# Hanson v. State of Oregon, Legislative Assembly

> District Court, D. Oregon · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10397228

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397228

## How later opinions describe it (automated extraction)

- explaining that the McDonnell Douglas burden-shifting scheme is federal procedural law that applies regardless of the source of the federal court’s subject-matter jurisdiction over a state-law claim
- noting that an employee’s conduct resulting from a disability is generally “considered to be part of the disability, rather than a separate basis for termination”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LAURA HANSON, Case No. 3:21-cv-780-SI

Plaintiff, OPINION AND ORDER

v.

STATE OF OREGON, LEGISLATIVE
ASSEMBLY,

Defendant.

Meredith A. Holley, LAW OFFICE OF MEREDITH HOLLEY, 207 E. Fifth Avenue, Suite 254,
Eugene, OR 97401; and Rebecca Cambreleng and Ashley A. Marton, CAMBRELENG & MARTON
LLC, 3518 S. Corbett Ave, First Floor, Portland, OR 97239. Of Attorneys for Plaintiff.

Marc Abrams and Allie M. Boyd, OREGON DEPARTMENT OF JUSTICE, 100 SW Market Street,
Portland, OR 97201. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Laura Hanson brings this action against her former employer, the Legislative Assembly
of the State of Oregon (the Legislature). In her Second Amended Complaint (SAC) (ECF 65),
Hanson asserts eleven claims under state and federal law, including for disability discrimination,
disability retaliation, interference with medical leave, medical leave retaliation, whistleblower
retaliation, unlawful termination for opposing an unlawful practice, and civil rights violations.
Before the Court is the Legislature’s Second Motion for Summary Judgment (Motion),
which addresses the inclusion in this lawsuit of Hanson’s three-week tenure of employment in
January 2023 with Oregon State Rep. Khanh Pham (a period the Court will refer to as “the Pham
Phase”). Relevant to the Pham Phase are Counts One and Three of Hanson’s First Claim, which
she brings under Oregon Revised Statutes (ORS) § 659A.112.1 Hanson alleges disability

discrimination in the termination of her employment with Rep. Pham (Count One) and alleges
disability discrimination based on a failure to accommodate Hanson’s disabilities (Count Three).
For the reasons stated below, the Court denies the Legislature’s Motion.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the

1 As discussed below, the SAC indicates that Hanson also asserts her Ninth, Tenth, and
Eleventh Claims based on actions alleged to have occurred during the Pham Phase. Hanson,
however, has since withdrawn her Tenth and Eleventh Claims and confirms that she is not
alleging events arising from the Pham Phase in support of her Ninth Claim.
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted).
BACKGROUND
The Legislature’s Motion addresses the allegations in the SAC regarding Hanson’s three-
week tenure of employment with Rep. Pham in January 2023. Hanson applied for a job with

Rep. Pham’s office on or about December 20, 2022, and was hired less than a day and a half
later.2 Hanson’s first day on the job was January 3rd or 4th.3 Hanson, who had previously
worked as Chief of Staff for Oregon State Sen. Sara Gelser Blouin, was hired by Rep. Pham’s
office to work under Rep. Pham’s Chief of Staff, Mr. Robin Ye.4 Hanson’s position was
designated “Legislative Assistant 2.”5
On Hanson’s first day on the job for Rep. Pham, or when she was being prepped for
onboarding, Hanson informed Rep. Pham that she had disabilities, including that she had
Attention Deficit Hyperactivity Disorder.6 Within a week of beginning work, Hanson informed
Ye that because of her disabilities, she needed to receive instructions in writing.7 Hanson
testified about a discussion she had with Ye on January 3rd or 4th as follows: “I let him know

that because of—because of my disabilities I needed to have my instructions for my position, my

