Olson v. MBO Partners, Inc.

Filing 161

Findings of Fact and Conclusions of Law. The Court finds in favor of Defendants on all of Plaintiff's claims. Judgment shall be entered in favor of Defendants. The parties shall submit a joint proposed form of judgment within fourteen days of these Findings of Fact & Conclusions of Law. Signed on 1/4/2019 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ANDREA OLSON,

No. 3:15-cv-02216-HZ
Plaintiff,

v.
UNITED STATES OF AMERICA, by
and through the Department of Energy
and Bonneville Power Administration;
and JAMES RICHARD PERRY,
Secretary of the Department of Energy,
Defendants.

Dallas S. DeLuca
Katherine M. Acosta
Kristin M. Malone
MARKOWITZ HERBOLD PC
1211 SW 5th Ave., Suite 3000
Portland, OR 91204
Attorneys for Plaintiff

1- FINDINGS OF FACT & CONCLUSIONS OF LAW

FINDINGS OF FACT &
CONCLUSIONS OF LAW

Billy J. Williams
UNITED STATES ATTORNEY
District of Oregon
Jared Hager
ASSISTANT UNITED STATES ATTORNEY
1000 SW Third Ave., Suite 600
Portland, Oregon 97204
Donna A. Oden-Orr
BONNEVILLE POWER ADMINISTRATION
P.O. Box 3621
Portland, OR 97208
Attorneys for Defendants

HERNÁNDEZ, District Judge:
This case arises out of Plaintiff Andrea Olson’s employment with Defendant Bonneville
Power Administration (“BPA”). Plaintiff’s sole claims against Defendants the Department of
Energy, BPA, and James Richard Perry arise under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601. In three separate counts, Plaintiff alleges that Defendants
interfered with her rights under the FMLA and retaliated against her for opposing Defendants’
unlawful FMLA practices. The Court conducted a two-day bench trial on Plaintiff’s FMLA
claims on September 18 and 19, 2018. The following are the Court’s Findings of Fact and
Conclusions of Law from that trial. See Fed. R. Civ. P. 52(a). As explained below, the Court
finds in favor of Defendants on all of Plaintiff’s claims.
FINDINGS OF FACT
Plaintiff Andrea Olson served as the Reasonable Accommodation Coordinator (“RAC”)
for Defendant Bonneville Power Administration (“BPA”) from 2010 to 2014.1 Plaintiff has a
bachelor’s degree in business administration from the University of Oregon and a master’s

In the Court’s Opinion & Order on Defendant’s Motion for Summary Judgment the Court found that Plaintiff was
an employee and, therefore, covered by the protections of the FMLA.
1

2- FINDINGS OF FACT & CONCLUSIONS OF LAW

degree in rehabilitation counseling from Western Oregon University. Prior to working for BPA,
Plaintiff was an outreach coordinator for the Oregon Telecommunications Relay Service and the
Oregon Telecommunication Devices Access Program.
As the RAC, Plaintiff worked with Sharon Hale-Mockley, who was hired as the Talent
Sustainment Manager for BPA in 2009. As the Talent Sustainment Manager, Ms. Hale-Mockley
ensured compliance with regulations and tried to meet employee needs in areas such as
occupational health, benefits, and wellness. Plaintiff also worked alongside Susan Riffel, a
federal employee who oversaw various programs, including the telework and FMLA coordinator
programs.
Brian Carter—Ms. Hale-Mockley’s supervisor—started working for BPA in 2013 as the
director of human resources. At the beginning of his employment with BPA, he started a major
overhaul of BPA’s human resources. As part of the “Get Well Plan” to remedy problems with
management culture and the hiring process, Mr. Carter sought to replace many of the contractors
working within human resources with federal employees when their contracts expired. Scott
Hampton, the manager of BPA’s Supplemental Labor Management Office (“SLMO”), also
worked with Ms. Hale-Mockley and Plaintiff. He oversaw the operations of SLMO, including
the onboarding and offboarding of contract workers. In this position, he did not have authority to
either hire or fire contractors unilaterally.
The parties’ relationship began in January of 2010, when Plaintiff was awarded a
contract with BPA to serve as its RAC. Defendants were impressed by Plaintiff’s expertise and
training. As described in the job posting, the RAC was responsible for the interactive process,
training managers and employees, educating the workforce on rights and responsibilities under
the ADA and EEOC, and maintaining records and documentation related to the reasonable

