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Hale v. Emporia State University

United States District Court, D. Kansas

November 9, 2018

ANGELICA HALE, Plaintiff,
v.
EMPORIA STATE UNIVERSITY, GWEN ALEXANDER, DAVID CORDLE, and JACKIE VIETTI, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff Angelica Hale is a former employee of Emporia State University (“ESU”). Plaintiff brings this action pro se[1] against defendants ESU, Gwen Alexander, David Cordle, and Jackie Vietti. Plaintiff asserts a Title VII retaliation claim against ESU, alleging that ESU terminated her employment as retaliation for complaining about racial discrimination. Also, plaintiff asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 against defendants Alexander, Cordle, and Vietti because, plaintiff contends, these three individuals retaliated against her after she exercised her right to speak out against discrimination and racism.

         This matter comes before the court on the parties' cross motions for summary judgment. Plaintiff has filed a Motion for Summary Judgment. Doc. 85. Her motion asks the court to enter summary judgment in her favor on her Title VII and § 1983 claims. Defendants have filed a Response, opposing plaintiff's summary judgment motion. Doc. 109. And plaintiff has filed a Reply. Doc. 116.

         Defendants also have filed a Motion for Summary Judgment. Doc. 106. Plaintiff filed an Opposition to Defendants' Motion for Summary Judgment. Doc. 113. And defendants filed a Reply. Doc. 118.

         The motions thus are fully briefed, and the court is prepared to rule. For reasons explained below, the court grants defendants' Motion for Summary Judgment in part and denies it in part. The court denies summary judgment against plaintiff's Title VII claim but grants summary judgment against her § 1983 claim. Also, the court denies plaintiff's Motion for Summary Judgment. The court explains why, below.

         I. Defendants' Failure to Controvert Plaintiff's Statements of Fact

         Before reciting the uncontroverted facts that govern these summary judgment motions, the court describes how defendants have failed to controvert plaintiff's asserted statements of fact in the fashion required by this court's local rules. The pro se plaintiff has filed a Motion for Summary Judgment containing 55 separately numbered statements of fact. Doc. 86-3 at 11-25; Doc. 86-5 at 11-25. Each of plaintiff's facts cites the specific portion of the summary judgment record she relies on to support the fact. Id. By doing so, plaintiff has complied with our local summary judgment rules that require a party moving for summary judgment to provide a “concise statement of material facts as to which the movant contends no genuine issue exists” that are “numbered and . . . refer with particularity to those portions of the record upon which movant relies.” D. Kan. Rule 56.1(a). Also, D. Kan. Rule 56.1(a) provides: “All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.”

         Defendants' Response to Plaintiff's Motion for Summary Judgment never controverts any of plaintiff's facts specifically. Instead, defendants simply assert: “By Plaintiff's own admission, her ‘Statement of Material Undisputed Facts' are a blending of her arguments and her facts. As such, the court should disregard Plaintiff's confused version of what the documents expressly state.” Doc. 109 at 3. Defendants' conclusory response does not comply with our local rules. These rules require a party opposing summary judgment to controvert specifically the movant's statements of material fact. See D. Kan. Rule 56.1(a) (“All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party”); see also D. Kan. Rule 56.1(b)(1) (“A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed.”).

         Because defendants have not complied with our rules, the court accepts as true plaintiff's material facts, but only if the summary judgment record properly supports those facts. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (explaining that when a party opposing summary judgment waives its right to respond or controvert the facts asserted in the moving party's summary judgment motion, the court “should accept as true all material facts properly asserted and properly supported in the summary judgment motion”). And indeed here, plaintiff supports most of her asserted statements of fact with her own Declaration. Doc. 86-1. Section 1746 of Title 28 of the United States Code governs the admissibility of declarations. For a declaration to be admissible under § 1746, the declarant must “subscribe[ ]” that the statement is true under penalty of perjury with language substantially similar to the following statement: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, ” followed by a date and a signature. 28 U.S.C. § 1746. Plaintiff's Declaration recites: “I declare under penalty of perjury, pursuant to the laws of the State of California and the United States of America, that the foregoing is true and correct. This Declaration was executed on April 2, 2018 in Palm Springs, California.” Doc. 86-1 at 10. After this statement, plaintiff again provides the date of execution and her electronic signature. In short, plaintiff's Declaration complies with § 1746. And the facts asserted in that Declaration-to the extent plaintiff bases the facts on her personal knowledge-are admissible on summary judgment. Because defendants never controvert any of those facts, the court accepts them as true on summary judgment.

         Also, in response to defendants' Motion for Summary Judgment, plaintiff filed a Statement of Additional Facts. Doc. 115. Plaintiff's Statement of Additional Facts contains 44 separately numbered paragraphs with citations to the portions of the summary judgment record she relies on to support the facts. Id. By doing so, plaintiff again complied with our local summary judgment rules governing a memorandum opposing summary judgment. D. Kan. Rule 56.1(b)(2) provides: “If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above.” Also, this same subsection of Rule 56.1 provides: “All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party.” D. Kan. Rule 56.1(b)(2).