2 Third Hanson Dep. (ECF 71-1) 11:24-12:23.
3 Id. 22:2-7; see also ECF 78-1 (email correspondence confirming Hanson’s start date).
4 Third Hanson Dep. (ECF 71-1) 17:9-11; Pham Dep. (ECF 79-2) 38:14-16.
5 Pham. Dep (ECF 71-4) 14:20-21.
6 Id. 10:12-11:3.
7 Ye Dep. (ECF 79-3) 26:19-27:1; ECF 79-3 at 17.
responsibilities, whoever I report to, I need those in writing[.]”8 Hanson also asked that she be
given a modified work schedule and told Ye that because of Hanson’s irritable bowel syndrome,
she occasionally might need to step out of the room.9 In addition to in-person discussions about
her need for accommodations, Hanson also communicated that need “many times in writing” to
Rep. Pham or Ye.10 Hanson testified that Rep. Pham and Ye had asked for “grace” through

January and promised her that “in February . . . they would be able to discuss my
accommodations, specifically the one where I requested written instruction of my responsibilities
and their expectations of me and, you know, an explanation of who I reported to, who I reported
to about what, who was in charge of decisions for my time.”11
On January 10th, Hanson emailed Interim Human Resources Director Jessica Knieling
about her need for accommodation for her disabilities.12 Hanson wrote in part:
[A]s you know, I have a number of disabilities, and I want to
follow all of the available procedures to make sure I’m
accommodated. I’ve talked with Rep. Pham about my
disabilities . . . and we are working together on accommodations.
What other procedures are available to me? We want to be sure
we’re following your office’s process.13
In reply, Knieling emailed Hanson an Employee Accommodation Request form and health care
provider form.14 In her email, Knieling stated that she and Susan Hoeye (the person in the HR

8 Third Hanson Dep. (ECF 71-1) 24:11-16.
9 Id. 24:11-25.
10 Third Hanson Dep. (ECF 79-4) 37:19-38:19.
11 Id. 51:3-14.
12 ECF 78-2 at 1-2.
13 Id. at 2.
14 Id. at 1.
office who was “on point . . . for handling accommodations”) would be “happy to explore any
accommodations to assist you.”15 Knieling explained that because of the HR office’s policy of
not sharing medical information with supervisors, Hoeye would work directly with Hanson “and
then advise Rep. Pham of requested or needed accommodations.”16
Hanson only partially filled out the accommodation paperwork Knieling sent her and

never turned it in.17 Hanson testified that she did not submit the paperwork because, as discussed,
Ye and Rep. Pham had asked for “grace” during January and promised Hanson that in February
they would be able to discuss Hanson’s needed accommodations.18
Rep. Pham testified that Hanson was given her assignments in one-on-one or staff
meetings.19 When assignments were given during staff meetings, staff would generally write
down the “action steps”; those steps were also sometimes written down during one-on-one
meetings.20 If Rep. Pham gave Hanson an assignment during a one-on-one meeting, Rep. Pham
would also try to write the actions steps down in a Google document or in a chat app.21 In
addition, if assignments were given during one-on-one meetings, Rep. Pham would follow up by
phone or Slack (a messaging app) if deadlines were missed.22 Rep. Pham recalled that early on in

15 Id. at 1.
16 Id.
17 Third Hanson Dep. (ECF 71-1) 37:19-22, 38:16-19; ECF 78-3.
18 Third Hanson Dep. (ECF 79-4) 50:24-51:25.
19 Pham Dep. (ECF 71-4) 21:10-22:16.
20 Id. 21:22-22:9.
21 Id. 21:16-21.
22 Id. 21:18-21.
Hanson’s employment, Hanson texted Rep. Pham to thank her for giving clear deadlines and
being specific about assignments.23
On January 25, 2023, responding to a request from Rep. Pham, Ye sent Rep. Pham an
email stating his “concerns about [Hanson’s] performance.”24 Ye wrote that “[Hanson] has not
demonstrated proficiency in completing tasks in a timely fashion and/or usable status.”25 Ye