3- FINDINGS OF FACT & CONCLUSIONS OF LAW

accommodation process. Ex. 505. The list of responsibilities in the job description was
nonexclusive. Ex. 505 at 4. Both the master services agreement and contractor’s handbook
included continuity of services provisions, exs. 503, 583, which Mr. Hampton testified ideally
included training a successor contractor or federal employee. Ms. Hale-Mockley also testified
that part of Plaintiff’s job duties were special requests and projects that Ms. Hale-Mockley would
assign from time to time.
As the RAC at BPA, Plaintiff testified that she was responsible for the interactive
process, or the process by which BPA assists employees seeking reasonable accommodations.
The interactive process would begin with an employee reaching out to Plaintiff or their
supervisor for help. After discussing their limitations—or obtaining the required medical
documentation from the employee—Plaintiff would work with the employee to find an
appropriate accommodation. Sometimes this required her to be onsite, as Plaintiff would need to
evaluate the workspace and assess workplace adjustments. Ms. Hale-Mockley was only involved
if Plaintiff was going to deny a reasonable accommodation request or if BPA finances were
involved. Because Plaintiff was not a federal employee, she could not approve accommodations
that required the expenditure of BPA resources. This process consumed a considerable amount of
her work time.
Plaintiff’s position also entailed other tasks, including modifications to equipment;
document retention, recordkeeping, and maintaining confidentiality; providing training or
“teaching moments” to management; assisting with EEO compliance; and completing special
assignments from Ms. Hale-Mockley, who occasionally directed her priorities to more pressing
projects. Generally, however, Ms. Hale-Mockley was not responsible for assigning her work.
Plaintiff testified that these other tasks—such as recordkeeping and priority projects—were

4- FINDINGS OF FACT & CONCLUSIONS OF LAW

marginal parts of her job. She also testified that many of these tasks could not be accomplished
via telework. For example, Plaintiff was unable to keep all documents and records confidential,
repossess equipment, provide training, or meet face-to-face with BPA employees when she
worked remotely.
Plaintiff’s hours depended largely on client needs. By the end of her employment in
2014, Plaintiff was working on average 27.6 hours per week. Ex. 12. But Plaintiff testified that
she billed conservatively while employed with BPA and would often work more than she billed.
She did so with the hope of impressing the agency and securing a long-term position with BPA.
Plaintiff was successful at BPA. Plaintiff testified that she was recognized for her work
with the agency. She was the primary contact for the agency on the Department of Energy
website and was recognized for her use of the Computer/Electronic Accommodations program in
telework. Ms. Hale-Mockley similarly testified that, until the Spring of 2014, Plaintiff did good
work at BPA. Plaintiff had a good rapport with her clients and the desire to serve the BPA
population through the reasonable accommodations process.
In 2011, Plaintiff was told by Defendants that she would need to start contracting through
MBO Partners—a third-party payroll servicing company—in order to keep her position at BPA.
Under this new arrangement, BPA paid her above her contracted rate, and MBO deducted its
service fees from that higher rate. In 2014, her rate of pay was $95 per hour after MBO deducted
its fees.
Though the work that she did for BPA remained the same throughout this time, Plaintiff
was frustrated with this new relationship, in part because she wanted to be recruited and hired by
BPA. Mr. Hampton testified that Plaintiff was difficult to work with when they renegotiated her
contract through MBO. They had a tense and emotional conversation that led Mr. Hampton to

