The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's motion for summary judgment filed on March 2, 2009. See Docket No. 28. The Plaintiff filed a response in opposition to the motion on May 26, 2009. See Docket No. 37. The Defendant filed a reply brief on June 29, 2009. See Docket No. 40. The Court grants the motion for the reasons set forth below.
The plaintiff, Shelly Puklich, works for the United States Postal Service at its Processing and Distribution Center in Bismarck, North Dakota. The defendant, John E. Potter, is the Postmaster General of the United States Postal Service (Postal Service).
Puklich began working for the Postal Service in 1990 and received a career appointment in May 1993. In 1995, Puklich reported to management at the Processing and Distribution Center that, beginning in August 1994, Gary Hofland, a non-supervisory co-worker, had made inappropriate comments and physical gestures toward her and occasionally placed his arm around Puklich's body. Hofland also made numerous telephone calls to Puklich. Although Hofland's behavior ceased for a time, it resumed in May 1995. See Docket No. 29-8.
On May 22, 1995, the Postal Service initiated an investigation into Hofland's workplace behavior. On June 7, 1995, the Postal Service provided Hofland a "Notice of Proposed Removal" in which it indicated that sexual harassment "is improper and unlawful conduct which includes deliberate and repeated remarks with a sexual connotation that are unwelcome to the recipient and undermines the employment relationship as well as employee morale." See Docket No. 29-8. Hofland was placed on administrative leave effective June 8, 1995. On June 26, 1995, Hofland agreed to sexual harassment training and to a twenty-nine day suspension that retroactively began on May 25, 1995, and ended on June 23, 1995. See Docket No. 29-9. Puklich did not take any further action against Hofland.
After the 1994-1995 sexual harassment, Hofland did not speak with Puklich for approximately eighteen months. Eventually, Hofland resumed making inappropriate comments to Puklich and touching her inappropriately. In January 2003, after Puklich underwent breast augmentation surgery, Hofland once again made inappropriate comments. See Docket No. 29-7.
Hofland's inappropriate behavior toward Puklich intensified in 2004. In January 2004, Hofland squeezed Puklich's buttocks and made an inappropriate comment. Hofland squeezed Puklich's buttocks on two other occasions and made inappropriate comments. Another time, Hofland caught Puklich off guard by kissing her on the cheek. Approximately two weeks after Hofland first grabbed Puklich in January 2004, she told Gary Neuharth, a non-supervisory co-worker, about Hofland's conduct. See Docket No. 29-7. In early January 2004, Michael Luger, the plant manager and a supervisor, heard a rumor about inappropriate behavior by Hofland. See Docket No. 29-11. In February 2004, Luger told Puklich he had "heard things" and asked her if she wanted to "talk about anything." Puklich told Luger that she did not want to talk. See Docket No. 29-7.
Hofland again grabbed Puklich's buttocks and made an inappropriate comment in late February 2004. On March 2, 2004, Hofland grabbed Puklich and forcefully hugged her so that she could not escape. That same day, Puklich talked to Crystal Mertz, a non-supervisory co-worker, about the hugging incident. Puklich's supervisor at the time, Jeff Nordgaard, asked Puklich and Mertz what they were talking about during work hours. Mertz told Nordgaard that they were talking about Hofland and then told Nordgaard what Hofland had done to Puklich earlier that day. Later that day, Puklich talked privately with Nordgaard and told him about the hugging incident. See Docket No. 29-7. Nordgaard first learned of Hofland's conduct toward Puklich on March 2, 2004. See Docket No. 29-15.
On March 2, 2004, upon hearing of Hofland's conduct, Nordgaard reported Puklich's allegations to his supervisor, Michael Luger. On March 5, 2004, Luger provided Hofland a letter entitled "Emergency Placement in an Off-Duty Status" in which Hofland was informed that he was placed in off-duty status without pay effective March 2, 2004. See Docket No. 29-17. On April 9, 2004, Nordgaard provided Hofland a letter entitled "NOTICE OF CHARGES - PROPOSED REMOVAL" in which Hofland was informed of his proposed removal from the Postal Service within thirty days for unacceptable conduct. See Docket No. 29-18. On April 29, 2004, Luger informed Hofland in a letter entitled "Letter of Decision - Proposed Removal" that the charges were fully supported by the evidence and that the infractions were serious and warranted Hofland's removal from the Postal Service. See Docket No. 29-19. Hofland's removal from the Postal Service was effective May 15, 2004, and he never returned to work at the Postal Service.