provided multiple examples, including: an assignment to review “a fully drafted social media
post” that took Hanson 8 hours to complete; a bill draft that Hanson had volunteered to write that
was delivered “incomplete and unusable”; a committee briefing that Hanson’s supervisor had
repeatedly requested to see and that Hanson provided only 20 minutes before the meeting for
which it had been prepared; and a one-paragraph staff biography that Hanson was given more
than two weeks to complete and which Hanson “declined to submit” by the deadline.26 Ye stated
that Hanson “struggles communicating expected work project delivery times [and] frequently
informs [that] more time is needed and blows by additional deadlines, even deadlines offered by
[Hanson].”27 Ye also expressed concerns about Hanson’s failure to arrive at the office at an
agreed-upon time.28

In addition to Hanson having difficulty with assignments and timeliness, Ye also stated
that Hanson had “difficulty respecting chain of command” and had “gone over [her] supervisor’s

23 Id. 11:7-17.
24 Ye Dep. (ECF 79-3) 41:12-42:5; ECF 79-3 at 13-16.
25 ECF 79-3 at 13.
26 Id. at 13-14.
27 Id. at 14.
28 Id. at 14-15.
head on [a] workplan item, [without] informing [the] supervisor.”29 Ye also noted Hanson gave
“the strong impression that [she] do[es] not understand the specific job” for which she was hired
and had “difficulty accepting parameters of her decision-making ability for this office.”30
Also on January 25th, Legislative Director Doyle Canning emailed Rep. Pham about her
experience working with Hanson.31 Canning stated that Hanson “expressed explicitly that she

would like to direct legislative and communication strategy.”32 Canning explained at deposition
that this was a problem because strategy “is led by the legislative director [Canning] and chief of
staff [Ye], not the leg assistant 2 [Hanson].”33 Canning also wrote in her email that Hanson “was
suggesting on some matters . . . a move away from the direction that we had already established
under [Ye’s] leadership as chief of staff.”34 Canning further detailed concerns about Hanson’s fit,
manageability, and work product.35 Canning testified at deposition that her first impression of
Hanson “was that she did not take direction from her supervisor and publicly second-guessed the
strategy he spent years developing.”36
Also on January 25, 2023 (the same day that Ye and Canning emailed Rep. Pham with
their descriptions of Hanson’s job performance), Rep. Pham terminated Hanson’s employment.37

29 Id. at 15.
30 Id.
31 ECF 71-3 at 7-9.
32 Id. at 7.
33 Canning Dep. (ECF 71-3) 20:6-22.
34 ECF 71-3 at 7.
35 Id. at 7-9.
36 Canning Dep. (ECF 71-3) 22:12-17.
37 Pham. Dep (ECF 79-2) 37:15-22.
After speaking with Hanson, Rep. Pham emailed Hanson a copy of a letter that explained the
reasons for ending Hanson’s employment as follows:
I have decided to end your employment because differences in
political and communications strategy are leading to tension,
duplicative work, and lost time. I need [a Legislative Assistant] 2
who will accept direction under my Chief of Staff and Legislative
Director, rather than question and critique the strategy and bypass
their directions. I don’t think we can resolve these problems in the
short time that we have.38
On April 4, 2023, Hanson filed her SAC, which incorporated new claims and allegations
pertaining to her employment with Rep. Pham and her termination from that employment.
DISCUSSION
A. Eleventh Amendment Immunity
The Legislature argues that Eleventh Amendment sovereign immunity should apply to
the “new claims”—i.e., Counts One and Two of the First Claim to the extent they arise from new
facts not alleged in the original Complaint. The Legislature acknowledges that its removal of this
action from state court waived sovereign immunity for all claims in existence at the time of
removal but argues that its earlier waiver should not apply to the new claims. According to the
Legislature, Hanson’s new claims were not removed from state court and are therefore “more
analogous to claims filed by a plaintiff initially in this forum” (to which Eleventh Amendment
immunity would apply). The voluntary removal of the original lawsuit from state court to federal
court, however, is not the basis for this Court’s conclusion that the Legislature has waived its
sovereign immunity with respect to the new claims. The Legislature stipulated to the filing of the

