Page 1 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

Jon H. Weiner, OSB #993944

jweiner@nw-attorneys.com

Law Office of Jon Weiner

1415 Commercial Street SE

Salem, OR 97302

Tel: (503) 399-7001

Fax: (503) 399-0745

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Portland Division

STEPHEN ORMSBY,

 Plaintiff,

 v.

SUNBELT RENTAL, INC., a foreign 

business corporation, licensed to do business 

in Oregon,

 Defendant.

____________________________________

Case No. 6:15-cv-1403

RESPONSE TO DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT

I. RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56, plaintiff responds to defendants’ motion for summary 

judgment and objects to all relief requested therein. As set forth below, the existence of genuine 

issues of material fact preclude summary judgment.

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 1 of 34
 

 Page 2 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

II. MEMORANDUM OF LAW

A. INTRODUCTION

Plaintiff asserts several claims under the Americans with Disabilities Act (ADA), the 

Family and Medical Leave Act (FMLA) and analogous state law.

B. STATEMENT OF FACTS

Plaintiff was employed at Sunbelt from November 19, 2012 until May 14, 2014. Ormsby 

Dep. 48:3-4; Ex. 47 to Ormsby Dep. 284:22-285:11. Plaintiff suffered from disabling migraine 

headaches that caused him to miss work. Ormsby Dep. 168:14-169:7; 351:4-19. Approximately 

four to five months prior to plaintiff’s discharge, his manager Mike Varnell became aware that 

plaintiff suffered from migraines and had attendance issues relating to migraines. Varnell Dep. 

17:3-18:7; 19:16-20. However, Varnell did not offer or address medical leave (intermittent or 

otherwise) as an accommodation for plaintiff’s migraine-related absences. Similarly, Varnell did 

not go to human resources with respect to plaintiff’s need for such medical leave. Varnell Dep. 

21:1-25. 

Human resources territory manager Julie Burton never discussed with plaintiff his rights 

under the Family and Medical Leave Act (FMLA) or the Oregon Family Leave Act (OFLA). 

Ormsby Dep.300:9-22; Burton Dep. p.11:18-18; Ex. 5 to Burton Dep. However, Burton did 

discuss plaintiff’s absences with him – and the need to avoid further last-minute absences until 

he had accrued sufficient “personal time off” (PTO) – during the final week or so of his 

employment. Ormsby Dep. p.306:16-21; 268:7-25. Ms. Burton was aware of plaintiff’s 

migraines at the time of that discussion, which occurred on May 6, 2016. Ormsby Dep. p.339:9-

15; Ex. 5 to Burton Dep. Plaintiff was never made aware of his rights under OFLA or FMLA or 

his potential entitlement to leave (intermittent or otherwise). Ormsby Dep. p.332:19-334:4; 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 2 of 34
 

 Page 3 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

Burton Dep. p.11:18-18. Burton Dep. p26:9-14

Sunbelt has a benefits specialist for each region of the United States. Glass Dep. p.5:9-

25. These specialists handle inquiries regarding FMLA. Glass Dep. p. 6:9-14. Whenever a 

manager, employee, or human resources employee engages in a dialogue with a benefits 

specialist, and there is the potential that an employee may be entitled to FMLA leave, a file is 

opened in the specialist’s office. Glass Dep. p.10:14-11:14. There is no documentation of any 

communication whatsoever with the benefits specialists’ office regarding plaintiff prior to his 

discharge. Glass. Dep. p.11:15-22. Ex 1 to Glass Dep. It is Sunbelt’s practice to provide 

documents to employees who may need intermittent leave under FMLA or OFLA. None of that 

was ever provided to plaintiff. Burton Dep. p.33:22-34:13.

Varnell asserts that he first learned of plaintiff’s migraine problem when plaintiff came to 

work one day after taking medication, about five months prior to plaintiff’s discharge. Varnell 

Dep., p.18:21-19:1. Varnell further asserts that he discussed the Family Medical Leave Act 

FMLA with plaintiff with respect to his migraine medication, since the medication would 

interfere with plaintiff’s ability to safety operate vehicles and heavy machinery. Varnell Dep. 

19:2-9. However, plaintiff indicated he would not be taking the medication. Varnell Dep. 19:10-

15. Plaintiff never again went to work after taking that medication. Ormsby Dep. 313:21-22; 

314:13-315:2. Varnell never discussed family or medical leave with plaintiff regarding 

plaintiff’s migraine-related absences. Varnell Dep. 21:1-25.

Plaintiff had several migraine-related absences. Ormsby Dep. 168:14-169:7; 351:4-19;

Ex 27, 28, 31, 41; Varnell Dep. Ex 4; Ormsby Dep. 313:25-314:1; 316:8-16; 317:13-17. In 

particular, plaintiff had migraine-related absences on March 10, 2014 and May 9, 2014. Varnell 

Dep. p.37:7-12; Burton Dep. p.13:4-14; 28:1-7; Ex. 6 to Burton Dep. Ormsby Dep. 371:3-7.Ex 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 3 of 34
 

 Page 4 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

2 to Varnell Dep.; Ex 31 to Ormsby Dep. Sometimes, because of the severity of his migraines 

plaintiff was not able to call prior to his shift to advise that he was going to be absent. Ormsby 

Dep. p. 168:14-169:7; 334:5-7; 351:4-19. At one point, when plaintiff asked whether he could 

be excused from calling in advance in such situations, plaintiff was told by Varnell that he would 

have to give one days’ notice prior to being absent for a migraine. Ormsby Dep., p.333:17-23.

In addition to migraine-related absences, plaintiff had a pre-approved absence from work 

due to appointments with his daughter’s special education provider, speech therapist, and 

psychological therapist on April 30, 2014. Ormsby Dep., p.304:15-17; 337:16-338:19; 379:1-

15; Ex. 39 to Ormsby Dep. Varnell withdrew his approval for that absence on April 29, 2014, but 

it was too late for plaintiff to cancel the appointments. Ormsby Dep. p.305:12-20. Plaintiff is the 

sole custodial parent of a special needs child. Ormby Dep. p.347:22-24; 379:1-3; Ex 8 to Ormsby 

Dep. HR Regional Manager Burton asserted that the April 30, 2014 absence had nothing to do 

with plaintiff’s discharge. Burton Dep. p.18:2-16. However, the day after that absence manager 

Varnell sent an email complaining about this absence to Burton. The next day Burton sent 

herself an email tracking plaintiff’s last minute absences. Varnell Dep Ex 5; Burton Dep Ex 3; 

Burton Dep p.18:17-19:10. In his email to Burton Varnell states “[p]lease review and let me 

know what my options are.” By making that statement, Varnell was exploring the possibility of 

discharging plaintiff. Ex. 5 to Varnell Dep.; Varnell Dep. p.38:12-19; 39:25-40:3.

Plaintiff called in sick on May 9, 2014, advising Varnell that he was dizzy and going to 

urgent care. Varnell does not recall whether there was any concern that this absence was related 

to migraines. Varnell Dep. p.37:7-12. Burton was made aware by Varnell that plaintiff had 

called in sick on May 9, 2014 because he was dizzy and going to urgent care. Burton Dep. 

p.13:4-14; 28:1-7; Ex. 6 to Burton Dep. However, Burton did not take any action to determine 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 4 of 34
 

 Page 5 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

whether that absence was protected under FMLA or OFLA –and did not consider the absence 

related to migraines - because “[he] never said he was calling in sick because he had a migraine. 

He just said he was calling in sick because he was dizzy. The doctor’s note he provided never 

stated that he had a migraine.” Burton Dep. p.13:10-14; 27:11-18. Similarly, Burton states “I 

thought it was unrelated to migraines since he didn’t mention it was a migraine.” Burton Dep. 

