United States v. 2020-11-23 | 19-35389 | ANDREA OLSON V. USA | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANDREA OLSON,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, by and
through the Department of Energy
and Bonneville Power
Administration; D
AN BROUILLETTE
*
,
Secretary of Energy,
Defendants-Appellees,

and

MBO
PARTNERS, INC.,
Defendant.
No. 19-35389

D.C. No.
3:15-cv-02216-
HZ

OPINION

Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted October 27, 2020
Portland, Oregon

*
Dan Brouillette has been substituted for his predecessor, James R.
Perry, as Secretary of the U.S. Department of Energy under Fed. R. App.
P 43(c)(2).

2 OLSON V. UNITED STATES

Filed November 23, 2020

Before: Susan P. Graber and Sandra S. Ikuta, Circuit
Judges, and Roger T. Benitez,
**
District Judge.

Opinion by Judge Benitez

SUMMARY
***

Family and Medical Leave Act

The panel affirmed the district court’s judgment in favor
of the Bonneville Power Administration (“BPA”) in an
action alleging claims under the Family and Medical Leave
Act (“FMLA”).

Plaintiff contracted to work with the BPA. Plaintiff
alleged that BPA willfully interfered with her rights under
the FMLA by failing to provide her notice of those rights.

The panel held that the district court did not clearly err
in determining that BPA’s alleged interference with
plaintiff’s FMLA rights was not willful. Agreeing with other
circuits that have addressed the issue, the panel held that the
standard for willfulness adopted by the Supreme Court in
McLaughlin v. Richard Shoe Co., 486 U.S. 128 (1988), for
Fair Labor Standards Act claims also applied to FMLA

**
The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

OLSON V. UNITED STATES 3

claims. The panel further held that the three-year statute of
limitations in 29 U.S.C. § 2617(c)(2) applied to a “willful
violation.” The panel held that the district court did not err
in finding that the facts in this case did not constitute
willfulness by the BPA. The panel concluded that plaintiff’s
claim was barred by the two-year statute of limitations in
29 U.S.C. § 2617(c)(1).

COUNSEL

Justin O. Abbasi (argued), The Sheridan Law Firm P.S.,
Seattle, Washington, for Plaintiff-Appellant.

Jared D. Hager (argued), Assistant United States Attorney;
Renata A. Gowie, Civil Division Chief; Billy J. Williams,
United States Attorney; United States Attorney’s Office,
Portland, Oregon; for Defendants-Appellees.

OPINION
BENITEZ, District Judge:
Andrea Olson appeals from judgment entered against her
following a bench trial on claims the Bonneville Power
Administration (“BPA”) violated the Family and Medical
Leave Act (“FMLA” or “the Act”) by willfully interfering
with her rights under the Act. The district court found Olson
did not prove that BPA willfully interfered with her FMLA
rights and, therefore, that her claims were barred by the
relevant statute of limitations. The timing of Olson’s suit
requires us to address the standard for willfulness in actions
brought pursuant to the FMLA. We have jurisdiction under
28 U.S.C. § 1291. As set forth below, we affirm.

4 OLSON V. UNITED STATES

I. FACTUAL AND PROCEDURAL BACKGROUND
Olson was the sole proprietor of Pacific Disability
Management, a limited liability company, through which she
provided “reasonable accommodation” services to
employers such as BPA to facilitate compliance with the
Americans with Disabilities Act.
Olson contracted to work with BPA beginning in 2010.
At BPA, Olson worked as a Reasonable Accommodation
Coordinator (“RAC”), assisting employees in need of
accessibility accommodations at work, training managers
and employees on their rights and responsibilities, and
maintaining relevant records and documentation. Olson’s
original contract was for one year, with four one-year
options to renew that could be exercised by BPA. The
contract contained a continuity of services provision,
through which BPA could ask Olson to provide training and
guidance to a replacement for her position.
In late 2011, BPA declined to renew Olson’s contract for
a third year. Instead, BPA required Olson to work through
MBO Partners, a payroll service provider that had a master
services agreement with BPA to facilitate certain
independent contractors.
1

In 2013, Olson began experiencing anxiety. Her anxiety
increased and around March 13, 2014, Olson made a formal
accommodation request for herself through MBO Partners.
Olson requested, among other things, that she be allowed to
telework to reduce her time spent onsite. MBO Partners

1
Olson also sued MBO Partners for similar FMLA claims, but those
claims were dismissed because they were subject to an arbitration
agreement and are not part of this appeal.

