United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Melvin Hale brings this action pro se against defendants
Emporia State University (“ESU”) and seven
individual defendants. He alleges that his former employer,
ESU, retaliated against him by placing him on a
“Cooling Off Period” and terminating his
employment because he complained about racial discrimination.
He asserts a Title VII retaliation claim against ESU.
Plaintiff also alleges that the individuals he has sued
retaliated against him after plaintiff exercised his right to
speak out against discrimination and racism. He asserts a
First Amendment retaliation claim under 42 U.S.C. § 1983
against these seven individuals.
have filed a Motion for Judgment on the Pleadings under
Fed.R.Civ.P. 12(c). Doc. 21. Plaintiff has filed an
Opposition to defendants' motion. Doc. 23. And,
defendants have submitted a Reply. Doc. 24. After considering
the parties' arguments, the court grants defendants'
motion in part and denies it in part. The court grants
defendants' motion against plaintiff's Title VII
claim because it is time-barred. The court also grants
defendants' motion against plaintiff's official
capacity claims under § 1983 asserted against the
individual defendants. The court denies the motion in all
following facts are taken from plaintiff's Complaint
(Doc. 1), accepted as true, and viewed in the light most
favorable to him. See Ramirez v. Dep't of Corr.,
222 F.3d 1238, 1240 (10th Cir. 2000). The court also
construes plaintiff's allegations liberally because he
proceeds pro se. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
is an African-American male. ESU hired plaintiff as an
Assistant Professor in the School of Library and Information
Management (“SLIM”) on July 1, 2014. Also on July
1, 2014, ESU hired plaintiff's wife, Angelica Hale, as an
Assistant to the Dean of the SLIM for Marketing.
December 2014, plaintiff complained to Dr. Gwen Alexander,
Dean of SLIM, about Debra Rittgers, Office Manager and
Assistant to the Dean of SLIM. Plaintiff accused Ms. Rittgers
of committing an act of racial discrimination directed at his
wife. Plaintiff also described several instances of perceived
discriminatory conduct by Ms. Rittgers directed at either him
or his wife since they arrived at ESU. Dr. Alexander did not
believe plaintiff's claim. Dr. Alexander told plaintiff
that Ms. Rittgers never had discriminated against him or his
wife based on their race. Dr. Alexander also told plaintiff
that he and his wife probably were too sensitive, and, and
according to plaintiff's allegations, she asked if his
wife was going through menopause.
told Dr. Alexander that his wife would not return to work at
the SLIM unless ESU satisfied certain conditions, including
moving his wife to a private office on the fourth floor of
the building, away from Ms. Rittgers. In response to this
request, plaintiff's wife moved to the second largest
office on the fourth floor. Plaintiff believes that his
wife's move to the fourth floor office then created
“unspoken tensions in the workplace.” Doc. 1
this conversation, Dr. Alexander began to speak negatively
about plaintiff and his wife to ESU faculty, staff, and
administrators. According to plaintiff, Dr. Alexander
“started a course of termination for [plaintiff and his
wife] because she opposed their views on racial
discrimination.” Id. ¶ 23. Dr. Alexander
would debate plaintiff and his wife about their complaints of
racial discrimination. Dr. Alexander also did not take those
plaintiff's wife moved to the fourth floor office, Ms.
Rittgers stopped communicating with her unless necessary. Ms.
Rittgers also failed to transfer his wife's phone to her
new office for almost six months. And, Ms. Rittgers
interfered with his wife's assignments to a graduate
assistant by giving the graduate assistant assignments that
conflicted with his wife's assignments.
April 8, 2015, the graduate assistant arrived at work to find
that someone had unlocked her office, tampered with its
contents, and wrote the word “NIGGAZ” on a
notepad on her desk. The graduate assistant reported what she
found to Ms. Hale. Plaintiff believes that the racial slur
was directed at him and his wife because “of their
boldness, which is uncommon at ESU.” Id.
¶ 42. Plaintiff also believes that the graduate
assistant who reported the racial slur to Ms. Hale merely
served as a conduit for the message.
and his wife reported the racial slur to Dr. Alexander and
requested that she investigate it. Plaintiff also told
SLIM's Faculty Chair, Dr. Dow, about the racial slur a
few days later. He asked Dr. Dow why “nothing
apparently was being done” about it. Id.
¶ 53. Plaintiff's wife spoke with Dr. Dow after her
husband's conversation. Plaintiff's wife expressed
her concerns about the incident and the manner in which ESU
was addressing it. Dr. Dow told Ms.
that she was amazed that Dr. Alexander had done nothing about
the incident more than a month after it had happened. Dr. Dow
agreed to talk to Dr. Alexander and Human Resources about the
June 2015, plaintiff and his wife reported the racial slur
incident to Dr. David Cordle, ESU's Provost, and Judy
Anderson, Director of Human Resources. Plaintiff and his wife
also reported the matter to the ESU Police Department and
attempted to file a police report. According to plaintiff,
the ESU Police Department refused to investigate the matter.
