1- FINDINGS OF FACT & CONCLUSIONS OF LAW

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

ANDREA OLSON, No. 3:15-cv-02216-HZ

Plaintiff, FINDINGS OF FACT &

CONCLUSIONS OF LAW

v.

UNITED STATES OF AMERICA, by

and through the Department of Energy

and Bonneville Power Administration; 

and JAMES RICHARD PERRY, 

Secretary of the Department of Energy,

Defendants.

Dallas S. DeLuca

Katherine M. Acosta

Kristin M. Malone

MARKOWITZ HERBOLD PC

1211 SW 5th Ave., Suite 3000

Portland, OR 91204

Attorneys for Plaintiff
2- FINDINGS OF FACT & CONCLUSIONS OF LAW

Billy J. Williams

UNITED STATES ATTORNEY

District of Oregon

Jared Hager

ASSISTANT UNITED STATES ATTORNEY

1000 SW Third Ave., Suite 600

Portland, Oregon 97204

Donna A. Oden-Orr

BONNEVILLE POWER ADMINISTRATION

P.O. Box 3621

Portland, OR 97208

Attorneys for Defendants

HERNÁNDEZ, District Judge:

This case arises out of Plaintiff Andrea Olson’s employment with Defendant Bonneville 

Power Administration (“BPA”). Plaintiff’s sole claims against Defendants the Department of 

Energy, BPA, and James Richard Perry arise under the Family and Medical Leave Act 

(“FMLA”), 29 U.S.C. § 2601. In three separate counts, Plaintiff alleges that Defendants 

interfered with her rights under the FMLA and retaliated against her for opposing Defendants’ 

unlawful FMLA practices. The Court conducted a two-day bench trial on Plaintiff’s FMLA 

claims on September 18 and 19, 2018. The following are the Court’s Findings of Fact and 

Conclusions of Law from that trial. See Fed. R. Civ. P. 52(a). As explained below, the Court 

finds in favor of Defendants on all of Plaintiff’s claims. 

FINDINGS OF FACT

Plaintiff Andrea Olson served as the Reasonable Accommodation Coordinator (“RAC”) 

for Defendant Bonneville Power Administration (“BPA”) from 2010 to 2014.1 Plaintiff has a 

bachelor’s degree in business administration from the University of Oregon and a master’s 

 

1

In the Court’s Opinion & Order on Defendant’s Motion for Summary Judgment the Court found that Plaintiff was 

an employee and, therefore, covered by the protections of the FMLA.
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degree in rehabilitation counseling from Western Oregon University. Prior to working for BPA, 

Plaintiff was an outreach coordinator for the Oregon Telecommunications Relay Service and the 

Oregon Telecommunication Devices Access Program. 

As the RAC, Plaintiff worked with Sharon Hale-Mockley, who was hired as the Talent 

Sustainment Manager for BPA in 2009. As the Talent Sustainment Manager, Ms. Hale-Mockley 

ensured compliance with regulations and tried to meet employee needs in areas such as 

occupational health, benefits, and wellness. Plaintiff also worked alongside Susan Riffel, a 

federal employee who oversaw various programs, including the telework and FMLA coordinator 

programs. 

Brian Carter—Ms. Hale-Mockley’s supervisor—started working for BPA in 2013 as the 

director of human resources. At the beginning of his employment with BPA, he started a major 

overhaul of BPA’s human resources. As part of the “Get Well Plan” to remedy problems with 

management culture and the hiring process, Mr. Carter sought to replace many of the contractors 

working within human resources with federal employees when their contracts expired. Scott 

Hampton, the manager of BPA’s Supplemental Labor Management Office (“SLMO”), also 

worked with Ms. Hale-Mockley and Plaintiff. He oversaw the operations of SLMO, including 

the onboarding and offboarding of contract workers. In this position, he did not have authority to 

either hire or fire contractors unilaterally.

