to management and then is caught violating a safety rule and is terminated. Typically, these alleged protected activities and the adverse action happen within in a short time frame. While this case has some twists about mistakenly sent emails and the complainant not communicating with the company which all leads to the company classifying the event as a voluntary resignation. MSHA declined to represent the complainant who then brought a private cause of action.

At the end of the day, the ALJ found the company had discriminated against the complainant miner. The Review Commission overturned the ALJ on a unanimous vote although several commissioners had superfluous concurrences. The complainant appealed to the 9th circuit and here we are.

Surprisingly, the 9th Circuit had never addressed the Pasula-Robinette framework in a published opinion and had only resolved two 105(c) cases in unpublished opinions. In another twist to this case, both parties argued to the three-judge panel that the Pasula-Robinette framework is no longer applicable based on the US Supreme Court. Both parties urged the court to construe the word “because” in Section 105(c) to mean “but-for” causation rather than the Pasula-Robinette “partially motivated” standard citing a number of US Supreme Court decisions the most recent issued in 2020. (Bostock v Clayton County, 140 S. Ct. 1731). The Bostock case cites other recent cases issued by the Supreme Court essentially holding that the meaning of “because of” and similar phrases in various statutory schemes and concluded that the ordinary meaning mandates but-for causation.

The 9th Circuit was uninhibited in not having to overturn Pasula-Robinette because it had never adopted this framework. It also questioned why the Review Commission had not overturned Pasula-Robinette in 2016 in light of the US Supreme Court precedent which existed. (Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914). The 9th Circuit remanded the case to the Review Commission to reconsider the matter under the “but-for” causation standard and it cautioned the Review Commission not to substitute its view of the facts for the view that the ALJ reasonably reached.

Going forward, will it be easier or harder to affirmatively defend against discrimination cases? My view is that attorneys representing the mine operator will have a better chance of showing that, as in this case, the mine operator would not have disciplined the employee “but-for” his unprotected activity which was a clear violation of a mandatory safety standard and company rule. (See Thomas v. CalPortland Company, No. 20-70541, Issued by the 9th Circuit on April 14, 2021.)

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