Thomas C. Sand, OSB No. 773322

torn. sandfa),millernash.corn

Ivan Resendiz Gutierrez, OSB No. 154617

ivan.resendiz@millernash.com

MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

Ill S. W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503) 224-5858

Facsimile: (503)224-0155

Attorneys for Plaintiff Andrea Olson

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ANDREA OLSON, an individual,

Plaintiff,

V.

MBO PARTNERS, INC., a Virginia

Corporation; UNITED STATES OF

AMERICA, by and through the Department of

Energy and Bonneville Power Administration;

and JAMES MCHARD PERRY, Secretary

of the Department of Energy,

Defendants.

CaseNo. 3:15-cv-02216-HZ

AMENDED COMPLAINT

(Violation of American with Disabilities Act,

42 USC §§ 12101 et seq. ; Violation of

Family Medical Leave Act, 29 USC §§2601

et seq.)

DEMAND FOR JURY TRIAL

Page 1 Amended Complaint

MILLER NASH GRAHAM & DUNN LLP

ATTORNEYS AT LAW

TELEPHONE: 503. 224. 5858

3400 U. S. BANCORP TOWER

Ill S. W. FIFTH AVENUE

PORTLAND. OREGON 97204

4841-8203-3213.1

Case 3:15-cv-02216-HZ Document 56 Filed 03/13/17 Page 1 of 25
SUMMARY STATEMENT

1.

Plaintiff Andrea Olson ("Plaintiff) seeks monetary relief, attorneys' fees, and

costs against MBO Partners, Inc. ("MBO"), and Bonneville Power Administration ("BPA")

(collectively, "Defendants") to redress violations of her rights under the Americans with

Disabilities Act and Family Medical Leave Act, alleging as follows:

JURISDICTION AND VENUE

2.

Jurisdiction lies under 28 USC § 1331. This matter involves a civil action arising

under the laws of the United States and pertaining to federal questions.

3.

Venue is proper under 28 USC § 1391. The claims alleged in this complaint are

based on events and omissions which have substantially occurred in this District.

PARTIES

Plaintiff Andrea Olson was at all material times, and is now, a citizen of the

United States and a resident and citizen of the State of Oregon.

4.

Defendant MB 0 is a Virginia corporation headquartered in Herndon, Virginia.

MBO provides management services for independent professionals and the clients that engage

them. At the time of the events giving rise to this complaint, MBO was doing business in

Oregon, providing several services, including contracting support and processing; time and

project tracking, approval, and assignment; billing and collection support; expense tracking;

payroll and payroll tax processing; and access to employee benefit programs and insurance.

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5.

Defendant BPA is a federal agency headquartered in Portland, Oregon. BPA is

part of the United States Department of Energy, an agency of Defendant United States.

6.

James Richard Perry is the Secretary of the United States Department of Energy

ADMINISTRATIVE PREREQUISITES

7.

On July 15, 2014, Plaintiff filed a complaint against MBO with the Oregon

Bureau of Labor and Industries ("BOLI"), alleging, among other things, discrimination against

her on the basis of disability and reprisal for asserting federally protected rights. The same day,

Plaintiff cross-filed with the Equal Employment Opportunity Commission (the "EEOC"),

8.

BOLI issued a complaint dismissal memorandum on June 11, 2015. The EEOC

issued a right-to-sue letter on August 27, 2015.

9.

Plaintiff filed her original complaint on November 24, 2015 and therefore she

complied with any administrative prerequisites to file suit.

FACTS COMMON TO ALL CLAIMS

A. Plaintiffs begins working with BPA as a contractor.

10.

In January 2010, plaintiff executed a contract with BPA on behalf of Pacific

Disability Management LLC ("PDM"), an Oregon domestic limited liability company, of which

Plaintiff is the sole manager and member.

1.

Plaintiff worked as contractor for BPA, providing reasonable accommodation

services to BPA's employees. Plaintiffs duties, included, among other things, providing

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"reasonable accommodation consultation and guidance under the federal Rehabilitation Act and

the American with Disabilities Act (the "ADA") to client management and reasonable

accommodation services to client employees on approval by client management. In addition,

Plaintiff maintained and retained "case management files per legal rules and regulations as well

as client policy. " While working for BPA, Plaintiff was recognized for going "a good job of

disability management."

12.