Plaintiff also called the Lyon County Attorney and left a
message asking that he call him to discuss a possible hate
crime at ESU. The Lyon County Attorney never returned
plaintiff's phone call. According to plaintiff, the Lyon
County Attorney chose not to investigate the matter and
concluded that no crime had occurred after relying on
information provided by ESU.
then wrote a letter to Dr. Jackie Vietti, ESU's Interim
President, asking her to investigate the April 8, 2015
incident and reporting his belief that he and his wife were
victims of retaliation. Shortly after sending the letter, Ray
Lauber, a Human Resources employee of ESU, contacted the
Hales. Mr. Lauber explained that he was assembling a report
about the incident for Dr. Vietti. The Hales met with Mr.
Lauber separately. During their conversations, they each
discussed their concerns about the April 8, 2015 racial slur
incident. They also reported the earlier incidents of
discrimination by Ms. Rittgers to Mr. Lauber.
Hales later learned that Mr. Lauber was a family friend of
Ms. Rittgers. Plaintiff accused Mr. Lauber of bias and asked
that he recuse himself from the investigation. He refused.
Dr. Vietti also refused to remove Mr. Lauber from reporting
alleges that Dr. Alexander began to treat him and his wife
differently than others in the SLIM after they reported the
April 8, 2015 incident to Provost Cordle and the ESU Police
Department. On July 7, 2015, Dr. Alexander came to the fourth
floor to visit all of the faculty members on that floor. But
she refused to visit the Hales. Afterwards, plaintiff went to
Dr. Alexander's office to ask her about how things were
going. During this conversation, Dr. Alexander expressed
disappointment that the Hales had reported the April 8, 2015
incident to the Provost and the ESU Police Department. Dr.
Alexander said that the Hales' performance had been
stellar leading up to their complaints, but that she felt
blindsided by their allegations that she and Ms. Rittgers had
engaged in misconduct. Dr. Alexander told plaintiff that she
had hoped he would have overlooked the April 8, 2015 incident
because he could have served as a model for professional
behavior by an African-American. Dr. Alexander also expressed
frustration that the Hales wanted something done about the
incident. She told plaintiff that he should accept the
incident because “this is Kansas.” Id.
Hale was a contractual employee when she started working for
the SLIM. According to plaintiff, Dr. Alexander promised that
she would make Ms. Hale a permanent employee because she was
doing an excellent job. Dr. Alexander encouraged Ms. Hale to
complete her Bachelor's degree so that she could earn a
higher salary and have the opportunity for promotions at ESU.
Ms. Hale enrolled in classes at ESU starting in the fall of
2015, so that she could work toward her degree. But, after
the Hales complained to the Provost and the ESU Police
Department about the April 8, 2015 incident, Dr. Alexander
told Ms. Hale that ESU would not renew her contract and that
she would not become a permanent employee. In response, Ms.
Hale wrote an “Open Letter to Dean Alexander”
about her feelings and resigned from ESU two weeks before her
contract ended. Id. ¶ 94. Ms. Hale also
resigned because Dr. Alexander had asked her to interact with
Ms. Rittgers in what she perceived as a demeaning and
to plaintiff, Ms. Hale's Open Letter “created a
firestorm of controversy on the ESU campus.”
Id. ¶ 99. The Associated Press covered the
story on July 29, 2015. Plaintiff continued to demand that
ESU investigate the bias incident properly. Plaintiff accuses
defendants Jackie Vietti (former Interim President of ESU),
David Cordle (ESU Provost), Gary Wyatt (Dean of the Honors
College and Assistant Provost of ESU), Judy Anderson (ESU
Director of Human Resources), Kevin Johnson (ESU General
Counsel), and Ray Lauber (the Human Resources employee
charged with writing the report) of reporting to the media,
campus, and public that ESU had conducted a fair, logical,
and thorough investigation of the racial slur incident and
that no crime had occurred.
September 9, 2015, plaintiff and his attorney met with Dr.
Vietti. Dr. Vietti told plaintiff that ESU had determined
that no hate crime had occurred. Dr. Vietti also asked
plaintiff to sign a document stating that he would seek
counseling and refrain from discussing his concerns about
discrimination in the SLIM. According to plaintiff, his
lawyer advised him not to sign anything. His lawyer also told
Dr. Vietti that signing the document would have a chilling
effect to employees who report hate crimes. Also during this
meeting, Dr. Vietti “introduced the subject of
[plaintiff's] termination.” Id. ¶
September 16, 2015, ESU sent a letter to plaintiff. It stated
that plaintiff must retract his allegation that Ms. Rittgers
was the probable author of the racial slur or face
termination. According to plaintiff, ESU intended its
treatment of plaintiff to have a chilling effect on future
whistleblowers trying to expose racism at ESU.
accuses defendants Cordle, Vietti, Johnson, Anderson, Wyatt,
and Lauber of developing and extending a “Cooling Off
Period” for plaintiff. Id. ¶ 156. The
“Cooling Off Period” began in August 2015, and
continued until plaintiff's termination in May 2016.
Plaintiff describes this “Cooling Off Period” as
effectively banishing him from his workplace and his
colleagues. He also asserts that he was prohibited from
discussing racial discrimination during the “Cooling
Off Period.” Plaintiff also could not access his office