         Defendants' four-page Reply does not controvert any of plaintiff's 44 additional statements of fact. See Doc. 118. Defendants' Reply briefly references two of the exhibits that plaintiff submitted with her Response opposing defendants' summary judgment motion. See Doc. 118 at 2. And defendants assert-but just as a conclusion-that the exhibits don't present any “material facts at issue.” Id. But defendants' Reply never controverts any of plaintiff's additional statements of fact specifically in the manner required by our local rules. See D. Kan. Rule 56.1(b)(2) (“All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party.”); see also D. Kan. Rule 56.1(c) (“In a reply brief, the moving party must respond to the non-moving party's statement of additional material facts in the manner prescribed in subsection (b)(1).”).

         In sum, because defendants have failed to controvert plaintiff's additional statement of facts specifically as our local rules require, the court also accepts as true plaintiff's additional statement of facts, but only if the summary judgment record properly supports those facts. Reed, 312 F.3d at 1195.

         II. Uncontroverted Facts

         The following facts are stipulated by the parties in the Pretrial Order (Doc. 78), or are uncontroverted for purposes of the parties' summary judgment motions.

         In May 2014, ESU offered plaintiff's husband-Melvin Hale-a tenure-track position as an assistant professor in ESU's School of Library and Information Management (“SLIM”). On May 17, 2014, Gwen Alexander-ESU's Dean of the SLIM-sent an email to Dr. Hale with an offer letter. The letter recited that ESU was looking forward to welcoming Dr. Hale to the school. Dr. Hale began his employment with ESU in July 2014. Also in July 2014, plaintiff accepted a position at ESU as an administrative assistant to Dean Alexander.[2] Plaintiff is an African-American female.

         On April 8, 2015, a graduate assistant named Brenda Rahmoeller arrived at work to find her office door unlocked, and she discovered the word “NIGGAZ” written in a personal notebook located in her office. She reported what she had found to plaintiff. Plaintiff took a photograph of the racial epithet on her cell phone. She then sent a text message to her husband-Dr. Hale-informing him of the incident and enclosing a picture of the racial epithet. When Dr. Hale received the text message, he was in a faculty meeting with Dean Alexander and others. After the meeting, Dr. Hale went with Dean Alexander to Dean Alexander's office and informed her of the report that the graduate student had made to plaintiff. Plaintiff then joined the meeting with Dr. Hale and Dean Alexander, and she reported what she had seen in the graduate student's office. Plaintiff and her husband asked Dean Alexander to follow up with the student and investigate the incident.

         In April 2015, Debra Rittgers was employed by ESU as the office manager for SLIM. On Friday, June 5, 2015, Dean Alexander emailed a group of SLIM employees informing them that a furlough may begin on Sunday. The email provided: “If a furlough happens, Deb Rittgers, [plaintiff], and I are all non-essential and will be on the furloughed list.” Doc. 107-2 at 22.[3] Also on June 5, 2015, Dean Alexander sent an email to plaintiff and others advising them of the possibility of furlough, that they are considered non-essential employees, and that “[a] furlough, or mandatory leave without pay, would begin on Sunday, June 7, until further notice . . . .” Doc. 107-2 at 23.[4] But, on June 6, 2015, ESU Interim President Jackie Vietti announced that ESU would not implement any furlough for employees. Doc. 113 at 153.

         After reporting the incident to Dean Alexander on April 8, plaintiff asked the graduate student every day if Dean Alexander had followed up with her yet to address the incident. The graduate student repeatedly informed plaintiff that she had heard nothing from Dean Alexander. Several weeks later, the graduate student reported to plaintiff that Dean Alexander, on June 7, finally had asked her about the incident. This inquiry came more than two months after the graduate student had discovered the racial epithet.

         Also, plaintiff spoke with Dr. Mirah Dow[5] about the incident sometime after plaintiff had reported the racial epithet to Dean Alexander. During this conversation, plaintiff expressed her concerns to Dr. Dow that Dean Alexander had not followed up with the graduate student to investigate the matter.

         A few weeks after the incident involving Ms. Rahmoeller, plaintiff retrieved a box of printer toner from a supply cabinet at work. She noticed a handwritten tag on the box, and she thought it “bore a strong resemblance” to the handwritten racial slur found by the graduate student. Doc. 86-1 at 8 (Angelica Hale Decl. ¶ 30). Plaintiff knew that Debra Rittgers-the office manager-had written the words on the toner box. And so, plaintiff “came to suspect [Ms.] Rittgers as the possible author of the slur.” Id. After plaintiff developed this suspicion, she hired a forensic examiner to perform a handwriting analysis.

