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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
MELVIN HALE, PH.D,
Plaintiff
v.
EMPORIA STATE UNIVERSITY (ESU).,
JACKIE VIETTI, PH.D.,
DAVID CORDLE, PH.D.,
JUDY ANDERSON.,
GWEN ALEXANDER, PH.D.,
CHRIS HOOVER.,
DEBRA RITTGERS.,
KEVIN JOHNSON.,
RAY LAUBER.,
MIRAH DOW, PH.D.,
GARY WYATT, PH.D.,
JASON BROOKS.,
SARAH SPOON.,
ARIEL COOLEY.,
DEREK WILSON.,
DEIDRA ELIJAH.,
KAYLA GILMORE.,
and DOES 1 to 100,

Case No. 15-4947-SAC-KGS

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANT VIETTI’S MOTION TO DISMISS
THIRD AMENDED COMPLAINT
This lawsuit is about a sham investigation rife with errors and omissions designed to
retaliate against Plaintiff for reporting racism at ESU. The results of the internal “investigation”
at ESU defamed Dr. Hale, by design, and were used by each and every defendant as a tool to

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retaliate against plaintiff for reporting racist acts and a hate crime in SLIM. The reporting of
racism is a protected activity, and retaliation for reporting racism is illegal. Dr. Hale is African
American, a member of a protected class included in the class of persons for whom Congress
created a retaliation cause of action. He did personally oppose unlawful employment practices,
made a police report, and participated in speaking out against perceived racist activities at ESU
and SLIM. The subsequent flawed investigation conducted by ESU commenced (after Dr. Hale
met with Provost Cordle and Judy Anderson and subsequently the ESU Police Department) as a
result of Dr. Hale informing ESU Interim President Dr. Jackie Vietti that he would not allow the
ESU Police Department (ESUPD), Gwen Alexander, David Cordle, Judy Anderson or anyone
else to sweep this matter “under the rug,” in an email to Vietti dated July 5, 2015, after no action
or response by Alexander, Cordle and Anderson. Dr. Vietti was forced into looking into Dr.
Hale‟s concerns, and she claims to have commenced an internal investigation on July 10, 2015.
ESU‟s investigation purports to have determined whether a hate crime reported by Dr.
Hale actually occurred. It represents only the findings and conclusions of ESU, as opposed to
Hale‟s account of the circumstances surrounding his report of discrimination and a hate crime.
This was not an investigation conducted by a neutral party; rather, one conducted by Mr. Lauber,
a longtime familial friend of the suspect. Lauber selected whom to interview and what evidence
to consider. There were no hearings, public or private, no evidence offered, no sworn statements
and no opportunity for Dr. Hale to respond to the criticisms leveled against his allegations, let
alone conduct direct or cross-examination of witnesses. Evidence that would have been favorable
to Dr. Hale, such as the handwriting opinion of Wendy Carlson, is absent from Lauber's report.
Moreover, the investigation focuses more on Dr. Hale and his wife‟s personal lives than
his claims of racial discrimination or a hate crime. Much of the report concerns certain
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colleagues‟ personal opinions of Dr. Hale, as opposed to whether or not they could provide
information related to the alleged crime. Consequently, the ESU investigation, while purporting
to make objective findings, is solely devoted to denying Hale‟s allegations, using whatever
means available, such as press conferences, press releases, and communications with the public,
students, faculty, staff and alumni. Each of the defendants acquiesced to the findings of the
report and induced others to do so, despite knowing it contained glaring falsehoods and
inaccuracies, and depicts Hale and his wife as hate hoax perpetrators. The “investigation” was
the hoax.
There is reason to suspect that the purpose of the investigation was more to exonerate
ESU and SLIM than to determine if a hate crime occurred and suspect(s) existed. Rittgers was
explicitly exonerated to get that message across. By Cordle‟s own admission, had Dr. Hale
signed the separation agreement extended to him on October 12, 2015, he wanted Dr. Hale to
release ESU and its agents from all legal liability, and to take down the MarchOnEmporia.com
website, which offers opposing views on this matter. Had the purpose of the ESU investigation
been truly to determine if acts of racism and bias had occurred, the investigation would have
adhered to established ethical and legal guidelines for conducting such investigations.
MALICE AND BIAS
Defendant Vietti has challenged allegations that she participated in defaming Dr. Hale,
and being involved in a conspiracy to deny him his constitutional rights. This section will
examine explicit comments made by Vietti and Johnson at the news conference they conducted
on September 9, 2015 in Plumb Hall on the ESU campus to announce the results of Vietti‟s
investigation. Contrary to statements made by the defense, Vietti and Johnson slander Hale

