United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
two-day bench trial, this matter is before the court on pro
se plaintiff Angelica Hale's Title VII retaliation claim
against defendant Emporia State University
(“ESU”). Ms. Hale asserts that-after she
discovered and reported a racial slur found in a graduate
teaching assistant's notebook-ESU retaliated against her.
According to Ms. Hale's claim, ESU retaliated her by
refusing to renew her temporary employment appointment and by
failing to select her for a full-time position. Under Federal
Rule of Civil Procedure 52, the court sets forth its findings
of facts and conclusions of law. And, for reasons discussed
below, the court finds in Ms. Hale's favor on her
an action tried on the facts without a jury . . ., the court
must find the facts specifically and state its conclusions of
law separately.” Fed.R.Civ.P. 52(a)(1). While this rule
“does not require inordinately detailed findings,
” the court must provide enough detail to
“indicate the factual basis for the ultimate
conclusion.” Colo. Flying Acad., Inc. v. United
States, 724 F.2d 871, 878 (10th Cir. 1984) (quoting
Kelley v. Everglades Drainage Dist., 319 U.S. 415,
422 (1943)); see also OCI Wyo., L.P. v. PacifiCorp,
479 F.3d 1199, 1204-05 (10th Cir. 2007) (holding that a
district did not satisfy its duty under Rule 52(a) when it
failed to set out facts supporting its verdict).
Findings of Fact
presenting the findings of fact, the court recounts several
procedural decisions that limited the trial's scope and,
ultimately, the record's breadth. Specifically, at trial,
the court addressed intertwined issues about Ms. Hale's
witnesses that arose from her pretrial disclosures and trial
Rule 26 Disclosures and Trial Subpoenas
Pretrial Order in this case directed the parties to file
their final witness and exhibit disclosures under Federal
Rule of Civil Procedure 26(a)(3) by December 26, 2018. Doc.
123 at 1. In December 2018, Ms. Hale filed her
“Potential Witness & Exhibit List, ” (Doc.
132), which cogently set out Ms. Hale's planned exhibits
and trial witnesses. Ms. Hale listed 17 potential witnesses.
ESU filed a timely objection to Ms. Hale's witnesses and
exhibits. Doc. 137. ESU asserted that Ms. Hale had not
disclosed 12 of her 17 proposed witnesses under Rule 26(a) or
(e). Ms. Hale filed a Response (Doc. 140), and the court
addressed ESU's objection before the trial started.
Because Ms. Hale had not disclosed the 12 disputed
witnesses-and the failure to disclose these witnesses was not
substantially justified or harmless-the court concluded that
Rule 37(c)(1) prevented Ms. Hale from calling those witnesses
the court next considered whether Ms. Hale could call any of
the precluded witnesses by cross-referencing ESU's
pretrial disclosures. Specifically, Ms. Hale listed
“[a]ny witness identified by Plaintiff or any other
party.” Doc. 140 at 2. And, the court concluded that
this portion of Ms. Hale's disclosure was sufficient. The
court thus decided that-for Rule 26 purposes-Ms. Hale was not
barred from calling four witnesses identified by ESU: Jackie
Vietti, Judy Anderson, David Cordle, and Mirah Dow.
decision generated yet another witness issue: Ms. Hale
represented that she had served a trial subpoena on Dr.
Vietti by certified mail, but Dr. Vietti had failed to
appear. First, the court considered whether delivery of a
trial subpoena by certified mail complies with Rule 45's
service requirement. The court concluded it did. Second, the
court considered whether Dr. Vietti's receipt of a
defective subpoena permitted her to ignore the subpoena. At
trial, Ms. Hale-proceeding in forma pauperis-conceded that
she had not included witness or mileage fees with any
subpoena she had served.
true that a plaintiff is not excused from including a witness
fee and mileage with a trial subpoena because of her IFP
status. See Hooper v. Tulsa Cty. Sheriff Dep't,
113 F.3d 1246 (Table), 1997 WL 295424, at *2 (10th Cir. 1997)
(collecting cases). Also, the court recognized a split of
authority on the question whether Dr. Vietti could choose to
disregard the defective subpoena or, instead, should have
filed a motion to quash. 9A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2465 (3d ed.
2008) (“The better view is that the witness should not
be permitted to disregard a subpoena that he or she has not
challenged by a motion to quash, but there is authority to
the contrary.”). The court took the view that Dr.
Vietti should have filed a motion to quash. Simply choosing
to disregard the subpoena because Dr. Vietti (or her counsel)
viewed it as insufficient wasted trial time.
addressing these issues, the court exercised its discretion
and adjusted the trial schedule. Originally, the trial was
scheduled for four days, from Tuesday through Friday. But, in
light of the subpoena issue, the court suspended trial on
Wednesday so Ms. Hale could correct and re-serve her trial
subpoenas. Ms. Hale elected not to re-serve her trial
subpoenas. And so, trial resumed on Thursday. As a result,
the parties called four total witnesses and submitted 14
exhibits. From this evidence, the court makes the following
findings of fact, below.
Ms. Hale's Temporary Notices of Appointment
Hale is a black woman. Doc. 78 at 3. In July 2014, Ms. Hale
and her husband, Dr. Melvin Hale, were employed by ESU in the
School of Library and Information Management-a program
commonly referred to as “SLIM.” Def.'s Ex.