28:14-15. This absence was three days after Burton asserts she had a discussion with plaintiff 

about migraines and intermittent leave. Burton Dep. p.13:4-9; 22:19-22; Ex. 5 to Burton Dep.

Plaintiff denies that Burton ever discussed FMLA/OFLA with him, and states he was 

unaware of his rights under FMLA/OFLA. Ormsby Dep. p300:9-22. Rather, plaintiff asserts he 

was merely told that he could not accrue any more last-minute absences until he accrued 

additional “PTO.” Ormsby Dep. p.278:20-24. Burton answered in the negative when asked, “Did 

you ever speak to him about the medical leave, anything like that.” Burton Dep. p.11:18-18.

Burton describes her May 6, 2014 conversation as follows:

We also talked about his attendance, where I

told him that if he needed time off for migraines

we would track that through intermittent leave and

require documentation for it as well as it being

protected, and that was pretty much the entire

conversation.

Burton Dep. p26:9-14; Ormsby Dep.300:9-22; p.332:19-334:4; Ex. 5 to Burton Dep.

Plaintiff’s migraines, which often cause him to miss work with little or no notice, varied 

from “very seldom” to every other week. Plaintiff was disciplined prior to discharge for one such 

absence (March 10, 2014). Ormsby Dep. 371:3-7.Ex 2 to Varnell Dep.; Ex 31 to Ormsby Dep.

This absence resulted in communications between Burton and Pacific NW District Manager 

Brent Anderson, wherein Anderson advised “it would be best to issue a written warning with 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 5 of 34
 

 Page 6 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

suspension. Further issues regarding performance and or attendance in the next twelve months 

will then result in term.” Ex. 6 to Varnell Dep, p.2. Plaintiff was subjected to discipline for this 

absence four days after Anderson made that statement. Ex. 2 to Varnell Dep.

Varnell admits that it is possible that plaintiff had a migraine that caused his absence on 

May 9, 2014. Varnell Dep. p.25:7-25. Burton admits that she had no idea at the time of 

plaintiff’s discharge which absences related to migraines and which did not. Burton Dep. p.22:9-

14. Both Varnell and Burton admit that plaintiff was discharged, in part, based on absenteeism. 

Burton Dep. 22:9-11; Varnell Dep. p.26:15-18. Plaintiff’s discharge notice provides that 

“Sunbelt is terminating for excessive absenteeism, unsatisfactory performance, and dishonesty.” 

Ex. 1 to Anderson Dep. When Burton listed plaintiff’s last-minute absences in an email she sent 

to herself on May 1, 2014, she listed eight such absences. Ex. 3 to Burton Dep. Both Burton and 

Varnell are aware that migraines arrive without warning, but did nothing to ascertain which lastminute absences were migraine related. Varnell Dep. 25:16-22; Burton Dep. p.20:22-21:15. 

C. SUMMARY JUDGMENT STANDARD

FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any 

material fact and the moving party is entitled to judgment as a matter of law. The moving party 

must show an absence of any issue of material fact. Celotex Corp. v. Catrell, 477 U.S. 317, 323, 

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party does so, the non-moving party 

must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 

324. The court does "not weigh the evidence or determine the truth of the matter, but only 

determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F.3d 1047, 1054 

(9th Cir. 1999). 

When ruling on a motion for summary judgment, the court must view the evidence in the 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 6 of 34
 

 Page 7 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp.,

475 U.S. 574, 587,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court must accept the nonmovant's version of the facts as true, and resolve conflicts in the non-movant's favor. Big Apple 

BMW, Inc. v. BMW of N. Amer. Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), cert. den., 507 U.S.

912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). A "material" fact exists if there is a "dispute over 

facts that might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law governing a claim or defense 

determines whether a fact is material. T. W Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 

809 F.2d 626, 631-32 (9th Cir. 1987). 

Reasonable doubts about the existence of a factual issue should be resolved against the 

moving party. Id. at 630-31. However, a "scintilla of evidence" or "merely colorable" evidence 

does not represent an issue of fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 

1539, 1542 (9th Cir.), cert. den., 493 U.S. 809 (1989).

D. LEGAL ARGUMENT

1. Defendants’ motion against plaintiff’s claims under the ADA and OADA in Counts 1-3 

should be denied.

Defendant addresses the ADA and OADA under the same analytical framework. In 

support of that approach, defendant posits that “claims arising under the ADA and OADA 

are analyzed together because there is no legal distinction between ADA and OADA 

jurisprudence.” Motion for Summary Judgment, p.8, ¶3. Defendant is mistaken. Oregon has 

rejected the McDonnell Douglas burden shifting approach. Pascoe v. Mentor Graphics 

Corp., 199 F Supp2d 1034, 1052 (D.Or.2001), citing citing Callan v. Confederation of 

Oregon Sch. Admin’rs, 79 Or.App. 73, 77, 717 P.2d 1252, 1254 (1986). Plaintiff’s state and 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 7 of 34
 

 Page 8 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

federal claims must therefore be addressed separately.

Federal Law (ADA)

a) Defendants are not entitled to summary judgment on the issue whether plaintiff is a 

“qualified individual with a disability.”

The ADA prohibits discrimination against a “qualified individual with a disability 

because of the disability of such individual in regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee compensation, job training, and other 

terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “‘[Q]ualified 

individual with a disability’ means an individual with a disability who, with or without 

reasonable accommodation, can perform the essential functions of the employment position 

that such individual holds or desires.” 42 U.S.C. § 12111(8). An employer discriminates 

against a qualified individual with a disability by “not making reasonable accommodations to 

the known physical or mental limitations of an otherwise qualified individual with a 

disability who is an applicant or employee, unless [the employer] can demonstrate that the 

accommodation would impose an undue hardship on the operation of the business of [the 

employer].” 42 U.S.C. § 12112(b)(5)(A)

In order to establish a prima facie case, plaintiff must show that he was “qualified.” 

Defendant asserts that plaintiff cannot perform his essential job functions. Defendant 

argues,

“Considering Plaintiff’s poor performance history, including two serious safety

infractions, one legal violation, and errors in delivering and renting the correct 

equipment, there is sufficient evidence in the record to show that Plaintiff could 

not perform the essential functions of his job with or without an accommodation. 

Further, applying Plaintiff’s testimony that time off would be a sufficient 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 8 of 34
 

 Page 9 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

accommodation, there is no evidence to suggest that time away from work would 

correct Plaintiff’s wholly deficient performance, and Plaintiff does not

suggest that his migraines caused or affected his poor performance.”

Motion for Summary Judgment, p.18¶3 - 19¶1.

In so arguing, defendant impermissibly conflates the first and third steps of the 

McDonnell Douglas analysis. This is the same mistake that the 9th Circuit identified in 

Aragon v. Rebublic Silver State Disposal Inc., 292 F.3d 654 (2002). There, the District Court 

found that the plaintiff was not qualified for his position because he “failed to show that he 

was doing his job well enough to eliminate the possibility that he was laid off for inadequate 

job performance.” Id. at 659. The 9th Circuit rejected that analysis, stating,

The district court’s analysis seems to conflate the minimal inference needed to 

establish a prima facie case with the specific, substantial showing Aragon must make at 

the third stage of the McDonnell Douglas inquiry to demonstrate that Republic’s reasons 

for laying him off were pretextual.

Id. at 659.

The District of Oregon has recognized that “[t]he Ninth Circuit has warned against 

conflating these two stages.” Hire v. Hyperion Solutions Corp. 2004 WL2260669, at *8 (D. 

Or. Oct. 7, 2004). This warning is in keeping with the 9th Circuit’s view that:

it is important to remember that “[t]he requisite degree of proof necessary to 

establish a prima facie case [under McDonnell Douglas] ... on summary 

judgment is minimal and does not even need to rise to the level of a 

preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th 

Cir.1994) (citation omitted) (emphasis added); see also Sischo-Nownejad v. 

