United States District Court, D. Minnesota
Denny, Esq., and Nicholas G. B. May, Esq., Fabian May &
Anderson, PLLP, counsel for Plaintiff.
Voss and Erin M. Secord, Assistant United States Attorneys,
counsel for Defendant.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge
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
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. ¶
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.)
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.
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.
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.)
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.
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.) 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.)
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, ...