Sandberg v. Donahoe
MEMORANDUM OPINION AND ORDER. Defendant's Motion for Partial Summary Judgment (Doc. No. 24 ) is GRANTED IN PART and DENIED IN PART as follows: Plaintiff's retaliation claim is DISMISSED insofar as it pertains to alleged retaliation for filing the 1998 lawsuit against Defendant and for alleged retaliation from May 2012 to November 2012. The remainder of Plaintiff's retaliation claim remains. (Written Opinion) Signed by Judge Donovan W. Frank on 2/2/2017. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-4033 (DWF/HB)
OPINION AND ORDER
Megan J. Brennan,
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
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.
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.)
USPS does not seek summary judgment on Plaintiff’s sexual harassment claim.
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.
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
Plaintiff contends that Volkman was a close friend of Cornwall’s and that
Volkman made disparaging comments about Plaintiff’s mental health days after Plaintiff
complained to Wolney about the November 28, 2012 incident. (Sandberg Aff. ¶ 12.)
According to Plaintiff, Volkman also explained that she thought Plaintiff was falsely
accusing Cornwall. (Id.)
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, 2013, was rescheduled. (Voss Decl. ¶ 5, Ex. 3.) Plaintiff was advised that any
issue that occurred before November 26, 2012, was untimely, and that Plaintiff was
required to provide the dates for all specified incidents. (Voss Decl. ¶ 5, Ex. 3.)
Plaintiff filed the present lawsuit on September 30, 2014. (Compl.) Plaintiff
asserts two claims: (1) sex discrimination/hostile work environment in violation of
42 U.S.C. § 2000e, et seq.; and (2) retaliation in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. (Id. ¶¶ 30-38.) This motion pertains to only
Plaintiff’s retaliation claim.
Summary judgment is appropriate 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). Courts must view the evidence and all reasonable inferences in the
light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd’s of London, 574
F.3d 885, 892 (8th Cir. 2009). However, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna
Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). A party opposing a properly supported
motion for summary judgment “must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see
also Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Plaintiff claims that she was retaliated against for complaining about sexual
harassment in violation of 42 U.S.C. § 2000e-3(a), which prohibits an employer from
discriminating against an employee because the employee “has opposed any practice
made an unlawful employment practice by this subchapter . . . [or made a] charge . . . in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a);
see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (noting that
Title VII forbids employer actions that “discriminate against” one who opposes an
The Court analyzes this case under the framework set forth under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff must
first establish a prima facie case of retaliation by demonstrating that she engaged in a
protected activity, that she suffered an adverse employment action, and that there was a
causal connection between the two. Ellis v. Houston, 742 F.3d 307, 323 (8th Cir. 2014).
If a plaintiff establishes a prima facie case, the burden shifts back to the employer to
articulate a legitimate, non-retaliatory reason for its action, after which the burden shifts
back to the plaintiff to point to evidence that creates a fact issue that the proffered reason
was pretextual and that creates a reasonable inference that the defendant acted in
retaliation. Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007).
In her briefing, Plaintiff limits her retaliation claim to a retaliatory hostile work
environment (retaliatory harassment). In Burlington, the Supreme Court held that the
“scope of the antiretaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm” and that Title VII retaliation claims could
be based on a hostile work environment that is “materially adverse.” 548 U.S. at 67-68. 3
To show that certain actions are “materially adverse,” a plaintiff must show that the
actions “well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 68; see also Stewart, 481 F.3d at 1042 (holding that
Burlington established the “standard to define the concept of a hostile work environment
for the purpose of retaliation claims under Title VII”). Thus, the question here is whether
there is evidence of retaliatory harassment that would have deterred a reasonable
employee from engaging in protected activity. See Burlington, 548 U.S. at 68. Further,
The Supreme Court noted that before its decision in Burlington, the Eighth Circuit
had adopted a more restrictive approach, employing a standard that limited actionable
retaliatory conduct to acts that are related to employment or the workplace, such as
hiring, discharging, and compensating. Burlington, 548 U.S. at 60.
in cases involving allegations that a coworker, rather than a supervisor, engaged in
harassment, a plaintiff must also show that “the employer knew or should have known of
the harassment and failed to take proper action.” Ryan v. Capital Contractors, Inc., 679
F.3d 772, 778 (8th Cir. 2012). To establish a causal connection, the retaliation must be a
“but for” cause of the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013).