The parties’ relationship began in January of 2010, when Plaintiff was awarded a 

contract with BPA to serve as its RAC. Defendants were impressed by Plaintiff’s expertise and

training. As described in the job posting, the RAC was responsible for the interactive process, 

training managers and employees, educating the workforce on rights and responsibilities under 

the ADA and EEOC, and maintaining records and documentation related to the reasonable 
4- FINDINGS OF FACT & CONCLUSIONS OF LAW

accommodation process. Ex. 505. The list of responsibilities in the job description was 

nonexclusive. Ex. 505 at 4. Both the master services agreement and contractor’s handbook 

included continuity of services provisions, exs. 503, 583, which Mr. Hampton testified ideally

included training a successor contractor or federal employee. Ms. Hale-Mockley also testified

that part of Plaintiff’s job duties were special requests and projects that Ms. Hale-Mockley would 

assign from time to time.

As the RAC at BPA, Plaintiff testified that she was responsible for the interactive 

process, or the process by which BPA assists employees seeking reasonable accommodations. 

The interactive process would begin with an employee reaching out to Plaintiff or their 

supervisor for help. After discussing their limitations—or obtaining the required medical 

documentation from the employee—Plaintiff would work with the employee to find an 

appropriate accommodation. Sometimes this required her to be onsite, as Plaintiff would need to 

evaluate the workspace and assess workplace adjustments. Ms. Hale-Mockley was only involved 

if Plaintiff was going to deny a reasonable accommodation request or if BPA finances were 

involved. Because Plaintiff was not a federal employee, she could not approve accommodations 

that required the expenditure of BPA resources. This process consumed a considerable amount of 

her work time. 

Plaintiff’s position also entailed other tasks, including modifications to equipment; 

document retention, recordkeeping, and maintaining confidentiality; providing training or 

“teaching moments” to management; assisting with EEO compliance; and completing special 

assignments from Ms. Hale-Mockley, who occasionally directed her priorities to more pressing 

projects. Generally, however, Ms. Hale-Mockley was not responsible for assigning her work. 

Plaintiff testified that these other tasks—such as recordkeeping and priority projects—were 
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marginal parts of her job. She also testified that many of these tasks could not be accomplished 

via telework. For example, Plaintiff was unable to keep all documents and records confidential, 

repossess equipment, provide training, or meet face-to-face with BPA employees when she 

worked remotely. 

Plaintiff’s hours depended largely on client needs. By the end of her employment in 

2014, Plaintiff was working on average 27.6 hours per week. Ex. 12. But Plaintiff testified that 

she billed conservatively while employed with BPA and would often work more than she billed. 

She did so with the hope of impressing the agency and securing a long-term position with BPA. 

Plaintiff was successful at BPA. Plaintiff testified that she was recognized for her work 

with the agency. She was the primary contact for the agency on the Department of Energy 

website and was recognized for her use of the Computer/Electronic Accommodations program in 

telework. Ms. Hale-Mockley similarly testified that, until the Spring of 2014, Plaintiff did good 

work at BPA. Plaintiff had a good rapport with her clients and the desire to serve the BPA 

population through the reasonable accommodations process. 

In 2011, Plaintiff was told by Defendants that she would need to start contracting through 

MBO Partners—a third-party payroll servicing company—in order to keep her position at BPA.

Under this new arrangement, BPA paid her above her contracted rate, and MBO deducted its 

service fees from that higher rate. In 2014, her rate of pay was $95 per hour after MBO deducted 

its fees. 

Though the work that she did for BPA remained the same throughout this time, Plaintiff 

was frustrated with this new relationship, in part because she wanted to be recruited and hired by 

BPA. Mr. Hampton testified that Plaintiff was difficult to work with when they renegotiated her 

contract through MBO. They had a tense and emotional conversation that led Mr. Hampton to 
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suggest letting her go in 2012. Issues with Plaintiff’s contract would continue to cause her stress

in 2014 when she was out of the office on medical leave.

In the spring and summer of 2013, Plaintiff began experiencing anxiety. When 

exacerbated, Plaintiff had difficulties with processing information, focusing, and emotional 

dysregulation or crying episodes. Ex. 14. Despite treatment in the fall of 2013, her symptoms did 

not resolve. She testified that issues at work with the medical program manager during that time 

made her symptoms worse. Ms. Hale-Mockley oversaw both Plaintiff and the medical program 

manager, and Plaintiff was concerned that her December 2013 complaint against him could 

result in retaliation against her by Ms. Hale-Mockley. In addition, in the spring of 2014, Plaintiff 

said that it became increasingly difficult to obtain responses or approvals from Ms. HaleMockley, preventing her from wrapping up her cases and working with new clients. 