         On June 15, 2015, plaintiff's husband sent an email to ESU Provost David Cordle asking to meet with him. He advised the Provost that he wanted to discuss the racial epithet that the graduate student had discovered on April 8. On June 26, 2015, Provost Cordle and Judy Anderson[6] met with plaintiff and her husband about their complaints.[7]

         On July 1, 2015, plaintiff's husband sent an email to ESU Interim President Jackie Vietti, copying Provost Cordle and plaintiff. The email advised that plaintiff and her husband had filed a report with ESU police that a hate crime had occurred on April 8, 2015. On July 2, 2015, plaintiff's husband sent another email to Jackie Vietti, copying David Cordle, Dean Alexander, and plaintiff. The email reported that ESU police had declined to file criminal charges against Debra Rittgers for allegedly writing the racial epithet on the graduate student's notebook. But the email recited that plaintiff and her husband would make sure that the matter was not swept under the carpet. According to plaintiff, “[a]ll of the Emporia State University officials and the law enforcement contacted stated that no crime occurred.” Doc. 78 at 5 (Pretrial Order ¶ 3.a.).

         On July 6, 2015, Interim President Jackie Vietti sent an email to plaintiff's husband. It included information about how to file an administrative complaint of discrimination so that he and plaintiff could file a complaint. On July 8, 2015, plaintiff's husband sent an email to Dean Alexander. It recited, among other things, that plaintiff's husband did not intend to file a complaint with ESU's Human Resources department. The email does not say anything about plaintiff or her intent to file a complaint.

         On July 7, 2015, plaintiff's husband met with Dean Alexander. He again raised concerns about the racial epithet that the graduate student had discovered on April 8. And plaintiff's husband complained to Dean Alexander about his perception that Dean Alexander had failed to take action on his and his wife's complaints about the racial epithet.

         On July 8, 2015, plaintiff sent an email to Dean Alexander. This message asked if ESU planned to extend plaintiff's employment contract after it ended on August 15, 2018. Dean Alexander responded, explaining that plaintiff's temporary contract and current employment would end on August 15. Dean Alexander noted that she planned to search for two permanent new positions in the fall or spring, depending on financial circumstances. And Dean Alexander told plaintiff that she was welcome to apply for those positions. Dean Alexander also told plaintiff that she had done a “very good job” in her position and had made a “tremendous contribution to SLIM during the past year.” Doc. 86-5 at 183.

         Plaintiff asserts in her Declaration that ESU renewed her contract “multiple times” before she complained about discrimination. Doc. 86-1 at 6 (Angelica Hale Decl. ¶ 20). Plaintiff also asserts that, before she complained about discrimination, she received feedback from Dean Alexander that she was “exceeding expectations for [her] work.” Id. Plaintiff contends that Dean Alexander had talked with her about making her job permanent before plaintiff complained about discrimination. Also, Dean Alexander encouraged plaintiff to enroll in classes at ESU to complete a bachelor's degree. Dean Alexander told plaintiff that having a bachelor's degree would provide plaintiff with more job opportunities at ESU. In response to Dean Alexander's encouragement, plaintiff enrolled in classes at ESU. But, after plaintiff stopped working at ESU, she had to drop her enrollment because she no longer qualified for tuition-free enrollment as an ESU employee.

         On July 20, 2015, plaintiff and her husband met with Ray Lauber to discuss their concerns about the racial epithet. Plaintiff identifies Ray Lauber as “HR Assistant Director.” Doc. 78 at 6 (Pretrial Order ¶ 3.a.).

         On July 27, 2015, plaintiff sent a letter to Dean Alexander complaining that ESU had “treated” plaintiff and her husband “badly” for reporting a hate crime. Doc. 46-2 at 5 (Angelica Hale Decl. at ¶ 18); Doc. 47-3 at 6-7 (Pl.'s Ex. V). Plaintiff's letter also advised that she was “departing now” from her employment. Id.

         On September 21, 2015, plaintiff filed a complaint with the Kansas Human Rights Commission. Her Complaint alleged:

I. I am African American. I have openly opposed acts and practices forbidden by the Kansas Act Against Discrimination.
II. I was employed by the Respondent from July 2014, to August 15, 2015. I last held the position of Assistant to the Dean/Marketing.
A. On April 8, 2015, I was subjected to derogatory racial names that were written on notepads. However, on this same date, I complained of the derogatory racial names to the Dean, but nothing was done about it.
B. On August 15, 2015, I was terminated, in that I was notified that my contract was not being renewed.
III. I hereby charge Emporia State University and its Representatives with a violation of the Kansas Act Against Discrimination, in that I was subjected to derogatory racial names due to my race, African American, and terminated as an act of retaliation for having openly opposed ...

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