IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

STEPHEN ORMSBY, 

Plaintiff, 

v. 

SUNBELT RENTALS, INC., a foreign 

business corporation, licensed to do 

business in Oregon, 

Defendant. 

Anthony J. Estrada 

Jon H. Weiner 

Law Office of Jon H. Weiner 

1415 Commercial Street S.E. 

Salem, Oregon 97302 

Attorneys for plaintiff 

Page 1 - OPINION AND ORDER 

Case No. 6:15-cv-01403-~~ 

OPINION AND ORDER 

Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 1 of 15
James L. Hiller 

Hitt Hiller Monfils Williams, LLP 

411 S.W. Second Avenue, Suite 400 

Portland, Oregon 97204 

Patricia J. Hill 

Yash B. Dave 

Smith Gambrell & Russell, LLP 

50 N. Laura Street, Suite 2600 

Jacksonville, Florida 32202 

Attorneys for defendant 

AIKEN, Judge: 

Plaintiff Stephen Ormsby brings this action against defendant Sunbelt Rentals, Inc., under 

theAmericanswithDisabilitiesAct("ADA"), 42 U.S.C. §§ 12101 et seq.; the Family Medical Leave 

Act("FMLA"), 29 U.S.C. §§ 2601 et seq.; Oregon's disability discrimination statute ("OADA"), Or. 

Rev. Stat. §§ 659A.103 et seq.; and the Oregon Family Leave Act ("OFLA"), Or. Rev. Stat. §§ 

659A.150 et seq. Plaintiff alleges defendant violated his employment rights by (1) requiring him to 

use paid time off when he missed work due to migraines; (2) unreasonably expecting him to request 

time off at least a day in advance, even though the onset of his migraines was unpredictable; (3) 

terminating him for disability-related absences when he had exhausted his paid time off; and ( 4) 

failing to inform him of his rights under the FMLA and the OFLA when he took time off due to his 

migraines and to take his daughter to a doctor's appointment. After the close of discovery, defendant 

moved for summary judgment on all claims. For the reasons set forth below, defendant's motion 

is granted in part and denied in part. 

FACTS 

Plaintiff began working for defendant as a Service Technician in November 2012. Doc. 25-1 

at 42-43. Defendant's business is renting equipment to customers, and plaintiff would maintain the 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 2 of 15
inventory. Id. at 43. Mike Varnell supervised plaintiff. Varnell Dep. 6:13-7:7. 

The record contains ample evidence plaintiff struggled at work. On April 16, 2013, plaintiff 

received a formal warning from Varnell for failure to comply with safety rules. Doc. 17-6 at 2. On 

May 9, 2013, Varnell issued a formal warning to plaintiff for unsatisfactory performance and failure 

to follow instructions. Id. at 3. On July 19, 2013, Varnell again cited plaintiff for unsatisfactory 

performance and failure to follow instructions after plaintiff failed to wear a hard hat at a job site. 

Id. at 4. Plaintiff was informed that, per defendant's policy, a fourth reprimand would result in 

termination. Id. 

In December 2013, plaintiffs annual evaluation indicated he was performing below 

expectations and both parties expected his performance to improve. Id. at 5-8. The evaluation noted 

plaintiff exhibited good communication skills, had the ability to recognize problems, and met 

expectations concerning integrity. Id. at 6-7. However, it also noted plaintiff needed constant 

supervision, struggled to solve problems, lacked specialty knowledge, and was still learning policies 

and procedures. Id. at 7. In separate but similar incidents in January and February 2014, plaintiff 

delivered the wrong equipment to customers. Doc. 17-7 at 1. On April 8, 2014, plaintiff received 

a citation while driving a company vehicle with expired registration tags. Id. at 5-6. 