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repeatedly throughout the press conference. To pin down ESU‟s perspective on hate crime, a
reporter asks Vietti and Johnson “If the crime of the AME church massacre that happened had
happened here, would that be a hate crime?” Johnson answers, “Well if someone commits a
murder, it‟s unlikely they‟re gonna try to have it classified as a hate crime for sentencing
purposes because there‟s no more serious sentence than life or perhaps death so it would just be
pointless.” Vietti‟s and Johnson‟s position on the notion of “hate crime” is that the concept is
pointless, even for massacres, which is another way of saying the term is meaningless. That
being the case, Vietti and Johnson would literally snicker and scoff at someone who reported a
hate crime, especially something as “meaningless” to them as a racial slur in a notebook, which
is basically what they did. Johnson continues by saying, “Writing a word on a piece of paper, no
matter how offensive, or what the word is, is not a crime, it‟s just writing a word on a piece of
paper.” There are no circumstances under which that might be a crime. Plaintiff disagrees.
There never was an investigation into a hate crime. Vietti and Johnson don‟t‟ appreciate the
notion of hate crime. The phrase “hate crime” is used by plaintiff as a broad classification.
By taking over two months to complete the “investigation,” ESU sought to give the
public the impression that a lot of thought and deliberation went into the results of the
investigation. What happened on September 9, 2015 in the announcement of the “investigation”
was a deliberate, rehearsed, and intentional act, just as plaintiff believes that the writing of the
racial slur was a deliberate, rehearsed, and intentional act. What happened on April 8th, 2015
was a form of racial bullying. What occurred on September 9, 2015 was slanderous. Dr. Hale
was being publicly punished for reporting racism and a hate crime. The announcement was also
calculated to dissipate support and steal momentum and focus from the March on Emporia which
was set for September 15th.
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Starting at about 12 minutes into the recording of the KVOE broadcast, Johnson allows
his imagination to run wild, describing Office 413 (Doc. 17-1, pgs. 21-22) and the chain of
events as follows (every statement indicated in italics is false):
“I‟ll just use my hand on the table. You can translate that [into]whatever you translate it
into. Everything was on I believe the 3rd floor of SLIM. The student’s office was at one end of a
hallway, I think there was a T-section, she was right near the T-Section, I believe. Anyway, it
was a separate office that she was using but it wasn’t dedicated to her use. It was storage. And
at the time there was a lot of furniture and things being moved and stored, [and] people were in
and out all the time.
“She found it on her notebook while she was in that office, although she said it could have
been written where she was, where she might have been somewhere else. So the assumption‟s
been, “I found it here, maybe it was written nearby persons (inaudible).
She wanted to report it to Dean Alexander, which would be the thing to do, so she goes
out of her office, goes down the hall to the Dean’s office and she’s not there. She’s out of the
office for some reason. So she goes back to the hall, so her office is here, she comes to the hall
a little bit down the hall a ways away from her office, is a separate office, and that’s where Mrs.
Hale’s office was. She was the assistant to the dean. So the student, thought it would make sense
if the dean’s not here, I want to report it, I’ll report it to the assistant to the dean, which, makes
sense.
“So she did. She showed it to Mrs. Hale, um and said, words to the effect that “I was
going to report this to the dean, but she’s not here so I’m telling you about it so it could be
passed on” or something of that nature, I don‟t know the exact words. And so Angelica said
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“ok” and she took a picture of it, of the word on the page with her camera, her phone, on her
phone. And so the student I think at that point went back to her office. Um I don‟t know if she
took her notebook at that point or not. But then Mrs. Hale showed it to her husband who was in
another office and said “this is what the student just showed me,” and they were both offended
because it’s an offensive word.
“And from there, it [was] just based on things that they have put out through open letters
and other expressions, written expressions, a person could get the impression that the word was,
it happened in Mrs. Hale’s office, or it happened somewhere else. But it happened in that
student‟s office. And she brought it, if she hadn‟t, if Dean Alexander had been there that day,
there’s a good chance that neither Mr. and Mrs. Hale would ever have seen it. So, it’s kind of a
fluke that they saw it to begin with.”
Question: So in that case?
Johnson: “For that reason we don’t have any, we can’t reasonably conclude that it was written
with the intent to offend them.”
The entire recording of the ESU press conference can be found on the KVOE website
under the title “ESU formally exonerates employee accused of racial slur.” It is currently
available at the following URL: http://kvoe.com/newsedit/10322-esu-no-racial-discriminationor-hate-crime-in-slim-department. The recording is at the bottom of the page. To fully
appreciate the derision and contempt heaped upon the Hales, it is valuable to listen to the
recording. The KVOE article is attached as Exhibit A, and incorporated by reference herein.
Vietti‟s opening remarks begin with “Angelica and Melvin Hale filed a complaint of an
alleged hate crime with the Emporia State University police department. Our on-campus police
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department investigated the alleged complaint that was related to the writing of a racial slur in
the notebook of a graduate student within the school of library and information management.”
The exhaustive press conference started with the “Hales” and ended with the “Hales,” and the
message concerning the plaintiff was loud and clear. Don‟t believe anything he said.
According to Vietti and Johnson, “The Hales [were] spoken to, I think, on several
occasions. They were interviewed, and they did express several instances that they alleged were
discriminatory acts and that taken altogether creates a hostile work environment.” Johnson
continues, “So the investigator said, „fine, let‟s check all this out.‟ So they went through and
looked at each one [of the claims], talked to the people involved, looked at the circumstances and
came up with conclusions for every single one of them that was a legitimate, non-discriminatory
basis for why that thing happened…and having read the investigation reports and so on, it wasn‟t
even a close call! It was very clear that there was not a discriminatory intent.” A reporter in the
audience realized the implications of Johnson‟s statement and asked the following question:
“What does that say about the Hales?” The recording makes it difficult to deny that the results
were damaging to the Hales.
Vietti and Johnson, when not directly attacking the Hales by name, made certain that they
conveyed that they held the Hales in the lowest regard, and found their allegations wildly
unfounded and contrived. Vietti and Johnson made it clear that no one could believe one word
of the allegations that the Hales were making. The Hales were not credible, “it wasn‟t even a
close call!” Johnson said at one point. What does that say about the Hales? It defames them and
places them in a false light. Vietti and Johnson were hiding behind the strictest legal definition
of hate crime, and expounding contrived stories, including how things happened the day of the
hate crime. The following day Vietti backtracked and would issue a statement that tried to soften
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that stance, claiming that ESU wasn‟t hiding behind the legal definition of “hate crime,” but
offered no evidence to support that move, and there is no other way to characterize their position.
In the press conference, Johnson declared that the office where the alleged hate crime
took place was not a private office, and that it was on the third floor. Johnson said it had an
“open door.” People came in and out of that office all day. “It was typically not locked for most
of the day or evening.” That is false. To begin with, the office where the incident took place
was Office 413 on the fourth floor, not the third floor. Johnson goes to great lengths to disavow
the fact that the GA reported to Angelica, or that they had a great relationship. An email from
Alexander dated May 5, 2015 asking Angelica to do her GAs evaluation is attached as Exhibit
B, and incorporated by reference herein. The notebook page where the slur was written included
tasks assigned by Angelica, and Angelica‟s name was written among the list of tasks. The GA
believed that her office was locked when she left work the previous day, so she was startled to
come to work and find the door unlocked, things tampered with around her desk, and a racial slur
written on her notebook. That is why and how Angelica came to know about the incident.
Angelica photographed the notebook on the GAs desk, and other things that were in disarray in
the GAs office. Angelica definitely did not bring the notebook to Dr. Hale as Johnson alleges.
Johnson stated that Angelica‟s GA wouldn‟t think of reporting such a matter first to
Angelica, her direct supervisor. That is absurd. Not only is that patently false, she actually
waited until Angelica returned from a meeting to specifically tell her about the situation. Dean
Alexander was available. There was a regularly scheduled faculty meeting in the conference
room. Around 12:40pm, Dr. Hale texted Angelica to touch base with her. Angelica texted Dr.
Hale back, which included the following: “Brenda‟s office was unlocked when she arrived to
work today and her notebook had the word “NIGGAZ” scrawled on it. There were some things
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tampered with but the unlocked door and the writing on her notebook are the main things. (photo
attached).” (Doc. 13, pg. 22). Angelica asked Dr. Hale if Dean Alexander was in the meeting
and he said yes. She asked him to let her know that she needs to talk to the GA when she has a
chance and let her know what happened. Later, Dr. Hale sends a text back: “In Gwens ofc.
Come down.” Dr. Hale and Angelica met in Dean Alexander‟s office to report the incident, and
Angelica asks the Dean to go see the GA about the incident. The GA states that Dean Alexander
does not follow-up with her until after the Hales met with Provost Cordle in June, after the GA
had been released from her position at SLIM in May. Dr. Hale believes that Dr. Dow can
corroborate his report on this matter because he shared his concerns with her shortly after the
incident and asked for her assistance in following-up with Dean Alexander to find out why there
was no action on her part. When you re-read Johnson‟s press statement in light of the facts, it
reveals deception that is simply breathtaking, particularly since his role is also Co-Director of the
Koch Center for Leadership and Ethics.
The graduate assistant reported to Angelica Hale and worked with her every work day
and often had weekly staff meetings together with the communications GA. Dr. Hale usually
saw the GA several times a day. For a while her desk was literally in Angelica‟s office. A photo
of the GA‟s desk in Angelica‟s office at SLIM is attached as Exhibit C, and is incorporated by
reference herein. Dr. Andrew Smith, the Associate Dean who had responsibilities for all GA‟s,
was the one who decided to move Angelica‟s GA to Office 413 due to a problem with network
connection issues in Angelica‟s office. Angelica and the GA were not near the Dean‟s office. It
wasn‟t down the hall. It was downstairs, and you literally had to use stairs. Johnson‟s
description of the physical location of the office is a complete fabrication, as well as the GAs
relationship to Angelica. Johnson wanted the press to believe that Angelica and Plaintiff had no
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relationship with GA in whose office the hate speech was found. People tell lies for a reason. In
this case, it was retaliation and discrimination by defamation. You get a strong sense of this by
simply following Johnson‟s language, which clearly follows a malicious speculative pattern,
inserting data as he sees fit.
Without ESU, Emporia would become a ghost town, which makes for a powerful
incentive to go along to get along with it. Dr. Hale became symbolic of why you don‟t mess
with ESU. Fear of retaliation alone makes it hard to take a principled stand. If even one of the
defendants in this case had decided to take a principled stand, they would have made a huge
difference in the outcome. The Black Student Union (BSU) could have made a big impact, but
vice-president Deidra Elijah helped to steer them in the administration‟s direction. Early on
Vietti zeroed in on winning over Elijah, and succeeded. The same is true for Kayla Gilmore.
Gilmore bragged online about the job Vietti offered her in the new diversity planning group.
Students were only able to participate in the group by invitation. Derek Wilson, ESU
Homecoming King, Student President of the Honors College, and leader of several student
organizations initially sympathized with the Hales, and told them that when he worked security
for ESU at night, part of their patrol included checking all office doors nightly. According to
Wilson, if an office door was routinely unlocked, it would have been reported by security.
Wilson, being a member of the Honors College, found himself threatened with pressure and
retaliation for sharing his support for the upcoming March, and after Rittgers‟ daughter Alexa
Thomas held a meeting with her Honors peers stating that her mother was innocent. Wilson later
made a huge announcement to his circle of associates and in the media that Rittgers was
completely innocent, that she was falsely accused, and that he disavowed any association with
the Hales‟ cause.
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Sarah Spoon (who is also a member of the Honors College cohort club) and Ariel Cooley
at the ESU Bulletin student newspaper have used their positions to defame and insult the Hales,
although that was not always true for Spoon. She reported a fairly unbiased story in October in
which she directly established that handwriting expert Carlson re-confirmed Rittgers as the
highly likely author of the racial slur. The nine classifications in forensic handwriting
examination obtained from the fbi.gov website: Identification, Highly Probable Did Write,
Probably Did Write, Indications Did Write, No Conclusion, Indications Did Not Write, Probable
Did Not Write, Highly Probable Did Not Write, Elimination. Spoon then wrote another article
regarding a malicious lawsuit that was filed against Dr. Hale to take away his trademark. That
lawsuit was dismissed against the petitioner. The angle of Spoon‟s story was to depict Dr. Hale
as litigious. Spoon confided that she was forced by the university newspaper editor-in-chief,
Ariel Cooley, to write a “discrediting story.” This was not an editorial or opinion piece.
Subsequently, the relationship with Spoon turned south when she established a closer friendship
with her Honors colleague and Rittgers‟ daughter Alexa Thomas. Several articles with false and
defamatory material quickly followed in the Bulletin.
Defendants claim that Dr. Hale fails to mention the exact phrase which is defamatory.
The results of the “investigation,” whether quoted in whole or in part, are defamatory. Johnsons‟
entire narrative is defamatory, as is Vietti‟s. In the press conference, Vietti and Johnson
emphatically stated “We know what our facts are and we have based our conclusions on the facts
we have in hand.” They defamed Dr. Hale, flaunted their power to annihilate him with errors
and omissions, and even had a few laughs along the way, including laughing with a reporter
calling his upcoming march a “hunt.” What could defame Hale more than describing him as a
lying opportunist who playing the race card because of a “fluke?” Neither Vietti nor Johnson
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needed to finish the sentence, or file in the blanks. The Hales were described as immoral liars
who tried and failed to make something out of nothing. They PhotoShopped themselves, as it
were, into a picture that didn‟t include them. Their tale was found to be a forgery by a “fair,
thorough, and logical investigation.”
In the Vietti and Johnson narrative, Rittgers becomes the victim, the one defamed. They
pretend that the friction happening between Rittgers and the Hales didn‟t exist, but context is
always important. Angelica wouldn‟t be in a large office on the fourth floor if not for issues with
Rittgers. Hale acknowledges that it was awkward to be around Rittgers after the confrontation
they had in December 2014. Defendants left Rittgers and Alexander completely out of their
narrative, and they inserted a big open room to substitute for or the GAs real office, which
according to Vietti and Johnson had no locking mechanism. Johnson made the following
statement: “It‟s just so many people that had access to that location, and the student couldn‟t pin
down exactly where the notebook would‟ve been. Everybody who was interviewed as a witness
was asked „did you write this?‟ „Do you know who wrote this?‟ „Do you have any information
about it at all?‟ Nobody had a clue, short of interviewing the entire university and perhaps half
of Emporia.” To arrive at the truth, according to Johnson, half of Emporia would have to be
examined. Vietti made light of the handwriting evidence, saying “The only evidence of the
written word that exists at this point in time is a picture on a cell phone. From my perspective
that makes it virtually impossible to identify who would‟ve written that word. So one could
speculate who wrote it but there is no evidence that we are aware of to conclude definitively that
a particular person wrote it.” Dr. Vietti is not a forensic handwriting expert, and she does not
cite one in her fact-based findings.