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suggest letting her go in 2012. Issues with Plaintiff’s contract would continue to cause her stress
in 2014 when she was out of the office on medical leave.
In the spring and summer of 2013, Plaintiff began experiencing anxiety. When
exacerbated, Plaintiff had difficulties with processing information, focusing, and emotional
dysregulation or crying episodes. Ex. 14. Despite treatment in the fall of 2013, her symptoms did
not resolve. She testified that issues at work with the medical program manager during that time
made her symptoms worse. Ms. Hale-Mockley oversaw both Plaintiff and the medical program
manager, and Plaintiff was concerned that her December 2013 complaint against him could
result in retaliation against her by Ms. Hale-Mockley. In addition, in the spring of 2014, Plaintiff
said that it became increasingly difficult to obtain responses or approvals from Ms. HaleMockley, preventing her from wrapping up her cases and working with new clients.
Around March 13, 2014, Plaintiff made a formal reasonable accommodation request
through MBO. To help her anxiety, she asked to: (1) telework to reduce time on site except for
meetings and tasks to be performed onsite; (2) receive responses from Ms. Hale-Mockley via
email within a time frame deemed reasonable by the BPA reasonable accommodation program
manager; and (3) have open communication with the Department of Energy RAC for guidance
and best practices. Ex. 1. Plaintiff testified that if she had continued working subject to these
accommodations she would have been able to perform all of her job responsibilities. On March
13, Mr. Hampton was alerted to Plaintiff’s reasonable accommodation requests by MBO.
On March 14, 2014, Plaintiff’s anxiety was exacerbated by difficulties obtaining approval
for an accommodation from Ms. Hale-Mockley. After she found herself walking in the halls
crying, she decided it was time to recharge her batteries. She took the week of March 17 off from
work. Ex. 511.

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The following week on March 24, Plaintiff sent Ms. Hale-Mockley another email
informing her that she would be out of the office again. Ex. 2. She noted that she was out of the
office for medical reasons. Ex. 2. Around this time, Plaintiff also sent an email to MBO formally
invoking FMLA. Ex. 14. In her FMLA documentation, Plaintiff’s medical provider indicated
that, when Plaintiff’s symptoms worsened, she would be temporarily unable to perform most job
functions. Ex. 521. She also indicated that Plaintiff might not be able to work for up to five days
per week and needed to limit the hours she was onsite when she was able to work. Ex. 521.
Plaintiff asked MBO to notify her before releasing her FMLA request or related
documentation to BPA and believed that MBO was communicating about her leave and
condition with BPA. Plaintiff, however, never received any communication from BPA about her
FMLA rights or the nature of her leave. Based on her experience as the RAC, Plaintiff believed
that she had invoked intermittent FMLA leave. Plaintiff testified that if she had received notice
of her rights from BPA, it would have helped her “connect the dots” so she could advocate for
her accommodations and mitigate her anxiety.
By the time Plaintiff took leave, she was drowning in work. Ex. 515. The week before
she took leave, she worked over 40 hours. Ex. 12. Ms. Hale-Mockley testified that this was a
particularly busy period because BPA was undergoing structural and staffing changes and hiring
new veterans, who would come in with potential accommodation requests. During her time out
of the office, Ms. Hale-Mockley took on some of Plaintiff’s RAC responsibilities. Plaintiff
referred all requests to Ms. Hale-Mockley. Plaintiff also asked Ms. Riffel to follow-up on the
reasonable accommodation inbox, which Ms. Riffel had helped Plaintiff set up years earlier. Ex.
514

7- FINDINGS OF FACT & CONCLUSIONS OF LAW

After receiving Plaintiff’s March 24 email, Ms. Hale-Mockley contacted Mr. Hampton to
inform him that Plaintiff was out of the office for a medical reason with no known date of return.
Ex. 520. Plaintiff had never been out of the office so long without a return date, and Ms. HaleMockley was concerned about having a potential gap in reasonable accommodation services for
BPA employees. Mr. Hampton suggested releasing her from her contract. Though Ms. HaleMockley considered Plaintiff to be a valuable asset to BPA, she had begun to hear some
customer service concerns while Plaintiff was out of the office and was worried that Plaintiff was
unhappy in her contract. Exs. 520, 528. Because of her concerns, Ms. Hale-Mockley indicated
that she agreed with Mr. Hampton’s suggestion that they consider releasing Plaintiff. Ex. 520.
After discussing it, they decided to first try and meet with Plaintiff. Plaintiff, however, did not
attend their April 1 meeting.
On April 3, 2014, Ms. Hale-Mockley found out that Plaintiff was going to be out of the
office for two additional weeks with no defined return-to-work date. Ex. 523. After asking
Plaintiff not to work while she was out of the office, Ms. Hale-Mockley approached Mr. Carter
about coming up with a strategy to meet client and customer needs and reducing the reasonable
accommodation workload. Though Mr. Carter had intended to let Plaintiff’s contract expire
naturally before transitioning the RAC position to a federal employee, he ultimately agreed with
Ms. Hale-Mockley that the RAC position could be assigned as a collateral duty to another staff
member. Ms. Hale-Mockley conveyed the plan to cancel Plaintiff’s contract to Mr. Hampton on
April 6, 2014, but they ultimately did not release her after conferring with BPA’s legal
department. Ex. 524.
The collateral duty was assigned to Ms. Riffel on April 14, 2014. Ex. 529. According to
Ms. Hale-Mockley, collateral duties are often not celebrated by employees as they are additional

