Bassett v. Truveta, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KAYLA BASSETT, an individual Case No. 3:24-cv-1885-SI

Plaintiff, OPINION AND ORDER

v.

TRUVETA, INC., a foreign business

corporation,

Defendant.

Ashley A. Marton and Rebecca Cambreleng, CAMBRELENG & MARTON LLC, 3518 S Corbett

Avenue, First Floor, Portland, OR 97239. Of Attorneys for Plaintiff.

Clarence M. Belnavis and Janelle W. Debes, FISHER & PHILLIPS LLP, 560 SW Tenth Avenue,

Suite 450, Portland, OR 97205. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Kayla Bassett was employed by Truveta, Inc. (“Truveta”). Bassett sued Truveta in state

court, and Truveta timely removed. Bassett has since filed two amended complaints, with her

Second Amended Complaint (“SAC”) being the currently operative complaint. Bassett alleges

claims for disability discrimination under Oregon law and the Americans with Disabilities Act

(“ADA”), medical leave interference and retaliation under the federal Family and Medical Leave

Act (“FMLA”), and wrongful discharge. Truveta moves to dismiss the SAC under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Truveta argues that Bassett fails adequately to allege:

(1) a qualifying disability; (2) causation; (3) that Truveta had notice of Bassett’s disability or

serious medical condition; (4) that Bassett was eligible to take medical leave; (5) a viable FMLA

retaliation claim; or (6) a viable wrongful discharge claim. For the reasons discussed below, the

Court grants in part and denies in part Truveta’s motion.1

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, a court must accept as true all well-pleaded material facts alleged in the complaint

and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint

“may not simply recite the elements of a cause of action, but must contain sufficient allegations

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Court must draw all

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon

Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The Court need not, however, credit a

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009).

1 Notwithstanding Truveta’s request for oral argument, the Court does not believe that

oral argument would assist in resolving the pending motion. See LR 7-1(d)(1).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted).

BACKGROUND

Bassett began employment with Truveta in November 2021, as a Director of Product

Management. SAC ¶ 9. She alleges that she is a veteran and “has a mental disability that affects

one or more major life activities including sleeping, eating, and engaging in physical activities.”

Id. ¶ 10; see also id. ¶ 17. She “disclosed this disability to Truveta in October 2022 through her

supervisor Rachel Jiang who reported it to the Chief Operating Officer, Lisa Gurry.” Id. ¶ 11.

That same month, Bassett asked for time off for surgery, which her supervisor Jiang granted. Id.

¶ 12. Bassett took time off for her surgery from October 14 to October 31, 2022. Id. ¶ 14. She

was told to use her paid time off and was not notified about the FMLA, so she returned to work

before being fully recovered and while still experiencing health-related issues. Id. ¶¶ 13, 15, 18.

On December 2, 2022, Bassett was advised by a medical professional to take time off

from work to “address her disability and to heal completely from the surgery.” Id. ¶ 19. That

same day Truveta announced the departure of Bassett’s supervisor Jiang and Bassett

subsequently had an individual meeting with Gurry in which she shared that the reason for

terminating Jiang was poor performance and there would be no layoffs. Id. ¶¶ 20, 23. Gurry

further assured Bassett that “she did not need to worry about her position as she was a high

performer and had gotten good reviews.” Id. ¶ 24.

On December 5, 2022, Bassett met with her new supervisor, Michael Simonov,

“disclosed her disability,” and “disclosed the surgery she had a few months prior and that her

doctor had encouraged her to take time off to finish her recovery and deal with the impact from

the flare of her disability.” Id. ¶ 26. Simonov agreed that Bassett could take time off, so Bassett

put paid time off on the calendar from December 20, 2022, to January 3, 2023. Id. ¶ 27. Simonov

did not inform Bassett about her rights relating to medical leave or engage in any interactive

process relating to her disability or need for accommodation. Id. ¶¶ 28-29.

On December 7, 2022, Bassett attended a company-wide presentation in which Gurry

showed a slide presentation that listed Bassett as a key stakeholder. Id. ¶ 30. That same day,

Bassett, Gurry, and Simonov had a one-hour meeting at which Gurry stated that she was familiar

with Bassett’s work and did not need to discuss it but instead wanted to focus on Bassett’s team.