OLSON V. UNITED STATES 5

informed BPA’s Director of Human Resources of Olson’s
accommodation request on March 13.
Shortly thereafter, Olson’s anxiety further increased and
she sent BPA an email indicating she was taking the week
off. The following week, she again emailed BPA that she
would be out of the office. Around March 24, she formally
invoked FMLA leave through MBO Partners. When she
provided FMLA documentation to MBO Partners, Olson
asked that MBO Partners inform her before sharing her
condition, or the fact that she requested leave, with BPA. On
April 3, Olson emailed a supervisor at BPA that she would
be out of the office for two more weeks. She stated that she
hoped to start some sort of transition plan soon but, at that
point, did not know whether she could.
Because BPA did not have an expected date for Olson’s
return, it began exploring whether an existing federal
employee could take on Olson’s responsibilities as a
collateral duty. Throughout April, Olson stated that she was
not yet medically cleared to return to work, but she
performed limited teleworking for which she billed BPA.
BPA eventually paid Olson for those hours. A BPA
representative testified that, on April 10, it considered
terminating Olson, but after consulting with BPA’s legal
department, decided against that course of action.
On April 29, Olson contacted BPA’s Equal Employment
Opportunity office to discuss filing a complaint. The
following day, BPA sent Olson an email stating that her
network access had been terminated in accordance with
security policies for critical infrastructure utilities. Despite
termination of her network access, Olson still billed BPA for
three hours the next month and was paid for her time.

6 OLSON V. UNITED STATES

In early May, Olson told BPA that she intended to
attempt a trial work period that she and her physician had
agreed upon. BPA responded by informing Olson that she
was under a “stop work” order and that she would have to
meet with a BPA manager in person before she would be
allowed to return to work. On May 27, 2014, Olson formally
filed an EEO complaint alleging that BPA had violated her
FMLA rights.
On June 5, Olson finally met with a representative from
BPA. On June 11, BPA emailed Olson agreeing to allow her
to telework more. BPA also proposed a five-hour trial work
period. Olson interpreted this trial work period as including
training her own replacement. Olson decided not to accept
BPA’s offer and did not return to work. Following BPA’s
email dated June 11, 2014, Olson did not perform further
work for BPA, and BPA did not issue any additional work
orders for her services.
Olson filed the operative complaint on March 13, 2017.
The district court held a bench trial in 2018. In early 2019,
it entered judgment for BPA on each of Olson’s claims.
The district court first found that BPA’s conduct was not
willful because the evidence did not show that BPA
knowingly or recklessly disregarded Olson’s FMLA rights.
The court found that BPA consulted with its legal
department about how to proceed during Olson’s FMLA
leave, opted not to terminate her, offered her a trial work
period, and made efforts to restore her to an equivalent
position.
On the merits, the district court found that Olson failed
to prove that BPA would not restore her to the same or an
equivalent position. Olson does not appeal this finding.

OLSON V. UNITED STATES 7

However, the court also found that BPA never provided
Olson notice of her FMLA rights.
The district court’s finding concerning the absence of
notice forms the basis for Olson’s appeal. She argues that
the district court failed to consider how BPA’s failure to
notify would have caused her to structure her FMLA leave
differently or how it could have exacerbated her FMLA-
qualifying anxiety. She also challenges the district court’s
finding that BPA’s alleged interference was not willful. This
finding caused the district judge to hold that the applicable
statute of limitations was two years, not three years.
2

II. STANDARD OF REVIEW
Following a bench trial, the district court’s findings of
fact are reviewed for clear error. Fed. R. Civ. P. 52(a)(6);
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th
Cir. 2008) (en banc). Conclusions of law and the application
of the law to the facts are reviewed de novo. Navajo Nation,
535 F.3d at 1067; OneBeacon Ins. Co. v. Haas Indus., Inc.,
634 F.3d 1092, 1096 (9th Cir. 2011).
III. DISCUSSION
“The FMLA provides job security to employees who
must be absent from work because of their own illnesses, to
care for family members who are ill, or to care for new
babies.” Bachelder v. America West Airlines, Inc., 259 F.3d