38 ECF 79-2 at 16. Hanson asserts that she was not required to “accept direction” from
Legislative Director Canning (who was a higher-ranked employee but not Hanson’s direct
supervisor) beyond deferring to Canning on assignments that Rep. Pham gave to Canning. Rep.
Pham clarified in her deposition that the issue about “accept[ing] direction” with respect to
Canning was “more about a project assignment than an overall chain of command.” Pham Dep.
(ECF 79-2) 38:19-39:11.
SAC, which incorporated the new claims. See Stipulated Mot. (ECF 62). The Court finds that the
Legislature cannot stipulate to the addition of claims in a federal lawsuit and then challenge
those same claims on grounds of sovereign immunity. By its stipulation, the Legislature has
waived its sovereign immunity.
B. Exhaustion Requirement Under ORS § 659A.139

The Legislature also moves for summary judgment against Counts One and Two of
Hanson’s First Claim (insofar as those claims arise out of the Pham Phase) on the ground that
Hanson failed to exhaust her administrative remedies. The Legislature argues that because
Oregon’s antidiscrimination laws must be construed in a manner that is consistent with the
federal Americans with Disabilities Act (ADA) and because the ADA imposes an administrative
exhaustion requirement, the same requirement must apply to Hanson’s state law claims. In
support, the Legislature cites ORS § 659A.139, which provides that specified provisions of
Oregon’s antidiscrimination law “shall be construed to the extent possible in a manner that is
consistent with any similar provisions of the federal Americans with Disabilities Act.” Relying
on ORS § 659A.139, the Legislature asserts that because Hanson did not exhaust her

administrative remedies, her claims arising from the Pham Phase are barred.
The Legislature, however, cites no case, statute, or rule that directly supports the
proposition that a plaintiff alleging a claim under ORS § 659A.112 must exhaust administrative
remedies before filing a civil action, nor does ORS § 659A.139 dictate that result. ORS
§ 659A.139 provides, in relevant part, only that the provisions of Oregon’s antidiscrimination
law codified at ORS §§ 659A.103 to 659A.144 “shall be construed to the extent possible in a
manner that is consistent with any similar provisions of the federal Americans with Disabilities
Act” (emphasis added). Whereas 42 U.S.C. § 12117(a) of the ADA imposes a charge-filing
requirement,39 the Legislature has not identified a “similar provision[]” in Oregon’s
antidiscrimination law that falls within the scope of ORS § 659A.139. Further, the Legislature’s
argument contravenes the plain terms of ORS § 659A.870(2), which expressly provides that the
filing of a complaint with the Bureau of Labor and Industries (BOLI) “is not a condition
precedent to the filing of any civil action.”40 Accordingly, the Court declines to grant summary

judgment in favor of the Legislature on the asserted ground that Hanson has failed to exhaust
administrative remedies.
C. Adverse Employment Actions Under ORS § 659A.112
ORS § 659A.112(1) makes it unlawful “for any employer to . . . discharge from
employment or to discriminate in compensation or in terms, conditions[,] or privileges of
employment on the basis of disability.” Under ORS § 659A.112(2)(e), an employer is prohibited
from failing to make a reasonable accommodation for the known disability of a qualified
individual. In Count One of her First Claim, Hanson alleges that she was terminated from her
employment with Rep. Pham because of her disability. In Count Three, Hanson alleges that the
Legislature failed to provide reasonable accommodations.

