Page 1 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE 

Dallas S. DeLuca, OSB #072992 

DallasDeLuca@MarkowitzHerbold.com 

Kristin M. Malone, OSB #151254 

KristinMalone@MarkowitzHerbold.com 

Katherine M. Acosta, OSB #165223 

KatherineAcosta@MarkowitzHerbold.com 

MARKOWITZ HERBOLD PC 

1211 SW Fifth Avenue, Suite 3000 

Portland, OR 97204-3730 

Tel: (503) 295-3085 

Fax: (503) 323-9105 

 Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

ANDREA OLSON, 

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

PLAINTIFF’S OPPOSITION TO 

DEFENDANTS’ MOTIONS IN LIMINE

For her response to Defendants’ Motions in Limine, plaintiff Andrea Olson states as 

follows: 

I. Introduction. 

Plaintiff does not oppose Defendants’ first and second motions in limine. Plaintiff also 

does not object to Defendants’ sixth motion to exclude witnesses and evidence not disclosed 

prior to trial, although there appears to be significant disagreement regarding the extent and 

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sufficiency of the existing disclosures. Plaintiff opposes Defendants’ third, fourth, and fifth 

motions in limine for the reasons stated herein. 

II. Motions 1-2.

Plaintiff has no objection to Defendants’ first and second motions in limine.

III. Motion 3: Evidence of damages for lost wages between March 17, 2014 and 

January 31, 2015. 

Plaintiff opposes Defendants’ third motion in limine. Underlying defendants’ motion is 

the unproven assertion that Ms. Olson could not work, or would not have worked, during the 

damages period, including after the conclusion of the FMLA’s twelve-week leave period. 

Ms. Olson is entitled to present evidence regarding the damages she suffered as a result 

of BPA’s violations of the FMLA, which began as early as March 24, 2017, when it failed to 

provide appropriate notice of her FMLA rights. By June 11, despite the near-finality of 

arrangements for Ms. Olson to return to work, the evidence will show that it was clear that BPA 

would not reinstate Ms. Olson as required by the FMLA. At no point after the time Ms. Olson 

invoked her rights under the FMLA did BPA ever issue additional work orders for Ms. Olson’s 

services pursuant to her contract, and BPA immediately began to plan to replace her and to give 

Ms. Olson a temporary position that was not the equivalent of her prior position, as described in 

the last two paragraphs of Plaintiff’s Lay Witness Statement. (ECF No. 125 at 2-3.) 

Ms. Olson is entitled to present evidence that she lost wages as a result of BPA’s actions. 

IV. Motions 4-5: Evidence of damages for interference with FMLA rights after 12-week 

FMLA period and to the extent Ms. Olson required intermittent or reduced 

schedule leave. 

Plaintiff opposes Defendants’ fourth and fifth motions in limine, which attempt to 

exclude evidence relating to BPA’s failure to reinstate Ms. Olson upon her return from leave. 

“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.” 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] 

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the same or substantially similar duties and responsibilities, which must entail substantially 

equivalent skill, effort, responsibility, and authority.” Id. at § 825.215(a). An employer’s 

obligation to provide the same or equivalent position to an employee returning from FMLA leave 

is not excused by the employee’s need for reasonable accommodation or intermittent leave. See

United States Equal Employment Opportunity Commission, Employer-Provided Leave and the 

Americans with Disabilities Act, https://www.eeoc.gov/eeoc/publications/ada-leave.cfm#_edn5

(discussing concurrent obligations under the FMLA and the Americans with Disabilities Act). 

BPA foreclosed the possibility of reinstatement prior to the conclusion of the twelveweek leave period by replacing Ms. Olson with a federal employee and limiting Ms. Olson’s 

proposed responsibilities to the training of her replacement as described in the last two 

paragraphs of Plaintiff’s Lay Witness Statement. (ECF No. 125 at 2-3.) Those responsibilities 

would not have been equivalent—much less “virtually identical”—to her pre-leave 

responsibilities as a Reasonable Accommodation Coordinator. BPA did not take any steps to 

comply with the FMLA’s reinstatement requirement, and its decisions not to reinstate Ms. Olson 

were not based on her ability to perform job functions that had been immediately and 

permanently reassigned to another employee. 

Where BPA’s refusal to reinstate preceded the end of Ms. Olson’s FMLA leave, and 

where Ms. Olson was not offered the chance to resume the essential functions of her job or its 

equivalent, Ms. Olson is entitled to offer evidence of the resulting damages. 

V. Motion 6: Exhibits and testimony not presented in accordance with the Court’s 

Trial Management Order. 

Plaintiff does not oppose Defendants’ motion that the parties present exhibits and 

testimony in accordance with the Court’s Trial Management Order. However, Plaintiff objects 

to Defendants’ assertion that her disclosures fail to address essential elements of her FMLA 

claims. For example, Defendants claim that Ms. Olson has not disclosed “any FMLA 

proceeding in which she participated” pursuant to 29 U.S.C. § 2615(b). To the contrary, Ms. 

Olson’s witness statement discloses that she notified BPA of her medical condition in February 

2014 and that she submitted paperwork requesting FMLA leave on March 25, 2014. (ECF No. 

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125 at 2.) These processes instituted and comprised FMLA proceedings. In addition, Ms. 

Olson’s trial memorandum discloses various communications with BPA employees regarding the 

terms and conditions of Ms. Olson’s leave and return to work. (ECF No. 122 at 5-6.) 

Regardless of the supposed shortcomings in Ms. Olson’s witness statement, the substance 

of her case is clear and uncomplicated, as more fully detailed in Plaintiff’s Trial Memorandum. 

(ECF No. 122.) BPA’s contention that it would suffer prejudice as a result of the more cursory 

overview in Ms. Olson’s witness statement are not credible given that the entire substance of Ms. 

Olson’s case will be presented by Ms. Olson and have been described in detail in her Trial 

Memorandum. 

 DATED this 29th day of August, 2018. 

MARKOWITZ HERBOLD PC

By: /s/ Dallas DeLuca

Dallas S. DeLuca, OSB #072002 

DallasDeLuca@MarkowitzHerbold.com 

Kristin M. Malone, OSB #151254 

KristinMalone@MarkowitzHerbold.com 

Katherine M. Acosta, OSB #165223 

KatherineAcosta@MarkowitzHerbold.com 

Of Attorneys for Plaintiff 

778152

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