Here, Plaintiff claims that: (1) she engaged in protected activity by (a) filing her
lawsuit against USPS in 1998, (b) reporting Cornwall’s sexual harassment and retaliatory
harassment at various times from May to November 2012, and (c) reporting ongoing
harassment after the incident with Cornwall on November 28, 2012; (2) she suffered a
materially adverse employment action; (3) she suffered injury as a result of the
retaliation; and (4) the retaliation was causally linked to her protected activity.
Previous 1998 Lawsuit
First, the Court considers Plaintiff’s claim that she was retaliated against for filing
her 1998 lawsuit. Specifically, Plaintiff alleges that she suffered a materially adverse
employment action for filing the 1998 lawsuit when, for example, Wolney informed
Plaintiff’s coworkers that she made harassment allegations and that they should be
“careful” around her. Plaintiff points to evidence that in August 2011, Witwicke told
another worker that Plaintiff was a “troublemaker” in reference to her previous lawsuit.
Plaintiff alleges that because of such statements, her coworkers avoided her, gave her the
cold shoulder, or were openly hostile towards her. Defendant argues that Plaintiff’s
claim of retaliation based on her prior lawsuit is untimely and otherwise fails.
Aside from any potential issues regarding Plaintiff’s failure to exhaust
administrative remedies for this claim, the Court concludes that Plaintiff has not pointed
to record evidence to support causation as to her retaliation claim related to her previous
lawsuit. While not dispositive, a gap in time between the protected activity and the
adverse employment action weakens an inference of retaliatory motive. Stewart,
481 F.3d at 1044 (finding a six-month gap between a complaint and the alleged adverse
action was too remote to support a finding of causation). Here, Plaintiff relies on
Witwicke’s statement that people should be “careful” around Plaintiff and, generally, her
coworkers’ knowledge of her 1998 lawsuit and resulting avoidance of Plaintiff. These
actions occurred more than ten years after her 1998 lawsuit. Moreover, there is no
evidence that any of the people involved in the lawsuit and those allegedly involved in
the current retaliation were the same. Finally, the statement to “be careful” in Plaintiff’s
presence, in and of itself, does not necessarily indicate a desire to retaliate, but instead
could demonstrate a desire to placate Plaintiff. See id. at 1045. The vague nature of the
statements and treatment by coworkers coupled with the more than ten-year gap cuts
against a reasonable finding of causation. Accordingly, Plaintiff’s retaliation claim is
properly dismissed insofar as it is based on retaliation for filing the 1998 lawsuit.
Alleged Retaliation from May to November 2012
Plaintiff claims that she engaged in protected activity when she reported
Cornwall’s behavior, including incidents of sexual harassment, to Wolney numerous
times from May to November 2012. Taking the evidence in the light most favorable to
Plaintiff, a reasonable jury could conclude that these reports constitute protected activity.
See, e.g., Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1084 (8th Cir. 2010) (holding that
verbal report of sexual harassment to supervisor constitutes protected conduct). Plaintiff
does not clearly set out exactly what alleged retaliatory actions occurred between May
and her report in November 2012, but the Court gleans that Plaintiff relies on the
following: (1) the fact that Wolney was aware of Cornwall’s odd behavior and alleged
harassment and failed to address it; (2) general allegations that coworkers engaged in a
campaign of retaliatory harassment by cursing at her, using derogatory slurs, and openly
and negatively discussing her 1998 lawsuit and complaints of harassment against
Cornwall; and (3) that her workload was increased because Cornwall would not complete
his work and Plaintiff had to complete it for him.
The Court concludes that Plaintiff’s claim of retaliation for the time period from
May to November 2012 fails as a matter of law. First, Plaintiff has not pointed to
specific instances of retaliatory harassment during this time period that are causally
connected to any complaints of harassment that she made. Instead, Plaintiff cites to only
vague allegations without substantiating the allegations in time or demonstrating
retaliatory intent. Likewise, there is no evidence of retaliatory intent as to her alleged
workload increase. Instead, the record shows that any workload increase for Plaintiff in
October 2012 was because she was expected to complete Cornwall’s unfinished work.