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Outside “reviewers” would fail to comprehend the lies being disseminated in the
“investigation,” nor the intent of the university, unless they too were simply complicit, and that is
not implausible. ESU selected them. Plaintiff was never contacted by the reviewers nor
informed that there were “validators.” Neither did they share their plan to have external parties
involved in the investigation to the public. It was a secret. Would an outside reviewer know that
the entire description of the physical scene has been falsified? They probably wouldn‟t. An
outside reviewer selected by ESU, like the reporters in the news conference, had to rely to a great
extent on what ESU was feeding them, and based on their trust, ESU took complete advantage of
their position of power and authority. The outside reviewers did not conduct their own
independent investigation, and obtain input from both sides of the controversy, thus they were in
no position to reach any conclusion on the fairness, thoroughness or logic used in the
investigation. They were mere rubber stamps for hire. “In an action for libel or slander, it
suffices to allege generally that defamatory matter was published or spoken concerning the
plaintiff, and if that allegation is not denied in the answer, it need not be proved at trial.”
Emphasis added. Kansas Rules of Civil Procedure, Chapter 60, Article 2, Section 209, (j).
Every reporter at the press conference understood the implications of the results of the Vietti
“investigation” as concerning the plaintiff.
After hearing the results of the findings, one reported asked a searing question, “Do you
think the Hales are going to take action against you guys for slander or something like that?”
Vietti states “That is a question to ask the Hales.” Another reporter asked a similarly
straightforward question: “So now that the investigation is complete, now that everything‟s done,
basically, and again, I don‟t mean to sound as if (inaudible), but I will ask it this way, because I
don‟t know of a better way to ask it, did the Hales tell the whole truth?” This question has a
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binary answer, yes or no. Vietti was not as direct. She implied that the Hales were lying by
stating “I want to think about how to answer that question.” What is there to think about after
conducting an “intensive investigation” that allegedly “encompassed the interview of 19 people
and resulted in a 350 page document of findings and conclusion?” These are Vietti‟s words
summarizing the depth and extent of the investigation. But look at how defamation and false
light work. Vietti in her response situated the Hales in a false light. For example, if a person
asks their best friend if they should date someone and the answer is: “Let me think about how to
answer that,” the implication is obvious; their friend has reservations or worse, and the answer is
probably no. Vietti and Johnson dodged the question for obvious legal reasons.
The reporter recognized the seriousness of the outcome of the investigation and asks Dr.
Vietti if the university was concerned about a lawsuit involving slander that might be filed
against the university. The question alone supports plaintiff‟s argument that a reasonable person
could construe the remarks made by defendants Vietti and Johnson in this news conference as
defaming him, by both explicit and implicit reference. If the results of the investigation are to be
believed, Dr. Hale and his wife filled a false police report, which is a crime.
Johnson responded this way to the question: “Did the Hales tell the whole truth?”
Johnson said “Perception is key…They‟re doing whatever they‟re doing and they may have a
different perception about things than others.” The Hales are now derisively lumped in with
“others,” they are not like us. They aren‟t even close. Someone inquires about the status of
Dean Alexander, Vietti was quick to respond that she could not comment on Alexander due to it
being a “personnel” issue. Dean Alexander was derelict in her duty in not investigating the bias
incident when it occurred, yet Vietti and Johnson make no mention of that. The reality is that no
Caucasians were harmed in the making of Vietti‟s press conference, just the Hales, who are
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African American. The ESUPD failed to collect and secure evidence and to follow-up on the
handwriting. Dr. Cordle was as derelict in his responsibilities to follow-up on faculty concerns
concerning discrimination and retaliation, and although he stated that he had five items on his list
to follow-up on after meeting with Hale on or about June 30, 2015, he did nothing. Alexander
continued to harass the Hales, and asked Angelica to interact with Rittgers in a manner that
Angelica felt was demeaning, so Angelica quit, and sent out the Open Letter on July 27, 2015.
The point is that Vietti made no mention of performance problems associated with Caucasians
directly related to the issues in the investigation.
Johnson‟s narrative about the office location, however, is not impulsive or pointless. He
is doing his level best to distract attention away from the actual location of the incident and the
unlawful entry so that he can make anybody a suspect as well as state that the incident was not
directed at the Hales. The smaller the pool of potential suspects, the greater the chance of a
match. Plaintiff cannot expound on all the many errors in Johnson‟s rant, but the motive is
singular: to discredit the Hales. The Hales are mentioned by name in conjunction with the results
of ESU‟s investigation over thirty times at the press conference and numerous times in an
Emporia Gazette and Bulletin article. A true copy of the Emporia Gazette article is attached as
Exhibit D, and a true copy of the article from the Bulletin is attached as Exhibit E, and both are
incorporated by reference herein.
Vietti and Johnson peddled these falsehoods to every meeting they attended, as did others
such as Jason Brooks and Gary Wyatt, functioning in a calculated and callous campaign to
silence the facts presented by Dr. Hale (Doc. 20-1, pgs. 14-15). Each defendant cared more
about the reputation of the university than the injustice done to Dr. Hale and his wife for
reporting acts of racism. Each defendant incentivized, influenced and induced others to endorse
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the report, despite knowing that it was deeply flawed and defamatory. Others in the university
were in fear of retaliation (a fact that we mentioned in a meeting to Police Chief Chris Hoover)
and eventually abandoned the Hales because it did not appear that the Hales had the power to go
up against the institution. Each and every defendant knew that Hale was suffering for reporting
racism, and that the “investigation” defamed him, yet each one willfully chose to support an
indefensible version of events surrounding what transpired on the fourth floor. The phrases that
“no hate crime occurred” and “no discrimination was found,” and “it wasn‟t even close!” were
propagated throughout the ESU campus and media to discredit Dr. Hale for doing what? Falsely
reporting racism and a hate crime? What if Hales‟ reports of racism and a hate crime are actually
true and the results of the investigation are false? That possibility exists. No one should have to
endure what Dr. Hale has endured for reporting racism anywhere. Vietti and Johnson and all
involved willfully set out to crush allegations of racism by any and all means, including
retaliation and discrimination with no regard whatsoever to the facts or the truth or the law. Dr.
Hale received this message loud and clear. Pro se or not, Dr. Hale has no intentions of passively
accepting what he believes are fundamental unambiguous violations of his civil rights.
RETALIATION
To prove retaliation, a plaintiff must demonstrate that (1) she engaged in a protected
activity known to the defendant; (2) the defendant took an employment action adverse her; and
(3) there exists a causal connection between the protected activity and the adverse action. Gelela
v. Gray, 645 F.3d 408, 411 (D.C. Cir. 2011); Hernandez v. Yellow Transp., Inc., 641 F.3d 118,
129 (5th Cir. 2011); Silverman v. Ed. of Education, 637 F.3d 729, 740 (7th Cir. 2011); Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007). Courts then apply the burden-shifting framework
outlined in McDonnell Douglas v. Green: The employer must proffer a legitimate, non16