Merced Cmty. College Dist., 934 F.2d 1104, 1110-11 (9th Cir.1991) (“[T]he 

amount[of evidence] that must be produced in order to create a prima facie case is 

very little.”) (quotation marks omitted).

Aragon, 292 F.3d at 659.

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 9 of 34
 

 Page 10 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

As made clear by the above-cited controlling authority, defendant may not rely upon its 

proffered legitimate non-discriminatory reasons to show that plaintiff was unable to perform 

his essential job functions. Absent those prohibited considerations, defendant fails to point to 

any essential job function that plaintiff is unable to perform. 

b) Plaintiff was able to perform his essential job functions with reasonable accommodation

Plaintiff triggered Sunbelt’s obligation to provide a reasonable accommodation

In Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir.2000) (en banc), vacated on 

other grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 

(2002), the 9th Circuit held,

the interactive process is a mandatory rather than a permissive obligation on the 

part of employers under the ADA and that this obligation is triggered by an 

employee or an employee's representative giving notice of the employee's 

disability and the desire for accommodation. In circumstances in which an 

employee is unable to make such a request, if the company knows of the existence 

of the employee's disability, the employer must assist in initiating the interactive 

process.

Barnett, 228 F.3d at 1114.

A year later, citing Barnett, the 9th Circuit concluded that “Once an employer becomes 

aware of the need for accommodation, that employer has a mandatory obligation under the 

ADA to engage in an interactive process with the employee to identify and implement 

appropriate reasonable accommodations. (citing Barnett v. U.S. Air, 228 F.3d 1105, 1114 

(9th Cir.2000)).

Humphrey v. Mem'l Hospitals Ass'n, 239 F.3d 1128, 1137 (9th Cir.2001)

An employee is not required to use any particular language when requesting an 

accommodation but need only “inform the employer of the need for an adjustment due to a 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 10 of 34
 

 Page 11 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

medical condition.” Id. That is, an employee may express the need for an adjustment in 

“plain English” and without mentioning the ADA or using the phrase “reasonable 

accommodation.” Barnett, 228 F.3d at 1112.

The interactive process requires: (1) direct communication between the employer and 

employee to explore in good faith the possible accommodations; (2) consideration of the 

employee’s request; and (3) offering an accommodation that is reasonable and effective. Id. 

at 1114–15. 

In Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (2002), the 9th Circuit 

found an applicant’s conduct sufficient to constitute a request, where the applicant indicated on 

his application that he was hard of hearing and stated in his first interview that he would have 

done better if he had a sign language interpreter. Id. at 1089. In plaintiff’s case, he indicated on 

numerous occasions that he was missing work (often without sufficient advance notice) and that 

these absences (and attendant lack of notice) were due to migraines. He asked manager Mike 

Varnell if he could be excused from the employer’s notice requirement when unable to call out 

sick in advance – and was told to call in for his migraine-related absences one day in advance. 

Ormsby Dep., p.333:17-23.According to Julie Burton, Plaintiff discussed his migraines and the 

potential for intermittent leave during a telephone conference with her on May 6, 2014. 

However, defendant failed to continue the discussion or offer any kind of accommodation 

(intermittent leave or otherwise) for plaintiff’s migraines. Burton Dep. p.11:18-18, 26:9-14; Ex. 

5 to Burton Dep.; Ormsby Dep.300:9-22; p.332:19-334:4.

Instead, defendant discharged plaintiff based in substantial part on migraine-related 

absences. Burton Dep. 22:9-11; Varnell Dep. p.26:15-18; Ex. 1 to Anderson Dep. 

Plaintiff establishes a genuine issue of fact on the issues whether 1) he requested an 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 11 of 34
 

 Page 12 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

accommodation; and 2) Sunbelt possessed knowledge sufficient to trigger its obligation to 

initiate the interactive process under the ADA.

Intermittent leave and excusal from the employer’s call-off notice requirement are 

reasonable accommodations that would have allowed plaintiff to perform his essential job 

functions.

The ADA's regulations provide:

(1) The term reasonable accommodation means:

* * *

(ii) Modifications or adjustments to the work environment, or to the manner or 

circumstances under which the position held or desired is customarily performed, 

that enable a qualified individual with a disability to perform the essential 

functions of that position; or

(iii) Modifications or adjustments that enable a covered entity's employee with a 

disability to enjoy equal benefits and privileges of employment as are enjoyed by 

its other similarly situated employees without disabilities.

(2) Reasonable accommodation may include but is not limited to:

* * *

(ii) Job restructuring; part-time or modified work schedules; reassignment to a 

vacant position; acquisition or modifications of equipment or devices; appropriate 

adjustment or modifications of examinations, training materials, or policies; the 

provision of qualified readers or interpreters; and other similar accommodations 

for individuals with disabilities.

29 C.F.R. § 1630.2(o); 42 U.S.C. § 12111(9)(B).

An accommodation is reasonable if it “could plausibly have enabled [the employee] 

adequately to perform her job.” Humphrey v. Mem'l Hospitals Ass'n, 239 F.3d 1128, 1136

(9th Cir.2001). Either intermittent leave or exemption from Sunbelt’s advance call-in 

requirement would have been sufficient to allow plaintiff to satisfy any attendance-related 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 12 of 34
 

 Page 13 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

performance issues he may have had regarding “last minute” call-offs. The Ninth Circuit 

held, where the employer “did not engage in any such process, summary judgment is 

available only if a reasonable finder of fact must conclude that ‘there would in any event 

have been no reasonable accommodation available.’ “ Dark v. Curry County, 451 F.3d at 

1088 (9th Cir.2006) (quoting Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1256 (9th 

Cir.2001)). Although reasonable minds could differ, a reasonable finder of fact could 

conclude that either of these accommodations were reasonable and available. At the very 

least, under Dark a reasonable factfinder could conclude that there was “in any event” a 

reasonable accommodation available. Plaintiff thus establishes a genuine issue of fact 

whether there existed a reasonable accommodation that would have allowed plaintiff to 

perform his essential job functions.

c) Plaintiff’s migraines were a substantial motivating factor in defendant’s decision to 

discharge plaintiff. Plaintiff is not required to establish pretext under the “motivating factor” 

standard. Even if plaintiff were required to establish pretext, there exists sufficient evidence 

of pretext to preclude summary judgment on this and his other claims.

To make a prima facie case of disparate treatment under the ADA, a plaintiff must show 

that, within the meaning of the ADA, he: “(1) is disabled; (2) is qualified; and (3) suffered an 

adverse employment action because of [his] disability.” Snead v. Metro. Prop. & Cas. Ins. 

Co., 237 F.3d 1080, 1087 (9th Cir.2001). Defendant asserts that plaintiff is unable to satisfy 

the 3rd element of this prima facie case – causation. Defendant is mistaken.

The 9th Circuit applies the “motivating factor” standard of causation to ADA cases. In Head 

v. Glacier Northwest, Inc., 413 F.3d 1052, 64 (9th Cir 2005), the Ninth Circuit concluded, 

“we hold that the ADA outlaws adverse employment decisions motivated, even in part, by 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 13 of 34
 

 Page 14 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

animus based on a plaintiff's disability or request for an accommodation—a motivating factor 

standard.” The District of Oregon continues to apply this standard. Siring v. Oregon State 

Bd. of Higher Educ. ex rel, 977 F.Supp.2d 1058, 1063 (D. Or. 2013). Thus, plaintiff is not 

required to rebut or eliminate defendant’s proffered non-discriminatory reasons as factors in 

its discharge decision. Rather, plaintiff need only show that the discharge decision was 

motivated “even in part” by discriminatory animus.