Plaintiff also had problems with attendance. After plaintiff missed work April 30, 2014, 

Varnell contacted human resources about "another unexcused absence," stating "this has become a 

weekly occurrence." Weiner Deel. Ex. 4 at 3. Varnell asked Julie Burton, a territory human 

resources manager, to "let [Varnell] know what [his] options are." Id. On May 1, 2014, Burton 

emailed herself a record of eight "last minute" uses of paid time off ("PTO") by plaintiff between 

November 25, 2013 and April 23, 2014. Weiner Deel. Ex. 6 at 1. On May 6, 2014, Burton spoke 

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with plaintiff. In an email to herself, Burton summarized their discussion as addressing plaintiffs 

absences, the incident with the expired registration on a work vehicle, how plaintiff might receive 

time off for his migraines, and the need to have future PTO approved in advance, as he had 

exhausted an allotment of five last minute excused absences. Doc. 17-11 at 1. Plaintiff received a 

formal warning after a May 9, 2014 absence; the citation states that although plaintiff called in sick, 

he failed to do so before the start of his shift, as required by company procedure. Doc. 17-7 at 2. 

Termination was again identified as a consequence for further issues. 

Plaintiff alleges he missed work on April 30 to meet with special education staff at his 

daughter's school and to take his daughter to a psychotherapist appointment. 1 Doc. 17-8 at 1-2; 

Weiner Deel. Ex. 2 at 210. Varnell remembered plaintiff telling him he would be unable to work 

on April 30 because of a parent-teacher conference the evening of April 29. Varnell Dep. 39: 17-21. 

Burton recalled plaintiff was absent in order to attend his daughter's "speech therapy" appointment. 

Burton Dep. 17:8-10. 

Plaintiff asserts the remainder of his absences were due to migraines. Plaintiff had 

experienced sporadic migraines "for a long time" when he was first hired. Ormsby Dep. 41: 10-12, 

20-24. Plaintiff alleges he told Varnell about the migraines within a month of beginning work for 

1 Plaintiff also met participated in an intake interview with the Oregon Bureau of Labor 

and Industry ("BOLI") on April 30. Doc. 17-7 at 15. Earlier in the month, plaintiff had filed a 

complaint against defendant with BOLI, alleging harassment and hostile work environment. 

Doc. 17-7 at 7-10. Although the written complaint and intake interview notes do not focus on 

family leave or disability issues, a May 22, 2014 note in plaintiffs BOLI case file states 

"[ c ]harge revised with new protected class" and documents plaintiffs allegation he was denied 

reasonable accommodations related to his migraines. Doc. 17-7 at 16. Plaintiffs complaint 

alleges he received a right-to-sue letter from BOLL Compl. ~ 3. Plaintiff did not tell defendant 

he was missing work to attend the intake interview, and there is no indication in the record 

defendant was aware of the BOLI complaint. 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 4 of 15
defendant. Ormsby Dep. 41: 10-12. Varnell asserts he did not learn Varnell suffered from migraines 

until four or five months before plaintiff was fired. Varnell Dep. 17:22-18:11. Medical records show 

plaintiff received medical treatment for migraines or headaches on December 25, 2013; January 3, 

2014; and May 10, 2014.2 Doc. 17-6 at 9-13; Weiner Deel. Ex. 2 at214-16. The day before the May 

10 treatment, plaintiff missed work after reporting to Varnell he was feeling dizzy and going to 

urgent care. Weiner Deel. Ex. 6 at 3; Varnell Dep. 37:7-10. Plaintiff alleges thathe told Varnell the 

absence was due to a migraine. Ormsby Dep. 178:24-179:15. In an email to Burton, Varnell 

expressed skepticism about plaintiffs dizziness and suggested plaintiff might be fabricating illness 

in order to work on his roof at home. Weiner Deel. Ex. 6 at 3. 

On May 8, 2014, plaintiff borrowed a piece of defendant's equipment to use off site. Ormsby 

Dep. 256:2-14. Company policy permitted employees to rent company equipment at a reduced rate. 

Doc. 17-5 at 17. The policy prohibited "renting discounted equipment in the employee's name and 

using the equipment for friends, social groups, or family members." Id. Plaintiff estimated he would 

return the equipment on May 10, but returned the equipment on May 12. Ormsby Dep. 255:25, 

260:23. Plaintiff had stored and planned to use the equipment at his fiancee's house. Ormsby Dep. 

256:9-17. On May 14, 2014, defendant terminated plaintiff, citing excessive absenteeism, 

unsatisfactory performance, and dishonesty. Weiner Deel. Ex. 2 at 217. 

