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Olson v. United States

United States District Court, D. Oregon, Portland Division

January 4, 2019

ANDREA OLSON, Plaintiff,
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 Attorneys for Plaintiff

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Jared Hager ASSISTANT UNITED STATES ATTORNEY Donna A. Oden-Orr BONNEVILLE POWER ADMINISTRATION Attorneys for Defendants



         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.


         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 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 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 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 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. Hale-Mockley, 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 ...

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