Plaintiff first discussed his migraines with Varnell – and requested accommodation –

about a month into his employment. Ormsby Dep p. 41:20-24. Varnell asserts that he first 

learned of plaintiff’s migraine problem when plaintiff came to work one day after taking 

medication, about five months prior to plaintiff’s discharge. Varnell Dep., p.18:21-19:1. 

At one point, when plaintiff asked whether he could be excused from calling in advance 

when his migraines rendered him unable to do so, plaintiff was told by Varnell that he would 

have to give one days’ notice prior to being absent for a migraine. Ormsby Dep., p.333:17-

23.This sarcastic reply shows that Varnell was openly hostile toward plaintiff’s migraine 

problem. 

On May 1, 2014, Burton sent herself an email tracking plaintiff’s last minute absences. 

Varnell Dep Ex 5; Burton Dep Ex 3; Burton Dep p.18:17-19:10. In his email to Burton Varnell 

states “[p]lease review and let me know what my options are.” By making that statement, 

Varnell was exploring the possibility of discharging plaintiff. Ex. 5 to Varnell Dep.; Varnell Dep. 

p.38:12-19; 39:25-40:3. This is prior to the time that plaintiff borrowed the trailer from Sunbelt 

that allegedly contributed to Sunbelt’s discharge decision. Ormsby Dep, p. 256:2-8. The timing 

of Burton’s tracking of plaintiff’s last minute absences, Varnell’s interest in discharging plaintiff, 

and plaintiff’s borrowing of the trailer, permits an inference that the employer was already 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 14 of 34
 

 Page 15 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

looking for a reason to discharge plaintiff at the time it allegedly formulated the opinion that it 

needed to discharge plaintiff for poor performance and dishonesty relating to the trailer. 

Plaintiff called in sick on May 9, 2014, advising Varnell that he was dizzy and going to 

urgent care. Varnell does not recall whether there was any concern that this absence was related 

to migraines. Varnell Dep. p.37:7-12. Burton was made aware by Varnell that plaintiff had 

called in sick on May 9, 2014 because he was dizzy and going to urgent care. Burton Dep. 

p.13:4-14; 28:1-7; Ex. 6 to Burton Dep. However, Burton asserts that she did not consider the 

absence related to migraines - because “[he] never said he was calling in sick because he had a 

migraine. He just said he was calling in sick because he was dizzy. The doctor’s note he 

provided never stated that he had a migraine.” Burton Dep. p.13:10-14; 27:11-18. Similarly, 

Burton states “I thought it was unrelated to migraines since he didn’t mention it was a migraine.” 

Burton Dep. 28:14-15. This absence was three days after Burton asserts she had a discussion 

with plaintiff about migraines and intermittent leave. Burton Dep. p.13:4-9; 22:19-22; 26:9-14. 

Ex. 5 to Burton Dep. Burton’s assertion that she had no idea that the absence was related to 

migraines borders on ludicrous, and certainly invites an inference that she is being untruthful and 

hiding the real motivation for plaintiff’s discharge – his migraines.

Plaintiff was disciplined prior to discharge for a migraine-related absence (March 10, 

2014). Ormsby Dep. 371:3-7.Ex 2 to Varnell Dep.; Ex 31 to Ormsby Dep. This absence resulted 

in communications between Burton and Pacific NW District Manager Brent Anderson, wherein 

Anderson advised “it would be best to issue a written warning with suspension. Further issues 

regarding performance and or attendance in the next twelve months will then result in term.” Ex. 

6 to Varnell Dep, p.2. Plaintiff was subjected to discipline for this absence four days after 

Anderson made that statement. Ex. 2 to Varnell Dep. This chain of events permits an inference 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 15 of 34
 

 Page 16 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

that as early as March, 2014, Sunbelt was looking for a way to get rid of plaintiff because of his 

migraines.

Varnell admits that it is possible that plaintiff had a migraine that caused his absence on 

May 9, 2014. Varnell Dep. p.25:7-25. Burton admits that she had no idea at the time of 

plaintiff’s discharge which absences related to migraines and which did not. Burton Dep. p.22:9-

14. Both Varnell and Burton admit that plaintiff was discharged, in part, based on absenteeism. 

Burton Dep. 22:9-11; Varnell Dep. p.26:15-18. Plaintiff’s discharge notice provides that 

“Sunbelt is terminating for excessive absenteeism, unsatisfactory performance, and dishonesty.” 

Ex. 1 to Anderson Dep. When Burton listed plaintiff’s last-minute absences in an email she sent 

to herself on May 1, 2014, she listed eight such absences. Ex. 3 to Burton Dep. Both Burton and 

Varnell are aware that migraines arrive without warning, but did nothing to ascertain which lastminute absences were migraine related. Varnell Dep. 25:16-22; Burton Dep. p.20:22-21:15. 

This series of events establishes that Varnell and Burton were both aware of the risk that plaintiff 

was being discharged based at least in part on his migraine-related absences, and did nothing 

about it. This permits an inference that Varnell and Burton were motivated by discriminatory

and/or retaliatory animus when they discharged plaintiff.

The evidence adduced above provides a strong inference that Sunbelt had enough of 

plaintiff and his migraine and daughter-related absences as of March 14, 2014, and that 

plaintiff’s May 9, 2014 absence was the straw that broke the camel’s back. The tight temporal 

proximity of these events only strengthens this inference. Plaintiff produces substantial evidence 

allowing the inference that the reasons proffered by defendant are not the real reasons for its 

actions, and that plaintiff’s discharge was motivated by discriminatory and/or retaliatory animus 

arising from plaintiff’s disability.

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 16 of 34
 

 Page 17 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

d) Plaintiff’s retaliation claims do not fail, because plaintiff engaged in protected activity under 

the ADA and OADA.

The Ninth Circuit applies the Title VII framework for retaliation claims to ADA 

retaliation claims. Brown v. City of Tucson, 336 F.3d 1181, 1186 (9th Cir. 2003). Thus,

plaintiff must make out a prima facie case by showing “(1) involvement in a protected 

activity, (2) an adverse employment action and (3) a causal link between the two.” Id.

(internal citations omitted); see also Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th 

Cir.2004). Temporal proximity between protected activity and adverse action is sufficient to 

support an inference of causation. Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.2000). If 

a prima facie case is established, the burden-shifting analysis applies and the employee will 

avoid summary judgment unless the employer offers legitimate reasons for the adverse 

employment actions. If the employer does so, the burden shifts back to the employee to 

demonstrate a triable issue of fact as to whether such reasons are pretextual. Pardi, 389 F.3d 

at 849. “If the ... plaintiff demonstrates a genuine issue of material fact as to whether the 

reason advanced by the employee was a pretext, then the retaliation case proceeds beyond the 

summary judgment stage.” Coons v. Sec'y of the U.S. Dep't of the Treasury, 383 F.3d 879, 

887 (9th Cir.2004).

As noted by defendant, “This Court has accepted a plaintiff’s “request for an 

accommodation” to serve as protected activity. Carson v. Fedex Ground Package Sys., Inc., 

No. CIV 05-1951-AA, 2006 WL 3751226, * 7 (D. Or. Dec. 15, 2006). Plaintiff establishes a 

genuine issue of fact whether he has done so. Plaintiff indicated on numerous occasions that 

he was missing work without sufficient advance notice, and that these absences (and 

attendant lack of notice) were due to migraines. Ormsby Dep. p.168:14-169:7; 351:4-19. He 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 17 of 34
 

 Page 18 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

asked manager Mike Varnell if he could be excused from the employer’s notice requirement 

when unable to call out sick in advance – and was told to call in for his migraine-related 

absences one day in advance. Ormsby Dep. p.333:17-23. According to Julie Burton, Plaintiff 

discussed his migraines and the potential for intermittent leave during a telephone conference 

with her on May 6, 2014. Burton Dep. p.26:9-14.