8- FINDINGS OF FACT & CONCLUSIONS OF LAW

duties to the primary responsibilities the employee is already assigned. The employee’s title,
grade, and pay remain the same. As a federal employee, Ms. Riffel was able to take on all the
duties that Plaintiff performed as RAC as well as those tasks—such as purchasing—that Ms.
Hale-Mockley was required to perform as a federal employee.
Because Plaintiff never returned to work, it is unclear exactly what Plaintiff’s cocoordinator position would have entailed upon her return. Mr. Carter, Ms. Hale-Mockley, and
Mr. Hampton all anticipated that Plaintiff would have spent some of her time training Ms. Riffel.
But nothing in the job request through SLMO would have changed. Ms. Hale-Mockley
anticipated that Plaintiff’s duties would have largely stayed the same. Because there was a
significant backlog, Plaintiff’s focus would have been to get through the administrative duties
first, then train Ms. Riffel, and ultimately work as a partner in the reasonable accommodation
process if she was capable of working. Plaintiff would follow-up on her previous cases, continue
to engage in the interactive process, train management, and perform other administrative
functions. Because Ms. Riffel was new to her collateral duty, Ms. Hale-Mockley also believed
that she needed Plaintiff’s expert voice and advice. Plaintiff would have continued to earn $95
per hour, and her schedule would fluctuate based on client needs.
Plaintiff continued to extend her leave and was not medically cleared to return to work by
the end of April. Exs. 522, 523, 531. However, she did attempt some limited teleworking so that
she could stay in the loop for her transition to work. Exs. 12, 532. Though Plaintiff did not feel
that she was unable to perform any work, Ms. Hale-Mockley told her that she did not want or
expect her to work while she was out of the office.2 Ex 532.

As described by Ms. Hale-Mockley at trial, “OOO” or “out of office” is used by BPA employees to indicate that
the employee is unavailable as opposed to teleworking. Thus, employees who were out of the office were not
expected to perform any work while they were away, and Ms. Hale-Mockley was surprised when Plaintiff worked
2

9- FINDINGS OF FACT & CONCLUSIONS OF LAW

On April 29, 2014, Plaintiff contacted BPA’s Equal Employment Opportunity (“EEO”)
office to ask about filing a complaint. When she met with an EEO representative, they informed
her that she needed to complete the “Five Questions” document, which she turned in on May 27,
2014. Plaintiff testified that she alleged in that document that BPA had violated her FMLA
rights.
On April 30, Plaintiff received an email indicating that she had been terminated. Ex. 8.
Shortly thereafter, the message was recalled because it was sent in error. Ex. 535, 537. Plaintiff
had not been terminated, but her access to the BPA network and property was being revoked. As
an electric utility, BPA it subject to the guidelines from “NERC-CIP” or the North American
Electric Reliability Council Critical Infrastructure Protection, which requires BPA to be diligent
about ensuring that only individuals who are actually working at BPA have access to its
facilities. Accordingly, BPA security procedures require revocation of access for anyone out of
the office longer than one month. Ex. 537. Thus, Plaintiff could no longer access the resources
she needed to telework after April 30. Despite the revocation of her network access, Plaintiff
worked for BPA after April 30 and billed for three hours in the first half of May. Exs. 12, 538.
In early May, Plaintiff contacted Ms. Hale-Mockley to let her know that she was going to
attempt a trial work period. Ex. 538. Plaintiff, however, did not attempt her trial work period at
this time. On May 30, 2014, Mr. Hampton reminded Plaintiff via email that she was under a
stop-work order and could not do any more billable work for BPA until notified that she could
begin working again. Ex. 540. He told Plaintiff that to remove the stop-work order, she would
have to meet with him face-to-face. Mr. Hampton testified that he wanted to discuss Plaintiff’s
accommodations and ensure that Plaintiff could work. In this email, he also confirmed Plaintiff’s