Id. ¶ 31. Bassett asked to reserve some time to discuss her work, and acknowledged that she had

taken some time off because of medical issues but showcased the longer arc of her employment.

Id. ¶¶ 31-32. Truveta terminated Bassett’s employment on December 9, 2022, allegedly for poor

performance despite Bassett allegedly never having a negative performance review, write-ups,

discipline, or anyone mentioning Bassett’s performance being a problem. Id. ¶¶ 33-35.

DISCUSSION2

A. Disability Claims

Bassett’s first and second claims for relief are brought under Oregon disability

discrimination law and the ADA, respectively. Oregon law provides that Oregon’s disability

2 The Court rejects as unpersuasive any argument not specifically addressed herein.

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 of 1990, as amended.”

Or. Rev. Stat. (“ORS”) § 659A.139(1). Oregon law also provides that determining “whether an

individual has a disability as provided in ORS 659A.104(1) shall be construed in favor of broad

coverage of individuals under ORS 659A.103 to 659A.145, to the maximum extent permitted by

the terms of ORS 659A.103 to 659A.145.” Id. § 659A.139(2). Bassett brings claims for disability

discrimination and failure to accommodate.

1. Discrimination

To state a prima facie case under the ADA for employment discrimination, Bassett must

show “(1) that she is disabled within the meaning of the ADA; (2) that she is a qualified

individual with a disability; and (3) that she was discriminated against because of her disability.”

Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). The standards are similar

under Oregon law. See Tomlinson v. City of Portland, 2024 WL 279036, at *7 (D. Or. Jan. 25,

2024) (explaining that to allege a prima facie case of disability discrimination under Oregon law

a plaintiff must allege that “(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”).

A disability is defined under the ADA as “a physical or mental impairment that

substantially limits one or more major life activities; . . . a record of such an impairment; or . . .

being regarded as having such an impairment.” 42 U.S.C. §§ 12102(1)(A)-(C). The definition of

a disability under Oregon law is substantially the same. ORS § 659A.104(1). “Major life

activities” can include eating, sleeping, walking, standing, lifting, breathing, and more. 42 U.S.C.

§ 12102(2)(A); ORS § 659A.104(2).

Truveta argues that Bassett has not met the pleading standard to demonstrate that she is a

qualified individual with a disability under the definition from the ORS or the ADA. Truveta

contends that Bassett’s allegation of disability is too broad and vague to support her claims,

contending that her claims fail for reasons similar to those why the allegations failed in

Tomlinson and Garcia v. Durham & Bates Agencies, Inc., 2014 WL 3746521 (D. Or. July 29,

2014). Bassett analogizes her allegations to those found sufficient to state a claim in Wessels v.

Moore Excavation, Inc., 2014 WL 6750350 (D. Or. Dec. 1, 2014), and Stewart v. Centene Corp.,

2020 WL 496503 (D. Or. Jan. 30, 2020).

“To survive a motion to dismiss, [Bassett] must allege well-pleaded facts demonstrating

the existence of a ‘physical or mental impairment that substantially limits one or more major life

activities.’” Tomlinson, 2024 WL 279036, at *7 (quoting ORS § 659A.104(1)(a)). In Tomlinson,

the Court rejected as a legal conclusion the allegation that the plaintiff was “a ‘disabled person’

as defined at ORS § 659A.104(1)” and rejected as insufficient the allegation that the plaintiff,

during a period of 1.5 weeks when she was sick, “had not been able to get enough sleep.” Id.

(quotation marks omitted). Similarly, in Garcia, the Court rejected as insufficient an allegation

the plaintiff “has a disability and informed [the defendant] about her conditions in August 2012.”

Garcia, 2014 WL 3746521, at *3 (quotation marks omitted).

Bassett alleges that she “has a mental disability that affects one or more major life

activities including sleeping, eating, and engaging in physical activities.” SAC ¶ 10. In Wessels,

U.S. District Judge Marco Hernandez found that the plaintiff’s allegation that he had a “serious

medical condition which substantially limits him in one or more major life activities including

but not limited to walking and standing,” was distinguishable from the plaintiff’s bare allegations

in Garcia. Wessels, 2014 WL 6750350, at *4. The court in Wessels emphasized that the “nature

of [the plaintiff’s] alleged limitations in walking and standing provide some information as to the

nature of the impairment.” Id. Like the plaintiff in Wessels, Bassett does more than merely

asserting that she has a disability about which she notified her employers. Bassett specifically

alleges that her condition is mental and that it substantially limits specifically identified major

life activities. See also Stewart, 2020 WL 496503, at *2 (finding that the plaintiff’s identification

of her disability as physical, unlike the plaintiff in Garcia who did not identify whether her

disability was mental or physical, supported finding the claim well-pleaded).