39 Title I of the ADA incorporates “[t]he powers, remedies, and procedures set forth in
[Title VII of the Civil Rights Act of 1964],” 42 U.S.C. § 12117(a) (emphasis added); Title VII, in
turn, directs that a complainant may commence a civil action against an allegedly offending
employer only after filing a charge with the Equal Employment Opportunity Commission (or,
under certain circumstances, a state or local employment agency), see 42 U.S.C. § 2000e-5(c);
see also Tomlinson v. City of Portland, 2024 WL 279036, at *5, 5 n.8 (D. Or. Jan. 25, 2024)
(reviewing the ADA’s exhaustion requirements).
40 In addition, ORS § 659A.820(4)(a) expressly contemplates that a civil action may be
filed in the alternative to a BOLI complaint. See ORS § 659A.820(4)(a) (providing that with a
narrow exception not applicable here, “a [BOLI] complaint may not be filed under this section if
a civil action has been commenced in state or federal court alleging the same matters”).
1. Wrongful Termination
a. Legal Framework
To establish a prima facie case of disability discrimination under ORS § 659A.112(1),
the plaintiff must show: “(1) she is a qualified individual with a disability, (2) she suffered an
adverse employment action, and (3) there was a causal connection between the adverse
employment action and her disability.” Huitt v. Optum Health Servs., 216 F. Supp. 3d 1179,

1187 (D. Or. 2016). To show causation, a plaintiff must prove “that the adverse employment
action would not have occurred but for the disability.” Murray v. Mayo Clinic, 934 F.3d
1101, 1105 (9th Cir. 2019) (emphasis added) (construing ADA).
When evaluating a typical wrongful termination claim at summary judgment, a court
must apply the McDonnell Douglas burden-shifting framework. See Snead v. Metro. Prop. &
Cas. Ins., 237 F.3d 1080, 1093-94 (9th Cir. 2001) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973) and applying framework); see also Dawson v. Entek Intl., 630 F.3d
928, 935-37 (9th Cir. 2011) (explaining that the McDonnell Douglas burden-shifting scheme is
federal procedural law that applies regardless of the source of the federal court’s subject-matter
jurisdiction over a state-law claim). Under that framework, the plaintiff-employee “has the initial

burden of establishing a prima facie case of discrimination.” Curley v. City of North Las Vegas,
772 F.3d 629, 632 (9th Cir. 2014). The burden then shifts to the defendant-employer “to provide
a legitimate, nondiscriminatory . . . reason for the adverse employment action.” Id. If the
employer does so, the burden then “shifts back to the employee to prove that the reason given by
the employer was pretextual.” Id.
That burden-shifting framework, however, does not apply “where the plaintiff presents
direct evidence of discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985). Such “direct evidence” includes evidence that the plaintiff was terminated from
employment for a performance issue that resulted from the employer’s failure to reasonably
accommodate the employee’s disability. See Humphrey v. Mem’l Hosps. Ass’n, 239
F.3d 1128, 1139-40 (9th Cir. 2001) (noting that an employee’s conduct resulting from a
disability is generally “considered to be part of the disability, rather than a separate basis for
termination”); id. at 1140 (“The link between the disability and termination is particularly strong

where it is the employer’s failure to reasonably accommodate a known disability that leads to
discharge for performance inadequacies resulting from that disability.”);41 see also Pietro v. Walt
Disney Co., 2012 WL 4755415, at *5-6 (C.D. Cal. Oct. 4, 2012) (concluding that a plaintiff’s
termination from employment resulting from his failure to adhere to an employer’s attendance
policy was not direct evidence of discrimination because the plaintiff had not shown that his
failure to adhere to the policy was caused by his disability). Because Hanson has presented such
evidence, the Court examines whether that evidence is sufficient to satisfy her prima facie
burden.
b. Application
The Legislature does not dispute that Hanson is a qualified individual with a disability or

that termination of employment is an adverse employment action. Instead, the Legislature argues
that Hanson has failed to demonstrate a causal connection between the termination of her
employment and her disability. Hanson responds that she has presented both direct and
circumstantial evidence from which a reasonable jury could find that Hanson’s employment was