As demonstrated above, under Zivkovic v. Southern California Edison Co., 302 F.3d 

1080 (2002) plaintiff’s conduct sufficed to constitute a request for accommodation. Plaintiff 

thus establishes a genuine issue of fact whether he engaged in protected activity. Defendant 

is not entitled to summary judgment on plaintiff’s ADA retaliation claim.

State Law

Defendant presented its arguments under the ADA and state law simultaneously, based 

on its supposition that “there is no legal distinction between ADA and OADA 

jurisprudence.” Plaintiff thus relies upon the arguments set forth above under federal law in 

support of his response to defendant’s motion against his state law claims, except as set forth 

below.

As noted above, Oregon does not apply the McDonnell Douglas burden shifting framework 

to state law discrimination claims. As explained in a District of Oregon case recently, 

Oregon applies the same standard for establishing a prima facie case of 

discrimination as under federal law. Pascoe v. Mentor Graphics Corp., 199 F 

Supp2d 1034, 1052 (D.Or.2001), citing Henderson v. Jantzen, Inc., 79 Or.App. 

654, 657, 719 P.2d 1322, 1324, rev denied, 302 Or. 35, 726 P.2d 934 (1986). 

However, Oregon courts have rejected the However, Oregon courts have rejected 

the McDonnell Douglas burden-shifting framework. Id, citing Callan v. 

Confederation of Oregon Sch. Admin’rs, 79 Or.App. 73, 77, 717 P.2d 1252, 1254 

(1986). Therefore, when a plaintiff introduces evidence showing that her 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 18 of 34
 

 Page 19 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

discharge took place under circumstances giving rise to an inference of unlawful 

discrimination, and thereby “establishes a prima facie claim of ... discrimination, 

summary judgment is inappropriate even in the face of assertions by the defendant 

of nondiscriminatory action.” Id, quoting Hardie v. Legacy Health Sys., 167 

Or.App. 425, 437, 6 P.3d 531, 538 (2000) (citing Messick v. Horizon Indus. Inc., 

62 F.3d 1227, 1232 (9th Cir1995) (applying Henderson, supra )).

Hire v. Hiperion, 2004 WL2260669 at*7(D. Or. Oct. 7, 2004)

Thus the prima facie case of disability discrimination under state law is identical to the 

prima facie case under the ADA. Plaintiff therefore relies upon his arguments that he 

establishes a prima facie case in each of his ADA claims, for support that he establishes a 

prima facie case on each of his state law disability-related claims.

a) Defendant is not entitled to summary judgment on plaintiff’s claim that he was discharged 

based on disability.

As noted by this Court in Hire v. Hiperion, “when a plaintiff introduces evidence 

showing that her discharge took place under circumstances giving rise to an inference of 

unlawful discrimination, and thereby “establishes a prima facie claim of ... discrimination, 

summary judgment is inappropriate even in the face of assertions by the defendant of 

nondiscriminatory action.” Id. at *7. Application of this standard in a case similar to 

plaintiff’s is set forth in Lansford v. Georgetown Manor, Inc., 192 Or.App. 261 (2004).

In Lansford, the plaintiff suffered from panic attacks that resulted in multiple absences. 

On some occasions Lansford would be able to work through her panic attacks. On other 

occasions she would leave work or miss work altogether. Once absence lasted two weeks. 

Id. at. 274. In July 2000, Lansford was given a written warning for excessive absenteeism 

(missing seven work periods ranging from a single day to two weeks). Id. at 264. The next 

month, Lansford’s human resources manager wrote the following memorandum to the store 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 19 of 34
 

 Page 20 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

manager:

“Per our conversation this morning regarding [plaintiff], I will forward disability 

and FMLA [Family Medical Leave Act] paperwork either Friday or Tuesday of 

next week. If you would please let her know that we should talk sometime next 

week regarding her situation so that she is taken care of. Either you or [plaintiff] 

needs to keep me informed as to her status on a weekly basis.”

Id. at 264.

The next day, Lansford’s human resources manager sent another memorandum to the 

store manager:

“Please disregard the previous memo regarding [plaintiff] and FMLA and 

disability. She needs to bring or send us a doctor’s note that indicates she has a 

serious health condition requiring FMLA and disability. At this point we do not 

know that. Please keep me posted as to the status of [plaintiff].”

Id. at 264.

At his deposition, the human resources manager said he wrote the second memo because 

“there was apparently no perceived need [to discuss] either [FMLA or disability benefits] at 

that particular time.” Id at. 265. Lansford was given a “final warning” for absenteeism 

approximately three months later because she “was again absent from work and did not call 

in sick.” Id. at 267. 

Subsequently, the human resources manager “Gruen” allegedly determined that Lansford 

had misappropriated company property and terminated Lansford’s employment. Id. at 267. 

The misappropriation related to an incident where Lansford had taken store merchandise 

home without either returning it or paying for it within a week of taking it. The employer’s 

handbook provided that its employees could be terminated for “[a]ny act of dishonesty, 

including theft or misappropriation of money, time, property, or information.” Id. at 267. 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 20 of 34
 

 Page 21 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

The trial court granted summary judgment in favor of Lansford. The court reversed, 

reasoning,

The evidence in this case...indicates that, before defendant became aware of 

facts to support the ground that it cited for terminating plaintiff’s employment, it 

considered terminating her employment for other reasons. Specifically, the 

evidence demonstrates that, before Gruen learned that plaintiff had 

“misappropriated company property,” Gruen had given plaintiff a number of 

warnings linked to her repeated absences from work, and he was greatly 

concerned about the effect of plaintiff’s health on her work. On that evidence, a 

jury could reasonably infer that defendant fired plaintiff because of the disability 

that defendant perceived her to have. Defendant’s evidence that it terminated 

plaintiff because she misappropriated company property would not 

preclude the jury from drawing that inference.

Id. at 278.

The Lansford court observed that it had come to a similar decision in Hardie v. 

Legacy Health System, 167 Or.App. 425, 6 P.3d 531, rev. den. 332 Or. 656, 36 P.3d 973 

(2000), where the employer alleged that it discharged an employee for buying a microwave 

with the employer’s funds and not repaying the employer for five months. Lansford, 192 

Or.App. at 277. The court noted that, in Hardie,

We explained that a defendant does not defeat a plaintiff’s showing of material 

facts on an employment discrimination claim “ ‘merely because [the] 

defendant asserts a nondiscriminatory reason which may or may not persuade the 

trier of fact.’ ” Hardie, 167 Or.App. at 437, 6 P.3d 531 (quoting Henderson v. 

Jantzen, Inc., 79 Or.App. 654, 658, 719 P.2d 1322, rev. den., 302 Or. 35, 726 P.2d 

934 (1986)).

Id. at 277-8.

Based on the analysis of pretext and motive set forth in support of plaintiff’s federal 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 21 of 34
 

 Page 22 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

disability discrimination claim above, under both Lansford and Hardie plaintiff’s disability 

discrimination claim survives summary judgment. Defendant is not entitled to summary 

judgment “merely because [it] asserts a nondiscriminatory reason which may or may not 

persuade the trier of fact.” Like the defendant in Lansford, “before defendant became aware 

of facts to support the ground it cited for terminating plaintiff’s employment, it considered 

terminating [his] employment for other reasons.” In plaintifff’s case, those reasons arose 

from discriminatory animus.

2. Defendant’s motion against plaintiff’s claims under the FMLA and OFLA should be 

denied because plaintiff sets forth prima facie cases of interference, discrimination, and 

retaliation.

Defendant’s state and federal arguments for interference, discrimination, and retaliation 

are presented simultaneously, based on the proposition that “[t]his court analyzes FMLA and 

OFLA claims concurrently.” Plaintiff will thus proceed similarly.

