Page 1 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

BILLY J. WILLIAMS, OSB #901366

United States Attorney

District of Oregon

JAMES E. COX, JR., OSB # 085653

jim.cox@usdoj.gov

Assistant United States Attorney

United States Attorney’s Office

District of Oregon

1000 SW Third Ave., Suite 600 

Portland, Oregon 97204-2902

Telephone: (503) 727-1026

Facsimile (503) 727-1117

Attorneys for Defendants the United States of America and James Richard Perry

(“Federal Defendants”)

THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ANDREA OLSON, an individual,

Plaintiff,

v.

UNITED STATES OF AMERICA, by 

and through the Department of Energy 

and Bonneville Power Administration; 

and JAMES RICHARD PERRY, 

Secretary of the Department of Energy,

Defendants.

Case No. 3:15-cv-02216-HZ

FEDERAL DEFENDANT’S REPLY 

BRIEF IN SUPPORT OF MOTION 

FOR SUMMARY JUDGMENT

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 1 of 8
Page 2 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

Defendants the United States of America and James Richard Perry (“Federal 

Defendants”), by Billy J. Williams, United States Attorney for the District of 

Oregon, and through James E. Cox, Jr., Assistant United States Attorney for the 

District of Oregon, submit this reply brief in support of Federal Defendants’ motion 

for summary judgment (ECF # 94).

I. INTRODUCTION

Plaintiff Andrea Olson’s (“Olson’s”) opposition to Federal Defendants’ motion 

for summary judgment fails to raise a dispute about the key fact in this case: that 

the Bonneville Power Administration (“BPA”) permitted Olson to return to work 

throughout her extended absence in 2014. Olson points to two emails from April 

2014 in support of her argument that BPA terminated her contract at that time, but 

the emails cannot and do not support the weight that Olson places on them. In

fact, BPA repeatedly notified Olson that she was free to return to work in 2014, but 

she was simply unable to return or chose not to return. For this reason, BPA did 

not violate any rights Olson may have had under the Family and Medical Leave Act 

(“FMLA”) and summary judgment is appropriate.

Furthermore, summary judgment is also appropriate because Olson was an 

independent contractor, not a BPA employee, and thus BPA is not subject to 

liability under the FMLA. Olson’s argument to the contrary ignores the critical 

factor in the employment test – that BPA did not control the manner in which Olson 

performed her work. 

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 2 of 8
Page 3 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

II. ARGUMENT

A. It Is Undisputed That BPA Permitted Olson To Return to Work 

Throughout Her Absence – She Simply Was Unable To Return or 

Chose Not to Return.

Olson contends that BPA violated the FMLA by terminating her position on 

April 30, 2014, which was eight months before the scheduled expiration of her 

contract and two months after she had stopped coming to work. Olson’s contention 

that BPA terminated her assignment is based on two emails. These emails do not 

support Olson’s contention and are not sufficient to create a dispute of material fact 

as to whether BPA terminated her contract.

The first email that Olson points to is an exchange dated April 9-10, 2014, 

between Scott Hampton, the manager of BPA’s Supplemental Labor Management 

Office (“SLMO”), and employees of MBO, the payroll processing company that BPA 

used for Olson’s contract work.1 (ECF 110, Ex. 3.) In this email exchange, 

Hampton asks MBO for information regarding the reason for Olson’s absence from 

work. He also states that “[w]e will be releasing Andrea tomorrow and terminating 

her assignment. Please don’t let her know at this point because we haven’t made 

the final decision, I’m just making sure are bases are covered.” (ECF 110, Ex. 3.) 

But in his declaration, Hampton explained that this plan never took effect:

While I indicated in that email exchange that BPA would likely be 

terminating Ms. Olson’s contract, the final decision had not been made. 

Ultimately, BPA did not terminate the contact because – after 

consultation with a BPA attorney, and in an effort to ensure that BPA 

 

1 Notably, Olson was not copied on this email exchange, and there is no 

evidence that she ever received the email prior to the expiration of her contract in 

January 2015. 

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 3 of 8
Page 4 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

met its legal obligations with respect to Ms. Olson – I determined that 

we did not have enough information to make the decision until Ms. 

Olson returned to work and we had a chance to discuss the working 

relationship with her.

(ECF 96, ¶ 10.)

The fact that BPA considered terminating Olson’s contract before ultimately 

deciding not to do so does not create a dispute about whether BPA did in fact 

terminate the contract The material issue with respect to Olson’s claims is what 

actions BPA actually took, not what actions it considered taking. On that point, 

the record is clear. Hampton’s testimony regarding BPA’s ultimate decision is 

corroborated by Hampton’s statements to Olson that she could continue working if 

and when she was willing and able to return to work. (ECF 96 ¶¶ 13-18, Exs. 12, 

13, 15.) 

Olson’s argument fares no better based on the second email that she cites –

an April 30, 2014 email she received from Tamara Wilde, an employee in the SLMO 

office, informing her that her contract had been terminated. (ECF 110, Ex. 4.) 

Olson completely ignores the substantial evidence that the email was simply an 

administrative mistake that BPA swiftly corrected. Only one minute after she 

mistakenly sent the email, Wilde recalled it. (ECF 96, Ex. 10.) Minutes later, she 

sent the corrected email, which informed Olson that her access to BPA property was 

suspended due to her extended absence from the office but that access could be 

restored upon her return to work. (ECF 96, Ex. 11.) It is undisputed that Olson 

received this corrected email because she responded to it by informing Wilde that 

her attorney “will be contacting the agency about this situation.” (ECF 96, Ex. 11.) 

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 4 of 8
Page 5 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

Most importantly, Hampton explicitly informed Olson the next day that the first 

email from Wilde was a mistake and that “BPA has a contract with MBO for your 

services, and that we are anticipating your return.” (ECF 96, Ex. 12.) 

Moreover, the actions of both Olson and BPA after April 30th demonstrate 

that both parties still considered the contract to be in effect. For example, Olson 

billed BPA for a half hour of work she performed remotely on May 14th, and BPA 

paid her for that work. (ECF 96, ¶¶ 20, 21, Ex. 13.) Likewise, Hampton and

Olson met on June 5, 2014, to facilitate Olson’s return to work, and Hampton 

granted Olson’s request for a five hour trial period of work to see if she was capable 

of working. (ECF 96, ¶ 18, Ex. 15.)

The one case cited by Olson, Schultz v. Wells Fargo Bank, Nat. Ass’n, 970 F. 

Supp. 2d 1039, 1053-54 (D. Or. 2013), is distinguishable because in Schultz it was 

undisputed that the plaintiff had been terminated. The only question was whether 

the plaintiff’s FMLA leave was a factor in her termination. Here, the undisputed 

evidence demonstrates that Olson’s contract with BPA continued to be in force 

throughout her absence from work and that Olson simply never returned to work.

B. BPA Did Not Willfully Violate Olson’s FMLA Rights

Olson’s response to BPA’s motion demonstrates a misunderstanding of BPA’s 

statute of limitations argument. BPA does not claim that “Ms. Olson’s complaint 

was untimely because Ms. Olson’s claim was not a willful violation of her FMLA 

rights.” (ECF 109 at p. 5.) Rather, BPA’s argument is that Olson bears the 

burden of showing that any violation of her FMLA rights was willful because she 

cannot meet the two year statute of limitations for non-willful violations of FMLA 

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 5 of 8
Page 6 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

rights. 

Based on the undisputed facts, BPA did not violate Olson’s FMLA rights. 

Nonetheless, even if Olson could show any incidental violation of her rights, Olson’s 

claims still fail at summary judgment because she has not met her burden to show 

that any incidental violation was willful.

C. Olson Was An Independent Contractor, Not A BPA Employee.

Summary judgment is appropriate because BPA did not terminate Olson’s 

contract and thus did not violate any rights that Olson may have had under the 

FMLA. Nevertheless, summary judgment is also appropriate because Olson was 

not a BPA employee and, thus, BPA is not subject to liability under the FMLA. 

Olson makes several arguments in opposition, none of which create a material 

dispute of fact on this issue.

First, Olson points out that BPA changed the contracting relationship in 

2012 specifically because it “recognized that Ms. Olson might be deemed an 

employee of BPA.” (ECF 109 at p. 3.) But BPA’s concern that Olson could be 

considered an employee for tax purposes is not an admission that Olson was in fact 

an employee (for tax purposes or any other purpose). 

Second, Olson notes that she worked from BPA’s offices occasionally, that 

BPA employees also teleworked, that she was suppled a BPA computer, and that 

her work was later performed by a federal employee after her contract ended. 

(ECF 110, ¶¶ 4-7.) These points are all correct but fail to address the most 

important fact, which is that BPA did not control the manner in which Olson 

performed her work. While Olson generally declares that she “was under the

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 6 of 8
Page 7 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

direction of Sharon Hale-Mockley”, Olson does not dispute that individual 

employees or managers who needed assistance with reasonable accommodation 

issues would contact her directly, and she would schedule time to work with those 

“clients.” (ECF 95 ¶ 5.) It is this critical lack of control over the means of Olson’s 

work that demonstrates that she was not a BPA employee.

Olson also notes that federal regulations specifically contemplate the 

possibility that two companies can be joint employers of a worker. But these 

regulations are beside the point because BPA is not contending that Olson was 

solely an employee of MBO. Rather, BPA is contending that Olson was an 

independent contractor. The FMLA joint employer regulations do not displace the 

economic realities test for purposes of determining employment status under the 

FMLA.

Finally, Olson notes that an Administrative Judge (“AJ”) for the Equal 

Employment Opportunity Commission found that Olson was a BPA employee in 

connection with Olson’s administrative complaint of discrimination against BPA. 

This is correct, but the AJ’s findings are not dispositive on the issue, nor are they 

entitled to any deference in this Court. The AJ’s findings were limited to the 

matter at hand: “For the reasons given above, I find Olson should be considered an 

agency employee for purposes of processing her employment discrimination 

complaints.” (ECF 110, Ex. 2 at p. 5.) With all due respect to the AJ, BPA 

contends that the AJ’s decision was incorrect because it overlooked the key factor of 

the control over the manner in which Olson performed her work.

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 7 of 8
Page 8 FEDERAL DEFENDANT’S REPLY BRIEF IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

III. CONCLUSION

For the foregoing reasons, Federal Defendants respectfully request that the 

Court grant Federal Defendants’ motion for summary judgment and dismiss Olson’s 

Amended Complaint with prejudice.

Dated this 26th day of February 2018.

Respectfully Submitted, 

BILLY J. WILLIAMS

United States Attorney

District of Oregon

/s/ James E. Cox, Jr. 

JAMES E. COX, JR.

Assistant United States Attorney

Attorneys for Federal Defendants

Case 3:15-cv-02216-HZ Document 111 Filed 02/26/18 Page 8 of 8