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retaliatory rationale for taking adverse conduct against the employee. Hernandez, 641 F.3d at
129; Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,106,110 (2d Cir. 2010). The employee
then can proceed by showing that the employer's stated rationale was in fact a pretext for
retaliation. Geleta, 645 F.3d 413 ("The 'central question' on summary judgment is whether 'the
employee produced sufficient evidence for a reasonable jury to find that the employer's asserted
non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated [or retaliated] against the employee on the basis of race.'" (quoting Brady v. Office
of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008))); see. e.g., Kessler, 461 F.3d at 211
("Although the concerns advanced by defendants would be legitimate nondiscriminatory reasons
for a transfer, Kessler adduced evidence that, if credited, could support the conclusion that the
reasons proffered are pretextual.").
Dr. Hale both opposed racially discriminatory conduct and participated in demanding an
end to racism, meeting the requirements of Title VII for protected activity. In defining the
"opposition clause," the Supreme Court has rejected a definition of "oppose" that would require
an employee to "actively" and "consistently" oppose an employer's practice or to "instigate" or
"initiate" the opposition. In Crawford v. Metro Gov't of Nashville & Davidson County, the Court
held that an employee has an actionable claim of retaliation where she "speaks out about
discrimination not on her own initiative, but in answering questions during an employer's
internal investigation.” 555 U.S. 271, 129 S. Ct. 846, 849 (2009).
But how "adverse" must an employer's actions be to constitute retaliation? The Supreme
Court addressed this question in Burlington Northern & Santa Fe Railway Co. v. White, creating
an "objective standard" under which an action challenged as retaliatory must be "materially
adverse" to a reasonable employee. 548 U.S. 53, 68 (2006). The Court in Burlington Northern
17