Facts Common to Plaintiff’s FMLA and OFLA claims

Varnell asserts that he first learned of plaintiff’s migraine problem when plaintiff came to 

work one day after taking medication, about five months prior to plaintiff’s discharge. Varnell 

Dep., p.18:21-19:1. Varnell further asserts that he discussed the Family Medical Leave Act 

FMLA with plaintiff with respect to medication, since the medication would interfere with 

plaintiff’s ability to safety operate vehicles and heavy machinery. Varnell Dep. 19:2-9. 

However, plaintiff indicated he would not be taking the medication. Varnell Dep. 19:10-15. 

Plaintiff never again went to work after taking that medication. Ormsby Dep. 313:21-22; 314:13-

315:2. Varnell never discussed family or medical leave with plaintiff regarding plaintiff’s 

migraine-related absences. Varnell Dep. 21:1-25.

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 22 of 34
 

 Page 23 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

Plaintiff had several migraine-related absences. Ormsby Dep. 168:14-169:7; 351:4-19;

Ex 27, 28, 31, 41; Varnell Dep. Ex 4; Ormsby Dep. 313:25-314:1; 316:8-16; 317:13-17. In 

addition to migraine-related absences, plaintiff had a pre-approved absence from work due to 

appointments with his daughter’s special education provider, speech therapist, and psychological 

therapist on April 30, 2014. Ormsby Dep., p.304:15-17; 337:16-338:19; 379:1-15; Ex. 39 to 

Ormsby Dep. Plaintiff is the sole custodial parent of a special needs child. Ormby Dep. p.347:22-

24; 379:1-3; Ex 8 to Ormsby Dep. HR Regional Manager Burton asserted that the April 30, 2014 

absence had nothing to do with plaintiff’s discharge. Burton Dep. p.18:2-16. However, the day 

after that absence manager Varnell sent an email complaining about this absence to Burton. The 

next day Burton sent herself an email tracking plaintiff’s last minute absences. Varnell Dep Ex 5; 

Burton Dep Ex 3; Burton Dep p.18:17-19:10. In his email to Burton Varnell states “[p]lease 

review and let me know what my options are.” By making that statement, Varnell was exploring 

the possibility of discharging plaintiff. Ex. 5 to Varnell Dep.; Varnell Dep. p.38:12-19; 39:25-

40:3.

Plaintiff called in sick on May 9, 2014, advising Varnell that he was dizzy and going to 

urgent care. Varnell does not recall whether there was any concern that this absence was related 

to migraines. Varnell Dep. p.37:7-12. Burton was made aware by Varnell that plaintiff had 

called in sick on May 9, 2014 because he was dizzy and going to urgent care. Burton Dep. 

p.13:4-14; 28:1-7; Ex. 6 to Burton Dep. However, Burton did not take any action to determine 

whether that absence was protected under FMLA or OFLA –and did not consider the absence 

related to migraines - because “[he] never said he was calling in sick because he had a migraine. 

He just said he was calling in sick because he was dizzy. The doctor’s note he provided never 

stated that he had a migraine.” Burton Dep. p.13:10-14; 27:11-18. Similarly, Burton states “I 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 23 of 34
 

 Page 24 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

thought it was unrelated to migraines since he didn’t mention it was a migraine.” Burton Dep. 

28:14-15. This absence was three days after Burton asserts she had a discussion with plaintiff 

about migraines and intermittent leave. Burton Dep. p.13:4-9; 22:19-22; Ex. 5 to Burton Dep. 

Plaintiff denies that Burton ever discussed FMLA/OFLA with him, and states he was 

unaware of his rights under FMLA/OFLA. Ormsby Dep. p300:9-22. Rather, plaintiff asserts he 

was merely told that he could not accrue any more last-minute absences until he accrued 

additional “PTO.” Ormsby Dep. p.278:20-24. Burton answered in the negative when asked, “Did 

you ever speak to him about the medical leave, anything like that.” Burton Dep. p.11:18-18.

Burton describes her May 6, 2014 conversation as follows:

We also talked about his attendance, where I

told him that if he needed time off for migraines

we would track that through intermittent leave and

require documentation for it as well as it being

protected, and that was pretty much the entire

conversation.

Burton Dep. p26:9-14; Ormsby Dep.300:9-22; p.332:19-334:4; Ex. 5 to Burton Dep.

Plaintiff’s migraines, which often cause him to miss work with little or no notice, varied 

from “very seldom” to every other week. Plaintiff was disciplined prior to discharge for one such 

absence (March 10, 2014). Ormsby Dep. 371:3-7.Ex 2 to Varnell Dep.; Ex 31 to Ormsby Dep.

This absence resulted in communications between Burton and Pacific NW District Manager 

Brent Anderson, wherein Anderson advised “it would be best to issue a written warning with 

suspension. Further issues regarding performance and or attendance in the next twelve months 

will then result in term.” Ex. 6 to Varnell Dep, p.2. Plaintiff was subjected to discipline for this 

absence four days after Anderson made that statement. Ex. 2 to Varnell Dep.

Varnell admits that it is possible that plaintiff had a migraine that caused his absence on 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 24 of 34
 

 Page 25 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

May 9, 2014. Varnell Dep. p.25:7-25. Burton admits that she had no idea at the time of 

plaintiff’s discharge which absences related to migraines and which did not. Burton Dep. p.22:9-

14. Both Varnell and Burton admit that plaintiff was discharged, in part, based on absenteeism. 

Burton Dep. 22:9-11; Varnell Dep. p.26:15-18. Plaintiff’s discharge notice provides that 

“Sunbelt is terminating for excessive absenteeism, unsatisfactory performance, and dishonesty.” 

Ex. 1 to Anderson Dep. When Burton listed plaintiff’s last-minute absences in an email she sent 

to herself on May 1, 2014, she listed eight such absences. Ex. 3 to Burton Dep. Both Burton and 

Varnell are aware that migraines arrive without warning, but did nothing to ascertain which lastminute absences were migraine related. Varnell Dep. 25:16-22; Burton Dep. p.20:22-21:15.

a) Plaintiff demonstrates that Sunbelt interfered with his right to take protected leave.

Defendants assert that plaintiff’s OFLA and FMLA interference claims fail because “he 

did not properly notify Sunbelt of a need for leave, and even if he had, Sunbelt offered him 

leave.” Defendants are mistaken.

Under FMLA, it is “unlawful for any employer to interfere with, restrain, or deny the 

exercise of or attempt to exercise any [FMLA rights].” 29 U.S.C. § 2615(a)(1). As noted by 

defendant, “the statutory and regulatory language of FMLA makes clear that where an employee 

is subjected to negative consequences simply because he has used FMLA leave, the employer 

has interfered with the employee’s FMLA rights.” Motion for Summary Judgment, p.30, ¶2 

(citing Xin Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir 2003)). 

The federal regulations make clear that “when an employee requests FMLA leave, or 

when the employer acquires knowledge that an employee’s leave may be for an FMLAqualifying reason, the employer must notify the employee of the employee’s eligibility to take 

FMLA leave within five business days, absent extenuating circumstances. 29 CFR 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 25 of 34
 

 Page 26 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

825.300(b)(1). It is employer’s responsibility to determine whether the employee is eligible “at 

the commencement of the first instance of leave for each FMLA-qualifying reason in the 

applicable 12-month period.” Id. The employer also has a responsibility to provide an eligibility 

notice to the employee. If the employer finds that the employee is not in fact eligible, the 

employer must state at least one reason by the employee is not eligible, and include particular 

facts, such as months of service with employer, hours of service with employer, and whether the 

worksite employs 50 or more people within 75 miles of that worksite. Id. at (2). Federal 

regulations state that the the notification of eligibility can be made orally or in writing, but it is 

clear that a notification of some sort is required to comply with FMLA. Id.