during this time. Ms. Hale-Mockley further testified that she was concerned about Plaintiff working while out of the
office because the reasonable accommodation program required coordination that was difficult to do remotely.
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understanding that BPA was planning to transition the RAC position to a federal employee and
that some transition time between her and the new employee was desired. Ex. 540. Plaintiff
interpreted this as indicating she no longer had her job.
On June 5, 2014, Mr. Hampton and Plaintiff met at BPA’s campus with the EEO
representative. They discussed, among other things, Plaintiff’s three accommodations requests
from March and Plaintiff’s EEO complaint. Ex. 542. In a follow-up email on June 11, Mr.
Hampton indicated that BPA agreed to her first and second accommodations and offered
Plaintiff a trial work period of five hours.3 Ex. 543. Mr. Hampton noted that Ms. Hale-Mockley
had a specific project in mind for the five-hour period. Ex. 543. From this email, Plaintiff
concluded that she was being invited back to train her replacement.
Plaintiff was instructed to contact Ms. Hale-Mockley to schedule the trial work period
and obtain details about the project she had in mind. Ms. Hale Mockley testified that the special
project entailed developing materials to bring Ms. Riffel up to speed on the program. Mr.
Hampton also told Plaintiff that after the trial period Defendants wanted Ms. Olson to return to
her regular work schedule. Plaintiff emailed Ms. Hale-Mockley on June 12, 2014, and informed
her that her attorney would be in touch. Ms. Hale-Mockley responded that she would await
further information, but Plaintiff never followed up. She felt that the RAC position was no longer
her job and that she had been replaced.
Plaintiff testified that if BPA had offered her the RAC position and agreed to her
accommodations she could have and would have returned to work. However, she also indicated
that her stressors—including the contracts dispute, the EEOC action, and her issues with Ms.

3

As Mr. Hampton tesitified at trial, Defendants did not grant Plaintiff’s third request—to communicate directly with
the Department of Energy regarding its reasonable accommodation program—because BPA preferred not to have
contractors represent BPA to third parties. See also ex. 543.
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Hale-Mockley—had not resolved in 2014. These stressors all exacerbated her anxiety symptoms
as detailed in her original FMLA paperwork filed with MBO.
CONCLUSIONS OF LAW
The FMLA “creates two interrelated substantive rights for employees.” Xin Liu v. Amway
Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). “First, an employee has the right to take up to
twelve weeks of leave” for the reasons described in the statute. Id. Second, an employee who
takes such leave “has the right to be restored to his or her original position or to a position
equivalent in benefits, pay, and conditions of employment upon return from leave.” Id. (internal
citations omitted).
It is unlawful for an employer to “interfere with, restrain, or deny the exercise or the
attempt to exercise, any right provided” by the FMLA. Bachelder v. Am. W. Airlines, Inc., 259
F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. § 2615(a)(1)). The Ninth Circuit has
recognized two theories for recovery under 29 U.S.C. § 2615, “the retaliation or discrimination
theory and the entitlement or interference theory.” Sanders v. City of Newport, 657 F.3d 772, 777
(9th Cir. 2011) (quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th
Cir. 2002)). “While the FMLA does not clearly delineate these two claims with the labels
‘interference’ and ‘retaliation,’ those are the labels courts have used in describing an employee’s
claims under the Act.” Id. (quoting Strickland v. Water Works & Sewer Bd. of Birmingham, 239
F.3d 1199, 1206 n. 9 (11th Cir. 2001)).
The Court finds that Plaintiff has not shown by a preponderance of the evidence that
Defendants interfered with Plaintiff’s FMLA rights or retaliated against Plaintiff in violation of
the FMLA. First, Plaintiff has not demonstrated that Defendants’ failure to notify her of her
FMLA rights interfered with her rights under the FMLA. Second, Plaintiff has not demonstrated