Truveta argues that both Stewart and Wessels are distinguishable because in those cases

the plaintiffs pled a record of disability that the employer perceived. This included the plaintiff in

Stewart being granted an accommodation for more bathroom breaks from human resources and

requesting leave to attend disability-related doctor’s appointments, 2020 WL 496503, at *2, and

the plaintiff in Wessels similarly requesting time off to treat his disability and arranging a late

arrival with his employer to accommodate a medical treatment, 2014 WL 6750350, at *4. The

findings regarding whether the plaintiffs in Stewart and Wessels adequately alleged a disability,

however, were separate from the discussion of this evidence, which related to whether the

respective employers had a record of the plaintiffs’ disability or regarded the plaintiffs as

disabled. See, e.g., Stewart, 2020 WL 496503, at *2 (explaining, after concluding that Wessels

was more persuasive than Garcia on the issue of actual disability, that even if Garcia were more

persuasive on that issue, the motion to dismiss would fail because the plaintiff “separately”

alleged a record of disability and perceived disability); Wessels, 2014 WL 6750350, at *4 (after

concluding that the plaintiff sufficiently alleged “actual disability” based only on the allegations

in the complaint relating to the disability, continuing to analyze whether the plaintiff also alleged

“a record of disability or a perceived disability”).

Additionally, Bassett makes similar allegations of knowledge by her employer. She

alleges that she disclosed her disability to her supervisor in October 2022, and asked for time off

for surgery that same month, which was granted by her supervisor. Later, in December 2022,

Bassett alleges that she met with her new supervisor and disclosed her surgery and asked for time

off to finish her recovery and “deal with the impact from the flare of her disability.” Her

supervisor agreed that she could take the time off. Bassett, like the plaintiffs in Stewart and

Wessels, alleges actual disability, a record of disability, and perceived (or regarded as) disability.

See SAC ¶ 42 (“Plaintiff is protected by statute as an individual with a disability due to her actual

disability, because of her record of disability, and because defendant regarded her as disabled.”);

id. ¶ 49 (“Defendant and its agents discriminated against Plaintiff in the terms and conditions of

her employment by terminating Plaintiff’s employment in substantial motivating part due to her

disability, her record of a disability, or because it regarded her as a disabled person.”).

Truveta additionally argues that Bassett only alleges a transient condition. Bassett alleges

facts relating to her surgery and associated time off, which relate to her medical leave claim.

That was a transient condition. But Bassett’s surgery is not her alleged disability; her alleged

disability is based on her mental health or defect. Bassett plausibly alleges that she is a veteran

with a mental disability that significantly affects major life activities. At this stage of the

litigation, that is sufficient.

Finally, Truveta argues that Bassett fails to allege causation. Bassett alleges that she was

terminated four days after requesting time off in part to address her disability, purportedly for

performance issues. She also alleges that she never had any negative performance feedback,

including during a one-hour meeting with her supervisors two days before her termination. The

close temporal proximity alone plausibly alleges causation at this stage of the litigation. See, e.g.,

Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (holding that a “very close”

temporal proximity “between an employer’s knowledge of protected activity and an adverse

employment action” is sufficient circumstantial evidence of causation (quotation marks

omitted)); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (similar);

Shultz v. Wells Fargo Bank, Nat’l Ass’n, 970 F. Supp. 2d 1039, 1055 (D. Or. 2013) (similar);

Meyer v. State ex rel. Or. Lottery, 292 Or. App. 647, 683 (2018) (holding that a “gap of one to

two months between the claimed protected activity and the subsequent adverse action . . . is

sufficient to raise an issue of fact on causation”); cf. Magee v. Trader Joe’s Co., 2020

WL 9550008, at *11 (D. Or. Sept. 1, 2020) (focusing on a three-week temporal proximity

between an employee’s accommodation request and the imposition of administrative leave,

explaining that “[a] reasonable employee being immediately placed on unpaid leave for a period

of three weeks after seeking accommodations could be dissuaded from seeking

accommodations”), report and recommendation adopted in relevant part, 2021 WL 1550336(D.