The initial contract between PDM and BPA was a one-year contract, renewable

annually for up to five years. Over the next several years, PDM and BPA extended or amended

the contract several times. Finally, in January 2012, Plaintiff signed an additional contract

extension and modification to extend reasonable accommodation services and funds through

January 2012. This was the last contract extension that Plaintiff signed with BPA.

B. BPA becomes Plaintiffs "joint employer" along with MBO.

13.

In December 2011, MBO advised BPA that Plaintiff was at risk ofreclassification

by the United States to avoid the Internal Revenue Service determining that she was an

employee. To avoid the classification, BPA instructed that she could continue working for BPA

as its Reasonable Accommodation Coordinator, but only if she became a W-2 employee of

MBO-a placement agency that supplies temporary workers, referred to as "individual

professionals, " to numerous clients, including BPA and other federal agencies. To become a

W-2 employee ofMBO, Plaintiff had to execute an employment contract with MBO, which

would function as a placement agency by supplying Plaintiffs services to BPA.

14.

At BPA's insistence, on January 17, 2012, Plaintiff signed a General Service

Agreement (the "Agreement") with MBO

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5.

From January 2012, MBO "supplied" Plaintiff as a worker to BPA to fill BPA's

position of "Technical-Professional Subject Matter Expert" ("SME"). In that role, Plaintiff

provided professional disability services to BPA through the direction ofBPA's Talent

Sustainment Manager, Sharon Hale-Mockley. In this role, Plaintiff maintained the title of

"Reasonable Accommodation Coordinator" and used a BPA e-mail address, abolson(a),bpa.eov.

16.

As part of the Agreement, BPA paid MBO for work performed by Plaintiff and

MBO, in turn, paid Plaintiff after extracting a "business management fee"-based on a

percentage of the contract rate that Plaintiff was being paid through BPA-for its services.

MBO provided employee benefits to Plaintiff, including group health, life, and disability

benefits, and could direct contributions to the "MBO Association 401(k) plan."

17,

MBO controlled Plaintiffs conditions of payment, directed how Plaintiff was to

submit her hours worked, and dictated how and when Plaintiff would be paid. To receive

payment, Plaintiff submitted her hours worked and travel time to MBO through a billing and

work order system used by Defendants called Fieldglass. At Defendants' direction, Plaintiff

continued to submit detailed invoices to BPA, in addition to logging her time in Fieldglass.

18.

Unbeknownst to Plaintiff, BPA sent MBO recurring work orders for Plaintiffs

services. Years later, Plaintiff discovered that she was on temporary assignment to BPA, MBO's

client.

19.

Plaintiff worked as the Reasonable Accommodation Coordinator solely for BPA

through MBO. Plaintiff was not asked to perform work for any other entities, nor did she solicit

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outside work, because she was working full time meeting the work requests and reporting

requirements ofBPA and MBO.

C. Plaintiffs disabilities and Defendants' knowledse of those disabilities.

20.

Plaintiff has an obvious physical disability that was known to BPA since it first

hired her in 2010. Plaintiff suffers from hearing loss of greater than 70 decibels over both ears,

and must wear hearing aids and utilize amplification to talk on the telephone.

21.

Plaintiff also has a non-obvious disability, anxiety. This disability causes

cognitive impairment, including impaired concentration, fatigue, episodic difficulties with

emotional regulation, and difficulty in communicating with others. This disability is further

exacerbated by Plaintiffs hearing loss.

22.

In April 2013, Plaintiff had her first onset of anxiety while working for BPA

through MBO.

23.

In November 2013 Plaintiff e-mailed MBO Business Manager Megan Craft,

informing Ms. Craft that Plaintiff was "having difficulty performing" her job duties as

Reasonable Accommodation Coordinator because, among other things, the Medical Program

Manager ("MPM") had been directly interfering with her ability to do her job. Plaintiff also

informed Ms. Craft that she feared retaliation.

D. Plaintiff lodees ethics complaints and invokes her FIVILA rights, only to have

Defendants violate those rights.

24.

In December 2013, Plaintiff lodged an ethics complaint with BPA's Ethics

Hotline against the MPM. Plaintiff complained to the hotline that the MPM was creating a

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hostile work environment by impeding Plaintiffs ability to effectively assist employees who had

legally cognizable disabilities requiring accommodation. After this complaint, the MPM

continued to obstruct Plaintiffs work performance.

25.

Plaintiffs direct supervisor, Ms. Hale-'Mockley, was notified of Plaintiffs ethics

complaint. Thereafter, M.s. Hale-Mockley began to direct increasing criticism at Plaintiffs

professional recommendations and to challenge Plaintiffs expertise.