41 The plaintiff in Humphrey alleged that her employer had terminated her employment
for attendance problems that were caused by her disability, and the district court granted
summary judgment in favor of the defendant. Reversing the district court on that claim, the Ninth
Circuit considered whether the plaintiff had presented sufficient evidence to survive summary
judgment by examining the disputed elements of her prima facie case (whether she was a
qualified individual with a disability and whether she had demonstrated causation) and did not
apply the McDonnell Douglas framework. See Humphrey, 239 F.3d at 1133, 1134-37, 1139-40.
terminated because of her disability. Among other things, Hanson argues that there are genuine
issues of material fact as to (1) whether the Legislature failed to accommodate her disabilities
and (2) whether that failure resulted in her termination from employment.42 For the reasons
stated below, the Court agrees with Hanson.
Hanson has presented evidence showing not only that she asked that her assignments be

given to her in writing, but also that she asked for “written instruction” about her role and
responsibilities, to whom she reported, her employer’s expectations of her, and who was in
charge of her time. For purposes of the pending Motion, the Legislature does not dispute that the
“written instruction” was never provided. The Legislature also does not dispute in its Motion that
the accommodations that Hanson requested were reasonable (and necessary). Construing the
evidence in the light most favorable to Hanson, a reasonable jury could find that the issues with
Hanson’s job performance that led to the termination of her employment—specifically, the
issues identified in Rep. Pham’s January 25th letter—substantially resulted from a failure to
provide Hanson with written instructions regarding her responsibilities and role.43

In its Motion, the Legislature contends that there was no failure to accommodate because
Hanson’s failure to submit the reasonable accommodation paperwork interfered with the
Legislature’s formal reasonable accommodation process. See ECF 70 at 18 (arguing that Hanson

42 Hanson raises additional arguments in support of her claim that the termination of her
employment was caused by her disability. Because the Court finds that Hanson has raised a
sufficient factual dispute as to whether her termination from employment was caused by a failure
to accommodate, the Court does not consider those additional arguments.
43 Construing the evidence in the light most favorable to Hanson, a reasonable jury could
also find that several of the issues raised in the emails sent by Ye and Canning to Rep. Pham
similarly resulted from a failure to provide Hanson with those instructions. For example, Ye
stated that Hanson gave “the strong impression that [she] do[es] not understand the specific job”
for which she was hired and that she had “difficulty accepting parameters of her decision-making
ability for this office.”
“at most” made her reasonable accommodation requests “informally” and that her failure to turn
in the paperwork was “problematic, as neither side can delay or obstruct the process” (citing
Humphrey, 239 F.3d at 1137)). Put differently, the Legislature argues that Hanson has failed to
demonstrate causation because it was not Hanson’s disability that led to a failure to
accommodate, but rather Hanson’s failure properly to seek accommodations. Hanson responds

that her communications with Rep. Pham and Ye were sufficient to put her employer on notice
of her need for accommodations and that she therefore satisfied her obligation to engage in the
interactive process—notwithstanding her failure to turn in the accommodation request
paperwork.
Construing the facts in the light most favorable to Hanson, the Court agrees with Hanson.
Hanson has presented ample evidence that she informed Ye and Rep. Pham of her need for
accommodations, in addition to informing human resources personnel. The Legislature has
pointed to no authority standing for the proposition that an employee must provide formal notice
or complete a specified form to satisfy her notice requirement and thereby trigger the employer’s

obligation to engage in the interactive process (even if that employee has been made aware of the
employer’s formal process), or that an employee’s awareness of a formal process renders
“informal” requests for accommodations insufficient. See Snapp v. United Transp. Union, 889
F.3d 1088, 1095 (9th Cir. 2018) (setting forth the need to engage in an interactive process and
the respective burdens placed on each party).44 Indeed, the Ninth Circuit has explained that an