From the time Gary Hofland stopped working at the Postal Service, Puklich was treated differently by her co-workers and supervisors. She was openly challenged by union representatives and others about coming forward with her complaint. By March 26, 2004, the stress at work was overwhelming for Puklich and caused her to experience migraine headaches, sleeping problems, depression, and anxiety. Puklich stopped going to work for a month pursuant to her doctor's orders. After January 2004, Puklich noticed that any deviation from her normal work schedule became a major issue with her supervisor, she was threatened with a transfer to a different position, and her work production was questioned for the first time. See Docket No. 29-7.
In December 2005, Cordell Hanson, Puklich's non-supervisory co-worker, shut off the light in the room he and Puklich were in, pulled her close to him, and kissed her on the head. Puklich never informed management of this incident but Michael Luger learned of it and talked separately to Puklich and Hanson. Puklich has not had any further problems with Hanson. See Docket No. 29-32, pp. 5-6. On August 30, 2006, non-supervisory co-worker Larry Jahner told another co-worker to hold down Puklich so Jahner could give her a birthday spanking and a "pinch to grow an inch." The co-worker refused to do so but Jahner nonetheless pinched Puklich. Puklich did not talk to management but a co-worker did. Management talked separately to Puklich and Jahner the night of the incident. See Docket No. 29-32, pp. 6-7. Puklich did not pursue any further action against Hanson or Jahner.
On May 22, 2007, Cordell Hanson was scheduled to work in the same area as Puklich for the first time since he had sexually harassed her in December 2005. Puklich reported the matter to her supervisor, Clay Ulrich. Michael Luger was informed of the work arrangement on May 24, 2007. See Docket No. 37-2. Puklich does not allege that Hanson sexually harassed her that day.
On March 9, 2009, Larry Jahner placed his hand on top of Puklich's hand and squeezed. Puklich pulled her hand away and did not respond. On March 10, 2009, Puklich informed her union steward and management about what had happened the night before. See Docket No. 37-7.
II. PROCEDURAL BACKGROUND
On April 8, 2004, Puklich notified the Postal Service's Equal Employment Opportunity (EEO) representative that she had been subjected to sexual harassment. A mediation session was held on June 22, 2004, but the issue was not resolved. On July 12, 2004, Puklich was notified of her right to file a formal EEO complaint with the Postal Service. See Docket No. 29-3. Puklich filed a formal EEO complaint with the Postal Service on July 23, 2004. See Docket No. 29-7. Puklich's complaint was based on sexual harassment that occurred from January 2004 to March 2004 and retaliation that occurred after March 2, 2004. Puklich also claimed that she had been threatened with a transfer to a different position with the Postal Service. See Docket No. 29-3. Puklich alleged that Gary Hofland "made repeated and unwelcome: a) sexual advances; b) suggestions that we engage in various sexual activities; c) sexually suggestive statements about me (or my body); and d) he has touched me against my wishes. The conduct reported in this complaint began in January, 2004. The above-described sexual harassment created an intimidating and offensive atmosphere at work." See Docket No. 29-7. Puklich alleged that since reporting the sexual harassment she had "been treated differently by [her] co-workers and [her] supervisors." See Docket No. 29-7.
The Postal Service accepted for investigation the sexual harassment and retaliation claims but did not accept the claim that Puklich had been threatened with a transfer. Puklich was given the right to elect a hearing before a United States Equal Employment Opportunity Commission (EEOC) Administrative Judge or to receive a final agency decision by the Postal Service. See Docket No. 29-31. Puklich requested a final agency ...