26.

In January 2014, for example, Ms. Hale-Mockley questioned Plaintiffs interest in

working for BPA, repeatedly asking if she still wanted to work at BPA. Ms. Hale-Mockley did

so despite knowing that Plaintiffs only occupation and source of income was as the Reasonable

Accommodations Coordinator for BPA, through MBO. This repeated interrogation further

exacerbated Plaintiffs anxiety

27.

On February 3, 2014, Ms. Craft informed Plaintiff that MBO had received an

extension for Plaintiffs work order with BPA and that Plaintiffs new end date was January 30,

2015.

28.

In February 2014, Plaintiff contacted Ms. Craft by telephone to address the

numerous challenges of working with BPA on providing reasonable accommodations to BPA

employees. During that telephone call, Plaintiff identified the individuals at BPA whose

treatment of her was exacerbating her anxiety.

29.

The MBO Partners Associate Handbook provides that MBO "will work

reasonably with Associates to assist them in addressing any disability related issues" "by making

requests for reasonable accommodations to their Business Manager. " The handbook further

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provides that, "[i]fthe associate is working at a client site, [MBO] will contact the client and

discuss with them their ability to provide a reasonable accommodation. " Contrary its own

handbook, MBO failed to take any steps after the telephone conversation to discuss reasonable

accommodations with BPA or Plaintiff.

30.

In February 2014, Plaintiff verbally notified BPA management that she suffered

from anxiety

31

On March 3, 2014, Plaintiff e-mailed Ms. Craft, formally requesting reasonable

accommodation and providing several proposed accommodations to be facilitated by BPA

Ombudsman Jackie Shelpman. The proposed accommodations were increased telework time,

more structured communications with Ms. Hale-Mockley, and the ability to communicate

directly with the Department of Energy's reasonable accommodations coordinator. In addition,

Plaintiff informed Ms. Craft that she was "working with her medical provider on [] FMLA

documentation."

32.

On March 4, 2014, Ms. Craft responded, informing Plaintiff that MBO Human

Resources Director Carol Baxter ("Ms. Baxter") had been informed of Plaintiffs reasonable

accommodation requests. Ms. Craft added that she would let Plaintiff know once she heard back

"regarding Jackie Shelpman."

33

On March 25, 2014, Plaintiff e-mailed Ms. Baxter requesting medical leave. In

her e-mail. Plaintiff attached a diagnosis and a standard U. S. Department of Labor FMLA

request form, "Certification of Health Care Provider for Employee's Serious Health Condition,"

with completed Employee and Health Provider sections. Sections II and III. On the FMLA form,

Plaintiffs clinical psychologist, Janice I. Volkin, provided the requisite medical certification,

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stating Plaintiffs conditions and the amount of leave Plaintiff would need. Dr. Volkin

recommended that Plaintiff was initially to be on leave through March 28, 2014, needing

additional periods of leave during episodes of heightened symptoms.

34.

The FMLA form provides that an employer "complete Section I before giving this

form to" the employee. Plaintiff informed Ms. Baxter that she received a form with Section I

uncompleted. Plaintiff asked Ms. Baxter to send her a copy of the form with any updates.

35.

On March 25, 2014, Plaintiff e-mailed Ms. Baxter a letter from Dr. Volkin

regarding Plaintiffs FMLA leave request. In the letter, Dr. Volkin explained why Plaintiff was

out of the office from March 17, 2014, through March 21, 2014. In addition, the letter stated that

Plaintiff would be out of the office from March 24, 2014, through March 28, 2014, and that

"these periods of time should be considered part of the requested FMLA leave time,"

36.

On or about March 25, 2014, Ms. Craft e-mailed Plaintiff, notifying Plaintiff that

Ms. Baxter had received Plaintiffs FMLA documentation. Ms. Craft did not mention that any

further action on Plaintiffs part was needed with regard to the FMLA request.

37.

Neither MBO nor BPA, however, responded to Plaintiffs FMLA request with any

notice to Plaintiff about her specific rights and responsibilities, or entitlement to leave, under

FMLA. Plaintiff was not supplied with the requisite F1VTLA paperwork and was not notified

when her leave began or when it would expire. This conduct exacerbated Plaintiffs anxiety.

E. BPA terminates Plaintiffs employment.

38.