44 In its Reply, the Legislature also asserts that Hanson’s failure to complete the
paperwork is “unexplained” and suggests that Hanson’s requested accommodations therefore
must not have been as important as Hanson now contends. That argument, however, was not
raised in the Legislature’s Motion, and the Court need not consider it. See Zamani v. Carnes, 491
F.3d 990, 997 (9th Cir. 2007); cf. Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (noting
that under the Federal Rules of Appellate Procedure, “arguments raised for the first time in a
reply brief are waived”). In any event, Hanson did explain why she did not turn in the
employee need only provide notice that is in “plain English” and “need not mention the ADA or
use the phrase ‘reasonable accommodation.’” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th
Cir. 2000), vacated on other grounds sub nom US Airways, Inc. v. Barnett, 535 U.S. 391 (2002);
see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (“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.” (quotation marks
omitted)). The key is that the employee must provide “the employer with enough information
that, under the circumstances, the employer can fairly be said to know of both the disability and
desire for an accommodation.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir.
1999). Hanson’s supervisors told her they needed some time but would get back to her regarding
her requested accommodations and did not indicate any confusion about her disabilities or desire
for accommodation. Because Hanson has presented evidence sufficient to raise a factual dispute
about whether her termination from employment was caused a wrongful failure to accommodate
her disability, the Court declines to grant summary judgment in favor of the Legislature on

Hanson’s wrongful termination claim.
2. Failure to Provide Reasonable Accommodation
An employer may be held liable for disability discrimination under ORS § 659A.112(1)
by failing to “make reasonable accommodation to the known physical or mental limitations of a
qualified individual with a disability who is a job applicant or employee, unless the employer can
demonstrate that the accommodation would impose an undue hardship” on the employer. ORS
§ 659A.112(2)(e). To establish a prima facie case for failure to accommodate, a plaintiff must
show: (1) she is a qualified individual; (2) the defendant received adequate notice of the

paperwork: because Ye and Rep. Pham had asked for “grace” during January and promised
Hanson that they would be able to discuss her needed accommodations in February.
plaintiff’s desire for a reasonable accommodation; and (3) a reasonable accommodation was
available that would have enabled the plaintiff to perform the essential functions of her
job. See Snapp, 889 F.3d at 1095, 1099 (listing the elements of a failure to accommodate claim
under the ADA).
When an employee claims that a failure to accommodate resulted in an unlawful

termination, her claims of unlawful termination and failure to accommodate may be, “from a
practical standpoint, the same.” Humprey, 239 F.3d at 1139. Such is the case here. For the
reasons discussed above, Hanson has presented evidence sufficient to raise a factual dispute as to
whether the Legislature failed to accommodate her disability. Accordingly, the Court denies
summary judgment on Hanson’s reasonable accommodation claim.
D. Hanson’s Ninth, Tenth, and Eleventh Claims
In her SAC, Hanson asserts the Ninth, Tenth, and Eleventh Claims based in part on
actions alleged to have occurred during the Pham Phase. Hanson, however, has moved the Court
“for leave to amend to withdraw” her Tenth and Eleventh Claims. ECF 77 at 17. The Court
grants Hanson’s request and considers those claims withdrawn. In addition, Hanson concedes

that she has not alleged events related to the Pham Phase as required to support her Ninth Claim
and clarifies that she does not intend to assert that claim relating to the Pham Phase. Id. at 16-17.
The Court accepts Hanson’s clarification that her Ninth Claim for relief pertains only to events
alleged to have occurred before the Pham Phase.
CONCLUSION
The Court denies Defendant’s Second Motion for Partial Summary Judgment (ECF 70).
The Court grants Plaintiff’s request to withdraw her Tenth and Eleventh Claims and accepts
Plaintiff’s clarification that her Ninth Claim pertains only to events that occurred before her
employment began with Rep. Pham. The pretrial conference remains set for May 9, 2024, and
the seven-day jury trial remains set to begin on June 24, 2024.
IT IS SO ORDERED.

DATED this 28th day of March, 2024.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397228. Public record. Not legal advice.