The parties dispute the extent to which Varnell and Burton understood or should have 

understood plaintiffs absences were related to his migraines or to caring for his daughter. They also 

dispute the extent to which plaintiffs plausibly protected absences played an essential role in the 

termination decision. Plaintiff alleges his termination is discrimination because of his disability and 

2 Plaintiff could not have missed work on December 25, a holiday. 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 5 of 15
retaliation for conduct protected by the ADA, the FMLA, and state analogs. Plaintiff further alleges 

defendant failed to provide him any reasonable accommodation as required by the ADA and the 

OADA. Lastly, plaintiff alleges his termination interfered with his FMLA and OFLA rights. 

Defendant moves for summary judgment on all claims. 

STANDARD 

Summary judgment is appropriate when the evidence shows "there is no genuine issue as to 

any material fact and ... the moving party is entitled to judgment as a matter oflaw." Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment must first identify 

the parts of the record "which it believes demonstrate the absence of a genuine issue of material 

fact." Fed. Trade Comm 'n v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009) (quotation marks 

omitted). Should the moving party meed this initial burden, "the burden shifts to the non-moving 

party to set forth ... specific facts showing that there is a genuine issue for trial." Id. at 929. On a 

motion for summary judgment, a court views "the evidence in a light most favorable to the nonmoving party." Id. at 927. Plaintiff's claim will survive summary judgment ifthere is "evidence on 

which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably 

asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is 

entitled to a verdict[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 

DISCUSSION 

Defendant argues it is entitled to summary judgment because no reasonable juror could 

conclude ( 1) plaintiff could satisfactorily perform the essential duties of his position, even with an 

attendance-based accommodation; (2) it terminated plaintiff for having a disability or asserting he 

was entitled to accommodations or leave; (3) it was obligated to engage in an interactive process to 

Page 6 - OPINION AND ORDER 

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I Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 6 of 15
determine appropriate accommodations; or (4) it interfered with plaintiffs right to take protected 

family or medical leave. However, as to each of these arguments, I find there remain factual 

questions for the jury to resolve. 

I. FMLAIOFLA Discrimination Claim 

Plaintiff asserts two different types of FMLA claims: a claim for interference under 29 

U.S.C. § 2615(a)(l) and aclaim for discrimination/retaliation under29 U.S.C. § 2615(a)(2). Section 

2615(a)(l) prohibits employers from "interfer[ing] with, restrain[ing], or deny[ing] the exercise of 

or the attempt to exercise, any right provided under" the FMLA. Section 2915( a)(2) bars employers 

from taking adverse employment action against an employee "for opposing any practice made 

unlawful by" the FMLA. The Ninth Circuit has interpreted "opposing any practice" to mean a 

plaintiff must have "institut[ ed] or participat[ ed] in FMLA proceedings or inquiries" to state a claim 

for FMLA discrimination. Bachelder v. Am. W Airlines, 259 F.3d 1112, 1124 (9th Cir. 2001). A 

plaintiff alleging he was subject to an adverse employment action for taking or inquiring about 

protected leave has stated a claim for FMLA interference, but not for FMLA discrimination. Id 

Plaintiff alleges that even though defendant knew he was taking leave that would be protected 

under the FMLA, it never informed him of his family or medical leave rights, and it fired him at least 

in part because of his protected absences. He does not allege defendant fired him because he filed 

the complaint with BOLi or otherwise opposed defendant's leave practices. Because plaintiff has 

not shown he engaged in any of qualifying protected activity within the meaning of Section 

2915(a)(2), defendant is entitled to summary judgment on the FMLA discrimination/retaliation 

claim. 

This analysis does not require dismissal of plaintiffs parallel OFLA 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 7 of 15
discrimination/retaliation claim, however. Although the OFLA is to "be construed to the extent 

possible in a manner that is consistent with any similar provisions of the federal Family and Medical 

Leave Act of 1993," Or. Rev. Stat.§ 659A.186(2), the text of the OFLA, unlike the text of the 

FMLA, clearly contemplates a discrimination claim based on an employee's inquiry about protected 

leave. See Or. Rev. Stat. § 659A. l 83(2) (prohibiting employers from retaliating or discriminating 

against an employee "because the individual has inquired about the provisions of [the OFLA], 

submitted a request for family leave or invoked any provision of [the OFLA].") 