The same day Plaintiff invoked her FMLA rights, Scott Hampton, BPA's Manager

of Supplemental Labor Management Office, e-mailed Ms. Hale-Mockley, recommending,

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despite Plaintiffs "long history" at BPA and "good work," that BPA "releas[e]" Plaintiff and

"find a new person to do the job."

39.

The same day, Ms. Hale-Mockley replied to Mr. Hampton's e-mail, stating that

she had "been thinking seriously of release as well,"

40.

During her leave, Plaintiff kept BPA and MBO apprised of her progress via

e-mail. For example, on Friday, March 28, 2014, Plaintiff e-mailed Ms. Baxter regarding

Plaintiffs FMLA leave request, informing her that, per Dr. Volkin's instructions, Plaintiff would

be out of the office the next week. Plaintiff asked Ms, Baxter whether Plaintiff needed to do

anything else other than inform her manager at BPA. In addition, Plaintiff asked Ms, Baxter to

explain whether Plaintiffs medical information had been shared, and if so, what information and

with whom.

41.

On March 28, 2014, Ms. Craft e-mailed Plaintiff, informing her that Plaintiff did

"not need to take in [sic] further action in regards to FMLA. You [sic] medical information has

only been received and seen by Carol Baxter."

42.

On April 1, 2014, while on FMLA leave, BPA instructed Plaintiff to work.

43.

On April 3, 2014, Plaintiff e-mailed Ms. Baxter to state that, on the instructions of

her medical provider, she would need additional leave through April 18, 2014. Plaintiff also

wrote to Ms. Baxter that "If you need any additional information, please let me know."

44.

On April 28, 2014, Ms. Craft e-mailed Plaintiff disclosing that MBO did not view

Plaintiff as its employee.

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45.

On April 10, 2014, Mr. Hampton e-mailed Meghan Defibaugh, an operational

account manager for MBO, to report that BPA had decided to terminate Plaintiff. He asked

MBO not to inform Plaintiff of this decision, so MBO did not inform Plaintiff of BPA's decision

to terminate her. In the e-mail, Mr. Hampton stated, "We all did have the conversation a few

weeks ago about [Plaintiffs] request for reasonable accommodation, but those three items were

not medically necessary and appeared to be more issues with her role and her BPA manager."

46.

Plaintiff later learned that several BPA and MBO employees had participated in a

conference call about Plaintiffs accommodation requests. Among MBO's employees on that call

were Ms. Craft, Anne Lupardo, and Kimball Norup. Plaintiff was not present at the conference

or any other conversations between BPA and MBO employees about her accommodation

requests.

47.

Mr. Hampton's conclusion that Plaintiffs requests were "not medically necessary"

was not based on any apparent medical authority. Despite this, no employee ofBPA or MBO

ever contacted Plaintiff to request additional medical documentation to support her proposed

accommodations or to suggest alternate accommodations.

48.

On April 14, 2014, Ms. Hale-Mockley e-mailed another BPA employee

appointing that employee as BPA's new reasonable accommodation coordinator, replacing

Plaintiff. Plaintiff did not learn that she had been replaced until late April 2014 or early

May 2014.

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49.

On April 28, 2014, Plaintiff e-mailed Ms. Craft again to ask if Ms. Craft had

heard anything from BPA regarding Plaintiffs reasonable accommodation requests. The same

day, Ms. Craft e-mailed Plaintiff to confirm that the requests had been forwarded to BPA.

50.

In a separate e-mail, Plaintiff asked Ms. Craft to confirm when MBO had

submitted her accommodation requests to BPA and what BPA had responded.

51.

On April 29, 2014, Ms. Craft responded that the request had been submitted in

early March, and that Mr. Hampton confirmed the receipt of the request, although no response

was given to Plaintiffs request. Ms. Craft stated, "at this time BPA is waiting for you to return

to work to discuss your request further" and that Plaintiff would have to take the initiative to get

in touch with BPA "for further specifics."

52.

In a separate e-mail, Ms. Craft told Plaintiff that in regards to Plaintiffs FMLA

leave request, Plaintiff had "the ability to take off as long as necessary and still come back and

work through MBO. " According to Ms. Craft, "the decision is up to BPA and not MBO" as to

whether any work would "remain held" for Plaintiff. At the time Ms. Craft wrote this, MBO had

known for at least two weeks that BPA had decided to terminate Plaintiff.

53

On April 28, 2014, without notice, Plaintiffs access to BPA's network was cut off,

and she was effectively restricted from performing any work for BPA.

54.

