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Sandberg v. Brennan

United States District Court, D. Minnesota

February 2, 2017

Jean Sandberg, Plaintiff,
v.
Megan J. Brennan, Postmaster General, Defendant.

          Emma Denny, Esq., and Nicholas G. B. May, Esq., Fabian May & Anderson, PLLP, counsel for Plaintiff.

          Ana H. Voss and Erin M. Secord, Assistant United States Attorneys, counsel for Defendant.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK United States District Judge

         INTRODUCTION

         This matter is before the Court on a Motion for Partial Summary Judgment brought by the United States Postal Service (“USPS” or “Defendant”) on Plaintiff Jean Sandberg's claims of retaliation in violation of 42 U.S.C. § 2000e. (Doc. No. 24.) For the reasons set forth below, the Court grants in part and denies in part the motion.

         BACKGROUND

         Since 1989, Plaintiff has been employed by the USPS as a Maintenance Operations Support (“MOS”) Clerk. (Doc. No. 27 (“Voss Decl.”) ¶ 3, Ex. 1 (“Sandberg Dep.”) at 14.) The present lawsuit involves allegations of sexual harassment and retaliation during Plaintiff's tenure as a clerk in the MOS facility in Eagan, Minnesota. (Doc. No. 1, Compl. ¶ 5.)[1]

         In 1998, Plaintiff filed a lawsuit against USPS asserting claims for sexual harassment, sex discrimination, and retaliation. Sandberg v. Henderson, Civ. No. 98-1653 (the “1998 lawsuit”). In the 1998 lawsuit, Plaintiff's sex discrimination and sexual harassment claims were dismissed on summary judgment. (ECF Civ. No. 98-1653, Doc. No. 120.) After a jury trial, Plaintiff prevailed on her retaliation claim. (Id., Doc. Nos. 149, 154.) In 2003, Plaintiff was reinstated at USPS pursuant to a union arbitration. (Compl. ¶ 6.) Once reinstated, Plaintiff submits that her prior lawsuit was common knowledge and discussed openly by coworkers, managers, and supervisors. (Doc. No. 30 (“Sandberg Aff.”) ¶ 6.)

         In August 2011, Plaintiff was transferred to the first shift (10:00 p.m. to 6:30 a.m.) at the Eagan facility. (Id. ¶ 7.) In that position, Plaintiff worked with David Cornwall (“Cornwall”), another MOS Clerk. (Id.) Tim Wolney (“Wolney”) was Plaintiff's and Cornwall's direct supervisor. (Id.) At the heart of the present lawsuit are Plaintiff's allegations that Cornwall sexually harassed her. (Id. ¶¶ 8, 9.) Plaintiff asserts that Cornwall engaged in harassing conduct, such as hugging her and making comments about her physical appearance. (Compl. ¶ 13; Sandberg Aff. ¶ 8.) Plaintiff alleges that during the summer of 2012, Cornwall's “harassment became highly offensive sexual touching and comments which increased in frequency and severity.” (Sandberg Aff. ¶ 8.)

         Plaintiff also contends that from May through November 2012, she reported Cornwall's conduct to Wolney on numerous occasions and that Wolney took no action. (Id. ¶ 10.)

         During the night shift on November 28, 2012, there was a confrontation between Plaintiff and Cornwall involving paperwork. (Compl. ¶ 16; Sandberg Aff. ¶ 11; Doc. No. 27, Voss Decl. ¶ 11, Ex. 9 (“Cornwall Aff.”) at 5.) Plaintiff alleges that during the confrontation, she told Cornwall to stop his sexual harassment, Cornwall told her to file an EEO complaint, and she told him that she was going to management to report his sexual harassment. After the incident, Wolney spoke separately with both Cornwall and Plaintiff. (Voss Decl. ¶ 23, Ex. 21 (“Wolney Dep.”) at 33-34.) On December 3, 2012, Wolney met with Plaintiff again, after which he initiated a formal inquiry and separated Cornwall and Plaintiff at work. (Voss Decl. ¶ 24, Ex. 22; Wolney Dep. at 51-52.) On December 22, 2012, Cornwall was moved to a different shift temporarily. (Voss Decl. ¶ 24, Ex. 22.) On January 23, 2013, Cornwall moved back to Plaintiff's shift, but was stationed in an office down the hall from the MOS office, and was again moved to a different shift in April 2013. In June 2013, Cornwall was excessed from MOS at the facility where Plaintiff worked. (Sandberg Aff. ¶ 26.)