Sunbelt has a benefits specialist for each region of the United States. Glass Dep. p.5:9-

25. These specialists handle inquiries regarding FMLA. Glass Dep. p. 6:9-14. Whenever a 

manager, employee, or human resources employee engages in a dialogue with a benefits 

specialist, and there is the potential that an employee may be entitled to FMLA leave, a file is 

opened in the specialist’s office. Glass Dep. p.10:14-11:14. There is no documentation of any 

communication whatsoever with the benefits specialists’ office regarding plaintiff prior to his 

discharge. Glass. Dep. p.11:15-22. Ex 1 to Glass Dep. It is Sunbelt’s practice to provide 

documents to employees who may need intermittent leave under FMLA or OFLA. None of that 

was ever provided to plaintiff. Burton Dep. p.33:22-34:13.

As set forth above, defendant wholly failed to comply with its obligations under FMLA, 

and now faults plaintiff for not providing proper notification or certification. Sunbelt acquired 

knowledge on numerous occasions that plaintiff’s leave may have been for an FMLA-qualifying 

reason. In spite of that knowledge, defendants failed to provide the requisite eligibility notice to 

plaintiff, and now fault plaintiff for his alleged failure to comply with the requirements of which 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 26 of 34
 

 Page 27 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

he was never informed. Defendants deprived plaintiff of a meaningful opportunity to have 

absences relating to his migraines and his daughter’s serious health condition be protected under 

FMLA. The employer then used plaintiff’s FMLA-qualifying leave – which was never 

characterized as such due to the employer’s failure to meet its obligations under FMLA – as a 

basis for discharging him (and depriving him of the ability to use FMLA leave in the future). 

Sunbelt thus interfered with plaintiff’s rights under FMLA. Plaintiff establishes a genuine issue 

of fact whether the employer’s obligations under FMLA and OFLA were triggered.

Defendant also asserts that “Sunbelt offered him leave.” Varnell Dep. p.19:2-9. This is 

incorrect. Although manager Varnell asserts that he “offered” FMLA/OFLA to plaintiff to 

address the workplace effects of the migraine drug Maxalt, Sunbelt never complied with its 

eligibility notice requirements under FMLA. Id. Moreover, Varnell admits that he never 

“offered” FMLA with respect to plaintiff’s absences. Varnell Dep. p.21:1-25. Varnell further 

admitted that he became aware of plaintiff’s migraines approximately five months prior to the 

end of his employment – and offered plaintiff FMLA at that time – but there is no evidence that 

Sunbelt ever opened a FMLA file or provided plaintiff with the required paperwork. Varnell 

Dep. p.18:21-19:1. Leave was never offered as to plaintiff’s absences, and to the extent there 

was some sort of “offer” it was faulty. Varnell Dep. 21:1-25. Defendant is not entitled to 

summary judgment based on the assertion that it somehow “offered” leave to plaintiff. 

b) Defendant’s motion should be denied as to plaintiff’s FMLA and OFLA 

discrimination/retaliation claims because plaintiff availed himself of a protected right and 

Sunbelt’s reasons for termination were related to leave.

In order to prove an FMLA retaliation claim, a plaintiff must show by a preponderance of 

the evidence that: “(1) involvement in a protected activity under the FMLA; (2) an adverse 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 27 of 34
 

 Page 28 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

employment action; and (3) a causaul link between the protected activity and the employment 

action.” Schultz v. Wells Fargo Bank, National Association, 970 F. Supp. 2d 1039, 1059 (Or.

2013).

The court in Schultz further states that “the proximity in time between the protected 

activity and the allegedly retaliatory employment decision can support an inference of 

causation.” Id. at 1054. In Shultz, the defendant argued that plaintiff could not show protected 

leave was a negative factor in her termination because too much time had passed to infer 

causation. However, the court determined that “time periods of up to a year have been held to 

support a finding of causation at summary judgment.” Id. at 1056. 

Here, even though plaintiff may not have understood that he was availing himself of his 

rights under OFLA and FMLA, he exercised his rights under those acts when he accompanied 

his minor child to her special education, speech therapy, and psychotherapy appointments on 

April 30, 2014. Similarly, plaintiff exercised those rights every time he engaged in what should 

have been intermittent leave. Temporal proximity exists here, as the protected activities and the 

negative employment decision occurred within a close time frame. The fact that the employer 

failed to fulfill its obligations under FMLA and OFLA, and thus failed to properly characterize 

those absences, is immaterial to the protected nature of plaintiff’s conduct.

Sunbelt’s reasons for termination were related to leave

Approximately four to five months prior to plaintiff’s discharge, his manager Mike 

Varnell became aware that plaintiff suffered from migraines and had attendance issues relating to 

migraines. Varnell Dep. 17:3-18:7; 19:16-20. However, Varnell did not offer or address 

medical leave (intermittent or otherwise) as an accommodation for plaintiff’s migraine-related 

absences. Similarly, Varnell did not go to human resources with respect to plaintiff’s need for 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 28 of 34
 

 Page 29 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

such medical leave. Varnell Dep. 21:1-25. 

Human resources territory manager Julie Burton never discussed with plaintiff his rights 

under the Family and Medical Leave Act (FMLA) or the Oregon Family Leave Act (OFLA). 

Ormsby Dep.300:9-22; Burton Dep. p.11:18-18; Ex. 5 to Burton Dep. However, Burton did 

discuss plaintiff’s absences with him – and the need to avoid further last-minute absences until 

he had accrued sufficient “personal time off” (PTO) – during the final week or so of his 

employment. Ormsby Dep. p.306:16-21; 268:7-25. Ms. Burton was aware of plaintiff’s 

migraines at the time of that discussion. Ormsby Dep. p.339:9-15; Ex. 5 to Burton Dep. 

Plaintiff was never made aware of his rights under OFLA or FMLA or his potential entitlement 

to leave (intermittent or otherwise). Ormsby Dep. p.332:19-334:4; Burton Dep. p.11:18-18.

Burton Dep. p26:9-14

Sunbelt has a benefits specialist for each region of the United States. Glass Dep. p.5:9-

25. These specialists handle inquiries regarding FMLA. Glass Dep. p. 6:9-14. Whenever a 

manager, employee, or human resources employee engages in a dialogue with a benefits 

specialist, and there is the potential that an employee may be entitled to FMLA leave, a file is 

opened in the specialist’s office. Glass Dep. p.10:14-11:14. There is no documentation of any 

communication whatsoever with the benefits specialists’ office regarding plaintiff prior to his 

discharge. Glass. Dep. p.11:15-22. Ex 1 to Glass Dep. It is Sunbelt’s practice to provide 

documents to employees who may need intermittent leave under FMLA or OFLA. None of that 

was ever provided to plaintiff. Burton Dep. p.33:22-34:13.

Plaintiff asserts that he first discussed his migraines with Varnell – and requested 

accommodation – about a month into his employment. Ormsby Dep p. 41:20-24. Varnell asserts 

that he first learned of plaintiff’s migraine problem when plaintiff came to work one day after 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 29 of 34
 

 Page 30 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

taking medication, about five months prior to plaintiff’s discharge. Varnell Dep., p.18:21-19:1. 

Varnell further asserts that he discussed the Family Medical Leave Act FMLA with plaintiff with 

respect to medication, since the medication would interfere with plaintiff’s ability to safety 

operate vehicles and heavy machinery. Varnell Dep. 19:2-9. However, plaintiff indicated he 

would not be taking the medication. Varnell Dep. 19:10-15. Plaintiff never again went to work 

after taking that medication. Ormsby Dep. 313:21-22; 314:13-315:2. Varnell never discussed 

family or medical leave with plaintiff regarding plaintiff’s migraine-related absences. Varnell 

Dep. 21:1-25.