On April 29, 2014, Plaintiff spoke to a BPA information technology colleague,

Lonell Golden. Mr. Golden expressed concern and asked about Plaintiffs health. He did so

because he had received a request to process Plaintiffs termination.

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55.

On April 29, 2014, Plaintiff initiated a complaint of unlawful discrimination with

the BPA Civil Rights/Equal Employment Opportunity office ("BPA EEO") regarding BPA's

actions against her.

56.

On April 30, 2014, Plaintiff received an e-mail from Tamara Wilde, a BPA

supplemental labor operations analyst, stating among other things: "your assignment with BPA

is being ended effective immediately. Your access to the BPA network and/or property has been

revoked. The BPA security badge and any other BPA property ... in your possession will need

to be returned within three business days. For your convenience these items may be surrendered

to the guard at the guard station in the lobby ofBPA's headquarters in Portland, Oregon."

57.

On May 1, 2014, Mr. Hampton e-mailed Plaintiff claiming that the e-mail from

Ms. Wilde's April 30, 2014, e-mail had been sent in error.

58.

On May 7, 2014, Mr. Hampton e-mailed Ms. Baxter, informing her that BPA

would not grant Plaintiff network access to enable her to perform any work,

59.

On May 7, 2014, Plaintiff learned that her position was being given to a BPA

employee and that Plaintiff needed to train that employee.

60.

On May 19, 2014, Mr. Hampton reiterated to Ms. Baxter and several other MBO

employees that BPA had cut off all of Plaintiffs access to the BPA network. MBO employees

took no action to restore Plaintiffs access to the BPA network or to assign her any additional

work.

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61.

On May 27, 2014, Ms. Craft e-mailed Plaintiff, finally alerting her that Plaintiff

was "working in a contract position for BPA, as an independent consultant," and that Plaintiffs

"relationship with MBO is that you are a W2 employee for tax purposes."

62.

After Plaintiffs medical leave period expired, MBO assigned no further work to

Plaintiff.

63.

As a direct and proximate result ofBPA's and MBO's actions, Plaintiff has

suffered damages, including but not limited to: lost wages and employment benefits; anxiety;

pain; suffering; and mental and emotional distress; and harm to her employment reputation and

prospects.

FIRST CLAIM FOR RELIEF

(ADA Disability Discrimination / Failure to Accommodate

42 USC § 12112 - against MBO only)

64.

Plaintiff re-alleges and incorporates paragraphs 1 through 63.

65.

The ADA, through 42 USC § 12112, prohibits discrimination against a qualified

individual on the basis of disability. Such discrimination includes, among other prohibited acts,

failure to make reasonable accommodations for an individual's known physical or mental

limitations.

66.

At all material times, MBO was an employer for the purposes of, and subject to

the ADA.

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67.

Plaintiff was a disabled person within the meaning of 29 USC §§12102

and 12111 in that, at all material times, Plaintiff suffered from physical or mental impairments

that substantially limited one or more of her major life activities; had a record of suffering from

physical or mental impairments that substantially limited one or more of her major life activities;

or was regarded by MB 0 and BPA as suffering from physical or mental impairments that

substantially limited one of more of her major life activities.

68.

Plaintiff was otherwise qualified to perform the essential functions of her job,

with or without accommodation; and therefore, Plaintiff is a "qualified individual" with a

"disability" for purposes of 29 USC §§ 12102 and 12111.

69.

Plaintiff requested reasonable accommodations from MBO. In addition, MBO

was on notice of Plaintiffs claims that co-workers and/or managers were discriminating against

her because of her disabilities,

70.

MBO's conduct violated 42 USC § 12112 in several ways, including, but not

limited to, the following: MBO ignored all of Plaintiffs requests; MBO failed to engage in the

interactive process; allowed Plaintiff to be subjected to a hostile work environment concerning

her disabilities; and/or subjected Plaintiff to a hostile work environment because of her

disabilities.

71.

MBO discriminated and retaliated against Plaintiff on the basis of her disabilities.

Plaintiff was subject to adverse employment actions by MBO management, including

termination of her employment.

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72.

As a direct and proximate result ofMBO's employment actions, Plaintiff has

suffered-and continues to suffer-humiliation, anxiety, distress, and impairment of her

personal dignity and right to be free from discrimination or interference with her statutory rights.

Plaintiff suffered, and continues to suffer, economic damages, including, but not limited to, loss

of past and future wages and benefits, and other expenses.

73.

