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Hale v. Emporia State University

United States District Court, D. Kansas

July 14, 2017

MELVIN HALE, Plaintiff,
v.
EMPORIA STATE UNIVERSITY, JACKIE VIETTI, DAVID CORDLE, JUDY ANDERSON, KEVIN JOHNSON, RAY LAUBER, MIRAH DOW, and GARY WYATT, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Plaintiff 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.

         Defendants 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 other respects.

         I. Factual Background

         The 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).

         Plaintiff 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.

         In 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.

         Plaintiff 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 ¶ 30.

         After 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 complaints seriously.

         After 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.

         On 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.

         Plaintiff 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.

         Hale 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 matter.

         In late 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.

         Plaintiff 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.

         The 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 the matter.

         Plaintiff 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. ¶ 82.

         Ms. 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 subservient manner.

         According 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.

         On 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. ¶ 131.

         On 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.

         Plaintiff 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 ...


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