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resolved a circuit split on the definition of "adverse employment action," Until 2006, the federal
courts of appeals were divided over how severe an employer's adverse action must be to fan
within the statute. Most broad: "Any activity reasonably likely to deter" an employee from
vindicating protected rights. (Ninth Circuit) Middle ground: An employment action that a
reasonable employee would find "materially adverse," i.e. resulting in tangible injury or harm.
(Seventh Circuit, D.C. Circuit) Most narrow: The employer has taken an "ultimate employment
action" (i.e. firing, demotion) against the employee. (Fifth Circuit, Eighth Circuit). The Supreme
Court ultimately resolved the "Circuit Split" in favor of a middle-of-the-road "materially
adverse" standard, but defined "materiality" objectively from the perspective of a "reasonable
employee." Depending on the Circuit, case law pre-dating Burlington Northern may not remain
good law. Dr. Hale believes that his claims survive under the narrowest reading, but that the
middle reading is more appropriate: “An employment action that a reasonable employee would
find "materially adverse," i.e. resulting in tangible injury or harm.”
ESU administrators allege that preventing Dr. Hale from regular faculty activities and
offices was not retaliatory during an extended cooling off period that lasted for over six months,
depriving him of professional services and associations. The Supreme Court posed two
hypothetical situations to illustrate adverse actions. In the second it addressed employee
exclusions: “A supervisor's refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a weekly training
lunch that contributes significantly to the employee's professional advancement might well deter
a reasonable employee from complaining about discrimination.” Burlington No., 548 U.S. at 69.
Depriving Dr. Hale of his office and contact with his colleagues, important updates and teaching
facilities can be adjudged retaliatory. Exclusion caused Dr. Hale to not complete his portfolio.
18