Plaintiff is entitled to equitable relief, including, but not limited to, a declaration

that MBO violated Plaintiffs statutory rights. Plaintiff should be reinstated and awarded past

economic damages and all lost benefits in an amount to be determined at trial. If reinstatement is

not appropriate, then Plaintiff is entitled to an award for back pay and lost employment benefits

and future lost earnings, benefits, and lost earning capacity, and other compensatory damages for

future pecuniary losses. Plaintiffs economic damages are continuing in nature and should be

awarded in an amount to be determined at trial.

74.

Plaintiff is entitled to compensatory damages for emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses in an

amount to be determined at trial.

75

To the extent any amount awarded to Plaintiff is for damages occurring before the

entry of judgment, Plaintiff is entitled to an award ofprejudgment interest at the legal rate from

the date the damage occurred until the date of judgment.

76.

MBO should be assessed punitive damages in an amount determined at trial to

punish MBO and to deter such conduct in the future.

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77.

Pursuant to 42 USC §§ 1988 and 2000e-5, Plaintiff is entitled to an award of

attorneys' fees, expert witness fees and costs incurred in this action.

78.

Plaintiff is entitled to post-judgment interest on all damages, costs, expenses, and

fees from the date of judgment until the date paid.

SECOND CLAIM FOR RELIEF

(ADA Disability Retaliation, 42 USC § 12203 - against MBO only)

79.

Plaintiff re-alleges and incorporates paragraphs 1 through 63 above.

80.

The ADA, through 42 USC § 12203, prohibits retaliation against or interference

with an individual who invokes employment rights under the ADA, or who files a charge or

complaint of disability discrimination.

81.

At all material times, MBO was an employer for the purpose of, and subject to the

ADA.

82.

Plaintiff was a disabled person within the meaning of 29 USC §§ 12102

and 12111 in that, at all material times, Plaintiff suffered from physical or mental impairments

that substantially limited one or more of her major life activities; had a record of suffering from

physical or mental impairments that substantially limited one or more of her major life activities;

or was regarded by MBO as suffering from physical or mental impairments that substantially

limited one of more of her major life activities.

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83.

Plaintiff was otherwise qualified to perform the essential functions of her job,

with or without accommodation and is therefore a "qualified individual" with a "disability" for

purposes of 29 USC §§ 12102 and 12111,

84.

MBO's actions violated 42 USC § 12203 in several ways, including, but not

limited to, the following: (a) MBO terminated Plaintiff and/or deprived her of additional

employment opportunities based in whole or in part on her request for disability

accommodations; and (b) MBO denied employment opportunities to Plaintiff based on her filing

complaints with the BPA EEO and/or BOLI.

85.

As a direct and proximate result of these actions. Plaintiff has suffered economic

damages by way of past and future lost wages and employment benefits in an amount to be

determined at trial.

86.

As a further direct and proximate result ofMBO's wrongful retaliatory actions, as

described in this complaint. Plaintiff has suffered non-economic compensatory damages by

reason of emotional distress, anxiety, worry, professional humiliation, embarrassment, loss of

self-esteem, self-respect and confidence, and an overwhelming perpetual sense of jeopardy with

respect to her employment in an amount to be determined at trial.

THIRD CLAIM FOR RELIEF

Count One

(FMLA Interference, 29 USC § 2615(a)(l) - against MBO and BPA)

87.

Plaintiff re-alleges and incorporates paragraphs 1 through 63 above.

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88.

The FMLA, through 29 USC § 2615(a), prohibits an employer from interfering

with, restraining, or denying the exercise of or the attempt to exercise, any right provided under

the FMLA.

89.

For purposes ofFMLA coverage, from January 2012 until Plaintiffs termination,

BPA and MBO were Plaintiffs joint employers exercising joint control over Plaintiffs work and

working conditions. 29 CFR § 825. 106. Regardless of how MBO classified Plaintiffs position,

the benefits MBO offered demonstrate an employer-employee relationship between MBO and

Plaintiff. And MBO was Plaintiffs employer for purposes of the Americans with Disabilities

Act ("ADA") and the Family and Medical Leave Act ("FMLA"). MBO benefited from Plaintiffs

services by receiving a business management fee and "tax allocation fees."

90.

At all times material to this complaint, MB 0 was engaged in an industry affecting

commerce and, either solely or as a joint employer, had more than 50 employees for each

working day during each of 20 or more calendar workweeks in the current or preceding calendar

year. Accordingly, at all material times, MBO was an "employer" as defined by 29 USC

§2611(4)(A).

91.