II. Plaintiff's Ability to Perform the Essential Functions of the Job 

Plaintiff must show he is a "qualified individual with a disability" in order to proceed on his 

ADAIOADA discrimination and failure-to-accommodate claims. Defendant asserts plaintiff cannot 

meet this threshold requirement because he has not articulated a reasonable accommodation that 

would permit him to perform the essential functions of his job. 

"A qualified individual with a disability is ... an individual with a disability who, with or 

without reasonable accommodation, can perform the essential functions of the employment position" 

in question. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quotation marks 

omitted). Demonstrating the plaintiff is a "qualified individual with a disability" is part of the prima 

facie case for claims of discrimination and failure to accommodate under the ADA and the OADA. 

See id. (setting forth elements of primafacie case for discrimination under the ADA); Samper v. 

Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (same for failure to 

accommodate under the ADA); Hutton v. Elf Atochem N Am., Inc., 273 F.3d 884, 891 n.1 (9th Cir. 

2001) (same standards apply to ADA and OADA claims). 

Plaintiff asserts that intermittent leave or an exemption from Sunbelt's advance call-in 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 8 of 15
requirement would be a reasonable accommodations that could allow plaintiff to perform his job. 

Defendant argues plaintiffs accommodation is too poorly defined to be effective or reasonable. 3 

The reasonableness of an accommodation is a question of fact for the jury. Dark. v. Curry 

Cnty., 451F.3d1078, 1088 (9th Cir. 2006) (plaintiff"needonly showthatanaccommodationseems 

reasonable on its face" to survive summary judgment (internal quotations, citations, and emphasis 

omitted)). Unlike some courts, the Ninth Circuit does not hold "regular and predictable job 

attendance" to be a per se essential function of all jobs. Humphrey v. Memorial Hosps. Ass 'n, 239 

F.3d 1128, 1135 n.11 (9th Cir. 2001 ). Rather, modified schedules in appropriate circumstances are 

reasonable accommodations. Id. at 1135. 

Defendant has not met the requirements for summary judgment. A reasonable juror could 

find plaintiffs proposed accommodations that he be given intermittent leave and/or that he be 

excused from the advanced notice requirement when appropriate could be reasonable. A reasonable 

juror could also find that plaintiff could perform the position's essential functions with these 

accommodations. See Doc. 25-1 at 43-44 (service technician job description silent regarding 

required schedule). The jury should decide whether plaintiffs requested accommodation is 

reasonable and would permit him to perform the essential functions of his job. 

III. Defendant's Motivation for Terminating Plaintiff 

Defendant's justification for terminating plaintiff is central to his claims for (1) AD AIO AD A 

discrimination and retaliation;(2) FMLA/OFLA interference; and (3) OFLA discrimination. To state 

3 Defendant also contends a flexible leave policy would not solve the problem, pointing to 

plaintiffs history of safety and other infractions unrelated to attendance. This is essentially an 

argument that defendant would have fired plaintiff even if he had not had any attendance issues. 

Defendant's motivation is addressed in the next section. 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 9 of 15
any of these claims, a plaintiff must show a causal connection between the disability/protected leave 

and the adverse employment action. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) 

(ADA discrimination); Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (ADA 

retaliation); Or. Rev. Stat.§ 659A.139(1) (OADA construed consistently with ADA);Xin Liu, 347 

F .3d at 113 6 (FMLA interference); Or. Rev. Stat. § 65 9 A.186(2) ( 0 FLA construed consistently with 

FMLA); id. § 183(2) (prohibiting discrimination "because" an employee took or inquired about 

protected leave). 

The burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802-03 ( 1973 ), applies to plaintiffs disability claims. Once he sets forth the prim a facie case for 

disability discrimination or retaliation, the burden shifts to the employer to offer a legitimate, 

nonretaliatory reason for the adverse action. Pardi v. Kaiser Found. Hasps., 389 F.3d 840, 849 (9th 

Cir. 2004 ). The burden then shifts back to the plaintiff to show there is a genuine issue of material 

fact as to whether the employer's reason is pretextual. Id. This burden-shifting framework applies 

to both federal and state disability claims. See Dawson v. Entek Intern., 630 F .3d 928, 934-35 (9th 

Cir. 2011) (because McDonnell Douglas is a procedural rule, federal courts apply it to state claims). 