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An employee must ultimately demonstrate a causal nexus between his or her protected
conduct and the employer's retaliatory response. The courts of appeals recognize three methods
of proving causation: (1) temporal proximity between the protected activity and the adverse
action; (2) proof that other similarly situated employees were treated more favorably; and (3)
direct proof of the employer's retaliatory intent. Jimenez v. City a/New York, 605 F. Supp. 2d
485,529 (S.D.N.Y. 2009) (citing Sumner v. U.S. Postal Sen'., 899 F.2d 203, 209 (2d Cil'. 1990)).
Dr. Hale will show the temporal proximity between the protected activity and the adverse action
are related. The Fifth Circuit has held that although "close timing" can support a prima facie
case of retaliation, "'once the employer offers a legitimate, nondiscriminatory reason that
explains both its adverse action and the timing, the plaintiff must offer some evidence from
which the jury may infer that retaliation was the real motive.” Dooley v. Parks & Recreation/or
the Parish a/Ea. Baton Rouge, No. 10-31254,2011 U.S. App. LEXIS 15278 (5th Cir. July 22,
2011).
Vietti, Johnson, ESU administrators, and all the defendants, as agents of ESU,
encouraged adverse actions against Hale in retaliation for his report of a hate crime, which they
all claimed was bogus, but knew better. “A supervisor who has knowledge of the protected
activity need not expressly order an agent to take adverse action against an employee (in
retaliation); a jury can find causation where the supervisor encouraged treating the employee
adversely.” (Burlington No., 548 U.S. at 69). For example, in Henry v. Wyeth Pharmaceuticals,
Inc., the court of appeals held that an employee proffered sufficient evidence of causation where
a human resources representative was aware of the plaintiffs internal complaints of
discrimination (as well as his subsequent complaints to the EEOC and N.Y. State Division of
Human Rights) and worked with plaintiffs direct supervisors to scrutinize his performance.
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Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 148 (2d Cir. 2010). Vietti encouraged everyone to
“do the same,” accept the investigation, and to support the university. Dr. Hale was portrayed as
unstable and untrustworthy. That message was not lost on her audience. Hales‟ support on the
ESU campus immediately dried up after her communications with the public, meetings with
constituents and press conferences.
Victims of discrimination must show that the employer engaged in "actions that affect
employment or alter the conditions of the workplace" whereas a victim of retaliation may show
that the employer took "actions not directly related to his employment or by causing [] harm
outside the workplace.” 42 U.S.C. § 2000e-3(a). Plaintiff has provided ample evidence of harm
caused to him, both inside and outside the workplace. (Doc. 13, pgs. 72-73 and pgs. 79-91, Doc.
17-1, pgs. 15-16, and pgs. 15-16, and pgs. 56-60).
With respect to Hales‟ standing to sue under Title VII, the Supreme Court focused on
Title VII‟s enforcement provisions (i.e.42 U.S.C. § 2000e-5(t), rather than the retaliation
provisions as the Sixth Circuit had. (131 S. Ct. at 868). Importantly, Title VII provides a right
of action to "persons aggrieved." 42 U.S.C. § 2000e-5(1) ("[A] civil action may be brought
against the respondent named in the charge ... by the person claiming to be aggrieved.) Although
the court declined to find the term "person aggrieved” co-extensive with Article III standing (i.e.
injury in fact caused by a defendant that is remedial in the federal courts), it found that persons
within the "zone of interest" that Title VII seeks to protect have standing to sue. 131 S. Ct. at 870
(quoting Lujan v. Nat'l Wildlife Fed., 497 U.S. 871,883 (1990)). “[T]he purpose of Title VII is
to protect employees from their employers' unlawful actions.” Vietti cannot claim that Hale
lacks standing to file suit. At the core of the standing doctrine is the requirement that a plaintiff
"allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to
20