At all times material to this complaint, BPA was engaged in an industry affecting

commerce and employed more than 50 persons for each working day during each of 20 calendar

workweeks in the current or preceding calendar year. Accordingly, at all material times, BPA

was an "employer" as defined by 29 USC § 2611(4).

92.

Plaintiff is a Title I employee under the FMLA because she is not a federal civil

service employee covered by Title II.

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93

Plaintiff is an "employee" for purposes of the FMLA, because Plaintiff worked

for BPA, through MBO, for more than 12 months and she worked at least 1250 hours during the

12-month period before the leave commenced. 29 USC § 2611(2)(A); 29 CFR §§ 825. 110(b),

825. 110(c).

94.

Plaintiff suffers from one or more "serious health conditions, " as that term is

defined in 29 USC § 2611(11), including but not limited to hearing loss, anxiety, and cognitive

impairment. Because Plaintiff suffered from one or more serious health conditions, she was

entitled to all rights afforded by the FMLA.

95,

Plaintiffs leave was implemented so Plaintiff could recover from, or seek

treatment for her own serious health conditions. 29 CFR § 825. 1 12(a)(4).

96.

Defendants' actions violated 29 USC § 2615(a) in several ways, including but not

limited to the following: (a) Defendants failed to provide Plaintiff notice of her leave rights and

entitlement, as required by 29 CFR § 825. 300(d)-(e), and (b) Defendants denied Plaintiff

reinstatement by failing to restore her to employment at the conclusion of leave protected by

FMLA, as required by 29 USC § 2614, in retaliation for having invoked her FMLA rights and

for requesting and/or taking FMLA leave. Defendants' termination of Plaintiff constituted

interference with Plaintiffs exercise of her federally protected right to take leave and receive

reinstatement.

97.

Defendants knew or showed reckless disregard for whether their conduct was

prohibited by the law; therefore, Defendants' conduct constituted a willful violation of the

FMLA.

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98.

As a result of Defendants' conduct, Plaintiff has suffered economic damages in an

amount to be determined at trial, including front pay damages, due to her termination and her

current and f-uture medical expenses as a result of the severe impact on her mental and emotional

state. Plaintiff is also entitled to equitable relief as may be appropriate, including employment,

reinstatement, and promotion. Plaintiff is further entitled to an additional award of liquidated

damages equal to an amount of economic damages under 29 USC § 2617. And Plaintiff is

entitled to attorney fees, reasonable expert fees, and costs under 29 USC § 2617.

Count Two

(FMLA Retaliation, 29 USC § 2615(b))

99.

Plaintiff re-alleges and incorporates paragraphs 1 through 63 and 89 through 95

above.

100.

FMLA, through 29 USC § 2615(b), prohibits an employer from discharging or

discriminating against an employee for filing a charge or participating in a proceeding related to

that employee's FMLA rights.

101.

Defendants actions and/or omissions violated 29 USC § 2615(b) in several ways,

including, but not limited to, discharging and/or failing to restore Plaintiff to her employment

based in whole or in part on Plaintiff filing complaints with the BPA EEO and/or BOLI and the

EEOC. Defendants' termination of Plaintiff constituted retaliation and/or discrimination because

of Plaintiffs exercise of her rights under FMLA, including participating in inquiries under the

FMLA.

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4841-8203-3213.1

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102.

Defendants knew or showed reckless disregard for whether their conduct was

prohibited by the law; therefore, Defendants' conduct constituted a willful violation of the

FMLA.

103.

As a result of Defendants' conduct, Plaintiff has suffered economic damages in an

amount to be determined at trial, including front pay damages, due to her termination and her

current and future medical expenses as a result of the severe impact on her mental and emotional

state. Plaintiff is also entitled to equitable relief as may be appropriate, including employment,

reinstatement, and promotion. Plaintiff is further entitled to an additional award of liquidated

damages equal to an amount of economic damages under 29 USC § 2617. And Plaintiff is

entitled to attorney fees, reasonable expert fees, and costs under 29 USC § 2617

Count 3

(FMLA Discrimination, 29 USC § 2615(a)(2))

104.

Plaintiff re-alleges and incorporates paragraphs 1 through 63 and 89 through 95

above.

105.

FMLA, through 29 USC § 2615(a)(2), bars employers from taking adverse

employment action against an employee for opposing any practice made unlawful by the FMLA.

106.

Defendants actions violated 29 USC § 2615(a)(2) in several ways, including, but

not limited to discriminating against Plaintiff for opposing one of Defendant's practices

prohibited by FMLA.

