Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hale v. Emporia State University

United States District Court, D. Kansas

July 16, 2019



          Daniel D. Crabtree United States District Judge.

         After a 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 retaliation claim.

         I. Legal Standard

         “In 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).

         II. Findings of Fact

         Before 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 subpoenas.

         A. Rule 26 Disclosures and Trial Subpoenas

         The 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 at trial.

         But, 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.

         This 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.

         It's 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.[1]

         After 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.

         B. Ms. Hale's Temporary Notices of Appointment

         Ms. 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.

         ESU 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.

         Ms. 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 Ex. 428.
. June 8, 2015-August 15, 2015. Def.'s Ex. 429.

         Together, 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.

         C. The Racial Slur, the Hales' Complaints, and ESU's Response

         On 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.[2] 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 Provost.

         On June 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 remedies.

         D. Ms. Hale's Resignation

         On July 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.[3] 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.

         E. ESU Investigates the Hales' Report

         On July 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 ESU's investigation:

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.

         The ESU Report made several explicit findings Ms. Hale's expectation of employment and Dean Alexander's decision not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.