Or. Apr. 20, 2021). Bassett’s causation allegation is further supported by her alleged positive

work history. See Adams v. Walmart, Inc., 2021 WL 2744647, at *5 (D. Or. Mar. 29, 2021)

(finding allegations that the plaintiff was an employee in good standing with positive

performance reviews supported causation), report and recommendation adopted, 2021

WL 3939891 (D. Or. Sept. 2, 2021); Kotewa v. Living Indep. Network Corp., 2007 WL 433544,

at *10 (D. Idaho Feb.2, 2007) (finding, in the pretext context at summary judgment, that

temporal proximity combined with a recent positive performance review was enough to show the

defendant’s claim of the plaintiff’s poor performance was pretext). The Court thus denies

Truveta’s motion as to Bassett’s disability discrimination claims.

2. Failure to Accommodate

“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 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.” Hanson v.

Oregon, 2024 WL 1328408, at *7 (D. Or. Mar. 28, 2024) (citing Snapp v. United Transp.

Union, 889 F.3d 1088, 1095, 1099 (9th Cir. 2018)). Although “there exists no stand-alone claim

for failing to engage in the interactive process,” Snapp, 889 F.3d at 1095, “an employer has a

mandatory obligation to engage in an interactive process with employees in order to identify and

implement appropriate reasonable accommodations.” Anthony v. Trax Int’l Corp., 955

F.3d 1123, 1134 (9th Cir. 2020) (quotation marks omitted).

Bassett alleges that she was qualified to perform her job with the reasonable

accommodation of the time off she requested in December 2022. Time off may be a reasonable

accommodation under the ADA. See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135-36

(9th Cir. 2001) (citing 29 C.F.R. § 1630.2(o)).Although Simonov granted Bassett’s request,

Truveta terminated Bassett’s employment four days later, and 11 days before her time off was

scheduled to begin.

Truveta argues that because Simonov granted the request, Bassett fails to state a claim.

The Court rejects this contention. Simonov may have told Bassett that her request was granted,

but it is a plausible inference, based on the allegations in the SAC that Bassett had never received

a negative performance review and had a meeting with her supervisors two days before she was

terminated and did not receive any negative feedback, that her termination was related to her

request for time off. Granting a request for an accommodation and then terminating an employee

for that accommodation is not participating in the process or granting the request in good faith.

Truveta also argues that Bassett fails to allege that she notified Truveta about her

disability. Bassett, however, alleges that she told Jiang, who told Gurry, and that Bassett told

Simonov. That is sufficient at this stage of the litigation, accepting the alleged facts as true and

construing them in the light most favorable to Bassett. Regarding failure to engage in the

interactive process, the only allegation by Bassett is that Truveta did not discuss with her

whether there may be an accommodation other than time off that would enable her to perform

the functions of her job. But it is Bassett who “has the burden of showing the existence of a

reasonable accommodation that would have enabled [her] to perform the essential functions of

an available job.” Dark v. Curry County, 451 F.3d 1078, 1088 (9th Cir. 2006). Bassett has

sufficiently alleged that with respect to the requested time off but not with respect to some other

unknown reasonable accommodation that Truveta should have discussed with her as part of the

interactive process. Thus, the Court grants this aspect of Truveta’s motion.

B. FMLA

1. Standards

Under 29 U.S.C. § 2612(a), eligible employees are entitled to 12 weeks’ leave if they

have worked for an employer for at least 12 months and worked for at least 1,250 hours during

the previous 12 months. See 29 U.S.C. § 2611(2)(A) (defining eligible employee). An eligible

employee may take FMLA leave for several enumerated reasons, including when a “serious

health condition . . . makes the employee unable to perform the functions of the position of [the]

employee.” Id. § 2612(a)(1)(D). FMLA creates “two interrelated, substantive employee rights”:

first, the employee’s “right to use a certain amount of leave for protected reasons,” and second,

the “right to return to his or her job or an equivalent job after using protected leave.” Bachelder

v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001). FMLA makes it unlawful for any

covered employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise”

an eligible employee’s right to protected FMLA leave. 29 U.S.C. § 2615(a)(1).