2
Finally, she challenges the district court’s rulings on her requests
for appointment of counsel. The court appointed counsel for many
purposes but also denied appointment to the full extent that Plaintiff
requested. We have reviewed the record carefully; the court applied the
correct legal standard; and we otherwise see no abuse of discretion.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

8 OLSON V. UNITED STATES

1112, 1119 (9th Cir. 2001) (citing 29 U.S.C. § 2612).
Through the FMLA, “Congress made it unlawful for an
employer to ‘interfere with, restrain, or deny the exercise or
the attempt to exercise, any right provided’ by the Act.” Id.
at 1122 (quoting 29 U.S.C. § 2615(a)(1)). Our cases have
recognized two theories of recovery for violations of
§ 2615(a), “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)).
FMLA interference can take many forms including, for
example, using FMLA leave as a negative factor in hiring,
promotions, disciplinary actions, and no-fault attendance
policies. See 29 C.F.R. § 825.220(c).
Olson brought both retaliation and interference claims
against BPA. She appeals only the interference claim,
arguing that BPA interfered with her FMLA rights by failing
to provide her notice of those rights. Olson specifically
argues that the lack of notice interfered with the exercise of
her FMLA rights because she would have structured her
FMLA leave differently had she been given notice and
because BPA’s actions during her FMLA leave exacerbated
her FMLA-qualifying condition of anxiety. BPA does not
dispute that it failed to notify Olson of her FMLA rights but
argues that the failure was not prejudicial.
Employers have a duty to inform employees of their
entitlements under the FMLA. Xin Liu v. Amway Corp.,

OLSON V. UNITED STATES 9

347 F.3d 1125, 1134–35 (9th Cir. 2003); 29 C.F.R.
§ 825.300(d)-(e). However, the failure to provide notice
does not result in a standalone cause of action; rather, “an
employee must prove, as a threshold matter, that the
employer violated § 2615 by interfering with, restraining, or
denying his or her exercise of FMLA rights.” Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). The
Act “provides no relief unless the employee has been
prejudiced by the violation.” Id.
In Bachelder, we interpreted prohibited “interference” as
“engaging in activity that tends to chill an employee’s
freedom to exercise” FMLA rights. 259 F.3d at 1123
(internal quotation marks omitted). This interpretation was
guided by our cases analyzing § 8(a)(1) of the National
Labor Relations Act, which “largely mimics” § 2615’s
interference language. Id. Thus, the inquiry for interference
is whether the employer’s conduct makes an employee “less
likely to exercise their FMLA leave rights [because] they can
expect to be fired or otherwise disciplined for doing so.” Id.
at 1124.
We need not and do not decide whether BPA’s failure to
give notice here constituted interference with Olson’s
FMLA rights because, even if she had proved a violation, the
district court did not clearly err in determining that such
interference was not willful. Under the FMLA, an action
must generally be brought within two years “after the date of
the last event constituting the alleged violation for which the
action is brought.” 29 U.S.C. § 2617(c)(1). This limitation
is extended to three years for a “willful violation.” 29 U.S.C.
§ 2617(c)(2).
Olson filed the operative complaint in this matter on
March 13, 2017. Olson first took FMLA leave on March 24,
2014, and met with supervisors at BPA on June 4, 2014.