12- FINDINGS OF FACT & CONCLUSIONS OF LAW

that Defendants either terminated her or failed to reinstate her to an equivalent position at the end
of her protected leave. In addition, Defendants have shown that it was more likely than not that
Plaintiff could not have returned to her position in June when her leave expired. Third, Plaintiff
has not demonstrated that Defendants discriminated or retaliated against her as there is no causal
connection between Plaintiff’s complaints and the alleged adverse actions in this case. Fourth,
Plaintiff has not shown that any alleged violation was willful as required under FMLA’s threeyear statute of limitations. Accordingly, the Court finds for Defendants on Plaintiff’s FMLA
claims.
I.

FMLA Interference
Plaintiff’s first count under the FMLA is for interference under § 2615(a)(1) of the Act,

which provides that “it shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or attempt to exercise any right provided under this subchapter.” 29 U.S.C. §
2615(a)(1); see Bachelder, 259 F.3d at 1124 (noting that an allegation a plaintiff has been
retaliated against for exercising his or her FMLA rights is properly construed as an interference
claim under § 2615(a)(1)). “[E]vidence that an employer failed to reinstate an employee who was
out on FMLA leave to her original (or an equivalent) position establishes a prima facie denial of
the employee’s FMLA rights.” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011).
The Ninth Circuit has held that where the employer fails to reinstate the employee, “the
employee must establish that (1) he was eligible for FMLA’s protections, (2) his employer was
covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient
notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he
was entitled.” Id. (internal citations and quotations omitted). Plaintiff alleges that Defendants

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interfered with her FMLA rights in two ways: (1) by failing to notify her of her rights and (2) by
failing to restore her to her position at the end of her leave.
A.

Failure to Notify

Employers are required to notify employees of their FMLA rights. 29 C.F.R. § 825.300.
“Failure to follow the notice requirements . . . may constitute an interference with, restraint, or
denial of the exercise of an employee’s FMLA rights.” Id. at § 825.300(e). “The failure to notify
an employee of her rights under the FMLA can constitute interference if it affects the employee’s
rights under the FMLA.” See Liston v. Nevada ex. rel its Dep’t of Bus. & Industry, 311
Fed.Appx. 1000, 1002 (9th Cir. 2009). “[T]he FMLA ‘provides no relief unless the employee has
been prejudiced by the violation.’” Id. (quoting Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 89 (2002)).
It is undisputed that Defendants did not notify Plaintiff of her FMLA rights. However,
Plaintiff has failed to show by a preponderance of the evidence that this failure impacted her
rights under the FMLA. Plaintiff testified that she would have been better able to advocate for
her reasonable accommodation requests, mitigate her anxiety, and return to work if she had been
notified of her rights by BPA. But the evidence at trial shows that despite Defendants’ failure to
notify Plaintiff of her rights, Plaintiff invoked the FMLA by filing the relevant paperwork with
MBO, took leave, and had the opportunity to return to work for a trial work period with the
accommodations she requested. As discussed in more detail below, Defendants have also
demonstrated that Plaintiff was more likely than not unable to return to work at the end of the
relevant period and perform essential functions of her job. Consequently, any failure to notify
Plaintiff of when her leave began and would end did not prejudice Plaintiff. See Sarno v.
Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161–62 (2d Cir. 1999) (“[The plaintiff’s]

14- FINDINGS OF FACT & CONCLUSIONS OF LAW

right to reinstatement could not have been impeded or affected by the lack of notice because his
leave was caused by a serious health condition that made him unable to perform the functions of
his position, and it is undisputed that that inability continued for some two months after the end
of his 12-week FMLA leave period.”) Accordingly, Defendants’ failure to notify does not
constitute interference with Plaintiff’s FMLA rights.
B.