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107.

Defendants knew or showed reckless disregard for whether their conduct was

prohibited by the law; therefore, Defendants' conduct constituted a willful violation of the

FMLA.

108.

As a result of Defendants' conduct, Plaintiff has suffered economic damages in an

amount to be determined at trial, including front pay damages, due to her termination and her

current and future medical expenses as a result of the severe impact on her mental and emotional

state. Plaintiff is further entitled to an additional award of liquidated damages equal to an

amount of economic damages under 29 USC § 2617. Plaintiff is also entitled to equitable relief

as may be appropriate, including employment, reinstatement, and promotion. And Plaintiff is

entitled to attorney fees, reasonable expert fees, and costs under 29 USC § 2617

109.

Plaintiff acknowledges that the Agreement she made with MBO contains a clause

requiring arbitration of disputes. In the event the Court enforces this arbitration clause against

Plaintiff, she respectfully requests that the Court enter a stay of proceedings pending arbitration

of the claims against MBO, and that the Court retain jurisdiction to enter an order and judgment

on the arbitration award.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants as follows:

1. Judgment against MBO in an amount to be determined at trial for actual,

economic and contract damages, of not less than $450, 000;

2. Judgment against MBO, in the amount to be determined at trial, for

noneconomic and other compensatory damages, including pain, suffering, and mental distress, of

not less than $300,000;

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3 Judgment against MB 0, in an amount to be determined at trial, for

punitive damages;

4. Pursuant to 29 USC § 2617(l)(a)(A), compensation for monetary loss,

including lost wages and employment benefits, including reinstatement to a position of

comparable pay, rank, and seniority with fully restored benefits, or future lost wages in lieu of

reinstatement; reemployment, or promotion, plus front pay and prejudgment interest;

5. Liquidated damages, including pre-judgment interest;

6. Prejudgment and postjudgment interest as appropriate and allowed by law;

7, On all claims, as applicable, amounts necessary to offset the income tax

consequences of receiving a lump sum payment, rather than receiving a payment of wages over

the applicable time frame;

8, Pursuant to 29 USC § 2617(a)(3), 42 USC § 1988(b), 42 USC § 2000e5(k), and 42 USC §§ 12205, 12117(a), reasonable attorney fees and costs;

9. Plaintiffs fees, costs, and disbursements incurred in this action;

10. In the event the Court enforces the arbitration clause in the Agreement

against Plaintiff, a stay of proceedings pending arbitration; and

11. Any other equitable relief this Court deems appropriate.

DATED this I? day of March, 2017.

MILLE^<ASH GRAHAM & DUNN LLP

Thomas C. Sand, OSB~TTb. 773322

tom. sand@millernash.com

Ivan Resendiz-Gutierrez, OSB No. 154617

ivan.resendiz@millernash.com

3400 U.S. Bancorp Tower

111 S,W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503)224-5858

Facsimile: (503)224-0155

Attorneys for Plaintiff Andrea Olson

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CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing Amended Complaint on:

Jenna Leigh Mooney

j ennamooney@dwt. corn

Kalia Walker

kaliawalker@dwt. corn

Davis Wright Tremaine, LLP

1300 SW Fifth Avenue, Suite 2400

Portland, OR 97201-5630

Telephone: (503)241-2300

Fax: (503)778-5299

Attorneys for Defendant MB 0 Partners, Inc.

by the following indicated method or methods on the date set forth below

CM/ECF system transmission.

E-mail. As required by Local Rule 5. 2, any interrogatories, requests for

production, or requests for admission were e-mailed in Word or Wordperfect

format, not in PDF, unless otherwise agreed to by the parties.

DATED this _<3_ day of March, 2017.

Thomas C. Sand, OSB No. 773322

tom. sand@millernash.com

Ivan Resendiz-Gutierrez, OSB No. 154617

ivan.resendiz@millernash. com

MILLER NASH GRAHAM & DUNN LLP

3400 U. S. Bancorp Tower

Ill S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503)224-5858

Facsimile: (503)224-0155

Attorneys for Plaintiff Andrea Olson

Page 1 - Certificate of Service

M LLER NASH GRAHAM & DUNN LLP

ATTORNEYS AT LAW

TELEPHONE: 503. 224. 5858

.141)0 US, BANCORP TOWER

I I] S W FIFTH AVENUE

PORTLAND, OREGON 97204

4841-8203-3213.1

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