The Ninth Circuit has recognized two theories for a violation of § 2612(a): the

“interference” or “entitlement” theory, and the “retaliation” or “discrimination” theory. Olson v.

United States ex rel. Dep’t of Energy, 980 F.3d 1334, 1338 (9th Cir. 2020). The two theories are

often confused because of the “unfortunate intermixing of the two different statutory concepts”

in the governing FMLA provisions. Bachelder, 259 F.3d at 1124; see also Hanson v. Or., Legis.

Assembly, 2023 WL 22196, at *21 (D. Or. Jan. 3, 2023) (clarifying which FMLA provisions

govern which theories of recovery). The Ninth Circuit has clarified that a claim that an employer

has “visit[ed] negative consequences” on an employee for using FMLA leave is an

“interference” claim under § 2615(a)(1). Bachelder, 259 F.3d at 1124; see also Ramirez v. Wynn

L.V., LLC, 2022 WL 3715751, at *6 (D. Nev. Aug. 29, 2022) (“Though Ramirez’s complaint

uses the terms ‘retaliation’ and ‘discrimination,’ her claim is properly construed as an FMLA

interference claim because she alleges Wynn terminated her for taking FMLA leave.”).

“Interference” may also include interfering with an employee’s right to take FMLA leave by

terminating that employee, thereby making it impossible for the employee to take leave to which

she would have been entitled had she remained employed. See, e.g., Tomlinson, 2024

WL 279036, at *9; Fulfer v. WinCo Holdings, Inc., 2019 WL 5536326, at *33 (E.D. Cal. Oct. 25,

2019).

“The failure to notify an employee of her rights under the FMLA can constitute

interference if it affects the employee’s rights under FMLA.” Liston v. Nevada ex rel. its Dep’t of

Bus. & Indus., 311 F. App’x 1000, 1002 (9th Cir. 2009) (citing Xin Liu v. Amway, 347

F.3d 1125, 1134-35 (9th Cir. 2003). “Inadequate notice amounts to interference if is causes an

employee to unwittingly forfeit the protection of the FMLA.” Munger v. Cascade Steel Rolling

Mills, Inc. 544 F. Supp. 3d 1078, 1087 (D. Or. 2021) (quotation marks omitted). A “retaliation”

or “discrimination” claim under the FMLA, on the other hand, requires action by the employer in

response to (1) the employee having opposed a practice made unlawful under the FMLA

subchapter or (2) instituting or participating in FMLA proceedings. Bachelder, 259 F.3d at 1124

(citing 29 U.S.C. §§ 2615(a)(2) and (b)). Thus, Bassett’s claim is one for interference, not

retaliation. The Court grants Truveta’s motion as against Bassett’s claim for FMLA retaliation.

2. Analysis

Truveta argues that Bassett was ineligible for FMLA leave when she asked for time off

for her October surgery. Bassett, however, bases her FMLA claim solely on her December 5,

2022 request for time off. See SAC ¶¶ 54-55.

Truveta also argues that Bassett does not specifically allege FMLA eligibility for the

December 5, 2022 request. Bassett alleges that she has worked the necessary hours by alleging in

paragraph 52 that she meets FMLA eligibility as required by 29 U.S.C. § 2611(2)(A), which

establishes the 12 month and 1250-hour requirement. Additionally, Bassett alleges that she

worked as a Director of Product Management since November 29, 2021, so she had worked for

more than 12 months. To meet the 1250-hour requirement for the previous 12 months would

mean working 24.04 hours per week. It is a plausible inference from Bassett’s allegations that

she work at least 24.04 hours per week as a high level manager.

Truveta next argues that Bassett fails to allege a serious medical condition that required

FMLA leave. Bassett, however, alleges that she had complications from her surgery and that she

had a mental disability, both of which required that she take time off in December 2022. Truveta

argues that Bassett’s condition could not have been serious because she asked for time off on

December 5, 2022 and did not schedule it until December 20, 2022. The implications from this

delay raise issues of fact. There are many reasons an employee might power through a serious

medical issue and delay taking leave, such as for the good of the employer, to accrue more leave

(particularly given that Bassett alleges that she was not aware of FMLA and that she recently had

taken two weeks of paid time off), out of fear of retaliation for taking leave without notice, and

so forth. This likely is an issue for the jury, but at best is something that Truveta may try to show

is undisputed at summary judgment. Viewing the facts in the light most favorable to Bassett at

this stage, Bassett’s failure immediately to take leave does not detract from her alleged serious

medical condition.