While this may have been true, Plaintiff failed to connect that incident with any
retaliatory intent on Wolney’s behalf. Instead, the vague allegations of retaliation for this
time period appear to be akin to “petty slights or minor annoyances that often take place
at work and that all employees experience.” Burlington, 548 U.S. at 68 (noting that petty
slights and minor annoyances do not deter victims of discrimination from filing
complaints); AuBuchon v. Geithner, 743 F.3d 638, 644 (8th Cir. 2014) (same). Finally,
Plaintiff argues that Wolney’s failure to do anything about her coworker’s retaliatory
harassment during this time period constitutes an adverse action. There is record
evidence that Plaintiff was complaining about her coworkers, including Cornwall, during
this time period. Some of the complaints about Cornwall involved allegations of sexual
harassment, but many of the complaints about her coworkers involved complaints
unrelated to Cornwall’s behavior. The Court concludes that Plaintiff has failed to point
to evidence that, during this time period, any harassment by coworkers 4 was causally
connected to any harassment complaint.
For the above reasons, no reasonable juror could conclude that Plaintiff was
retaliated against for her complaints during the time period from May to November 2012.
The Court again points out that Plaintiff has a separate claim for sexual
harassment based on Cornwall’s behavior that is not part of the pending motion.
Retaliation Claims after December 2012
Plaintiff also claims that she was retaliated against after reporting the November
2012 incident with Cornwall. In support, Plaintiff points to the following evidence:
(1) Defendant failed to respect the confidentiality of her report, pointing to evidence that
Wolney and others openly discussed Plaintiff’s allegations with coworkers and
sympathized with Cornwall; (2) after reporting Cornwall, Plaintiff experienced retaliation
from her coworkers who made numerous disparaging comments about her complaint and
her mental health; (3) Wolney discouraged Plaintiff from making further reports of
harassment, assigned her additional work, and denied her training opportunities; and
(4) Plaintiff was wrongly accused of work infractions and singled out for differential
treatment by, for example, being subjected to increased surveillance and monitoring.
Further, Plaintiff asserts that she was denied a position that she had been approved to fill
because a coworker refused to work with Plaintiff because of her previous harassment
allegations. (Denny Decl. ¶ 33, Ex. 31; Sandberg Aff. ¶ 24.)
Defendant disputes nearly all of Plaintiff’s factual allegations and argues that
many of the above examples are merely “petty slights or minor annoyances that often
take place at work” or are the result of “personality conflicts” among coworkers. See,
e.g., Burlington, 548 U.S. at 68. Defendant also argues that none of the above actions
was materially adverse or retaliatory in nature and that the actions do not rise to the level
of a hostile retaliatory environment. For example, Defendant argues that there was a
legitimate, non-discriminatory reason to require Plaintiff to take scheduled breaks—
namely, to keep Cornwall away from Plaintiff. In addition, Defendant argues that the
allegations that Wolney increased Plaintiff’s workload and that Plaintiff was denied a
transfer lack any retaliatory motive or evidence of pretext. Indeed, as to Plaintiff’s claim
that she was denied an assignment to a purchasing position, Defendants argue that
multiple weak inferences are required to support causation. Defendant also argues that it
is entitled to summary judgment on Plaintiff’s retaliation claims because it addressed her
allegations beginning in December 2012 and Plaintiff failed to take advantage of the
corrective actions offered.
After careful consideration, the Court concludes that, taking the evidence in the
light most favorable to Plaintiff, there are numerous factual disputes surrounding
Plaintiff’s allegations of retaliatory harassment after the November 28, 2012 incident, as
well as factual issues as to Defendant’s alleged legitimate reasons for its actions, and any
showing of pretext. Taking the record as a whole, the Court finds that a reasonable juror
could conclude that Defendant’s actions would dissuade a reasonable employee from
filing a charge of sexual harassment. In addition, a reasonable juror could conclude that
the actions taken were causally linked to Plaintiff’s report of harassment and caused her
While a portion of Plaintiff’s retaliation claim survives Defendant’s motion for
summary judgment because of existing issues of material fact, the Court notes that a
victory at this stage of the litigation is no guarantee that Plaintiff will ultimately prevail at
trial on her retaliation claim. Indeed, a jury could also reasonably resolve many of the
factual issues in favor of Defendant. For this reason, the Court believes that settlement
would serve the interests of all parties.
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant’s Motion for Partial Summary Judgment (Doc.
No. ) is GRANTED IN PART and DENIED IN PART as follows: Plaintiff’s
retaliation claim is DISMISSED insofar as it pertains to alleged retaliation for filing the
1998 lawsuit against Defendant and for alleged retaliation from May 2012 to November
2012. The remainder of Plaintiff’s retaliation claim remains.
Dated: February 2, 2017
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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