10 OLSON V. UNITED STATES

BPA’s email assenting to most of her requested
accommodations was sent on June 11, 2014, after which
Olson severed contact with BPA. Thus, the “last event
constituting the alleged violation,” id. § 2617(c)(1),
occurred no later than June 11, 2014, more than two years
but less than three years before Olson’s complaint was filed.
Accordingly, she must show that BPA’s conduct was willful
to avoid the statutory time bar.
3
Id. § 2617(c)(2).
The FMLA does not define “willful.” See 29 U.S.C.
§ 2617. However, other circuits addressing the issue have
held that the standard for willfulness adopted by the
Supreme Court in McLaughlin v. Richland Shoe Co.,
486 U.S. 128 (1988), for Fair Labor Standards Act (“FLSA”)
claims also applies to FMLA claims. See, e.g., Sampra v.
U.S. Dep’t of Transp., 888 F.3d 330, 333–34 (7th Cir. 2018);
Bass v. Potter, 522 F.3d 1098, 1103–04 (10th Cir. 2008);
Hoffman v. Pro. Med Team, 394 F.3d 414, 417–18 (6th Cir.
2005); Porter v. N.Y.U. School of Law, 392 F.3d 530, 531
(2d Cir. 2004) (per curiam); Hanger v. Lake Cnty., 390 F.3d
579, 583 (8th Cir. 2004); Hillstrom v. Best Western TLC
Hotel, 354 F.3d 27, 33–34 (1st Cir. 2003).
In McLaughlin, the Supreme Court held that, for the
three-year limitations period for “willful” violations of the
FLSA to apply, the employer must know, or show reckless
disregard for whether, its conduct was prohibited by the
statute. 486 U.S. at 133. We agree with our sister circuits
that the McLaughlin definition of “willful” applicable in
FLSA claims applies to the use of “willful” in § 2617(c)(2)

3
Plaintiff argues, in the alternative and for the first time on appeal,
that she is entitled to equitable tolling. We hold that, by failing to raise
this fact-intensive issue to the district court, Plaintiff forfeited the issue.
O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th Cir. 2007).

OLSON V. UNITED STATES 11

as well. The FLSA's statute of limitations provision is
structured similarly; the Supreme Court approved the same
criterion under the Age Discrimination in Employment Act,
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128–
29 (1985), thus signaling that the McLaughlin standard is not
limited to the FLSA; that standard comports with a common
understanding of the term “willful” in similar contexts; and
the other circuits that have considered the issue are
unanimous. Accordingly, we hold that, to benefit from the
FMLA’s three-year statute of limitations, a plaintiff must
show that her employer either knew or showed reckless
disregard for whether its conduct violated the Act.
The district court applied the McLaughlin standard for
willfulness. In applying that standard, the court considered
several factors that weigh against a finding of willfulness:
BPA’s decision to consult with its legal department
concerning Olson’s status, BPA’s attempts to bring Olson
back to work, and BPA’s payment for hours worked while
Olson was out on FMLA leave. Additionally, there was a
serious question as to whether BPA was Olson’s primary
employer, potentially relieving BPA of its duty to provide
notice. See 29 C.F.R. § 825.106(c) (requiring only the
primary employer in joint employment relationships to
provide required notices to employees). When BPA moved
for summary judgment, the court thoughtfully applied the
multi-factor test for joint employment relationships
prescribed by our decision in Moreau v. Air France.
356 F.3d 942, 946 (9th Cir. 2004). It concluded that BPA
was a joint employer but did not reach the question whether
BPA was the primary employer for purposes of the FMLA.
The legitimate dispute about BPA’s role as a primary or
secondary employer for purposes of the FMLA cuts against
a finding of willfulness and furthers BPA’s contention that
it did not act with “reckless disregard” for the FMLA.

12 OLSON V. UNITED STATES

In short, there is little evidence in the record that BPA
“either knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the statute.”
4

McLaughlin, 486 U.S. at 133. The district court found that
these facts did not constitute willfulness, and that finding is
not clearly erroneous. Accordingly, Olson’s claim is barred
by the statute of limitations in 29 U.S.C. § 2617(c)(1), and
the district court properly granted judgment to BPA.
AFFIRMED.

4
Olson claims that the district court erred in concluding that BPA
did not act willfully, because: (1) BPA failed to mitigate prejudice to
Olson from a failure to notify; (2) BPA knew that Olson was taking leave
and failed to take any affirmative steps to notify her; and (3) BPA sought
legal advice and so should have known it had a duty to notify. In essence,
these arguments merely reiterate the underlying claim that BPA knew
that Olson had taken leave from her position and failed to notify her of
her FMLA rights. We reject these arguments, because the district court’s
finding that this conduct was not willful under these circumstances is not
clearly erroneous.