Failure to Restore

“[T]he FMLA requires that an employer reinstate an employee after taking [protected]
leave, so long as the employee would still be employed in the position had she not taken FMLA
leave.” Sanders, 657 F.3d at 780–81. The regulations provide:
On return from FMLA leave, an employee is entitled to be returned to the same
position the employee held when leave commenced, or to an equivalent position
with equivalent benefits, pay, and other terms and conditions of employment. An
employee is entitled to such reinstatement even if the employee has been replaced
or his or her position has been restructured to accommodate the employee’s
absence.
29 C.F.R. § 825.214. “An equivalent position is one that is virtually identical to the employee’s
former position in terms of pay, benefits, and working conditions, including privileges,
prerequisites, and status” and “involve[s] the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill, effort, responsibility, and
authority.” Id. at § 825.215(a).
In order to “deny restoration to employment,” “an employer must be able to show that an
employee would not otherwise have been employed at the time reinstatement is requested.” Id. at
§ 825.216(a). In addition, “[i]f the employee is unable to perform an essential function of the
position because of a physical or mental condition . . . the employee has no right to restoration to
another position under the FMLA.” Id. at (c). “Determining what functions are ‘essential’ to a
particular position is a question of fact.” Sanders, 657 F.3d at 782. “[I]f an employer denies an
15- FINDINGS OF FACT & CONCLUSIONS OF LAW

employee reinstatement on the ground that the employee cannot perform the essential functions
of the employee’s position, the burden of proof rests with the employer, not the employee.” Id. at
781. Where an employee is hired for a specific term or project, the employer’s obligation to
restore the employee only extends through the term or project for which they were hired if the
employer “would not otherwise have continued to employ the employee.” 29 C.F.R. §
825.216(a)(3).
Plaintiff has failed to prove by a preponderance of the evidence that Defendants
interfered with her FMLA rights by either terminating her or failing to reinstate her to an
equivalent position. First, the evidence shows that Defendants did not terminate Plaintiff.
Contemporaneous emails and Mr. Hampton’s testimony show that the email terminating Plaintiff
was sent in error and that her network access was revoked for security reasons consistent with
agency security procedures and regulations. Plaintiff also continued to do some work remotely
after she was allegedly terminated, and Defendants offered to meet with her to discuss her return
and reinstate her access to the BPA network.
Second, had Plaintiff returned to work, Defendants would have reinstated her to the same
or an equivalent job. The precise nature of the position was not well defined, in part because
Plaintiff ultimately did not take the opportunity to return to work. But Plaintiff would have
maintained the same title and pay. Her work schedule—which was dictated by client needs—
would have likely remained the same as there was a significant backlog of reasonable
accommodation work to be done. Many of the duties and responsibilities of the job were
consistent before and after her leave. Ms. Hale-Mockley credibly testified that Plaintiff would
follow-up on previous cases, perform many of the same administrative duties (such as training
management), and continue to engage in the interactive process. Though one aspect of her job

16- FINDINGS OF FACT & CONCLUSIONS OF LAW

upon return would have been training Ms. Riffel, Plaintiff’s duties as RAC included both
continuity of services and special projects assigned by Ms. Hale-Mockley before she went on
leave.
In addition, Defendants have shown by a preponderance of the evidence that Plaintiff was
unable to perform essential functions of the job at the end of the relevant period. By their June 5
meeting, Plaintiff had been on leave for twelve weeks. At that time, Defendants granted two of
Plaintiff’s reasonable accommodation requests and agreed to allow her to return for a five-hour
trial work period. Plaintiff, however, still had a difficult time going onsite, and many of the
stressors she identified that prevented her from working in March had not yet resolved. Indeed,
she had also become embroiled in a contract dispute with Defendants and MBO during her time
out of the office that exacerbated her anxiety. Plaintiff also never took advantage of the five-hour
trial work period Defendants offered. Based on this evidence, the Court finds that it is more
likely than not that Plaintiff was unable to perform many of the essential functions of her job—
including face-to-face meetings and the interactive process—at the end of her protected leave.
Defendants therefore are not liable on Plaintiff’s claim for FMLA interference.
II.