A request for an accommodation is a "protected activity" for the purposes of plaintiffs retaliation 

claims. Coons v. Sec '.Y of US. Dep 't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). At the 

summary judgment stage, the question is whether a reasonable juror could conclude "animus based 

on a plaintiffs disability or request for an accommodation" played at least a partial role in the 

adverse employment action. Dark, 451 F.3d at 1085. 

The McDonnell Douglas framework does not apply to plaintiffs family leave claims. Xin 

Liu, 34 7 F .3d at 1136. Instead, the question at the summary judgment stage is simply "whether there 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 10 of 15
is a triable issue of material fact as to whether" protected leave "was impermissibly considered as 

a factor in [plaintiffs] termination." Id 

Before analyzing defendant's arguments regarding motivation, it is necessary to identify the 

applicable causation standard. Employment discrimination law uses two standards of causation. The 

more stringent "but-for" standard follows "textbook tort law that an action is not regarded as a cause 

of an event ifthe particular event would have occurred without it." Univ. of Tex. Sw. Med Ctr. v. 

Nassar, 133 S.Ct. 2517, 2525 (2013) (quotation marks omitted). The less demanding "motivating 

factor" standard forbids "adverse employment decisions motivated, even in part, by animus based 

on a plaintiffs disability or request for an accommodation." Dark, 451 F.3d at 1085 (emphasis in 

original) (internal quotations and citations omitted). For both but-for and motivating factor 

causation, "proximity in time between the protected action and the allegedly retaliatory employment 

decision" allows an inference that the one caused the other. Rayv. Henderson, 217 F.3d 1234, 1244 

(9th Cir. 2000) (quotation marks omitted). 

In Nassar, the Supreme Court held that but-for causation is the correct standard for retaliation 

claims under Title VII of the Civil Rights Act. 133 S. Ct. at 2533. Noting the Ninth Circuit's 

parallel treatment of Title VII and ADA retaliation claims, district courts in this circuit have required 

but-for causation for ADA retaliation claims after Nassar. Brooks v. Capistrano Unified Sch. Dist., 

1 F. Supp. 3d 1029, 1037 (C.D. Cal. 2014); Doanv. San Ramon Valley Sch. Dist., 2014 WL296861, 

*3 n.4 (N.D. Cal. Jan. 27, 2014). I agree that but-for is the correct causation test for ADA retaliation 

claims. But-for causation also applies to plaintiffs state-law discrimination and retaliation claims. 

See Siring v. Or. State Bd of Higher Educ. ex rel. E. Or. Univ., 977 F. Supp. 2d 1058, 1061 (D. Or. 

2013). By contrast, the "motivating factor" standard applies plaintiffs ADA discrimination claims 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 11 of 15
and FMLA interference claims. See id. at 1062-63 (ADA discrimination); Bachelder, 259 F.3d at 

1125 (FMLA interference). 

It is undisputed that excessive absenteeism was one of the reasons plaintiff was terminated; 

the dispute here is how many of the absences were protected and whether defendant knew or should 

have known they were protected. To be entitled to summary judgment with respect to motivation, 

therefore, defendant must show one of two things. First, defendant could show no reasonable juror 

could conclude absenteeism was a motivating factor or a but-for cause of termination. Defendant 

has not met this standard. Defendant cited three specific reasons in plaintiffs termination 

documentation: unsatisfactory performance, excessive absenteeism, and dishonesty. There is no 

question that absenteeism was a motivating factor in the decision, and the jury would have to decide 

whether plaintiff still would have been terminated for unsatisfactory performance and/or dishonesty 

even in the absence of attendance problems. 

Second, defendant could show no reasonable juror could conclude there was a connection 

between firing plaintiff for absenteeism and disability/family leave discrimination or retaliation. 

Again, this is a question for the jury. The record contains ample documentation of performance 

issues unrelated to plaintiffs absences. But events immediately preceding his termination - the 

March 10 reprimand, the April 30 absence, the April 30 email from V amell to Burton, the May 1 

accounting of plaintiffs use of PTO, and the formal warning for the May 9 absence - relate to 

potentially protected absences. Significantly, V amell concedes he knew about plaintiffs migraines 

in those final weeks, and Burton testified she knew the April 30 absence was due to plaintiffs 

daughter's appointment but did not research whether the absence constituted protected family leave. 

Burton Dep. 17:8-12. A reasonable juror could conclude that the absences in the months 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 12 of 15
immediately preceding termination were the straw that broke the camel's back; that Varnell and 

Burton knew plaintiffs absences were related to his migraines and/or to his daughter's special 

education needs; and that defendant terminated plaintiff without ever considering how to make 

modifications to accommodate plaintiffs migraines. 

IV. Request for Accommodation 

Employers have "a mandatory obligation under the ADA to engage in an interactive process 

with [an] employee to identify and implement appropriate reasonable accommodations" whenever 

the employer becomes aware of the need for an accommodation. Humphrey, 239 F .3d at 113 7. The 

interactive process "requires communication and good-faith exploration of possible accommodations 

between employers and individual employees, and neither side can delay or obstruct the process." 

Id. Singular, isolated efforts do not meet an employer's obligation. Id at 1138. Instead, employers 

are expected to evaluate the efficacy of accommodations and consider all requests made by an 

employee. Id The ADA and the OADA require the same interactive process. Roloff v. SAP Am., 

Inc., 432 F. Supp. 2d 1111, 1122 (D. Or. 2006). "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 medical condition." Zivkovic v. S. Cal. Edison Co., 302 F .3d 1080, 1089 (9th 

Cir. 2002) (quotation marks omitted). 

Plaintiff contends he told his supervisors his absences were related to migraines. Ormsby 

Dep. 332:23-334:20. Varnell conceded that he knew about plaintiffs migraines by early 2014. 

V am ell Dep. 17:22-18:11. Drawing all inferences in favor of plaintift~ a reasonable juror could 

conclude defendant was aware of a need for an accommodation and had an obligation to engage 

plaintiff in an interactive process to accommodate his disability. 

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Case 6:15-cv-01403-AA Document 26 Filed 09/07/16 Page 13 of 15
l " 

V. FMLAIOFLA Interference 

Defendant argues plaintiffs FMLA/OFLA interference claim fails because plaintiff never 

notified defendant of a need for family or medical leave. To state a claim for FMLA interference, 

a plaintiff must show"( 1) he was eligible for the 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 [his rightful] benefits." Escriba v. Foster 

Poultry Farms, Inc. ,743 F.3d 1236, 1243 (9th Cir. 2014) (quotation marks omitted). An "employee 

need not expressly assert rights under the FMLA or even mention the FMLA" to exercise rights 

under the law. 29 C.F.R. § 825.302(c). An employee's suggestion that absences are necessary for 

a protected reason (for example, by mentioning a health condition) is sufficient to trigger FMLA 

protection. Bachelder, 259 F.3d at 1130-31. 

The FMLA entitles an eligible employee to take up to 12 work weeks of unpaid leave 

annually if a "serious health condition ... makes the employee unable to perform the functions of 

the position of such employee." 29 U.S.C. § 2612(a)(l)(D). Migraine headaches can constitute a 

"serious health condition" under FMLA. See 29 C.F.R. § 825.113(d) (headaches other than 

migraines do not qualify for FMLA protection). The FMLA also entitles an employee to leave to 

care for a child with a "serious health condition." 29 U.S.C. § 2612(a)(l)(C). For the same reasons 

explained in the previous section, there remain questions of material fact regarding whether 

plaintiffs requests for leave were related to migraines and to his daughter's appointments and put 

defendant on notice the leave might be protected under the FMLA or the OFLA. 

CONCLUSION 

Defendant's motion for summary judgment (doc. 16) is GRANTED as to plaintiffs FMLA 

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discrimination/retaliation claim (eighth claim for relief) and is otherwise DENIED. 

IT IS SO ORDERED. 9 ,.J. _ . 

~hvY Dated tlllt~Y of ~2016. 

Ann Aiken 

United States District Judge 

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