Truveta also argues that Bassett fails to show causation. As discussed above, Bassett

alleges both close temporal proximity of four days between her requested time off and her

termination of employment, and that she did not have any negative performance feedback even

as soon as two days before her firing. Truveta argues that temporal proximity alone is

insufficient. But Truveta cites Krutzig v. Pulte Home Corp., 602 F.3d 1231 (11th Cir. 2010). The

court in Krutzig held at summary judgment that “[t]emporal proximity alone” was “not sufficient

to establish a causal connection when there is unrebutted evidence that the decision maker was

not aware of the protected activity.” Id. at 1235. This holding, even if it applied in the Ninth

Circuit, would not be appropriate at a motion to dismiss. There is no “unrebutted evidence” that

the decision maker was unaware of the protected activity. Additionally, in this circuit, courts

routinely find close temporal proximity alone is sufficient at the motion to dismiss stage to allege

causation. See, e.g., Vasquez v. Piper Sandler & Co., 2024 WL 4364147, at *12 (D. Ariz.

Sept. 30, 2024) (“Vasquez claims he has shown temporal proximity between the protected action

and his termination, which provides causation. . . . [T]he Court will not preclude this claim on a

motion to dismiss. This issue may be raised again on summary judgment.”); Borenstein v. The

Animal Found., 2024 WL 2396494, at *6 (D. Nev. May 23, 2024) (“The alleged [ADA]

retaliation here meets that temporal proximity requirement: it occurred well within the three-

month period (from June 2, 2019 to June 25, 2019). Accordingly, Borenstein sets forth sufficient

allegations to establish both the causal and temporal link.” (citations omitted)); Tomlinson, 2024

WL 279036, at *10 (concluding that a proximity of less than two weeks between the protected

activity and the adverse employment action sufficed to allege FMLA and Oregon Family Leave

Act (“OFLA”) claims).

Drawing all inferences in favor of Bassett, she sufficiently alleges a claim for FMLA

interference. Bassett alleges that Truveta did not inform her of her rights to protected leave and

that, as of the day before Bassett requested time off for her serious health conditions, Truveta had

no plans to terminate Bassett. Within four days of her request for time off, however, Truveta

terminated Bassett, purportedly for poor performance, preventing her from using any protected

leave that might have been available to her.

C. Wrongful Discharge

In her final claim for relief, Bassett alleges common law wrongful discharge on the

grounds that she “was discharged from her employment in retaliation for her exercise of the right

to make use of protected medical leave.” “Common law wrongful discharge is an interstitial tort:

The tort may only be invoked when another claim does not provide a plaintiff with an adequate

remedy.” Walker v. State ex rel Or. Travel Info. Council, 367 Or. 761, 778 (2021).

The “statutory remedies under FMLA and OFLA do not preempt a wrongful-discharge

claim under Oregon law because they do not authorize an award of general or noneconomic

damages for emotional distress.” Stillwell v. Old Dominion Freight Line, Inc., 2021

WL 3056375, at *12 (D. Or. July 20, 2021 (quoting Pacosa v. Kaiser Found. Health Plan of the

Nw., 2011 WL 208205, at *14 (D. Or. Jan. 21, 2011)). Truveta argues that because Bassett fails

to state an FMLA claim, she cannot state a wrongful discharge claim based on this conduct. The

Court however, has rejected Truveta’s motion to dismiss Bassett’s FMLA interference claim.

Bassett’s disability claims, however, do provide adequate statutory remedies. See ORS

§ 659A.885(3). But at this stage of the litigation, Bassett is entitled to plead her claims in the

alternative. Truveta argues that Bassett may not plead in the alternative, but cites opinions at

summary judgment terminating wrongful discharge claims. Thus, Bassett’s wrongful discharge

claim survives at this stage of the litigation.

CONCLUSION

The Court GRANTS IN PART and DENIES IN PART Defendant Truveta’s Motion to

Dismiss, ECF 27. The Court dismisses Plaintiff Bassett’s claim for FMLA retaliation and for

failure to accommodate under the ADA and Oregon law based on failure to engage in the

interactive process. The Court denies Truveta’s motion in all other respects.

IT IS SO ORDERED.

DATED this 25th day of August, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge