COMPLAINANT’S REBUTTAL TO RESPONDENT’S

XXX

[Enter Address]

[ENTER DATE]

Equal Employment Opportunity Commission

Attn: XXX

330 South Second Avenue, XXX

XXX, MN 55415

RE: COMPLAINANT’S REBUTTAL TO RESPONDENT’S POSITION STATEMENT

Dear XXX,

INTRODUCTION

This case is about a disabled person with a disability that limits her major life activities of speaking and eating, whose employment was terminated and was constantly denied an employment opportunity. The Charging Party, Ms. Jessica Ehlers, respectfully requests that the Equal Employment Opportunity Commission find probable cause that the Responding Party, the University of Minnesota (“University”), discriminated and continuously retaliated against her. The Charging Party has set forth sufficient evidence to support a probable cause finding and establish a prima facie case of discrimination in a place of public accommodation.

FACTUAL BACKGROUND

The facts are summarized in the Charging Party’s Amended Charge of Discrimination with the EEOC against the University (Charge No. # 444-2020-00261) hereto attached as Exhibit — and her related federal case is also on appeal exhibit —.

ARGUMENTS

Respondent contends that it committed no unlawful discrimination or retaliation against the Charging Party. Respondent presents such contentions in their Position Statement, which the Charging Party herein rebuts. Accordingly, the Charging Party shall hereinbelow rebut Respondent’ averments by stating specific paragraphs, and providing the rebuttals thereof.

The Charging Party has sufficient evidence to prove the discriminatory and retaliatory acts of the Respondent.

The Respondent’s Position Statement

The University through its Attorney has stated that it denies any unlawful discrimination or retaliation towards Ehlers. As discussed above and in its response to Ehlers’ prior charges, the University has gone out of its way to respond to Charging Party’s concerns, and accommodate her health condition. The University believes it has fully satisfied all of its legal obligations. Charging Party repeatedly accused the University of discrimination and retaliation during her employment at Boynton and while participating in the Job Transfer Program. She now is raising those same accusations, some relating to her prior issues, and some allegations relating to her continued efforts to seek employment at the University.

Legal analysis and Charging Party’s Rebuttal to the said Employer’s Position Statement

The MHRA, ADA, and Rehabilitation Act prohibit discrimination in the provision of public services based on disability. See Rehabilitation Act, 29 U.S.C. § 794 (2006) (prohibiting discrimination against any otherwise-qualified disabled person by any program or activity that receives federal financial assistance); ADA, 42 U.S.C. § 12182(a) (2006) (prohibiting discrimination by private entities that operate places of public accommodation, including health-care providers); MHRA, Minn. Stat. § 363A.12, subd. 1 (2008) (prohibiting discrimination based on disability in the access to any public service). Because the purpose and substance of the three statutes are similar, Minnesota courts interpret them consistently. See, e.g., Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (providing that because the ADA and Rehabilitation Act are “similar in substance . . . , cases interpreting either are applicable and interchangeable.” (quotation omitted)); Kolton v. Cnty. of Anoka, 645 N.W.2d 403, 408, 410 (Minn. 2002) (providing that caselaw under the ADA may be used to interpret the MHRA).

To establish a prima facie case of discrimination based on disability, the Charging Party must show: (1) s/he is a member of a protected class; (2) s/he was denied services and/or opportunities that were available to individuals outside the protected class; and (3) the discriminatory conduct was based on plaintiff’s membership in the protected class. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973) (setting forth three-part burden-shifting framework for analyzing discrimination claims and elements for establishing prima facie case); Potter v. LaSalle Sports Health Club, 368 N.W.2d 413, 416 (Minn. App. 1985) (providing that Minnesota courts have adopted the McDonnell-Douglas framework for analyzing discrimination claims), aff’d, 384 N.W.2d 873 (Minn. 1986).

The Charging Party herein submits her Amended EEOC Charge of Discrimination hereto attached as an Exhibit A which provides new and additional evidence and Charging Party further states as grounds for rebuttal that two (2) whistleblowers, to wit, employees of the University, have presented themselves to Charging Party, asserting evidence that the Employer/University has in fact performed blatant acts of discrimination and retaliation towards the Charging Party not only in prior years but also in 2020 and 2021 time periods that are timely. These within-named whistleblowers and other witnesses are listed in the Confidential Witness List, hereto attached as Exhibit –)

The charging party states that a discrimination and retaliation court case related to charging party’s EEOC charges is not in finality and can be reversed and even reopened, including due to new evidence, fraud, and other misconduct issues described in this charge and in which witnesses will be speaking with the EEOC about for this charge, such as the information brought forward by whistleblower #2. The courts and this EEOC agency are set up for justice and the truth, and any injustice including by Brent Benrud’s professional misconduct and retaliation against other witnesses to suppress evidence and the truth won’t be looked upon well by any court and surely cannot be looked upon soundly by this agency, the EEOC, and their arguments of timing have nothing to do with this. Further, none of this is stopping the employer and Mr. Benrud from continuing their illegal and professional misconduct pursuits. Notwithstanding the above and similarly, the University prematurely declared victory in its position statement in a Department of Labor matter that was not yet determined. Ironically, whistleblower #2 has been testifying with such agency as well regarding that matter too. We have documentation related to that matter if the investigator is interested in reviewing it.

The University also asserts attorney-client privilege to shield their addressing of specific items of Ehlers’ charge. The University has multiple obligations to correct to prevent further illegal and professional misconduct of Mr. Benrud and any orders of him and others at OHR and any other departmental HR offices. XXXX is ordering clients/university parties and saying and doing himself what constitutes defamation, slander, and abuse of data about the data subject and a crime-fraud exception and other exceptions for illegal misconduct. There are multiple other examples that the responsible authority will see present in the data about the data subject upon close inquiry and review and clearly this data and records show the presence of illegal conduct violating multiple laws. An attorney with unclean hands cannot benefit from purposeful misconduct that is antithetical to the values of the legal system by telling and participating in outright illegal conduct which these records show directly. An attorney who assists in a violation of the law is abdicating his/her professional role. Such an attorney no longer merits the title “officer of the court.” Thus, the attorney-client privilege, which covers communication by an attorney acting in a professional capacity, has no application to attorney-client communication in furtherance of a legal violation. Additionally, that privilege does not apply because the client is seen in these data and records using the attorney’s services for improper illegal activity, and thus since the client has the mindset to engage in misconduct with the attorney also aiding and abetting and directly breaking the law to do the same illegal acts in writing, this triggers the exception to privilege because the client has asked the attorney to deviate from the professional role that the attorney-client privilege protects. XXX, an attorney for the University of Minnesota, is directing staff and saying himself in multiple data and records and engaging in conduct in these data and records that fall within crime-fraud and other exceptions for illegal misconduct.

These activities demonstrably show and facilitate unlawful conduct and future wrongdoing. See United States v. XXX, 491 U.S. 554, 562–63 (1989), which is an exception to attorney-client privilege. The charging party also asserts the crime-fraud exception to the attorney-client privilege. Further, the charging party also asserts that an exception to the MGDPA attorney-client privilege applies to improprieties short of crime or fraud. Minnesota state courts take a broader view. As State v. Philip Morris Inc., 606 N.W.2d 676, 691 (Minn. App. 2000), recently stated, “The critical inquiry is whether the attorney-client privilege has become unworthy of protection.” Similarly, Kahl v. Minnesota Wood Specialty, Inc., 277 N.W.2d 395, 399 (Minn. 1979), said that the privilege should not extend to protect any “deliberate plan to defy the law and oust another person of his rights… .” There are overriding considerations such as the public interest and the urgent need to prevent third-party harm based on the illegal activities communicated directly by the attorney and parties in these data and records, including harm to the charging party and other third parties being retaliated by XXX and other OHR leaders and personnel at the University. The University made these records and contacts with these hiring departments to illegally ban Ehlers out of retaliation for EEOC related activity. These actions and their communications are made for the purposes of perverse illegal and unethical misconduct purposes by an attorney at the University, including acts that violate multiple laws and constitute violations of the MN Rules of Professional Conduct. Further, the evidence enclosed in our confidential exhibits also show a violation of University policy and procedures, including the Board of Regents policy on Employee Selection and Recruitment, which states, “Subd. 2. Compliance. The University’s recruitment and hiring practices shall comply with state and federal employment law and be consistent with applicable University administrative policies, rules, and collective bargaining agreements.”

Charging Party’s Legal Basis for Asserting Rebuttal

Charging Party asserts that there is overwhelming proof through whistleblower statements and direct hard evidence which illustrate the charge of discrimination and retaliation which the Charging Party claims. Charging Party asserts further that these statements by the within mentioned whistleblowers, only became known to the Charging Party after the initial EEOC Charge of Discrimination.

Charging Party reasserts that the University of Minnesota, as her Employer engaged in several acts of discriminatory and retaliatory conduct towards Charging Party who through this rebuttal provides evidence sharply contrasting the University’s position in its __\______ 2021 letter outlining its position.

The Charging Party makes the allegations against the Respondent in good faith

The Respondent University states in its Position Statement:

“Charging Party seems to be targeting the University. The University does not believe her multiple, repeated allegations of discrimination against multiple individual employees, departments, units, and human resource offices are made in good faith.”

Legal analysis and Charging Party’s Rebuttal to the said Employer’s Position Statement

Good faith is “incapable of precise definition.” Hursh v. Theis (In re Estate of Healy), 247 Minn. 205, 210, 76 N.W.2d 677, 681 (1956). The relevant standard for determining whether an argument has a good-faith basis in law and fact is an objective standard. In re Michael, 836 N.W.2d 753, 762 (Minn.2013).

Charging Party states that the Respondent’s claims are inaccurate. The charging party states that she suffered the indignity of unemployment, with its intendant loss of self-esteem and economic deprivation because of the employer’s repeated illegal conduct. The charging party is very highly educated with multiple master’s level degrees, very intelligent, competent, and had been a very productive employee who took pride in her work, which even the University and its attorney, Brent Benrud, has repeatedly acknowledged, including in front of the charging party. The charging party desired to return to a job and build her career with good pay, benefits and job security, and with a mission that an employee can take pride in at the University, but Brent Benrud and university would not allow for this, including in 2020 and 2021. Additionally, charging party is going to be pursuing a doctoral degree for working professionals in education in 2022, which in many cases shows relevancy to educational paths for her employment.

Filing an EEOC charge past or present should never be a career death sentence nor should it launch an defamation campaign of an employer, and the University is intent on making sure this happens for Jessica Ehlers, and we believe the EEOC also needs to expand this investigation to look at how many others like Jessica Ehlers the University has done this same thing to after they filed EEOC charges. Although a great deal of this conduct occurred surrounding the charging party’s EEOC matters, the charging party also believes the University is concurrently retaliating against charging party for a workers compensation action the charging party filed, which is still pending (and noted about in charging party’s previous EEOC charges related to the charging party’s disability).

The charging party has since been contacted by multiple personnel that identified as breaking the law under duress of XXX and other leadership. Recently, the charging party filed Charge # 444-2021-01561, but since filing that charge, a second whistleblower, an HR leader over other HR leaders at the Office of Human Resources (OHR) came forward admitting to violations in my current charge and previous charges before the EEOC, and they further noted being under duress by XXX to break the law and have documentation to support such illegal and professional misconduct by XXX. Further, whistleblower #2 describes that they know of and reported the location of a file the University is using to track their illegal conduct is also evidence that illegal conduct is going on.

Charging Party states that Whistleblower #2 identifies as having significant involvement in all the matters that affected the Charging Party, and that they were the one that mainly broke the law, but they said once Brent Benrud realized Whistleblower #2 was challenging them by opposing illegal activities after what whistleblower #2 said was a “turning point” in which Whistleblower #2 as a leader in HR working at OHR over multiple other HR leaders that caused them to try to stop and oppose the illegal conduct. When XXX learned of whistleblower #2’s opposition, he retaliated and involved others in retaliating against whistleblower #2. There are emails that are showing hunts for background checks, learning where offers are made, and reporting those for purposes of obstructing and ending those jobs. The subjects are even changed to say “time sensitive” and several HR leaders and staff participated in this misconduct due to XXX system of illegal activity that whistleblower #2 said was so wide ranging and severe with retaliatory acts against HR people for not going through with any kind of law breaking that XXX and others in HR leadership, inclusive of Ken Horstman, were fostering and harboring against Charging Party and innocent HR people that just wanted to do actual HR work, and had many other HR duties to do instead of being XXX bird dog” for years and continuing.

The Challenging Party’s allegations are not time-barred

The Respondent University states in its Position Statement:

Charging Party’s allegation that a whistleblower contacted her about a job she wanted to hire her for in 2017 falls outside of the statute of limitations. Charging Party cannot revive a claim that is time barred by the statute of limitations by arguing she has new information. Henderson v. Ford Motor Co, 403 F.3d 1026 (8th Cir. 2005) (“Certainty is not the standard. [I]f a plaintiff were entitled to have all the time [she]needed to be certain [her] rights had been violated, the statute of limitations would never run. . . Thus, Dr. Kahn’s statements, even if newly-discovered, do not serve to toll the 300-day and one-year statute of limitations applicable to [Plaintiff’s claims”) (quotations omitted).

Charging Party’s Rebuttal

Charging party’s amended charge confirms the whistleblower #1 has information both on jobs in January and February 2021 and in 2017. Similarly, as made clear in the amended charge, whistleblower #2 has information on 2021, 2020, 2019 and other years.

In response Charging Party states that generally, “If irreparable harm will result absent immediate action by the court, or if the interests of justice otherwise require, the court may waive or modify the time limits established by this rule.” Minn. Court Rules Rule 115.07 Relaxation of Time Limits. Further, Charging Party asserts that there could have been no foreseeable way of Charging Party knowing with any degree of certainty as to when and where a whistleblower might have presented himself or herself, with contradictory evidence to the Employer’s position. Charging Party begs the question as to what degree of information would it take to “not be” within the ambit of preventing of irreparable harm that would render Rule 115.07 as having no effect in the Charging Party’s scenario.

Charging Party asserts further that Because statutes of limitation are intended to expedite the resolution of disputes, courts apply the doctrine of equitable tolling sparingly. The Eighth Circuit explained equitable tolling is generally available when the claimant is influenced by someone else’s “misleading” or “fraudulent” conduct. Turner v. Bowen, 862 F.2d 708, 709-10 (8th Cir. 1988). Charging Party states the fact that whistleblower 1 came forward in 2021 citing both information in 2021 and earlier in 2017, which is passed the statute of limitations date for coming forward about only a 2017 matter and not anything in 2021, is a non-issue if said whistleblower’s statements were intend to illustrate fraud or misleading conduct by the University/Employer. The University’s conduct entailed an elaborate scheme to disadvantage and secure job loss of Jessica Ehlers as detailed in the amended charge of discrimination. Furthermore, the fact that there are other whistleblowers who have come forward with further evidence of the University/Employer’s discriminatory and retaliatory conduct should solidify the Charging Party’s assertions that the University /Employer has engaged in both discriminatory and retaliatory conduct towards not just the Charging Party but also towards other employees, as reflected in Charging Party’s Amended EEOC Complaint hereto attached.

This point is also moot and overshadowed by the fact that the Employer’s discriminatory conduct emanated from a “series of of acts with one independent discriminatory act occurring within the charge-filing period’” or by maintenance of “‘a system or policy which discriminates.’” See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512 at 528 (1990). Additionally, the 8th circuit has found that employees are allowed to make timely connections to earlier events of retaliation by citing a current act and earlier ones that were party of a system of retaliation and hostile workplace, including involving multiple personnel. See Madison v. IBP, Inc., 122 S. Ct. 2583 (2002) and see Madison v. IBP, Inc., 257 F.3d 780 (8th Cir.2001). Such case found that Morgan’s claim for hostile work environment was different, however, for such claims by their “very nature involve [ ] repeated conduct,” and he could recover for the whole period as long as a charge had been filed “within 180 or 300 days of any act that [was] part of the hostile work environment.” Id. at 2073, 2075. Now under Morgan, only a single act of discrimination or harassment need be shown to have occurred within the charge filing period because “[h]ostile environment claims are different in kind from discrete acts.” Morgan, 122 S.Ct. at 2073. Because they involve repeated conduct, Title VII “in no way bars a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge,” but instead allows a plaintiff to recover for the entire period a hostile environment existed. Id. at 2075.

Against this backdrop, Charging Party asserts that her Charge of Discrimination is not statutorily barred.

Respondent’s position statement:

Despite the fact that this allegation falls outside of the statute of limitations, to be clear,

there has never been a directive issued that Charging Party is not eligible for rehire, or to not hire her for a particular position. To the contrary, Charging Party has been considered the same as any other candidate. Given her repeated past claims, the University monitors Charging Party’s job applications. It has done so to protect itself from additional claims by ensuring that all rules and policies are followed, that Charging Party receives the same consideration in the process as any other applicant, and that reasonable accommodations are provided. It is entirely reasonable and appropriate for the University to do this.

Charging Party’s Rebuttal:

Charging party’s amended charge enclosed fully clarifies dates about retaliation occurring in 2020 and 2021, as does the evidence. These multiple and series of actions are a hostile workplace, not only for Ehlers once she starts resuming work even temporarily in Oct 2020 to Jan 2021 and were part of a series of discriminatory and retaliatory acts as part of a system which discriminates, and which created a hostile workplace for Ehlers and other personnel, including in HR and supervisory roles involved in hiring processes at the University.

Further the amended charge and the testimony of whistleblower #1 and #2 shows Ehlers is not “being considered as any other applicant.” Further, the University’s statement, “there has never been a directive issued that Charging Party is not eligible for rehire, or to not hire her for a particular position” is refuted by enclosed evidence showing such was in fact the case, and the testimony of whistleblower #1 and #2 available in the investigation of this charge. This “system” was illegally operated to manufacture pretextual basis and untrue reasons Ehlers could not be interviewed and hired and Mr. Benrud’s own two emails confirms this was done in retaliation for an EEOC activity that Ehlers did or was expected to do by the University and that Mr. Benrud was ensuring she would never be re-employed again. Mr. Benrud, OGC, and OHR interfere with the data subject’s recruitment pre-hire processing and offered employment each time a spreadsheet or Peoplesoft detects an interview, routing, offer, or background check.

Mr. Benrud affirms in March 2021 in writing (see enclosed March 2021 confidential exhibit) that this abuse of the University hiring process, including background check and reference processes, would operate the same as coding for “no rehire” would with the same result while referring to the Jessica Ehlers’ EEOC protected activity, and telling HR it would be retaliation if coding were used. Unfortunately, this is still retaliation and still illegal.

As you can see from our confidential exhibit enclosed dated in 2021 (so it is timely), Brent Benrud is corresponding with OHR personnel and HR is identifying an EEOC compliant possibility to Benrud, and Mr. Benrud’s direct immediate reaction was indicating that the University was in reaction to such going to be acting to set up coding to ensure Ms. Ehlers is coded as ineligible for rehire. When he follows up with other leaders, he writes that OGC attorneys objected to such because it would be too obvious that it’s in retaliation for an EEOC charge or bringing such claims against the University.

- Mr. Benrud is seen involving and naming multiple personnel involved in this illegal operation, including Ken Horstman and Mary Rohman Kuhl, and he has continued up to present time still involving Employee Relations, Office of Human Resources, and other personnel in continuing this system in 2021.
- The enclosed confidential exhibit indicates the University couldn’t set up any kind of code to ban Jessica Ehlers in 2021 without it being obvious retaliation, so the Office of Human Resources department and Office of General Counsel are creating their own employment interference to achieve the same effect.
- Such a “system” is based on using illegal references, fraudulently communicating false information about the background of the data subject and defaming and engaging in disparagement of the data subject to university departments and leadership directly considering the data subject for hire, and such is done as shown in the data and records directly by Office of Human Resources and Office of General Counsel personnel, including Mr. Benrud himself.

In the enclosed exhibit from March 2021, the Office of General Counsel, per Brent Benrud, is admitting to HR that I have no misconduct history and tagging me as a code of not eligible for rehire would be too obvious as a retaliation act for an EEOC charge that it is due to protected activities and isn’t done for comparators with more serious offenses which are described in the evidence enclosed.

As you can see from the enclosed examples from Whistleblower #2, Mr. Benrud misuses his assistant, Kathy Bitterly, to harvest all application data of which Jessica Ehlers applies. Mr. Benrud then orders employment interference and engages in such himself against Jessica Ehlers and Witness whistleblower #2 will confirm how Mr. Benrud went to HR, hiring managers, and supervisors to spur negative information and defame Jessica Ehlers to get her excluded and to get interviews cancelled or hiring processes short-circuited for Jessica Ehlers out of retaliation.

OHR and/or Kathy Bitterly track all PeopleSoft application status changes in which supervisors, hiring personnel, and HR indicate screening, interviews, or other hiring process activities such as offer or hired.
Mr. Benrud and OHR personnel, mostly from Employee Relations, go to each hiring department, hiring manager, and supervisor and spread negative information and information indicated in the whistleblower #2 section of this charge to ensure Ehlers is rejected from hiring processes or not allowed to be re-employed.
Peoplesoft entries are updated to show Ehlers is not interviewed. We have examples of Kathy Bitterly’s tracking which contradict other spreadsheets the University produced to show interference to the investigator.

Among other things in this evidence enclosed in confidential exhibits:

Mr. Benrud is falsely conveying Ehlers did not work full-time since 2016 in 2021 in contacts to HR people and saying this is an excuse for a department to oust Ehlers and consider her less qualified or not qualified, such as his correspondence with Erik Muhndahl and others in HR in which he orders the HR personnel to ensure the departments know this information about Ehlers and know that it’s a reason to oust Ehlers from consideration for a job. Clearly, Mr. Benrud has not informed himself of Ehlers’ employment, and he even falsely claimed she worked at the COVID pop-up clinics when instead Ehlers worked at the COVID lab on campus in Oct 2021 to Jan 2021 performing administrative work.
Mr. Benrud writes in the contact in 2021 to eliminate Ehlers because she was not working a real administrative job even though Ehlers was in fact performing administrative work. Mr. Benrud continues to state Ehlers has other employment gaps, but even upon looking at payroll records, Mr. Benrud received throughout litigation, it is very clear Ehlers has held jobs and employment, including full time even into 2021 so his communication that she has not held a full-time job since 2016 in 2021 is false. Additionally, these jobs considered education in lieu of work experience, and Mr. Benrud is seen disregarding such and simply trying to craft a pretextual reason to exclude Ehlers from any interview or employment process. See enclosed confidential exhibits. This confidential exhibit is enclosed and shows Erik replies back saying he’s doing just that besides spreading other false information that Mr. Benrud conveys in Feb 2021 that was also false about Jessica Ehlers, including because it was school information that Mr. Benrud falsely conveyed.
State law prohibits anyone, including employers, from knowingly publishing or spreading false information about an applicant or employee. The information was false and defamatory, and the University knew or should have known that the information was false and acted with malicious intent to injure the data subject, Jessica Ehlers.
Mr. Benrud is instructing OHR and other staff to contact departments and suggest in a defamatory way that they make unauthorized contacts with parties, and it shows him admitting to making contacts to departments and personnel in the content even disparaging specific HR people for being accommodating and considerate of the data subject and the data subject’s disability.

The University was not doing these actions to “protect’ itself from new claims, they were doing these actions out of retaliation and the exchanges in March 2021 show such directly and directly refer to the EEOC as why any retaliatory ban of employment is happening against Jessica Ehlers.

The University’s abuse of monitoring is evidence of pretextual and other illegal activities because:

The information the University was listing as excuses about Jessica Ehlers was wrong information and should not have resulted in elimination from employment processes.
The information the University used to eliminate Ehlers also reflects illegally and maliciously acquiring data that isn’t even right about Jessica Ehlers’ education that was conveyed wrongfully and illegally to HR and other parties, including in violating FERPA and case law about educational records to simply enact such employment ban that Mr. Benrud writes about.
Ms. Ehlers had worked full time and had relevant experience that Mr. Benrud falsely conveyed she did not which was acted on by hiring departments.
The University does not harvest this same data and conduct these same illegal background checks and unauthorized disparagements about other candidates.
No other candidates have the Office of General Counsel and Office of Human Resources working in concert and in direct writings to “ban” the employment of someone and hoping to not get caught in “retaliation” of the charging party.
The data harvested by the University is illegal to acquire in a background check and bears no relationship to qualification to work at the University, especially since Mr. Benrud’s information was untrue about the charging party.
Mr. Benrud conveys the departments need to try to find “red flags” with Jessica Ehlers – the University proactively used their HR team to illegally harvest the latest and greatest gossip and negative innuendos they could find about Jessica Ehlers. None of this was related to jobs at hand.
No other regular candidates have OHR and departments CC’ing the OGC. The very act of doing that is retaliation to send up red flags and clearly, the content in these emails is to send up alerts to EEOC or other protected activity.

In the University’s position statement, they presented several false statements. One of the lies is that they are not interfering with or preventing Jessica Ehlers from having a career at the University of Minnesota, including by telling departments to not hire and to not interview Jessica Ehlers. The University also is interfering and has interfered with Jessica Ehlers’ employment out of retaliation by intentionally supplying false information about Jessica Ehlers to departments before interviews could or would be held, thereafter, and during later parts of processes if status changes on spreadsheets caught these activities.

In these cases, the University is doing these actions before any offer of employment and once they learn an interview or any kind of screening is planned. It’s also pretext for retaliation because the University is required to produce any negative findings of information and allow charging party the opportunity to respond before an adverse action is made because information can be faulty or wrong. The University did not do this because (1) there were no conditional offers (2) the University uses a vendor to conduct checks and is not authorized itself to do such (3) the University did these actions without any conditional offers at first sign of an interview or screening or status changes before a conditional offer (4) the University already had a successfully passed check in fall of 2020 and would not have had to have another one per the Background check policy in limited cases, meaning the University was acting outside of its normal and policy-driven operations to harvest and defame Ehlers in hiring processes to ban Ehlers from employment and not following its own policies and the state and federal law to do such.

While this charge was pending, the charging party specifically applied for several more jobs and asked for tracking sheets. The University replied with a tracking sheet claiming Jessica Ehlers was “screened” for jobs and interviewed when none were held as per that sheet. When the charging party and whistleblower #2 compared notes, collectively it was discovered that the University’s Office of General Counsel was illegally retaliating against Jessica Ehlers by using the codes departments use to track interviews and ordering these areas to not interview and not hire Jessica Ehlers and centrally editing the tracking to remove interviews or other statuses of success in the hiring process for Jessica Ehlers. Ehlers was not interviewed for jobs identified in the spreadsheets released and was not screened with any pre-interview screening calls or meetings.

Witness whistleblower #2 described and has information about and documentation as an active participant in the illegal retaliation:

The University revealed the full disabilities of Jessica Ehlers to departments, hiring managers, HR, supervisors, and other private information before any conditional offer of employment.
The University presented old or false accommodation needs that were no longer needed to departments, hiring managers, HR, supervisors, and other private information before any conditional offer of employment.
XXX, the Office of General Counsel, the Office of Human Resources, and other parties specifically ordered Employee Relations Consultants at the Office of Human Resources and HR personnel, including Whistleblower #2, to interfere with prospective or offered employment of Jessica Ehlers.

HR Professional Whistleblower #2 said:

What remained a point of focus was that the Office of General Counsel wanted anyone who was considering Jessica Ehlers for employment elsewhere at the university to check Jessica Ehlers’ previous employment before any interview and before any conditional offer and that included Boynton and that the Office of General Counsel, mainly XXX, was hoping people would discover was that charging party was terminated after exhausting FMLA for a disability and having a work injury for that disability, and
they were hoping presenting this old information about requests for accommodation would be enough to overwhelm and discourage anyone else to handle and manage accommodations for Jessica Ehlers, and
that this would discourage other hiring managers from extending an offer to Jessica Ehlers or going any further in interview processes.

The charging party asserts the significant issues raised in her amended charge with significant detail lend no doubt of any retaliation or discrimination against her.

On Monday, August 23, 2021, a whistleblower that worked for the University since 2014 at the University as a supervisor responsible for hiring staff contacted the charging party and her appellate legal counsel and informed us that the University through XXX ordered illegally supervisors and HR staff to not interview and hire the charging party citing to the lawsuits (note that charging party filed for workers compensation connected to her EEOC charges and her lawsuit for discrimination and retaliation is based on the EEOC charges and right to sue letters). This whistleblower came to charging party and her appellate legal counsel on Monday, August 23, 2021 and on Thursday, August 26, 2021, telling them that she was a supervisor recruiting for jobs.

This Whistleblower #1 identified jobs in January and February of 2021 at the University in which Ehlers was not allowed to be interviewed after this supervisor indicated to interview Ehlers, and that other jobs Ehlers was rejected for the same reason of the employment ban edict of XXX.

The charging party in addition to the statement in the preceding paragraph further states that:

Whistleblower #1 identified that in 2017 when charging party had rights to jobs on the transfer list that whistleblower 1 was told that charging party could not be considered for the job she was hiring for, an 1885 job, and whistleblower #1 said she was told even back then that the University was barring charging party’s employment even though the University claimed that charging party was allowed transfer rights. Whistleblower #1 learned this ban of hiring charging party when she was trying to hire for a role in XXX. This person can meet with the investigator of the EEOC. The charging party has not included the initial name of the person in this filing because of concern the University would engage in retaliation and valuable evidence could be preserved if the University doesn’t have an opportunity to destroy everything. This information can be given directly to the investigator for investigation in a way that would better preserve investigative value.
Whistleblower #1 described innocently not knowing of the charging party’s lawsuit against the University of XXX until the University leadership in 2021 referred to it in Jan and Feb 2021 and Whistleblower #1 started looking into it when they selected charging party for the interview in Jan/Feb 2021 and learned charging party applied for several jobs in whistleblower #1’s work area.
Whistleblower #1 was ordered to not interview charging party and to not hire charging party because of charging party’s EEO protected activity
Whistleblower #1 informed the charging party that they were retaliated against for not breaking the law due to charging party’s case before the EEOC and the courts and that this happened in 2021 after the charging party applied for a role and whistleblower #1 indicated interview in the university systems and opposed illegal activity in refusing to change the interview status to not interview in accordance with the edicts set by XXX and enforced by HR leaders.

Additionally, whistleblower #1 provided significant detail of how she was part of processing candidates for interview and making system changes for positions. The following facts are relevant:

For instance, the process to advance candidates to other committee interview rounds was Whistleblower #1’s decision in January and February of 2021, and she also learned charging party was excluded from multiple jobs at her department due to charging party’s EEO protected activity and orders by XXX d and other HR leaders.
Whistleblower #1 described how she kept shared files and records that were made to exclude charging party’s candidacy.
Whistleblower #1 was aware of the positions that charging party was making application and the process of the application for those positions.
Whistleblower #1 was also aware of the high number of positions and jobs that the charging party applied for in other work areas of the University as well.
Whistleblower #1 also stated she was working with other hiring managers and staff that coordinate the processing of applications for positions, the review of those applications, and deciding which candidates/applicants to advance to interviews in 2021 with staff and committees as part of the application process.
Whistleblower #1 indicated in the University systems to advance my candidacy for interview and was ready to interview me when another supervisor and HR contact for the University learned of my application and ordered to not interview and proceed with my candidacy for any job or position at the University of Minnesota, including the interview process she was presently handling. This directive came to her supervisor and HR contact directly from Attorney, XXX, Office of General Counsel of the University of Minnesota.
Whistleblower #1 states her supervisor and HR contact attended an HR meeting and was told that XXX was ordering all departments that they cannot interview and cannot hire me because I sued the University of Minnesota (The charging party filed for workers compensation connected to my EEOC charges and her lawsuit for discrimination and retaliation based on the EEOC charges and right to sue letters).
The charging party states that whistleblower #1 had never had any previous contact with charging party, her attorney, or any contact directly or indirectly prior to her contacting the charging party on Monday, August 23, 2021.
Whistleblower #1 also described to the charging party and her legal counsel that they had no idea who XXX was until they looked up charging party’s legal cases and learned of her litigation related to EEOC charges. XXX represents the University in its lawsuit related to the charging party’s EEOC charges.

The employer’s discriminatory conduct emanated from a “series of of acts with one independent discriminatory act occurring within the charge-filing period’” or by maintenance of “‘a system or policy which discriminates.’” See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512 at 528 (1990). Additionally, the 8th circuit has found that employees are allowed to make timely connections to earlier events of retaliation by citing a current act and earlier ones that were party of a system of retaliation and hostile workplace, including involving multiple personnel. See Madison v. IBP, Inc., 122 S. Ct. 2583 (2002) and see Madison v. IBP, Inc., 257 F.3d 780 (8th Cir.2001). Such case found that Morgan’s claim for hostile work environment was different, however, for such claims by their “very nature involve [ ] repeated conduct,” and he could recover for the whole period as long as a charge had been filed “within 180 or 300 days of any act that [was] part of the hostile work environment.” Id. at 2073, 2075. Now under XXX, only a single act of discrimination or harassment need be shown to have occurred within the charge filing period because “[h]ostile environment claims are different in kind from discrete acts.” Morgan, 122 S.Ct. at 2073. Because they involve repeated conduct, Title VII “in no way bars a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge,” but instead allows a plaintiff to recover for the entire period a hostile environment existed. Id. at 2075.

The Challenging Party’s allegations raises sufficient facts to find the Respondent liable thereof

The Respondent’s Position Statement

“In a vast majority of the cases, on the face of her application materials, she does/did not meet the basic requirements of the position.”

Charging Party’s Rebuttal

The University’s spreadsheets and whistleblower #2 will confirm Ehlers qualified for jobs in most if not all of these cases, but the University was enacting faulty means to exclude Ehlers from employment for discriminatory and retaliatory reasons.

Mr. XXX cited in writing to HR that his employment barring conduct of Jessica Ehlers in 2021 was due to Jessica Ehlers’ EEOC complaint or expectation that the data subject was filing an EEOC Complaint.

This “system” was illegally operated to manufacture pretextual basis and untrue reasons Ehlers could not be interviewed and hired and XXX own two emails confirms this was done in retaliation for an EEOC activity that Ehlers did or was expected to do by the University and that XXX was ensuring she would never be re-employed again. XXX, OGC, and OHR interfere with the data subject’s recruitment pre-hire processing and offered employment each time a spreadsheet or Peoplesoft detects an interview, routing, offer, or background check.

XXX affirms in XXX in writing (see enclosed XXX confidential exhibit) that this abuse of the University hiring process, including background check and reference processes, would operate the same as coding for “no rehire” would with the same result while referring to the Jessica Ehlers’ EEOC protected activity, and telling HR it would be retaliation if coding were used. Unfortunately, this is still retaliation and still illegal.

As you can see from our confidential exhibit enclosed dated in XXX (so it is timely), XXX is corresponding with OHR personnel and HR is identifying an EEOC compliant possibility to XXX, and XXX direct immediate reaction was indicating that the University was in reaction to such going to be acting to set up coding to ensure Ms. Ehlers is coded as ineligible for rehire. When he follows up with other leaders, he writes that OGC attorneys objected to such because it would be too obvious that it’s in retaliation for an EEOC charge or bringing such claims against the University.

- XXX is seen involving and naming multiple personnel involved in this illegal operation, including Ken Horstman and XX, and he has continued up to present time still involving Employee Relations, Office of Human Resources, and other personnel in continuing this system in 2021.
- The enclosed confidential exhibit indicates the University couldn’t set up any kind of code to ban Jessica Ehlers in 2021 without it being obvious retaliation, so the Office of Human Resources department and Office of General Counsel are creating their own employment interference to achieve the same effect.
- Such a “system” is based on using illegal references, fraudulently communicating false information about the background of the data subject and defaming and engaging in disparagement of the data subject to university departments and leadership directly considering the data subject for hire, and such is done as shown in the data and records directly by Office of Human Resources and Office of General Counsel personnel, including Mr. XXX himself.

In the enclosed exhibit from XXX, the Office of General Counsel, per XXX, is admitting to HR that I have no misconduct history and tagging me as a code of not eligible for rehire would be too obvious as a retaliation act for an EEOC charge that it is due to protected activities and isn’t done for comparators with more serious offenses which are described in the evidence enclosed.

As you can see from the enclosed examples from Whistleblower #2, XXX misuses his assistant, Kathy Bitterly, to harvest all application data of which Jessica Ehlers applies. XXX then orders employment interference and engages in such himself against XXX and Witness whistleblower #2 will confirm how XXX went to HR, hiring managers, and supervisors to spur negative information and defame Jessica Ehlers to get her excluded and to get interviews cancelled or hiring processes short-circuited for Jessica Ehlers out of retaliation.

OHR and/or Kathy Bitterly track all PeopleSoft application status changes in which supervisors, hiring personnel, and HR indicate screening, interviews, or other hiring process activities such as offer or hired.
XXX and OHR personnel, mostly from Employee Relations, go to each hiring department, hiring manager, and supervisor and spread negative information and information indicated in the whistleblower #2 section of this charge to ensure Ehlers is rejected from hiring processes or not allowed to be re-employed.
Peoplesoft entries are updated to show Ehlers is not interviewed. We have examples of XXX tracking which contradict other spreadsheets the University produced to show interference to the investigator.

Among other things in this evidence enclosed in confidential exhibits:

XXX is falsely conveying Ehlers did not work full-time since XXXX in XXXX in contacts to HR people and saying this is an excuse for a department to oust Ehlers and consider her less qualified or not qualified, such as his correspondence with XXX and others in HR in which he orders the HR personnel to ensure the departments know this information about Ehlers and know that it’s a reason to oust XXX from consideration for a job. Clearly, Mr. XXX has not informed himself of Ehlers’ employment, and he even falsely claimed she worked at the COVID pop-up clinics when instead Ehlers worked at the COVID lab on campus in XXX to XXXX performing administrative work.
XXX writes in the contact in XXX to eliminate Ehlers because she was not working a real administrative job even though Ehlers was in fact performing administrative work. XXX continues to state XXXX has other employment gaps, but even upon looking at payroll records, XXX received throughout litigation, it is very clear Ehlers has held jobs and employment, including full time even into XXX so his communication that she has not held a full-time job since 2016 in 2021 is false. Additionally, these jobs considered education in lieu of work experience, and XXX is seen disregarding such and simply trying to craft a pretextual reason to exclude XXX from any interview or employment process. See enclosed confidential exhibits. This confidential exhibit is enclosed and shows XXX replies back saying he’s doing just that besides spreading other false information that XXX conveys in XXX that was also false about XXX, including because it was school information that XXX falsely conveyed.
State law prohibits anyone, including employers, from knowingly publishing or spreading false information about an applicant or employee. The information was false and defamatory, and the University knew or should have known that the information was false and acted with malicious intent to injure the data subject, Jessica Ehlers.
XXX is instructing OHR and other staff to contact departments and suggest in a defamatory way that they make unauthorized contacts with parties, and it shows him admitting to making contacts to departments and personnel in the content even disparaging specific HR people for being accommodating and considerate of the data subject and the data subject’s disability.

The University was not doing these actions to “protect’ itself from new claims, they were doing these actions out of retaliation and the exchanges in XXX show such directly and directly refer to the EEOC as why any retaliatory ban of employment is happening against Jessica Ehlers.

The University’s abuse of monitoring is evidence of pretextual and other illegal activities because:

The information the University was listing as excuses about Jessica Ehlers was wrong information and should not have resulted in elimination from employment processes.
The information the University used to eliminate Ehlers also reflects illegally and maliciously acquiring data that isn’t even right about XXX’ education that was conveyed wrongfully and illegally to HR and other parties, including in violating FERPA and case law about educational records to simply enact such employment ban that XXX writes about.
Ms. Ehlers had worked full time and had relevant experience that XXX falsely conveyed she did not which was acted on by hiring departments.
The University does not harvest this same data and conduct these same illegal background checks and unauthorized disparagements about other candidates.
No other candidates have the Office of General Counsel and Office of Human Resources working in concert and in direct writings to “ban” the employment of someone and hoping to not get caught in “retaliation” of the charging party.
The data harvested by the University is illegal to acquire in a background check and bears no relationship to qualification to work at the University, especially since XXX information was untrue about the charging party.
XXX conveys the departments need to try to find “red flags” with Jessica Ehlers – the University proactively used their HR team to illegally harvest the latest and greatest gossip and negative innuendos they could find about Jessica Ehlers. None of this was related to jobs at hand.
No other regular candidates have OHR and departments CC’ing the OGC. The very act of doing that is retaliation to send up red flags and clearly, the content in these emails is to send up alerts to EEOC or other protected activity.

In the University’s position statement, they presented several false statements. One of the lies is that they are not interfering with or preventing XXX from having a career at the University of XXX, including by telling departments to not hire and to not interview XXX. The University also is interfering and has interfered with XXX’ employment out of retaliation by intentionally supplying false information about Jessica Ehlers to departments before interviews could or would be held, thereafter, and during later parts of processes if status changes on spreadsheets caught these activities.

Witness whistleblower #2 described and has information about and documentation as an active participant in the illegal retaliation:

The University revealed the full disabilities of Jessica Ehlers to departments, hiring managers, HR, supervisors, and other private information before any conditional offer of employment.
The University presented old or false accommodation needs that were no longer needed to departments, hiring managers, HR, supervisors, and other private information before any conditional offer of employment.
Brent Benrud, the Office of General Counsel, the Office of Human Resources, and other parties specifically ordered Employee Relations Consultants at the Office of Human Resources and HR personnel, including Whistleblower #2, to interfere with prospective or offered employment of Jessica Ehlers.

HR Professional Whistleblower #2 said:

What remained a point of focus was that the Office of General Counsel wanted anyone who was considering Jessica Ehlers for employment elsewhere at the university to check Jessica Ehlers’ previous employment before any interview and before any conditional offer and that included Boynton and that the Office of General Counsel, mainly Brent Benrud, was hoping people would discover was that charging party was terminated after exhausting FMLA for a disability and having a work injury for that disability, and
they were hoping presenting this old information about requests for accommodation would be enough to overwhelm and discourage anyone else to handle and manage accommodations for Jessica Ehlers, and
that this would discourage other hiring managers from extending an offer to Jessica Ehlers or going any further in interview processes.

The charging party asserts the significant issues raised in her amended charge with significant detail lend no doubt of any retaliation or discrimination against her.

The Charging Party’s allegations are not barred by res judicata.

Respondent’s position statement:

Charging Party’s two-year period in the Job Transfer Program ran from approximately

April 2017 through September 2019. The period was extended by a few months because she alleged that she had not actually been enrolled in the program, despite evidence to the contrary.

Charging Party’s claims about the Job Transfer Program fall well outside the statute of limitations. Additionally, her previous EEOC charges already addressed the Job Transfer Program, as did her lawsuit. These claims have already been addressed and dismissed.

Charging Party asserts that she has new evidence regarding the Job Transfer Program.

Charging Party has made various requests for information over the past several years regarding her participation in the Job Transfer Program, both under the Data Practices Act and through discovery in her lawsuit. The University has provided the information. Charging Party’s participation in the Job Transfer Program ended in 2019, so the University is not aware of new information regarding the Job Transfer Program. Charging Party would have already received all documents regarding the Job Transfer Program back in 2019, either through the lawsuit, her DPA requests, or both.

Even if these allegations were not barred by the running of the statute of limitations and

res judicata, the record clearly shows that Charging Party was on the Job Transfer List. Charging Party was referred to jobs through the Job Transfer Program. A sampling of communications between Charging Party and the University regarding referral of jobs through the Job Transfer Program is attached as Exhibit 2.

Charging Party received health insurance benefits while she was in the Job Transfer

Program. Additionally, Charging Party was able to utilize the University’s Regents Scholarship Program in the Spring of XXX and the Summer of XXX, which afforded her tuition benefits. She would not have been able to access these benefits if she was not enrolled in the Job Transfer Program because she was no longer a University employee. A copy of her Regents Scholarship forms approved on XXX, and XXX, are attached as Exhibit 3.

Charging Party’s Rebuttal

As included in Ehlers’ second charge before the EEOC, the charging party was not fully instituted into the Job Transfer Program because the University misrepresented the program and did not tell XXX she had to meet with Susan Cable Morrison.

Whistleblower #2 will confirm to the investigator that such was done to prevent Ehlers from receiving job referrals out of retaliation, and it continued even into XXX, when Whistleblower #2 confronted XXX and told him Ehlers needs to be allowed to work and produced work comp clearance. The University retaliated against whistleblower #2 in HR for opposing their employment banning of Ehlers, which is clearly illustrated in many exchanges enclosed in our confidential response.

The university did not comply with discovery for Ehlers’ lawsuit and did not produce relevant records until after this charge was filed in XXX of other relevant information that the central human resources department, recently was released in XXX which showed the University’s statement now before the EEOC to be false.

XXX’ lawsuit did not address job transfer as an act of retaliation. Ehlers’ lawsuit was filed in 2018 and many of the issues thereafter occurred and escalated in XXX and the University shielded and avoided compliance with discovery to prevent Ehlers and her legal counsel from knowing and the EEOC from knowing that Ehlers was not enrolled in the job transfer program, per their own HR contacts to receive job referrals. Putting a fake profile on Ehlers’ HR record and allowing her tuition benefits or anything else is not allowing XXX to return to a job, and is secondary benefits of the list, not job referrals which clearly the University was obstructing and illegally retaliating the whole time by not allowing Ehlers to receive.

The University’s claim that they put her on the list and fully enrolled her in the program is counteracted by their own evidence of emails just released in XXX after this EEOC charge in which the University in XXX communicates to an HR leader in asking whether XXXX was on the Job Transfer List, the response is simple: XXX is not on the Job Transfer List and is not eligible to receive job referrals. This was conveyed in XXX, and it continued to be that fact into 2019, even after the University received indisputable work clearance.

The University, because they neglected to inform Ehlers of her requirement to meet with someone at OHR, Susan Cable Morrison, in 2017 to receive job referrals, promised that Ehlers would receive full two years of job priority starting when they in effect put Ehlers on the job transfer list in XXX to XXX. Instead, the University did not enroll Ehlers into the program to receive job referrals, and the correspondence with hiring managers also indicates how to avoid giving Ehlers priority hire in the Disability Resource Center Contract logs in multiple years of XXX to XXX. The records reflect that Ehlers was supposed to receive a job referral and be priority hire candidate for a job in Sept XXX when she was still within her rights period, and the correspondence reflects the University determining that since they created a fake job in XXX without giving Ehlers the rights to the job priorities or even telling her she needed to meet with anyone or otherwise supporting her, that Ehlers was not allowed to receive priority and could not hold this job in XXX. The University concealed this and other information throughout prior EEOC investigations and even attempted to lie to the EEOC in its position statement when this is refuted by direct evidence we enclosed.

Despite an initial handful of job referrals occurring after XXX, thereafter the University would not allow job referrals for XXX because they were intent on banning her employment per XXX and other University parties’ engagements in ensuring Ehlers would not be hired.

As stated previously the timeliness issue is solved by Ehlers’ showing that Whistleblower #2 was involved in interfering with jobs and that included these and multiple others that Ehlers could have been hired for at the University. Whistleblower #2 was retaliated starting in XXXX, and escalating more and more in XXX and XXX for arguing that Ehlers should be allowed to work because she was cleared for work and qualified to work. Whistleblower #2 also opposed XXX system of retaliation against Ehlers and acted to stop this system from further harm to Ehlers, only to be retaliated even more.

The courts never envisioned that an employer in creating a system of retaliation would simply just stop and one or two dates, especially if it were a severe hostile work environment. That would lead to as the 6th circuit found a case where an employer simply just creates a calendar and check of dates to count down when they can no longer be held accountable for illegal conduct. In this case, the University believed if they hid these records long enough and retaliated against enough people to keep their mouths shut in HR and other hiring roles, maybe they wouldn’t get caught or held accountable to answer to these offenses before the EEOC.

Charging party’s amended charge enclosed fully clarifies dates about retaliation occurring in 2020 and 2021, as does the evidence. Charging party’s assertion of this matter about job transfer list not allowing her job referrals for multiple years in which she had job rights and other matters before XXX and XXX is not statutorily barred. These multiple and series of actions are a hostile workplace, not only for XXX once she starts resuming work even temporarily in Oct XXX to Jan XXXX and were part of a series of discriminatory and retaliatory acts as part of a system which discriminates, and which created a hostile workplace for Ehlers and other personnel, including in HR and supervisory roles involved in hiring processes at the University.

The employer’s discriminatory conduct emanated from a “series of of acts with one independent discriminatory act occurring within the charge-filing period’” or by maintenance of “‘a system or policy which discriminates.’” See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512 at 528 (1990). Additionally, the 8th circuit has found that employees are allowed to make timely connections to earlier events of retaliation by citing a current act and earlier ones that were party of a system of retaliation and hostile workplace, including involving multiple personnel. See Madison v. IBP, Inc., 122 S. Ct. 2583 (2002) and see Madison v. IBP, Inc., 257 F.3d 780 (8th Cir.2001). Such case found that Morgan’s claim for hostile work environment was different, however, for such claims by their “very nature involve [ ] repeated conduct,” and he could recover for the whole period as long as a charge had been filed “within 180 or 300 days of any act that [was] part of the hostile work environment.” Id. at 2073, 2075. Now under Morgan, only a single act of discrimination or harassment need be shown to have occurred within the charge filing period because “[h]ostile environment claims are different in kind from discrete acts.” Morgan, 122 S.Ct. at 2073. Because they involve repeated conduct, Title VII “in no way bars a plaintiff from recovering damages for that portion of the hostile environment that falls outside the period for filing a timely charge,” but instead allows a plaintiff to recover for the entire period a hostile environment existed. Id. at 2075.

University’s Position Statement:

Without waiving attorney/client privilege, human resources has been advised to make sure

they are thorough in reviewing all applicants and checking references and qualifications. Again,

this applies to all applicants for any position, not just Charging Party. While the Office of the

General Counsel does not know what a specific unit or human resources employee might have said independently, this has never been the message from the Office of General Counsel. In fact, the Office of the General Counsel has specifically advised against any kind of “not eligible for rehire” directive for Charging Party.

University meetings involving human resources personnel can be quite large and topics

and discussions revolve around general human resources issues facing the University. Individual

employees are not discussed at these meetings.

Charging Party’s Rebuttal:

The University’s communication to all of these tracked departments in which Ehlers sought or applied for which, which whistleblower #2 will tell the investigator included among other things, entailed that Office of Human Resources and Office of General Counsel personnel contacted these hiring personnel, HR, and supervisors stating: (1) That Ehlers filed EEOC charges/claims against the University, (2) that the University did not want Ehlers re-employed, and (3) they must follow what HR and Office of General Counsel is saying regarding this.

The University clearly did not want charging party re-employed all along and this constant and unrelenting employment interference shows such, as does direct comments and other hard evidence from whistleblowers coming forward with information and admitting to partaking in illegal activities under duress and threats to their jobs.

Mr. Benrud cited in writing to HR that his employment barring conduct of Jessica Ehlers in 2021 was due to Jessica Ehlers’ EEOC complaint or expectation that the data subject was filing an EEOC Complaint.

As you can see from our confidential exhibit enclosed dated in XXX (so it is timely), XXX is corresponding with OHR personnel and HR is identifying an EEOC compliant possibility to XXX, and XXXX direct immediate reaction was indicating that the University was in reaction to such going to be acting to set up coding to ensure Ms. Ehlers is coded as ineligible for rehire. When he follows up with other leaders, he writes that OGC attorneys objected to such because it would be too obvious that it’s in retaliation for an EEOC charge or bringing such claims against the University. He then crafts a system of interference by abusing pre-offer processes like background checks and references before any interview is even offered to Ehlers!

- XXX is seen involving and naming multiple personnel involved in this illegal operation, including XXX and XXXX, and he has continued up to present time still involving Employee Relations, Office of Human Resources, and other personnel in continuing this system in 2021.
- The enclosed confidential exhibit indicates the University couldn’t set up any kind of code to ban Jessica Ehlers in 2021 without it being obvious retaliation, so the Office of Human Resources department and Office of General Counsel are creating their own employment interference to achieve the same effect.
- Such a “system” is based on using illegal references, fraudulently communicating false information about the background of the data subject and defaming and engaging in disparagement of the data subject to university departments and leadership directly considering the data subject for hire, and such is done as shown in the data and records directly by Office of Human Resources and Office of General Counsel personnel, including ZZZ himself.

In the enclosed exhibit from XXX, the Office of General Counsel, per XXXX, is admitting to HR that I have no misconduct history and tagging me as a code of not eligible for rehire would be too obvious as a retaliation act for an EEOC charge that it is due to protected activities and isn’t done for comparators with more serious offenses which are described in the evidence enclosed.

Several meetings and correspondence negatively disparaging the charging party and comments that affect the charging party’s employment involve those with authority to affect the charging party’s job, including each departmental area’s high leadership of HR.
What remained a point of focus was that the Office of General Counsel wanted anyone who was considering Jessica Ehlers for employment elsewhere at the university to check Jessica Ehlers’ previous employment before any interview and before any conditional offer and that included Boynton and that the Office of General Counsel, mainly XXX, was hoping people would discover was that charging party was terminated after exhausting FMLA for a disability and having a work injury for that disability, and
They were hoping presenting this old information about requests for accommodation would be enough to overwhelm and discourage anyone else to handle and manage accommodations for Jessica Ehlers, and
that this would discourage other hiring managers from extending an offer to Jessica Ehlers or going any further in interview processes.

While this charge was pending, the charging party specifically applied for several more jobs and asked for tracking sheets. The University replied with a tracking sheet claiming XXXX was “screened” for jobs and interviewed when none were held as per that sheet. When the charging party and whistleblower #2 compared notes, collectively it was discovered that the University’s Office of General Counsel was illegally retaliating against XXX by using the codes departments use to track interviews and ordering these areas to not interview and not hire Jessica Ehlers and centrally editing the tracking to remove interviews or other statuses of success in the hiring process for Jessica Ehlers. Ehlers was not interviewed for jobs identified in the spreadsheets released and was not screened with any pre-interview meetings or calls.

Multiple leaders including XXX, the entire talent acquisition team, multiple employee relations OHR team members, and other parties in other HR roles at the University were involved in this system of retaliation against Jessica Ehlers and anyone else standing in their way.

Examples presented by Whistleblower #2 included that:

XXX and other OHR personnel engaged in threatening demeanors toward hiring departments, such as carbon copy emails to hiring managers, supervisors, and HR staff in which OHR personnel were ordered by XXX to spew negative misinformation about XXX and to send up untrue red flags.
XXX is selectively disparaging and complaining how “accommodating” a department was to XXX and her disability including in his disparagement in HR exchanges. See enclosed exhibit where XXX is disparaging that a department was accommodating to Ehlers and would not just revoke any offer or refuse to hire XXX as XXX wanted. XXX said he could totally fix their accommodating demeanor by “telling them about Ehlers” in implying he would retaliate against XXX by spreading information about her to discourage those wanting to hire her.

Among other things in this evidence enclosed in confidential exhibits:

XXX is falsely conveying Ehlers did not work full-time since XXX in XX in contacts to HR people and saying this is an excuse for a department to oust Ehlers and consider her less qualified or not qualified, such as his correspondence with XXX and others in HR in which he orders the HR personnel to ensure the departments know this information about XXX and know that it’s a reason to oust Ehlers from consideration for a job. Clearly, XXX has not informed himself of Ehlers’ employment, and he even falsely claimed she worked at the COVID pop-up clinics when instead Ehlers worked at the COVID lab on campus in Oct XXX to Jan XXX performing administrative work.
XXX writes in the contact in XXX to eliminate Ehlers because she was not working a real administrative job even though Ehlers was in fact performing administrative work. XXX continues to state Ehlers has other employment gaps, but even upon looking at payroll records, XXX received throughout litigation, it is very clear Ehlers has held jobs and employment, including full time even into 2021 so his communication that she has not held a full-time job since 2016 in 2021 is false. Additionally, these jobs considered education in lieu of work experience, and XXX is seen disregarding such and simply trying to craft a pretextual reason to exclude Ehlers from any interview or employment process. See enclosed confidential exhibits. This confidential exhibit is enclosed and shows Erik replies back saying he’s doing just that besides spreading other false information that XXX conveys in XXX that was also false about Jessica Ehlers, including because it was school information that XXX falsely conveyed.
State law prohibits anyone, including employers, from knowingly publishing or spreading false information about an applicant or employee. The information was false and defamatory, and the University knew or should have known that the information was false and acted with malicious intent to injure the data subject, Jessica Ehlers.
XXX is instructing OHR and other staff to contact departments and suggest in a defamatory way that they make unauthorized contacts with parties, and it shows him admitting to making contacts to departments and personnel in the content even disparaging specific HR people for being accommodating and considerate of the data subject and the data subject’s disability.

The University’s abuse of monitoring is evidence of pretextual and other illegal activities because:

The information the University was listing as excuses about XXX was wrong information and should not have resulted in elimination from employment processes.
The information the University used to eliminate Ehlers also reflects illegally and maliciously acquiring data that isn’t even right about Jessica Ehlers’ education that was conveyed wrongfully and illegally to HR and other parties, including in violating FERPA and case law about educational records to simply enact such employment ban that XXX writes about.
Ms. Ehlers had worked full time and had relevant experience that XXX falsely conveyed she did not which was acted on by hiring departments.
The University does not harvest this same data and conduct these same illegal background checks and unauthorized disparagements about other candidates.
No other candidates have the Office of General Counsel and Office of Human Resources working in concert and in direct writings to “ban” the employment of someone and hoping to not get caught in “retaliation” of the charging party.
The data harvested by the University is illegal to acquire in a background check and bears no relationship to qualification to work at the University, especially since XXX information was untrue about the charging party.
XXX conveys the departments need to try to find “red flags” with XXX – the University proactively used their HR team to illegally harvest the latest and greatest gossip and negative innuendos they could find about Jessica Ehlers. None of this was related to jobs at hand.
No other regular candidates have OHR and departments CC’ing the OGC. The very act of doing that is retaliation to send up red flags and clearly, the content in these emails is to send up alerts to EEOC or other protected activity.

In the University’s position statement, they presented several false statements. One of the lies is that they are not interfering with or preventing XXXX from having a career at the University of XXX, including by telling departments to not hire and to not interview XXX. The University also is interfering and has interfered with Jessica Ehlers’ employment out of retaliation by intentionally supplying false information about XXX to departments before interviews could or would be held, thereafter, and during later parts of processes if status changes on spreadsheets caught these activities.

The University seems to think if it interferes by actions and avoids saying it’s an employment ban like XXX email of XXX confirms such would operate the same way, that they can avoid being found responsible for retaliation against Ehlers and other whistleblowers in HR and others at the University who oppose this system of retaliation. XXX email shows in March 2021 that the whole purpose of this employment interference was to ensure XXX would not be hired and would not be interviewed. That was the whole point of interfering with her employment, including as XXX writes, to “tell departments about Ehlers.”

University’s Position Statement:

It is axiomatic that Charging Party claims there was an instruction not to hire her, yet

Charging Party was hired into a temporary position on September 24, 2020, in the University’s

Department of Laboratory Medicine and Pathology. Her claim that the University was conspiring to fire her from that position before she started is false. The offer letter for that temporary position specifically states: “There are no implied or verbal agreements or promises outside of this letter.” A copy of the XXX, offer letter is attached as Exhibit 4. The position she held from XXX, through XXXX, was always intended to be a temporary position, and there were no efforts to extend her role as she claims. Charging Party’s allegation that conduct of University Human Resources “continued to stew and grow until I no longer had a job” is false. University Human Resources’ conduct did not cause her to lose this job. In fact, Charging Party never lost the job. She worked from XXX, through XXX, the full length of the contract offered to her and described in her offer letter which she signed. Her supervisor, Laboratory Manager, XXX, had no intention of extending Charging Party’s temporary role. The University’s Department of Laboratory Medicine and Pathology had recently taken on a state contract for COVID testing and needed to hire additional temporary workers due to the volume of testing being done at that time. Charging Party was hired to assist Ms. Peters staff the lab and manage the schedules for laboratory staff members among other administrative duties.4 Ms. Peters was happy with Charging Party’s job performance. However, by XXXX, the laboratory was fully staffed, and the testing volume had decreased. Therefore, there was no need for Charging Party’s temporary position to be extended. Charging Party’s temporary position does not currently exist, and the duties she performed in that job were again absorbed by Ms. Peters. The funds to hire Charging Party, along with other temporary workers that were hired as laboratory staff, came from the state contract. The majority of the temporary workers who were hired as lab staff appointments also ended in or around the same time period as Charging Party. Charging Party was not treated any differently than other temporary employees working in the lab. The lab got paid per test, and when the testing volume decreased, they no longer had the need or funds to pay the temporary workers.

And

The University implemented a hiring freeze for the 2020-2021 fiscal year. Units had to

receive central approval for any hires, and only limited approvals were given. The University also implemented other cost saving measures to address financial concerns arising from the COVID pandemic, including a U-wide furlough/pay reduction program, and budget cuts for all U units. All of this significantly impacted hiring rates during this period. So, hiring was extremely limited for everyone, not just Charging Party. Despite this fact, in September of 2020, Charging Party was hired into a temporary casual position working in a COVID lab.

And

XXX is an Access Consultant in the DRC. He and the other Access Consultants play no

role in the hiring process beyond ensuring that applicants who request accommodations receive

them. XXX and the other Access Consultants have no authority to tell a unit whether to

hire/not hire an applicant, nor do they have the authority to cause any University employee to be

terminated from their job.

And

“XXX comment about not giving Charging Party the impression that there was

“sabotage” was a reference to her multiple past claims and accusations of retaliation and sabotage. In other words, he was saying that people needed to be very careful to make sure everything was done right to avoid another baseless claim by Charging Party of sabotage.”

And

The Department of Laboratory Medicine and Pathology denies ever receiving a directive from either the DRC or the Office of Human Resources regarding ending her job and neither unit had input as to when her position ended.

And

The University denies that XXXX interfered in any way with Charging Party’s employment.

And

The University denies that XXX or anyone else “sabotaged” or otherwise interfered with Charging Party’s ability to do her job. Charging Party never complained to her supervisor that she was not able to complete the duties of her job, and Ms. Peters confirmed that Charging Party performed the duties that she was hired to do.

And

Exhibit 12 shows that the department created a workaround and provided resumes and

other information that Charging Party needed to complete the duties of her job. Charging Party performed the functions of her job and did the work that she was hired to do. Her supervisor was happy with her job performance.

Charging Party’s Rebuttal:

Whistleblower #2 will confirm, and the evidence shows, XXX and multiple OHR and other OGC personnel participated in retaliating against Jessica Ehlers even before, during, and after this temporary job. The Department may not have received this communication directly, but Whistleblower #2 provided this directive from OGC to the department and will confirm such directly to the investigator.

– In XXX: Charging party is finally offered yet another job, a temporary one, at the employer. The charging party alerted XXX and reminded him that charging party’s ergonomic equipment be moved to her new office.

The University has since released records following this initial EEOC charge related to the following, which are enclosed as part of our confidential exhibits:

Ehlers was at a mediation with XXX in which XXX attended along with Boynton personnel.
Ehlers indicated she was offered employment at the University of Minnesota and was going through the process. At that point Ehlers already passed or started many processes for such employment.
XXX then contacted HR personnel, which included XXX and Whistleblower #2.
Whistleblower #2 was contacted by phone by Brent Benrud on Sept 21, 2020 and ordered to hunt down why Ehlers was offered a job despite all of their employment interference and daily checking of the PeopleSoft systems to ban Ehlers from employment.
XXX demanded XXX reveal which jobs she was offered and where they were at. XXXX refused at the mediation, and this led to XXX becoming very upset with Whistleblower #2 and other HR personnel that were supposed to ban Ehlers’ employment using the elaborate scheming and interference XXX ordered and OHR leaders were supposed to be enforcing against Jessica Ehlers.
Whistleblower #2 exchanges contacts at the Disability Resource Center attempting to harvest where Ehlers might have applied for work and whatever knowledge the disability center might have about Ehlers’ successful employment offer.
As a result, XXXX is seen in the enclosed exchange contacting Mary Rohman Kuhl who oversaw Talent Acquisition at the University at the time along with backgound checks.
XXX continues the day on Sept 21, 2020 by responding to Neal Binsfeld and forwarding the exchanges to multiple people on the OHR Employee Relations Team. This led to, as is enclosed in our confidential exhibits, Peter Helgeson, responding that he was taking the call from Neal Binsfeld.
XXX conveyed the need to hunt down whatever jobs Ehlers applied for to XXXX and find where this offer of employment stood as the University was attempting to interfere with all jobs Ehlers was offered.
XXX Kuhl sends emails saying Ehlers cannot be offered jobs unless OGC and Ken Horstman at the OHR office approve of such.
XXX gets an email this same week of Sept 21, 2020 from Nicole Salm saying they are well aware of the issue with Ehlers and all Talent Acquisition staff know what to do (to ensure they follow the employment ban).
Nicole Salm sends an email showing Ehlers was detected in a background check along with her supervisor and other HR contacts at the COVID lab. Ehlers also by that point of these exchanges had already passed the background check and reference checks done by the University. It was too late to interfere or cancel vendors’ checks.
XXXX in such exchanges informs XXX, OHR leader XXX, and involves both XXX and XXX in these actions and tells them that XXX got hired or an offer.
Nicole alerts XXX, and you can see the University heavily redacts all of the exchanges occurring after such and we know why, and the EEOC knows why in even looking at our other exhibits as such was all about how to interfere with the employment of XXX out of retaliation.
The job is identified as the temporary job Ehlers ultimately starts in October of 2020.

As mentioned in the enclosed confidential exhibits, there were some early exchanges and discussions involving Whistleblower #2, where HR warned XXX if XXXX got too far in a process, especially with a temporary job, that the University might be obligated to let her work a temporary job to avoid giving any appearance of retaliation and at the same time acting to “cut bait” any time Ehlers is hired in such role and to prevent such from being converted to permanency.

The only reason Ehlers was allowed to hold the job in October 2020 to January 2021 was because Human Resources was not tracking this job and could not find it to interfere with it. That did not stop them from trying as shown in the exhibits enclosed.

The charging party states that she held a role from XXX to XXX and further asserts:

The charging party recently learned of new documentation that shows the University was talking about how to end this job and prevent Ehlers from being hired and adversely affect the employment of the charging party before she even started the job. This is shown in examples described above and even enclosed as confidential exhibits.
The University was actively acting to prevent Ehlers from being hired.
This is written in documents conspiring with Human Resources to prevent the charging party from getting this job, including trying to hunt it down to sabotage the efforts to hire XXX just like the University was doing for all other jobs Ehlers applied before charging party started at the job.
This conduct continued to materialize until the charging party no longer had a job and was blacklisted and defamed among the department and among HR professionals supporting the department where the charging party worked and other departments outside of that department.
Multiple University personnel member told charging party that someone in HR was not allowing her to hold her job despite their efforts to extend her role. This also coincides with information the whistleblower#1 contacted the charging party and her attorney about on August 23, 2021.
And further, Whistleblower #2 identifies when the charging party confronts whistleblower #2 on if there’s all this illegal activity how she was allowed to work this job, Whistleblower #2 said that the offer happened too quickly for HR and others to undo.
There are emails that show multiple personnel at high levels and DRC personnel attempting to find offers and interfere with charging party’s prospective employment, including for this job. This runs totally counter to the representations made by the employer in its response, and further establishes the truthfulness of whistleblower #2’s information in describing this system of retaliation enacted by XXX and other leaders, including top-level HR leaders at the University.
Whistleblower #2 stated in regard to this job charging party held in XXX to XXX, that although the job was initially meant to be temporary, he supported that charging party’s supervisor’s representation that someone in HR would not allow the charging party to continue holding my job in January 2021 was indeed correct because that person was Whistleblower #2 who did this as ordered by XXX in writing.
There are even emails showing multiple tasks in which the charging party asked for information and received no cooperation from HR and management staff. The charging party believes that had she not file EEOC charges and the individuals involved were not engaging in illegal retaliation before HR and other leaders, that charging party would have easily been given the necessary and complete data charging party needed to do her job fully as assigned and do it well. As a result of the sabotage by multiple personnel and others involved, the charging party did not get access rights to IT systems and full cooperation of department and HR personnel needed for her job duties. While the charging party found other work to do, all of this employment interference resulted in not allowing charging party to do the job which she was hired to do and charging party has emails and other examples of work that could not be completed and in which no replies were given to charging party upon seeking support of proper individuals in HR and supervision of her work.
Although the University pointed to one task that could be worked around, many others could not be and had nothing to do with any edict of confidentiality. For example, the charging party needed to know the name of an employee and contact information that worked in the department to complete an assigned duty, including coaching that employee on opening IRB protected data without a right to do so. The charging party has emails showing a lack of cooperation while being directed to do this coaching work by a leader.
The charging party has substantial paper trail evidencing many emails and no reply from anyone at the University, so instead she crafted a system to manage the information that she wasn’t receiving. Further, while the University claims there was a workaround for interviews, but the charging party has email chains showing an HR leader kept circumventing and doing the job when the charging party supervisor tried to ask charging party to do the work of phone screenings. HR also locked spreadsheets shared and would not let the charging party have resumes of candidates. There is a cutting and restricting nature of how these emails from HR member, Hannah Bergquist. come across in interfering with charging party being able to do her assigned work. Charging party believes none of this conduct would have occurred if HR and others in legal like Brent Benrud were interfering with her job.
The charging party also believes that if the university were not ignoring charging party in her contacts that perhaps charging party would not have been adversely affected and subsequently burned. Due to their carelessness, charging party received a significant burn to her left hand due to a fire hazard extension cord that was triggering 3 inch flames every time something got plugged or unplugged. The charging party now has a scar from such. The charging party asked her supervisor for an extension cord and others in the department but the supervisor ignored her and charging party has emails showing that she was ignored for multiple other job duty related requests. The charging party has several emails with other staff showing the department had no extension cord and charging party asked the DRC to order one so that the charging party would not be hurt any more.
Charging party believed that if she had not engaged in EEO protected activities and if whistleblower #2 were not admitting to breaking the law and going to the department to interfere with Charging party’s job as ordered by XXX and other leaders, that Charging party would have done very well. It was extremely hard not knowing who works there and how many hours to schedule them, and that was, for example, one of the job duties. The University would not cooperate and made the charging party’s job extremely impossible and hard to do.
The charging party’s job duties from Oct 2020 to Jan 2021 became difficult when a certain HR member is seen in emails trying to circumvent charging party from doing any job duties, locking a spreadsheet so charging party cannot participate in any hiring processes to which she was assigned, and when charging party’s supervisor emailed tasks for charging party to do, another HR member is seen doing the tasks and sending an email rudely to both the charging party and her supervisor in doing the task, and insulting charging party in the process. Most importantly is the fact that they would not let the charging party simply do her job which she was hired to do.
Whistleblower #2 stated they were directly the person that was forced by XXX to ensure the temporary job would not convert to any permanency, including by directly going to the department and its HR leadership, identified by Whistleblower #2, to ensure the charging party would have no continuing job opportunity or any opportunity to convert from temporary to permanency, which further blacklisted charging party for many other future jobs not only at the department charging party was working at the time. Whistleblower #2 indicates this was done by XXX written orders and that there is a paper trail showing what XXX was trying to do to ensure this job would not convert to permanency and to adversely affect the charging party’s career in retaliation.
Upon the charging party filing this charge, a leader from OHR came forward admitting to the illegal conduct and expressing it was under the duress of XXX and other leaders in OHR. The HR leader from OHR confirms that regardless they were ordered directly in writing by XXX to ensure the charging party is not allowed to hold her job any longer no matter and named an HR leader by name as being ordered to ensure the charging party’s job ended no matter what. The charging party’s supervisor informed the charging party of such, regardless of the misrepresentations by the University.

The charging party cites Whistleblower #2’s comments in noting the illegal conduct was going on for this job, and further the examples of involving the top leadership of HR in trying to stop any kind of job opportunity of continuing nature for charging party in asserting it was done in retaliation against charging party.

Whistleblower #2 admitted that they were the “bird dog” of XXXX and put under duress to engage in illegal conduct to retaliate against the charging party for this job and many others over many years.

The only reason Ehlers was allowed to hold this job is because the University was too far beyond revoking it after Ehlers passed reference and background checks with vendors Skill Survey and Hire Right. XXX own correspondence shows if the University ever got too far along, they might just allow Ehlers to work a few months in temporary jobs while continuing to interfere with her ability to retain such employment and prevent any long-term employment at the University.

University’s Position Statement:

Charging Party has applied for over 1,000 jobs at the University. While Charging Party

contends that these jobs were compatible with her academic and experience qualifications, this is simply not true. In many cases, Charging Party did not meet the minimum qualifications for

positions, and she had far less experience and/or did not meet the preferred qualifications.

The University has a standard process for hiring as determined by University Human

Resources and University policy. Applications are submitted online to the University’s job center.

Staff from the University’s human resources talent acquisition team screen the online applications and resumes to determine if an applicant meets the basic requirements of the job, and if not, their application is rejected. If the candidate meets the basic requirements for a job, the candidate is routed to the search committee and the hiring manager and search committee are given access to view the applications online. The search committee for the particular unit or department that is hiring makes a determination on who they wish to interview, and hire based on a review of the applicant’s application, cover letter and resume.

And

The University reiterates that there was no directive not to consider or hire Charging Party into any job at the University, which is confirmed by the fact that she was hired into a temporary position as recently as September of 2020 and the fact that she was interviewed for many positions.

Charging Party’s Rebuttal:

This “system” was illegally operated to manufacture pretextual basis and untrue reasons Ehlers could not be interviewed and hired and XXXX own two emails confirms this was done in retaliation for an EEOC activity that Ehlers did or was expected to do by the University and that XXX was ensuring she would never be re-employed again. XXX, OGC, and OHR interfere with the data subject’s recruitment pre-hire processing and offered employment each time a spreadsheet or Peoplesoft detects an interview, routing, offer, or background check.

Among other things in this evidence enclosed in confidential exhibits:

XXX is falsely conveying Ehlers did not work full-time since XXX in XXX in contacts to HR people and saying this is an excuse for a department to oust Ehlers and consider her less qualified or not qualified, such as his correspondence with XXX and others in HR in which he orders the HR personnel to ensure the departments know this information about Ehlers and know that it’s a reason to oust XXX from consideration for a job. Clearly, XXX has not informed himself of Ehlers’ employment, and he even falsely claimed she worked at the COVID pop-up clinics when instead Ehlers worked at the COVID lab on campus in Oct XXX to Jan XXX performing administrative work.
XXX writes in the contact in XXX to eliminate Ehlers because she was not working a real administrative job even though Ehlers was in fact performing administrative work. XXX continues to state XXX has other employment gaps, but even upon looking at payroll records, XXX received throughout litigation, it is very clear XXX has held jobs and employment, including full time even into 2021 so his communication that she has not held a full-time job since XXX in XXX is false. Additionally, these jobs considered education in lieu of work experience, and XXX is seen disregarding such and simply trying to craft a pretextual reason to exclude Ehlers from any interview or employment process. See enclosed confidential exhibits. This confidential exhibit is enclosed and shows Erik replies back saying he’s doing just that besides spreading other false information that XXX conveys in Feb 2021 that was also false about Jessica Ehlers, including because it was school information that XXX falsely conveyed.
State law prohibits anyone, including employers, from knowingly publishing or spreading false information about an applicant or employee. The information was false and defamatory, and the University knew or should have known that the information was false and acted with malicious intent to injure the data subject, Jessica Ehlers.
XX is instructing OHR and other staff to contact departments and suggest in a defamatory way that they make unauthorized contacts with parties, and it shows him admitting to making contacts to departments and personnel in the content even disparaging specific HR people for being accommodating and considerate of the data subject and the data subject’s disability.

The University’s abuse of monitoring is evidence of pretextual and other illegal activities because:

The information the University was listing as excuses about Jessica Ehlers was wrong information and should not have resulted in elimination from employment processes.
The information the University used to eliminate Ehlers also reflects illegally and maliciously acquiring data that isn’t even right about Jessica Ehlers’ education that was conveyed wrongfully and illegally to HR and other parties, including in violating FERPA and case law about educational records to simply enact such employment ban that XXX writes about.
XXX had worked full time and had relevant experience that XXXX falsely conveyed she did not which was acted on by hiring departments.
The University does not harvest this same data and conduct these same illegal background checks and unauthorized disparagements about other candidates.
No other candidates have the Office of General Counsel and Office of Human Resources working in concert and in direct writings to “ban” the employment of someone and hoping to not get caught in “retaliation” of the charging party.
The data harvested by the University is illegal to acquire in a background check and bears no relationship to qualification to work at the University, especially since XXX information was untrue about the charging party.
XXX conveys the departments need to try to find “red flags” with Jessica Ehlers – the University proactively used their HR team to illegally harvest the latest and greatest gossip and negative innuendos they could find about Jessica Ehlers. None of this was related to jobs at hand.
No other regular candidates have OHR and departments CC’ing the OGC. The very act of doing that is retaliation to send up red flags and clearly, the content in these emails is to send up alerts to EEOC or other protected activity.

Talent Acquisition Department and Employee Relations Departments at Office of Human Resources Involved in Retaliation

Employment interference meetings with HR personnel have been often made with non-private settings at the University, many, anyone, including Jessica Ehlers, can acquire this information.
For example, whistleblower #2 provided a Jan 2021 meeting that was conducted to ensure Jessica Ehlers would not be hired at University jobs and to ensure such would happen involving multiple parties at Talent Acquisition at the University.
The University HR personnel in multiple areas had public calendar invites on Google which showed interference meetings that Whistleblower #2 and others participated in at the Office of Human Resources, Talent Acquisition, and other HR areas.
In the enclosed confidential exhibit, Nicole Salm, a leader of talent acquisition at the University, is meeting in XXX, which is also displayed publicly on Google calendar to date, meeting with XXX and others to ban and adversely affect XXX potential re-employment at the University. The enclosed exhibit was saved by whistleblower #2 and the second one was saved due to the public calendar displays on Google calendar of which the University is using to expose their retaliation among the general populations at the University.
I believe the University is making these invites very public and even storing evidence of their retaliation on the L drive at Office of Human Resources, making that data, as is written in the enclosed exhibits exposable to those without any business need to know it out of retaliation for my EEOC protected activity.
XXXX writes to XXX on Mon XXX after inquiring whether Ehlers was offered any jobs on XXX at 6:24 pm regarding XXX, “Please keep this name in mind as you are working through positions and please make sure we check in with Ken and the OGC’s office before moving forward with any offer for this person.”

In response XXX alludes to the earlier system of retaliation in which OHR was tracking jobs and trying to interfere with them now getting bigger and involving the Office of General Counsel and Office of Human Resources collectively.

She states in reply to XXX on Tues XXX:

“I will add that we requested system access on behalf of XXX in OGC to monitor this, as MaryAnn was having to copy down the details of every single job application this individual submitted, often 5-15 applications a day. What’s more, we don’t have good way of knowing whether the individual is hired until it is already done (by the time the department hires the person in PeopleSoft, if the department actually uses statuses or updates the record in a timely manner). Between that and the fact that we don’t create the offers, we have no way of centrally monitoring this until after it happens. This is part of why OGC assigned someone on their staff to this task. Then she says, “Happy to hear other ideas of how we can help, and certainly our TA specialists are aware of Jessica Ehlers and the situation. If there’s something more that we can do, let me know!.”

As you can see from the enclosed examples from Whistleblower #2, XXX misuses his assistant, Kathy Bitterly, to harvest all application data of which XXX applies. XXX then orders employment interference and engages in such himself against XXX and Witness whistleblower #2 will confirm how XXX went to HR, hiring managers, and supervisors to spur negative information and defame XXX to get her excluded and to get interviews cancelled or hiring processes short-circuited for Jessica Ehlers out of retaliation.

OHR and/or XXX track all PeopleSoft application status changes in which supervisors, hiring personnel, and HR indicate screening, interviews, or other hiring process activities such as offer or hired.
XXX and OHR personnel, mostly from Employee Relations, go to each hiring department, hiring manager, and supervisor and spread negative information and information indicated in the whistleblower #2 section of this charge to ensure Ehlers is rejected from hiring processes or not allowed to be re-employed.
Peoplesoft entries are updated to show Ehlers is not interviewed. We have examples of Kathy Bitterly’s tracking which contradict other spreadsheets the University produced to show interference to the investigator.

University’s Position Statement:

Since Charging Party was terminated in XXX, the University has offered her four

jobs. In XXX, she was referred for priority hire into a job through the Job Transfer

Program. However, Charging Party’s doctor said she could not take the job because it did not

meet her work restrictions. A copy of XXX, letter is attached as Exhibit 5.

Charging Party’s Rebuttal:

The University referred XXX to certain jobs initially in XXX that were not suitable for Ehlers’ disability and even the University admitted such. XXX doctor conveyed more specifics on where accommodations could be made, but that job transfer list referrals were ended in XXX and never reinstated by the University following Ehlers’ accommodation requests. Further, Ehlers asserts she was never offered that job. A priority hire referral is not a job offer. It’s an interview with the opportunity of the department to reject the candidate.

The University received updated workers compensation clearances and did not engage processes to re-employ XXX via the priority hire program.

We are unaware of which offers the University is referring to due to the high volume of pre-offers that were processing that the University via XXX and OHR, including the involvement of Whistleblower #2 were involved in interfering to end and ensure did not happen.

This is part of what is going to be addressed by Whistleblower #2 in the investigation. More details are found in the amended charge enclosed.

University’s Position Statement:

In XXXX, the University proposed to create a temporary transitional position for

Charging Party specifically to fit her work restrictions. On January 29, 2018, Charging Party’s

doctor advised he did not feel the job would be suitable to meet her restrictions. A copy of the

XXX, letter from Dr. Koch is attached as Exhibit 6. On February 1, 2018, the

University advised Charging Party’s then attorney that it was confused given the duties for the

position had not been finalized and the intent was to create a position specifically to fit her work

restrictions. A copy of the XXX Letter from XXX to XXX is

attached as Exhibit 7. However, Charging Party did not pursue this position.

Charging Party’s Response:

The University provides transitional work and job transfer to employees with work-related injuries and disabilities, but it has resisted and denied such for the charging party, all contrary to the representations made to the EEOC. Examples of correspondence between the charging party’s attorneys, the University, and the union are enclosed as part of our confidential rebuttal and exhibits. These establish that the University was unwilling to make the transitional job accommodative to the charging party’s disability despite their claims otherwise in their position statement. An email contradicting XXX email was sent by workers compensation counsel confirming such offer was untrue and refusing any further engagements of the University with the charging party. There was no intention of making the transitional job work, and the emails enclosed in our confidential response confirm that. Brent XXX indicated in other correspondence related to mediation around this time that Ehlers would not be allowed to hold this job, and Whistleblower #2 will show such to the investigator, because the University concurrently said Ehlers would be banned in any result of meditation with the University from working at the University. No mediation was held and XXX exchanged some emails which we have in our possession and can make available to the investigator that show XXX said the University would not entertain any transitional employment for Ehlers. This was a farce to play a game and give an appearance that was untrue. This was also retaliatory in that Mr. XXX even again is complaining that XXX was seeking accommodations for making such transitional employment work for her disability by involving her vocational rehabilitation counselor with the state of MN which are job specialists specialized in accommodations for disabilities. XXX disparages the counselor he never met and XXX in these exchanges and says Ehlers won’t be employed because she’s complaining they won’t consider accommodations involving her VRS counselor. This reflects the University was not interested in making any job work, or they wouldn’t be disparaging and saying they won’t offer work to XXX because she needs accommodations. The very act of refusing to accommodate and conditioning a job on being free of accommodations is also discriminatory.

Whistleblower #2 also has correspondence showing XXX making statements that XXX would not be allowed to have this transitional job and that the University was disinterested in making the job work for XXX, including XXX disparaging XXX for asking for accommodations and working with vocational rehabilitation specialist at the MN DEED office to secure work accommodations and return to work at the University or a new employer. The charging party also has a copy of the correspondence and can make it available for the investigator if the investigator is interested in seeing this.

University’s Position Statement:

In XXXX Charing Party was verbally offered a job, but the offer was subsequently withdrawn because Charging Party was not honest about her availability to work. A copy of the November 5, 2019, letter rescinding the verbal offer is attached as Exhibit 8.

Charging Party’s Response:

XXX interviewed in person and was a finalist for a job and hired for multiple jobs in XXX. Whistleblower #2 is the HR leader supervising multiple HR staff at OHR, and evidence enclosed shows that XXX was ordering retaliation against Ehlers for multiple jobs XXX was offered or expected , job by interring and seeking to end the job.

Ehlers had a few medical appointments, but they could be rescheduled or changed to accommodate the work schedule. XXX reminded the University, to no avail, as they continued to demand any possible date XXX could take off of work. XXX did not plan to take off of work if the time got denied, and arbitrarily rejecting her and requiring her to reveal at an intial interview all sorts of medical data and dates also subjects XXX to revealing disability information to those considering her for hire versus after a conditional offer is made.

As part of the recorded evidence, which the EEOC can subpoena, if the EEOC is interested, they would easily see that (1) Ehlers had an initial interview with the Department of Physics and Astronomy at the University (2) Ehlers had a second finalist interview. When the DRC and OHR learned Ehlers was offered a job, multiple adverse reactions were triggered to shut this down and revoke the offer.

Ehlers recorded the phone call and all calls at the University were in fact recorded by Ehlers herself or by her employer as part of work duties that Ehlers was assigned to take unexpected calls and to make unexpected calls throughout all day periods. When the Physics and Astronomy department orally offered the job over the phone, it was recorded by Ehlers’ employer, and it is evidence that could be obtained by the EEOC. On such recorded call, Ms. Murphy for the University offers Ehlers the job and tells her how excited they are to have her. They do not discuss time off. The University misrepresents this is many exchanges involving Whistleblower #2. Whistleblower #2 stated regardless of what happened with this job, XXX was not going to be allowed to hold it, and his job and the job of XXX at OHR was to interfere and cause revocation of this job offer. XXX followed the employment interference directive to try to ascertain when and why Ehlers might be gone from work due to her disability. This was done after Ehlers was offered the job, not during the time of offer. Ehlers at the initial interview disclosed having some medical time off needs but was dedicated to her job and working around the work schedule. The University at the time of initial interview confirmed they would be accommodating and flexible in schedule to allow Ehlers to make up any time at appointments. Ehlers affirmed at the same time that nothing she goes to could not be changed or rescheduled, but it makes it easier to keep existing appointments that would be closer to her hiring date. The University confirmed at the initial interview they had no problem. It was not until XXXX and employment interference exchanges started with whistleblower #2 and other OHR personnel that efforts to end this job offer by revocation occurred. The University made these statements in writing and involving whistleblower #2 before they occurred and it shows the animus to retaliate against Ehlers. The reasons offered by the University were false, because XXX was not dishonest and conveyed even at the initial interview she was flexible and willing to change appointment times to meet any work requirement. The elimination, like other eliminations of Ehlers from hiring processes, was for false, flagrant and defamatory reasons against Ehlers to keep XXX unemployed and from ever resuming work at the University. Whistleblower #2 is a witness participating in this retaliation and affirms such was the case. Further, around the same time, Ehlers was also offered a temporary casual job at the University, and the enclosed employment interference exhibits of XXX is also documented and involved Whistleblower #2, which is seen in this case trying to sabotage that process, which led to revoking that job offer too. Ehlers’ attorney XXX correspondence about this matter is also enclosed. The only reason the University has listed some dates was because there is around a two minute timed call where Ehlers called Ms. Murphy to identify that none of her time off is “necessary” and could be rescheduled. She mentioned examples on the calls of a few upcoming times that could be changed, but XXX interrupts the call and rudely communicates in a harsh and hostile manner that Ehlers needs to put it all in writing and XXX hangs up the call by slamming the call to the hook. The call is very dramatic and was captured on recording by XXX employer and is available for review by a subpoena by the EEOC. The University thereafter took those dates and times and then started to retaliate by accusing Ehlers falsely of dishonesty likely without knowledge that they were caught on recording doing this retaliation against Ehlers.

University’s Position Statement:

Since her XXXX termination, Charging Party has been selected as a finalist and

interviewed for 28 different positions at the University, including the ones referenced above. She was also hired into a temporary position. The fact that Charging Party has been offered jobs and has been selected to interview directly contradicts her assertion that the University is blackballing her. A copy of a spreadsheet showing the various job interviews Charging Party had at the University is attached as Exhibit 9.

Charging Party’s Response:

The University has changed its records and ended and cancelled interviews before they actually occurred. Whistleblower #2 partook in these actions, and we have proof of XXX spreadsheets showing differences between the University’s recent submission and the series of actions XXX and others in HR were engaging to prevent XXX from working at the University, including by interfering with jobs Ehlers applied.

Ehlers has in some cases no thanks to the University, but due to not being spotted until after departments change the statuses too late in the process. The only reason the University has any records of interviews on their list before the EEOC now is because those circumvented the monitoring and retaliation the University was trying to invest in against charging party.

Whistleblower #2 was the main OHR leader responsible for retaliation of Ehlers under XXX system of employment interference and such leader also supervised all of the OHR leaders at the University’s employee relations office that was part of enacting the retaliation against Ehlers to ensure XXX employment ban would be just that.

Conclusion: Finding of Probable Cause is Warranted

Regardless of which abuse and where is held, XXX and his client’s communications constitute defamation and slander about XXXX and multiple other law violations and ethical violations expected of attorneys and were specifically made maliciously, inaccurately, and falsely to cause contempt, ridicule, hatred, job loss, and adversely affect the interests and rights of charging party, XXXX, which led to the loss of job opportunities under false information XXX, OHR personnel, and other HR staff purposely engaged to destroy not only any job opportunity but also Ms. Ehlers’ career at the University and elsewhere.

The University engaged multiple efforts to exclude and remove charging party from any kind of job charging party secured and to prevent any kind of employment via interview and being hired. The charging party has formed the real and reasonable belief provable by whistleblower #1 and whistleblower #2 and multiple enclosed confidential exhibits showing illegal retaliation due to EEOC protected activity.

The above-named Respondent has discriminated against the charging party in the area of employment on the basis of disability, has harassed charging party because of her disability, and has engaged in retaliation and reprisal for asserting charging party’s rights, all in violation of the Americans with Disabilities Act of 1990, as amended, and in violation of the Minnesota Human Rights Act, Minn. Stat. § 363A. 08, subd. 2 and Minn. Stat. § 363A.08, subd. 15. This includes in affecting Ehlers’ prospective employment with intent to end and bar her employment and delving out information to hiring authorities that was falsely conveying worse disabilities and other false information about charging party.

Ehlers did not get hired and did not get interviewed because of these multiple acts of employment interference and the University is intent on continuing this system toward Ehlers and others standing in their way in HR and supervisory and other hiring processes. Further, these acts are expected to continue to impair Ehlers’ career not only at the University but anywhere else these HR or other managers work into the future at the University and elsewhere.

The charging party states that the University clearly does not want to employ the charging party, and its thinly veiled excuses and their affronts for charging party, attorney misconduct, and lies before this agency unprofessionally point to the conclusion that XXX and others in leadership have broken the law and do not want the charging party working for them because the charging party is disabled and has doggedly and unrelentingly asserted rights under the ADA and other provisions meant to protect workers with disabilities.

The University retaliated against HR and other employees for opposing their law breaking. While it may be annoying to employ those who assert their rights, it is unlawful to retaliate against employees, including HR leaders, for doing so.

The charging party states that besides addressing retaliation to her considering the foregoing she seeks redress and justice by the EEOC to relieve all innocent HR and other leaders from this hostile work environment and from the = severe and pervasive retaliation predicated by XXX and other leaders of the University. Witnesses involved in this charge also want to ensure those still working at the University and suffering under this system of abuse of retaliation are allowed to be restored to actual HR and leadership duties, not breaking laws to retaliate against XXX related to the EEOC any longer.

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COMPLAINANT’S REBUTTAL TO RESPONDENT’S POSITION STATEMENT

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