427, 428, 429; Def.'s Ex. 424 at 6. Ms. Hale worked as a
recruitment coordinator as a temporary employee. As a
temporary employee, Ms. Hale's employment was based on
notices of temporary appointment. Ms. Hale received three
notices of temporary appointment over the course of her time
at SLIM. David Cordle-ESU Provost and Vice President for
Academic Affairs-signed each notice. Provost Cordle is the
decisionmaker who decides whether ESU should extend temporary
appointments to employees.
limits temporary appointments to about a year. Temporary
appointments are not extended indefinitely because the
temporary positions are filled without a search; no permanent
position is created; and the money for a temporary position
is not permanently allocated. Thus, if there is work to be
done after a year, ESU must create an actual position. As
such, each of Ms. Hale's notices of temporary employment
contained the following language: “Inasmuch as this
appointment is temporary, it carries with it no expectation
of continuing employment. This appointment is considered to
be at-will and may be terminated at any time and without
ca[u]se prior to the end date specified in this notice of
appointment.” Def.'s Exs. 427-29.
Hale's three Notices of Appointment included the
following start and end dates:
. July 21, 2014-November 21, 2014.
Def.'s Ex. 427.
. November 24, 2014-June 6, 2015. Def.'s
. June 8, 2015-August 15, 2015. Def.'s
these three notices covered a span of just over a year. In
spring 2015, Gwen Alexander-the Dean of SLIM-had discussed
creating a full-time position for Ms. Hale with Provost
Cordle. Provost Cordle was skeptical and only agreed to sign
the third notice of temporary appointment, which would run
until August 15, 2015.
The Racial Slur, the Hales' Complaints, and ESU's
April 8, 2015, Brenda Rahmoeller, a SLIM graduate assistant,
arrived at work. Ms. Rahmoeller found the word
“NIGGAZ” written in pencil in a personal
notebook. Ms. Rahmoeller reported the slur to Ms.
Hale. And, Ms. Hale took a photo of the page
containing the slur on her cell phone. Ms. Hale then texted
the photo to her husband, Dr. Hale. And Dr. Hale reported the
slur to Dean Alexander. Dean Alexander said she would
investigate the matter. But, the Hales felt that Dean
Alexander did not address their concerns adequately during
the next month. So, on June 15, 2015, Dr. Hale emailed
Provost Cordle expressing his concerns directly to the
26, 2015, the Hales met with Provost Cordle and Judy
Anderson, ESU's Director of Human Resources, to complain
about the racial slur. Provost Cordle told the Hales he would
speak with Dean Alexander, and Ms. Anderson suggested that
the Hales utilize university administrative procedures to
address their concerns. On July 1, 2015, the Hales filed a
hate crime complaint with the ESU Police Department. The
Hales claimed Debra Rittgers-an office manager at SLIM-most
likely wrote the slur. The next day, the ESU Police
Department concluded that no crime had been committed. In
response, Dr. Hale emailed ESU Interim President Jackie
Vietti. Dr. Vietti responded to Dr. Hale and encouraged him
to utilize ESU's administrative procedures. Dr. Hale
replied that he would not utilize ESU's administrative
Ms. Hale's Resignation
8, 2015, Dean Alexander responded to an email from Ms. Hale.
Ms. Hale had asked whether her temporary appointment would be
renewed. Dean Alexander explained that Ms. Hale's
temporary appointment would end on August 15, 2015. Dean
Alexander did not terminate Ms. Hale's third temporary
appointment. Instead, Provost Cordle-based on ESU's
practice of limiting temporary employment-previously had
decided not to offer Ms. Hale a fourth temporary appointment.
On July 27, 2015, Ms. Hale resigned from her position during
the third term of temporary appointment.
ESU Investigates the Hales' Report
10, 2015, ESU Interim President Jackie Vietti asked Ray
Lauber-Associate Director of Human Resources-to investigate
allegations of racial discrimination and harassment in SLIM.
On August 20, 2015, Mr. Lauber submitted his report
(“ESU Report”) to Dr. Vietti. The ESU Report,
which ESU offered into evidence at trial, addressed three
questions: (1) Was a hate crime committed on or about April
8, 2015?; (2) Has racial discrimination occurred in SLIM
during the 2014-15 academic year?; and (3) Are there further
observations or recommendations to be made for SLIM?
Def.'s Ex. 424 at 1. On the second question, Mr. Lauber
concluded that no evidence of discrimination was found where
“race or other protected class served as the rationale]
for unfavorable treatment.” Id. at 3. Mr.
Lauber also memorialized the following as a conclusion of
Additionally, although not racially motivated, it is the
conclusion of this investigation that Angelica's meeting
with the Provost did play a part in Dr. Alexander's
decision not to reappoint [Ms. Hale] to the temporary
position or to post the vacancy. The investigation also
determined that a common understanding in the department
existed that the position would be posted in such a way that
the result would be Angelica's selection as candidate.
Id. And, in a different section of the ESU Report,
Mr. Lauber assessed whether Dean Alexander's failure to
post the marketing coordinator vacancy-a position Ms. Hale
for which anticipated applying-was the result of Ms.
Hale's meeting with Provost Cordle. The report concluded
that the decision “not to post a position for [Ms.
Hale] to apply for appears, in part, to be a result not of
race, but in response to the meeting [the Hales] had with
[Provost] Cordle.” Id. at 19. And, the ESU
Report asserts, the “expectation of continued
employment was set.” Id.
Report made several explicit findings Ms. Hale's
expectation of employment and Dean Alexander's decision