FMLA Retaliation and Discrimination
Plaintiff’s second and third counts are both considered FMLA “retaliation” or

“discrimination” claims. Bachelder, 259 F.3d at 1124. Section 2615(b) makes it “unlawful for
any person to discharge or in any other manner discriminate against any individual because such
individual has” participated in FMLA enforcement proceedings. 29 U.S.C. § 2615(b). Section
2615(a)(2) more broadly makes it “unlawful for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made unlawful by” the
FMLA. Id. at § 2615(a)(2). For both claims, the plaintiff must show “(1) involvement in a

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protected activity under the FMLA; (2) an adverse employment action; and (3) a causal link
between the protected activity and the employment action.” Schultz v. Wells Fargo Bank, Nat’l
Ass’n, 970 F. Supp.2d 1039, 1059 (D. Or. Sept. 5. 2013). An adverse action in the context of
retaliation clams is “any action that is ‘reasonably likely to deter employees from engaging in
protected activity.’” deBarros v. Wal-Mart Stores, No. 6:11-cv-06116-AA, 2013 WL 3199670,
at *6 (D.Or. June 19, 2013) (quoting Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)).
Here, Plaintiff has failed to show that there was a causal link between the alleged adverse
employment action and the filing of the EEO complaint. Though there is a temporal connection
between Plaintiff’s EEO inquiry on April 29, 2014, and the April 30, 2014 emails revoking
Plaintiff’s network access and erroneously terminating Plaintiff, Mr. Hampton did not have
knowledge of Plaintiff’s potential EEO complaint at that time. Mr. Hampton also credibly
testified that Plaintiff’s network access was revoked when she had been out of the office for
more than 30 days pursuant to standard security measures. Though Mr. Hampton did know of
Plaintiff’s complaint at the time that they discussed her return to work at the end of May and in
early June, Defendants’ decision to have Plaintiff train Ms. Riffel upon her return was not an
adverse employment action. Because Plaintiff’s position was more likely than not the same or
equivalent in terms of pay, benefits, duties, and responsibilities, the addition of some training
duties to her workload would not be reasonably likely to deter an employee from engaging in
protected activities. Accordingly, Plaintiff has not shown by a preponderance of the evidence
that Defendants retaliated or discriminated against her in violation of the FMLA.
III.

Willfulness
As the Court previously found, Plaintiff must prove that Defendants’ alleged violations of

the FMLA were willful. See O&O 31–34, ECF 112 (Plaintiff’s Amended Complaint was filed

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more than two years after the acts underlying Plaintiff’s claims); see also 29 U.S.C. § 2617(c)(2)
(providing a three-year statute of limitations for violations that are willful). “[N]either the
Supreme Court nor the Ninth Circuit Court of Appeals has defined willfulness under the
FMLA,” but “other circuits have looked to the Supreme Court’s definition of ‘willful’ in the
context of the Fair Labor Standards Act.” Shulman v. Amazon.com, Inc., No C13-247RSM, 2013
WL 2403256, at *2 (W.D. Wash. May 30, 2013). “Under the FLSA, an employer acts ‘willfully’
when he or she ‘either knew or showed reckless disregard for the matter of whether its conduct
was prohibited by the statute.’” Schultz, 970 F.Supp.2d at 1053 (citing McLaughlin v. Richland
Shoe Co., 486 U.S. 128, 133 (1988)); see also Hollowell v. Kaiser Found. Health Plan of the
NW, 705 Fed.Appx. 501, 503 (9th Cir. 2017) (applying McLaughlin’s willfulness standard to an
FMLA claim).
At summary judgment, the Court concluded that—when viewing the evidence in the light
most favorable to Plaintiff—there was a dispute of fact as to whether Defendants’ conduct was
willful. O&O 34. The evidence presented at trial, however, shows that Defendants did not either
know or show reckless disregard for whether their conduct was prohibited by statute. Prior to
terminating Plaintiff, Defendants consulted with the BPA legal department. After that discussion,
Defendants opted not to terminate Plaintiff. Instead, Defendants offered Plaintiff her requested
trial work period and made efforts to restore Plaintiff to her employment with BPA in an
equivalent position. Accordingly, even assuming Defendants did violate the FMLA, Plaintiff has
not shown that it is more likely that not that Defendants acted willfully.
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CONCLUSION
The Court finds in favor of Defendants on all of Plaintiff’s claims. Judgment shall be
entered in favor of Defendants. The parties shall submit a joint proposed form of judgment
within fourteen days of these Findings of Fact & Conclusions of Law.

Dated this __________ day of _______________________, ________.

MARCO A. HERNÁNDEZ
United States District Judge

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