         Plaintiff also alleges that she was subjected to a hostile work environment based on retaliation for reporting harassment. First, Plaintiff alleges that coworkers avoided her based on their knowledge that she filed the 1998 lawsuit. Specifically, Plaintiff points to evidence that a supervisor, Shane Witwicke (“Witwicke”) told her coworkers to be “careful” around her due to the fact that she brought the 1998 lawsuit. (Compl. ¶ 9; Voss Decl. ¶ 10, Ex. 8 (“Witwicke Dep.”) at 15; Doc. No. 34 (“Bige Aff.”) ¶ 2 (In August 2011, “Witwicke [] stated ‘Don't talk to [Plaintiff], she's a troublemaker. She'll be nice to your face, but put a knife in your back' in reference to her previous lawsuit against USPS.”). Witwicke also told a coworker that Plaintiff had filed suit against Defendant and was able to “wiggle her way back” after being fired because she filed the lawsuit. (Bige Aff. ¶ 3.)

         Second, Plaintiff alleges she was retaliated against for complaining about Cornwall's sexual harassment both before and after Defendant initiated a formal inquiry into the November 28, 2012 incident. Generally, Plaintiff argues that Defendant failed to respect the confidentiality of her reports, pointing to evidence that Wolney and Cornwall openly discussed Plaintiff's allegations with coworkers and that Wolney sympathized with Cornwall. (Doc. No. 31 (“Denny Decl.”) ¶ 3, Ex. 1 (“Kleeberger Dep.”) at 65-66; id. ¶ 8, Ex. 6 (“Cornwall Dep.”) at 54.) In addition, Plaintiff submits that after reporting Cornwall's behavior in November 2012, colleagues openly made disparaging comments about her complaint and her mental health. (Sandberg Aff. ¶¶ 12, 13, 16, 19, 20, 22, 23; Denny Decl. ¶¶ 23, 24, Exs. 21, 22; Denny Decl. ¶ 4, Ex. 2 (“Volkman Dep.”) at 59-64; Doc. No. 32 (“Campbell Aff.”) ¶ 4.) For example, in April 2013, Plaintiff complained to Wolney about the fact that Cornwall and another MOS Clerk, Karen Volkman (“Volkman”) had made disparaging comments about Plaintiff's health, age, and competence. (Voss Decl. ¶ 17, Ex. 15 (“Sandberg EEO Aff.”) at 45, 48.)[2] Plaintiff also submits that after reporting harassment to Wolney, he discouraged her from making further reports. (Denny Decl. ¶ 15, Ex. 13 at 12.) In addition, Plaintiff asserts that her workload was increased, she was denied training opportunities (Denny Decl. ¶ 44, Ex. 42; Sandberg Aff. ¶ 25), she was wrongly accused of missing shifts and other infractions (Denny Decl. ¶ 28, Ex. 26), and she was singled out for differential treatment by, for example, having her breaks monitored and being subjected to increased surveillance. (Sandberg Aff. ¶ 18; Kleeberger Dep. at 82-83; Denny Decl. ¶ 41, Ex. 39 (Meeting Tr.) at 25-27; Denny Decl. ¶ 42, Ex. 40.) In addition, Plaintiff claims that Wolney was not adequately responsive to her numerous complaints about harassment. (Sandberg Aff. ¶¶ 9-10.)

         On January 11, 2013, Plaintiff contacted an EEO counselor regarding the allegations at issue in this lawsuit, filed her Pre-Complaint on January 24, 2013, and filed her formal Complaint on April 29, 2013. (Sandberg Aff. ¶ 29.) The EEO accepted the following issues for investigation: (1) in August 2011, a supervisor told coworkers that they should not talk to Plaintiff; (2) in July 2012 and various other times, Plaintiff reported coworker sexual harassment and management failed to take appropriate action; (3) in October 2012, management increased Plaintiff's workload and blamed Plaintiff for unfinished work; (4) on or around December 4, 2012, Plaintiff was the only employee required to have scheduled breaks; (5) on unspecified dates, training was withheld; (6) on unspecified dates, Plaintiff was denied copies of her Request for Notification of Absence; and (7) on June 5, 2013, Plaintiff's assignment order for the period June 8 through July 12, ...


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