Around March 13, 2014, Plaintiff made a formal reasonable accommodation request 

through MBO. To help her anxiety, she asked to: (1) telework to reduce time on site except for 

meetings and tasks to be performed onsite; (2) receive responses from Ms. Hale-Mockley via

email within a time frame deemed reasonable by the BPA reasonable accommodation program 

manager; and (3) have open communication with the Department of Energy RAC for guidance 

and best practices. Ex. 1. Plaintiff testified that if she had continued working subject to these 

accommodations she would have been able to perform all of her job responsibilities. On March 

13, Mr. Hampton was alerted to Plaintiff’s reasonable accommodation requests by MBO.

On March 14, 2014, Plaintiff’s anxiety was exacerbated by difficulties obtaining approval 

for an accommodation from Ms. Hale-Mockley. After she found herself walking in the halls 

crying, she decided it was time to recharge her batteries. She took the week of March 17 off from 

work. Ex. 511.
7- FINDINGS OF FACT & CONCLUSIONS OF LAW

The following week on March 24, Plaintiff sent Ms. Hale-Mockley another email 

informing her that she would be out of the office again. Ex. 2. She noted that she was out of the 

office for medical reasons. Ex. 2. Around this time, Plaintiff also sent an email to MBO formally 

invoking FMLA. Ex. 14. In her FMLA documentation, Plaintiff’s medical provider indicated 

that, when Plaintiff’s symptoms worsened, she would be temporarily unable to perform most job 

functions. Ex. 521. She also indicated that Plaintiff might not be able to work for up to five days 

per week and needed to limit the hours she was onsite when she was able to work. Ex. 521.

Plaintiff asked MBO to notify her before releasing her FMLA request or related 

documentation to BPA and believed that MBO was communicating about her leave and 

condition with BPA. Plaintiff, however, never received any communication from BPA about her 

FMLA rights or the nature of her leave. Based on her experience as the RAC, Plaintiff believed 

that she had invoked intermittent FMLA leave. Plaintiff testified that if she had received notice 

of her rights from BPA, it would have helped her “connect the dots” so she could advocate for 

her accommodations and mitigate her anxiety.

By the time Plaintiff took leave, she was drowning in work. Ex. 515. The week before 

she took leave, she worked over 40 hours. Ex. 12. Ms. Hale-Mockley testified that this was a 

particularly busy period because BPA was undergoing structural and staffing changes and hiring 

new veterans, who would come in with potential accommodation requests. During her time out 

of the office, Ms. Hale-Mockley took on some of Plaintiff’s RAC responsibilities. Plaintiff 

referred all requests to Ms. Hale-Mockley. Plaintiff also asked Ms. Riffel to follow-up on the 

reasonable accommodation inbox, which Ms. Riffel had helped Plaintiff set up years earlier. Ex. 

514
8- FINDINGS OF FACT & CONCLUSIONS OF LAW

After receiving Plaintiff’s March 24 email, Ms. Hale-Mockley contacted Mr. Hampton to 

inform him that Plaintiff was out of the office for a medical reason with no known date of return.

Ex. 520. Plaintiff had never been out of the office so long without a return date, and Ms. HaleMockley was concerned about having a potential gap in reasonable accommodation services for 

BPA employees. Mr. Hampton suggested releasing her from her contract. Though Ms. HaleMockley considered Plaintiff to be a valuable asset to BPA, she had begun to hear some 

customer service concerns while Plaintiff was out of the office and was worried that Plaintiff was 

unhappy in her contract. Exs. 520, 528. Because of her concerns, Ms. Hale-Mockley indicated

that she agreed with Mr. Hampton’s suggestion that they consider releasing Plaintiff. Ex. 520.

After discussing it, they decided to first try and meet with Plaintiff. Plaintiff, however, did not 

attend their April 1 meeting.

On April 3, 2014, Ms. Hale-Mockley found out that Plaintiff was going to be out of the 

office for two additional weeks with no defined return-to-work date. Ex. 523. After asking 

Plaintiff not to work while she was out of the office, Ms. Hale-Mockley approached Mr. Carter 

about coming up with a strategy to meet client and customer needs and reducing the reasonable 

accommodation workload. Though Mr. Carter had intended to let Plaintiff’s contract expire 

naturally before transitioning the RAC position to a federal employee, he ultimately agreed with 

Ms. Hale-Mockley that the RAC position could be assigned as a collateral duty to another staff 

member. Ms. Hale-Mockley conveyed the plan to cancel Plaintiff’s contract to Mr. Hampton on 

April 6, 2014, but they ultimately did not release her after conferring with BPA’s legal 

department. Ex. 524.

The collateral duty was assigned to Ms. Riffel on April 14, 2014. Ex. 529. According to 

Ms. Hale-Mockley, collateral duties are often not celebrated by employees as they are additional 
9- FINDINGS OF FACT & CONCLUSIONS OF LAW

duties to the primary responsibilities the employee is already assigned. The employee’s title, 

grade, and pay remain the same. As a federal employee, Ms. Riffel was able to take on all the 

duties that Plaintiff performed as RAC as well as those tasks—such as purchasing—that Ms. 

Hale-Mockley was required to perform as a federal employee.

Because Plaintiff never returned to work, it is unclear exactly what Plaintiff’s cocoordinator position would have entailed upon her return. Mr. Carter, Ms. Hale-Mockley, and 

Mr. Hampton all anticipated that Plaintiff would have spent some of her time training Ms. Riffel. 

But nothing in the job request through SLMO would have changed. Ms. Hale-Mockley 

anticipated that Plaintiff’s duties would have largely stayed the same. Because there was a 

significant backlog, Plaintiff’s focus would have been to get through the administrative duties 

first, then train Ms. Riffel, and ultimately work as a partner in the reasonable accommodation 

process if she was capable of working. Plaintiff would follow-up on her previous cases, continue 

to engage in the interactive process, train management, and perform other administrative 

functions. Because Ms. Riffel was new to her collateral duty, Ms. Hale-Mockley also believed 

that she needed Plaintiff’s expert voice and advice. Plaintiff would have continued to earn $95

per hour, and her schedule would fluctuate based on client needs. 

Plaintiff continued to extend her leave and was not medically cleared to return to work by

the end of April. Exs. 522, 523, 531. However, she did attempt some limited teleworking so that 

she could stay in the loop for her transition to work. Exs. 12, 532. Though Plaintiff did not feel 

that she was unable to perform any work, Ms. Hale-Mockley told her that she did not want or 

expect her to work while she was out of the office.2 Ex 532.

 

2 As described by Ms. Hale-Mockley at trial, “OOO” or “out of office” is used by BPA employees to indicate that 

the employee is unavailable as opposed to teleworking. Thus, employees who were out of the office were not 

expected to perform any work while they were away, and Ms. Hale-Mockley was surprised when Plaintiff worked
10- FINDINGS OF FACT & CONCLUSIONS OF LAW

On April 29, 2014, Plaintiff contacted BPA’s Equal Employment Opportunity (“EEO”) 

office to ask about filing a complaint. When she met with an EEO representative, they informed 

her that she needed to complete the “Five Questions” document, which she turned in on May 27, 

2014. Plaintiff testified that she alleged in that document that BPA had violated her FMLA 

rights.

On April 30, Plaintiff received an email indicating that she had been terminated. Ex. 8. 

Shortly thereafter, the message was recalled because it was sent in error. Ex. 535, 537. Plaintiff 

had not been terminated, but her access to the BPA network and property was being revoked. As 

an electric utility, BPA it subject to the guidelines from “NERC-CIP” or the North American 

Electric Reliability Council Critical Infrastructure Protection, which requires BPA to be diligent

about ensuring that only individuals who are actually working at BPA have access to its 

facilities. Accordingly, BPA security procedures require revocation of access for anyone out of 

the office longer than one month. Ex. 537. Thus, Plaintiff could no longer access the resources 

she needed to telework after April 30. Despite the revocation of her network access, Plaintiff 

worked for BPA after April 30 and billed for three hours in the first half of May. Exs. 12, 538.

In early May, Plaintiff contacted Ms. Hale-Mockley to let her know that she was going to 

attempt a trial work period. Ex. 538. Plaintiff, however, did not attempt her trial work period at 

this time. On May 30, 2014, Mr. Hampton reminded Plaintiff via email that she was under a 

stop-work order and could not do any more billable work for BPA until notified that she could 

begin working again. Ex. 540. He told Plaintiff that to remove the stop-work order, she would 

have to meet with him face-to-face. Mr. Hampton testified that he wanted to discuss Plaintiff’s 

accommodations and ensure that Plaintiff could work. In this email, he also confirmed Plaintiff’s 

 

during this time. Ms. Hale-Mockley further testified that she was concerned about Plaintiff working while out of the 

office because the reasonable accommodation program required coordination that was difficult to do remotely.
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understanding that BPA was planning to transition the RAC position to a federal employee and 

that some transition time between her and the new employee was desired. Ex. 540. Plaintiff 

interpreted this as indicating she no longer had her job.

On June 5, 2014, Mr. Hampton and Plaintiff met at BPA’s campus with the EEO 

representative. They discussed, among other things, Plaintiff’s three accommodations requests 

from March and Plaintiff’s EEO complaint. Ex. 542. In a follow-up email on June 11, Mr. 

Hampton indicated that BPA agreed to her first and second accommodations and offered 

Plaintiff a trial work period of five hours.3 Ex. 543. Mr. Hampton noted that Ms. Hale-Mockley

had a specific project in mind for the five-hour period. Ex. 543. From this email, Plaintiff 

concluded that she was being invited back to train her replacement.

Plaintiff was instructed to contact Ms. Hale-Mockley to schedule the trial work period 

and obtain details about the project she had in mind. Ms. Hale Mockley testified that the special 

project entailed developing materials to bring Ms. Riffel up to speed on the program. Mr. 

Hampton also told Plaintiff that after the trial period Defendants wanted Ms. Olson to return to 

her regular work schedule. Plaintiff emailed Ms. Hale-Mockley on June 12, 2014, and informed 

her that her attorney would be in touch. Ms. Hale-Mockley responded that she would await 

further information, but Plaintiff never followed up. She felt that the RAC position was no longer 

her job and that she had been replaced. 

Plaintiff testified that if BPA had offered her the RAC position and agreed to her 

accommodations she could have and would have returned to work. However, she also indicated 

that her stressors—including the contracts dispute, the EEOC action, and her issues with Ms. 

 

3 As Mr. Hampton tesitified at trial, Defendants did not grant Plaintiff’s third request—to communicate directly with 

the Department of Energy regarding its reasonable accommodation program—because BPA preferred not to have 

contractors represent BPA to third parties. See also ex. 543.
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Hale-Mockley—had not resolved in 2014. These stressors all exacerbated her anxiety symptoms 

as detailed in her original FMLA paperwork filed with MBO.

CONCLUSIONS OF LAW

The FMLA “creates two interrelated substantive rights for employees.” Xin Liu v. Amway 

Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). “First, an employee has the right to take up to 

twelve weeks of leave” for the reasons described in the statute. Id. Second, an employee who 

takes such leave “has the right to be restored to his or her original position or to a position 

equivalent in benefits, pay, and conditions of employment upon return from leave.” Id. (internal 

citations omitted).

It is unlawful for an employer to “interfere with, restrain, or deny the exercise or the 

attempt to exercise, any right provided” by the FMLA. Bachelder v. Am. W. Airlines, Inc., 259 

F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. § 2615(a)(1)). The Ninth Circuit has 

recognized two theories for recovery under 29 U.S.C. § 2615, “the retaliation or discrimination 

theory and the entitlement or interference theory.” Sanders v. City of Newport, 657 F.3d 772, 777 

(9th Cir. 2011) (quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th 

Cir. 2002)). “While the FMLA does not clearly delineate these two claims with the labels 

‘interference’ and ‘retaliation,’ those are the labels courts have used in describing an employee’s 

claims under the Act.” Id. (quoting Strickland v. Water Works & Sewer Bd. of Birmingham, 239 

F.3d 1199, 1206 n. 9 (11th Cir. 2001)). 

The Court finds that Plaintiff has not shown by a preponderance of the evidence that 

Defendants interfered with Plaintiff’s FMLA rights or retaliated against Plaintiff in violation of 

the FMLA. First, Plaintiff has not demonstrated that Defendants’ failure to notify her of her 

FMLA rights interfered with her rights under the FMLA. Second, Plaintiff has not demonstrated 
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that Defendants either terminated her or failed to reinstate her to an equivalent position at the end 

of her protected leave. In addition, Defendants have shown that it was more likely than not that 

Plaintiff could not have returned to her position in June when her leave expired. Third, Plaintiff 

has not demonstrated that Defendants discriminated or retaliated against her as there is no causal 

connection between Plaintiff’s complaints and the alleged adverse actions in this case. Fourth, 

Plaintiff has not shown that any alleged violation was willful as required under FMLA’s threeyear statute of limitations. Accordingly, the Court finds for Defendants on Plaintiff’s FMLA 

claims.

I. FMLA Interference

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

which provides that “it shall be unlawful for any employer to interfere with, restrain, or deny the 

exercise of or attempt to exercise any right provided under this subchapter.” 29 U.S.C. § 

2615(a)(1); see Bachelder, 259 F.3d at 1124 (noting that an allegation a plaintiff has been 

retaliated against for exercising his or her FMLA rights is properly construed as an interference 

claim under § 2615(a)(1)). “[E]vidence that an employer failed to reinstate an employee who was 

out on FMLA leave to her original (or an equivalent) position establishes a prima facie denial of 

the employee’s FMLA rights.” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011).

The Ninth Circuit has held that where the employer fails to reinstate the employee, “the 

employee must establish that (1) he was eligible for FMLA’s protections, (2) his employer was 

covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient 

notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he 

was entitled.” Id. (internal citations and quotations omitted). Plaintiff alleges that Defendants 
14- FINDINGS OF FACT & CONCLUSIONS OF LAW

interfered with her FMLA rights in two ways: (1) by failing to notify her of her rights and (2) by 

failing to restore her to her position at the end of her leave.

A. Failure to Notify

Employers are required to notify employees of their FMLA rights. 29 C.F.R. § 825.300. 

“Failure to follow the notice requirements . . . may constitute an interference with, restraint, or 

denial of the exercise of an employee’s FMLA rights.” Id. at § 825.300(e). “The failure to notify 

an employee of her rights under the FMLA can constitute interference if it affects the employee’s 

rights under the FMLA.” See Liston v. Nevada ex. rel its Dep’t of Bus. & Industry, 311 

Fed.Appx. 1000, 1002 (9th Cir. 2009). “[T]he FMLA ‘provides no relief unless the employee has 

been prejudiced by the violation.’” Id. (quoting Ragsdale v. Wolverine World Wide, Inc., 535 

U.S. 81, 89 (2002)). 

It is undisputed that Defendants did not notify Plaintiff of her FMLA rights. However, 

Plaintiff has failed to show by a preponderance of the evidence that this failure impacted her 

rights under the FMLA. Plaintiff testified that she would have been better able to advocate for 

her reasonable accommodation requests, mitigate her anxiety, and return to work if she had been 

notified of her rights by BPA. But the evidence at trial shows that despite Defendants’ failure to 

notify Plaintiff of her rights, Plaintiff invoked the FMLA by filing the relevant paperwork with 

MBO, took leave, and had the opportunity to return to work for a trial work period with the 

accommodations she requested. As discussed in more detail below, Defendants have also 

demonstrated that Plaintiff was more likely than not unable to return to work at the end of the 

relevant period and perform essential functions of her job. Consequently, any failure to notify 

Plaintiff of when her leave began and would end did not prejudice Plaintiff. See Sarno v. 

Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161–62 (2d Cir. 1999) (“[The plaintiff’s] 
15- FINDINGS OF FACT & CONCLUSIONS OF LAW

right to reinstatement could not have been impeded or affected by the lack of notice because his 

leave was caused by a serious health condition that made him unable to perform the functions of 

his position, and it is undisputed that that inability continued for some two months after the end 

of his 12-week FMLA leave period.”) Accordingly, Defendants’ failure to notify does not 

constitute interference with Plaintiff’s FMLA rights. 

B. Failure to Restore

“[T]he FMLA requires that an employer reinstate an employee after taking [protected] 

leave, so long as the employee would still be employed in the position had she not taken FMLA 

leave.” Sanders, 657 F.3d at 780–81. The regulations provide:

On return from FMLA leave, an employee is entitled to be returned to the same 

position the employee held when leave commenced, or to an equivalent position 

with equivalent benefits, pay, and other terms and conditions of employment. An 

employee is entitled to such reinstatement even if the employee has been replaced 

or his or her position has been restructured to accommodate the employee’s 

absence. 

29 C.F.R. § 825.214. “An equivalent position is one that is virtually identical to the employee’s 

former position in terms of pay, benefits, and working conditions, including privileges, 

prerequisites, and status” and “involve[s] the same or substantially similar duties and 

responsibilities, which must entail substantially equivalent skill, effort, responsibility, and 

authority.” Id. at § 825.215(a).

In order to “deny restoration to employment,” “an employer must be able to show that an 

employee would not otherwise have been employed at the time reinstatement is requested.” Id. at 

§ 825.216(a). In addition, “[i]f the employee is unable to perform an essential function of the 

position because of a physical or mental condition . . . the employee has no right to restoration to 

another position under the FMLA.” Id. at (c). “Determining what functions are ‘essential’ to a 

particular position is a question of fact.” Sanders, 657 F.3d at 782. “[I]f an employer denies an 
16- FINDINGS OF FACT & CONCLUSIONS OF LAW

employee reinstatement on the ground that the employee cannot perform the essential functions 

of the employee’s position, the burden of proof rests with the employer, not the employee.” Id. at 

781. Where an employee is hired for a specific term or project, the employer’s obligation to 

restore the employee only extends through the term or project for which they were hired if the 

employer “would not otherwise have continued to employ the employee.” 29 C.F.R. § 

825.216(a)(3). 

Plaintiff has failed to prove by a preponderance of the evidence that Defendants 

interfered with her FMLA rights by either terminating her or failing to reinstate her to an 

equivalent position. First, the evidence shows that Defendants did not terminate Plaintiff.

Contemporaneous emails and Mr. Hampton’s testimony show that the email terminating Plaintiff 

was sent in error and that her network access was revoked for security reasons consistent with 

agency security procedures and regulations. Plaintiff also continued to do some work remotely 

after she was allegedly terminated, and Defendants offered to meet with her to discuss her return 

and reinstate her access to the BPA network. 

Second, had Plaintiff returned to work, Defendants would have reinstated her to the same 

or an equivalent job. The precise nature of the position was not well defined, in part because 

Plaintiff ultimately did not take the opportunity to return to work. But Plaintiff would have 

maintained the same title and pay. Her work schedule—which was dictated by client needs—

would have likely remained the same as there was a significant backlog of reasonable 

accommodation work to be done. Many of the duties and responsibilities of the job were 

consistent before and after her leave. Ms. Hale-Mockley credibly testified that Plaintiff would 

follow-up on previous cases, perform many of the same administrative duties (such as training 

management), and continue to engage in the interactive process. Though one aspect of her job 
17- FINDINGS OF FACT & CONCLUSIONS OF LAW

upon return would have been training Ms. Riffel, Plaintiff’s duties as RAC included both 

continuity of services and special projects assigned by Ms. Hale-Mockley before she went on 

leave. 

In addition, Defendants have shown by a preponderance of the evidence that Plaintiff was 

unable to perform essential functions of the job at the end of the relevant period. By their June 5 

meeting, Plaintiff had been on leave for twelve weeks. At that time, Defendants granted two of 

Plaintiff’s reasonable accommodation requests and agreed to allow her to return for a five-hour 

trial work period. Plaintiff, however, still had a difficult time going onsite, and many of the 

stressors she identified that prevented her from working in March had not yet resolved. Indeed, 

she had also become embroiled in a contract dispute with Defendants and MBO during her time 

out of the office that exacerbated her anxiety. Plaintiff also never took advantage of the five-hour 

trial work period Defendants offered. Based on this evidence, the Court finds that it is more 

likely than not that Plaintiff was unable to perform many of the essential functions of her job—

including face-to-face meetings and the interactive process—at the end of her protected leave.

Defendants therefore are not liable on Plaintiff’s claim for FMLA interference.

II. FMLA Retaliation and Discrimination 

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

“discrimination” claims. Bachelder, 259 F.3d at 1124. Section 2615(b) makes it “unlawful for 

any person to discharge or in any other manner discriminate against any individual because such 

individual has” participated in FMLA enforcement proceedings. 29 U.S.C. § 2615(b). Section 

2615(a)(2) more broadly makes it “unlawful for any employer to discharge or in any other 

manner discriminate against any individual for opposing any practice made unlawful by” the 

FMLA. Id. at § 2615(a)(2). For both claims, the plaintiff must show “(1) involvement in a 
18- FINDINGS OF FACT & CONCLUSIONS OF LAW

protected activity under the FMLA; (2) an adverse employment action; and (3) a causal link 

between the protected activity and the employment action.” Schultz v. Wells Fargo Bank, Nat’l 

Ass’n, 970 F. Supp.2d 1039, 1059 (D. Or. Sept. 5. 2013). An adverse action in the context of 

retaliation clams is “any action that is ‘reasonably likely to deter employees from engaging in 

protected activity.’” deBarros v. Wal-Mart Stores, No. 6:11-cv-06116-AA, 2013 WL 3199670, 

at *6 (D.Or. June 19, 2013) (quoting Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)). 

Here, Plaintiff has failed to show that there was a causal link between the alleged adverse 

employment action and the filing of the EEO complaint. Though there is a temporal connection 

between Plaintiff’s EEO inquiry on April 29, 2014, and the April 30, 2014 emails revoking 

Plaintiff’s network access and erroneously terminating Plaintiff, Mr. Hampton did not have

knowledge of Plaintiff’s potential EEO complaint at that time. Mr. Hampton also credibly 

testified that Plaintiff’s network access was revoked when she had been out of the office for 

more than 30 days pursuant to standard security measures. Though Mr. Hampton did know of 

Plaintiff’s complaint at the time that they discussed her return to work at the end of May and in 

early June, Defendants’ decision to have Plaintiff train Ms. Riffel upon her return was not an 

adverse employment action. Because Plaintiff’s position was more likely than not the same or 

equivalent in terms of pay, benefits, duties, and responsibilities, the addition of some training 

duties to her workload would not be reasonably likely to deter an employee from engaging in 

protected activities. Accordingly, Plaintiff has not shown by a preponderance of the evidence 

that Defendants retaliated or discriminated against her in violation of the FMLA.

III. Willfulness

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

the FMLA were willful. See O&O 31–34, ECF 112 (Plaintiff’s Amended Complaint was filed 
19- FINDINGS OF FACT & CONCLUSIONS OF LAW

more than two years after the acts underlying Plaintiff’s claims); see also 29 U.S.C. § 2617(c)(2)

(providing a three-year statute of limitations for violations that are willful). “[N]either the 

Supreme Court nor the Ninth Circuit Court of Appeals has defined willfulness under the 

FMLA,” but “other circuits have looked to the Supreme Court’s definition of ‘willful’ in the 

context of the Fair Labor Standards Act.” Shulman v. Amazon.com, Inc., No C13-247RSM, 2013 

WL 2403256, at *2 (W.D. Wash. May 30, 2013). “Under the FLSA, an employer acts ‘willfully’ 

when he or she ‘either knew or showed reckless disregard for the matter of whether its conduct 

was prohibited by the statute.’” Schultz, 970 F.Supp.2d at 1053 (citing McLaughlin v. Richland 

Shoe Co., 486 U.S. 128, 133 (1988)); see also Hollowell v. Kaiser Found. Health Plan of the 

NW, 705 Fed.Appx. 501, 503 (9th Cir. 2017) (applying McLaughlin’s willfulness standard to an 

FMLA claim).

At summary judgment, the Court concluded that—when viewing the evidence in the light 

most favorable to Plaintiff—there was a dispute of fact as to whether Defendants’ conduct was 

willful. O&O 34. The evidence presented at trial, however, shows that Defendants did not either 

know or show reckless disregard for whether their conduct was prohibited by statute. Prior to 

terminating Plaintiff, Defendants consulted with the BPA legal department. After that discussion, 

Defendants opted not to terminate Plaintiff. Instead, Defendants offered Plaintiff her requested 

trial work period and made efforts to restore Plaintiff to her employment with BPA in an 

equivalent position. Accordingly, even assuming Defendants did violate the FMLA, Plaintiff has 

not shown that it is more likely that not that Defendants acted willfully.

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20- FINDINGS OF FACT & CONCLUSIONS OF LAW

CONCLUSION

The Court finds in favor of Defendants on all of Plaintiff’s claims. Judgment shall be

entered in favor of Defendants. The parties shall submit a joint proposed form of judgment 

within fourteen days of these Findings of Fact & Conclusions of Law.

Dated this __________ day of _______________________, ________.

 

MARCO A. HERNÁNDEZ

United States District Judge