Plaintiff had several migraine-related absences. Ormsby Dep. 168:14-169:7; 351:4-19;

Ex 27, 28, 31, 41; Varnell Dep. Ex 4; Ormsby Dep. 313:25-314:1; 316:8-16; 317:13-17. In 

addition to migraine-related absences, plaintiff had a pre-approved absence from work due to 

appointments with his daughter’s special education provider, speech therapist, and psychological 

therapist on April 30, 2014. Ormsby Dep., p.304:15-17; 337:16-338:19; 379:1-15; Ex. 39 to 

Ormsby Dep. Plaintiff is the sole custodial parent of a special needs child. Ormby Dep. p.347:22-

24; 379:1-3; Ex 8 to Ormsby Dep. HR Regional Manager Burton asserted that the April 30, 2014 

absence had nothing to do with plaintiff’s discharge. Burton Dep. p.18:2-16. However, the day 

after that absence manager Varnell sent an email complaining about this absence to Burton. The 

next day Burton sent herself an email tracking plaintiff’s last minute absences. Varnell Dep Ex 5; 

Burton Dep Ex 3; Burton Dep p.18:17-19:10. In his email to Burton Varnell states “[p]lease 

review and let me know what my options are.” By making that statement, Varnell was exploring 

the possibility of discharging plaintiff. Ex. 5 to Varnell Dep.; Varnell Dep. p.38:12-19; 39:25-

40:3.

Plaintiff called in sick on May 9, 2014, advising Varnell that he was dizzy and going to 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 30 of 34
 

 Page 31 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

urgent care. Varnell does not recall whether there was any concern that this absence was related 

to migraines. Varnell Dep. p.37:7-12. Burton was made aware by Varnell that plaintiff had 

called in sick on May 9, 2014 because he was dizzy and going to urgent care. Burton Dep. 

p.13:4-14; 28:1-7; Ex. 6 to Burton Dep. However, Burton did not take any action to determine 

whether that absence was protected under FMLA or OFLA –and did not consider the absence 

related to migraines - because “[he] never said he was calling in sick because he had a migraine. 

He just said he was calling in sick because he was dizzy. The doctor’s note he provided never 

stated that he had a migraine.” Burton Dep. p.13:10-14; 27:11-18. Similarly, Burton states “I 

thought it was unrelated to migraines since he didn’t mention it was a migraine.” Burton Dep. 

28:14-15. This absence was three days after Burton asserts she had a discussion with plaintiff 

about migraines and intermittent leave. Burton Dep. p.13:4-9; 22:19-22; Ex. 5 to Burton Dep. 

Plaintiff denies that Burton ever discussed FMLA/OFLA with him, and states he was 

unaware of his rights under FMLA/OFLA. Ormsby Dep. p300:9-22. Rather, plaintiff asserts he 

was merely told that he could not accrue any more last-minute absences until he accrued 

additional “PTO.” Ormsby Dep. p.278:20-24. Burton answered in the negative when asked, “Did 

you ever speak to him about the medical leave, anything like that.” Burton Dep. p.11:18-18.

Burton describes her May 6, 2014 conversation as follows:

We also talked about his attendance, where I

told him that if he needed time off for migraines

we would track that through intermittent leave and

require documentation for it as well as it being

protected, and that was pretty much the entire

conversation.

Burton Dep. p26:9-14; Ormsby Dep.300:9-22; p.332:19-334:4; Ex. 5 to Burton Dep.

Plaintiff’s migraines, which often cause him to miss work with little or no notice, varied 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 31 of 34
 

 Page 32 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

from “very seldom” to every other week. Plaintiff was disciplined prior to discharge for one such 

absence (March 10, 2014). Ormsby Dep. 371:3-7.Ex 2 to Varnell Dep.; Ex 31 to Ormsby Dep.

This absence resulted in communications between Burton and Pacific NW District Manager 

Brent Anderson, wherein Anderson advised “it would be best to issue a written warning with 

suspension. Further issues regarding performance and or attendance in the next twelve months 

will then result in term.” Ex. 6 to Varnell Dep, p.2. Plaintiff was subjected to discipline for this 

absence four days after Anderson made that statement. Ex. 2 to Varnell Dep.

Varnell admits that it is possible that plaintiff had a migraine that caused his absence on 

May 9, 2014. Varnell Dep. p.25:7-25. Burton admits that she had no idea at the time of 

plaintiff’s discharge which absences related to migraines and which did not. Burton Dep. p.22:9-

14. Both Varnell and Burton admit that plaintiff was discharged, in part, based on absenteeism. 

Burton Dep. 22:9-11; Varnell Dep. p.26:15-18. Plaintiff’s discharge notice provides that 

“Sunbelt is terminating for excessive absenteeism, unsatisfactory performance, and dishonesty.” 

Ex. 1 to Anderson Dep. When Burton listed plaintiff’s last-minute absences in an email she sent 

to herself on May 1, 2014, she listed eight such absences. Ex. 3 to Burton Dep. Both Burton and 

Varnell are aware that migraines arrive without warning, but did nothing to ascertain which lastminute absences were migraine related. Varnell Dep. 25:16-22; Burton Dep. p.20:22-21:15.

As explained in Schultz above, causation can be inferred from timing when a negative

employment action follows a protected activity. Shultz, 970 F. Supp. 2d at 1055. The Schultz 

court notes that “delays of up to a year have been considered sufficient to support an inference of 

causation.” Id. at 1060. Furthermore, there is no bright line regarding temporal proximity and 

whether temporal proximity exists “must be considered in light of the surrounding 

circumstances.” Id. Here, the surrounding circumstances show that temporal proximity existed 

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 32 of 34
 

 Page 33 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

and that it is sufficient to support an inference of causation. Plaintiff missed days of work in 

March, April, and May 2014 due to protected activities relating to his migraines as well as his 

daughter’s appointments. His employment was then terminated on May 14, 2014. Ormsby Dep. 

48:3-4. 

E. CONCLUSION

Plaintiff demonstrates the existence of genuine issues of material fact and thus precludes 

defendant’s motion for summary judgment. Defendant’s motion should be denied.

Dated: June 15, 2016

/s/ Jon H. Weiner

Jon H. Weiner, OSB#993944

jweiner@nw-attorneys.com

Law Office of Jon Weiner

1595 Commercial Street NE

Salem, OR 97301

Tel: (503) 585-2450

Fax: (503) 585-0205

Attorney for Plaintiff

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 33 of 34
 

 Page 34 of 34 – RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1415 Commercial Street SE, Salem, OR 97302

Tel. (503)399-7001 Fax (503)399-0745

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 15th day of June, 2016, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF and mailed a file stamped copy of this 

document with the United States Postal Service to the following addresses: 

James L. Hiller, OSB #772220

jhiller@hittandhiller.com

Hitt Hiller Monfils Williams, LLP

411 SW Second Avenue, Suite 400

Portland, Oregon 97204

Tel: (503) 228-5973

Fax: (503) 228-4250

Of Attorneys for Defendant

Patricia J. Hill (admitted pro hac vice)

Florida Bar No. 0091324

pjhill@sgrlaw.com

Yash B. Dave (admitted pro hac vice)

Florida Bar No. 0068573

ydave@sgrlaw.com

Smith, Gambrell & Russell, LLP

50 N. Laura Street, Suite 2600

Jacksonville, Florida 32202

Tel: (904) 598-6100

Fax: (904) 598-6240

Of Attorneys for Defendant

/s/ Jon H. Weiner

Jon H. Weiner, OSB #993944

jweiner@nw-attorneys.com

Law Office of Jon Weiner

1415 Commercial St. SE

Salem, OR 97302

Tel: (503) 399-7001

Fax: (503) 399-0745

Attorney for Plaintiff

Case 6:15-cv-01403-AA Document 22 Filed 06/15/16 Page 34 of 34