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be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324,
82 L.Ed.2d 556 (1984), citing Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700
(1982).
Vietti claimed that Hale refused to follow university policy for filing a claim of
discrimination. What Dr. Hale actually told ESU was that reporting a crime is different from
reporting racial discrimination. Dr. Hale considered his report for the April 8th incident to be a
crime report, not a personnel matter and he had no intentions of conflating the two. As for the
April 8th hate incident, he would not open a personnel report to address that because crime
needed to be handled first as crime. Hale requested that ESU follow proper guidelines for
conducting fair investigations, and that they comply with the Clery Act. Defendants claim that
punishing the author of the slur is the central justice which Hale seeks in this lawsuit. That is
false. Hale seeks redress for a sham investigation into a hate crime that had, as it true purpose,
retaliation. The ESUPD did not pursue any leads in their investigation because their
investigation was limited to discussing the matter with senior ESU officials.
Retaliation is a separate claim from discrimination, and does not require racial
discrimination. “Even if the employee cannot prevail on the underlying claim of discrimination
(for example, where the employee does not satisfy the „severe or pervasive‟ threshold for
proving a hostile work environment claim), s/he can prevail on a retaliation claim if s/he in good
faith, reasonably believed the employer was engaging in discriminatory conduct. See La Grande
v. DeCresente Distrib. Co., 370 Fed. App'x 206, 212 (2d Cir. 2010); Ragusa v. Malverne Union
Free Sch. Dist., No. 08-5367-cv, 2010 U.S. App. LEXIS 12640, *8 n,4 (2d Cir. June 21,2010)
(finding that the plaintiff "need not be disabled within the meaning of the ADA to pursue her
21

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retaliation claim, providing she can demonstrate 'a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law'" (quoting Sarno v. Douglas
Elliman-Gibbons & Ives. Inc., 183 F.3d 155, 159 (2d Cil'. 1999) (citation omitted)))).
INJURIES
Defendants claim that Dr. Hale has not been injured by their conduct, despite knowing
that Dr. Hale has been avoided and disparaged at ESU, and skewered on the Internet. One such
Internet example is found on a website called downtrends.com. An October 16, 2105 article was
written in Downtrends entitled Black Professor Demands Hate Crime Investigation Then Sues
When He Doesn‟t Like the Results. (Doc. 13, pgs. 74-78). It reads in part as follows:
“Melvin Hale is an assistant professor in Emporia State‟s School of Library and
Information Management. His wife Angelica Hale was an assistant to the dean of the school.
They are both black and reported a racial incident that was almost certainly bullshit last April.
They demanded a hate crime investigation and got it. Unfortunately, the results of the
investigation found that no hate or racism occurred, so now they are suing the university.
The story goes like this: Last April someone allegedly wrote a racial slur on a piece of
paper and slipped it under the office door of Angelica Hale‟s grad assistant. Right off the bat you
can see that this supposed incident wasn‟t directed at either of the Hales. In any case, Melvin
Hale publicly accused an unnamed person, presumably a faculty member, of perpetrating this
hate crime without a shred of evidence.
After making a spectacle of himself, Hale demanded that the university investigate the
incident as a hate crime. The school conceded and looked into the matter. According to The AP:

22

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In September, the university said an investigation of the incident and its aftermath found no
evidence of a hate crime or racial discrimination.
I think that‟s a nice way of saying this was yet another hate crime hoax.
Here‟s how I see it: The Hales were campus agitators that constantly complained about
racism that didn‟t exist. They likely staged a hate crime because they couldn‟t prove their claims
of racism any other way. When the university investigated and found that the hate crime was
bullshit and that the Hales were probably behind it, Melvin Hale filed a lawsuit in an attempt to
save face. They should be arrested for theft because they just stole a page out of Al Sharpton‟s
playbook.
These two „racial justice warriors‟ just made things a lot harder on legitimate prospective
black employees. Whether Emporia State will admit it or not, they will think twice before hiring
other black professors. If it comes down to two applicants, one black and one white, with equal
qualifications, they‟re going with the white one. After all of the stink and grief caused by the
Hales, they‟d be crazy not to.”
(http://downtrend.com/71superb/black-professor-demands-hate-crime-investigation-then-sues-whenhe-doesnt-like-the-results).
Posts like the one above indicate plaintiff may be placed in harms way by the reckless and
wanton conduct of the defendants. This causes plaintiff great concern for his personal safety. In an
email to Dr. Vietti dated September 18th, 2015, Hale said “I believe that your leadership of Emporia

State University may come to be known as the darkest days in the history of this institution.” The
manner in which she conducted her investigation is cause.

23

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THE HANDWRITING EVIDENCE
The Hales reported their concerns about a hate crime to the ESUPD in the afternoon on
July 1, 2015. Early the next morning, at 7:37am, the ESUPD contacted Dr. Hale by phone and
stated that in their opinion no crime had occurred. Dr. Hale requested a police report, but was
informed that no police report could be obtained by the Hales because there no formal report was
taken due to the insignificance of the incident that the Hales reported, and that there would be no
further action taken. The ESU Police Department shut down any discussion of a hate crime (or
any crime). Following the conversation with ESUPD, plaintiff called the office of the Lyon
County Attorney Marc Goodman to report the incident. Goodman never returned his call. A
true and correct copy of plaintiff‟s phone records for both calls is attached as Exhibit F, and
incorporated by reference herein.
Defendants have demanded that plaintiff produce more handwriting evidence, including a
written report. When Plaintiff Hale made his report of the hate crime to the ESUPD and ESU,
those agencies should have assumed the responsibility as a reporting agency for carrying the ball
from there. On July 1, 2015, the same day that plaintiff filed a police report, Angelica Hale sent
an email to Carlson stating that she should be hearing from ESUPD regarding the handwriting.
A true and correct copy of Angelica‟s email to Carlson is attached as Exhibit G, and
incorporated by reference herein. None of the defendants cared that ESU did not get this matter
resolved during their “fair, thorough, and logical” investigation,” allowing the handwriting
implications to dangle until it became public. A thorough investigation would have not allowed
this to happen, or allowed the student‟s notebook with the slur to disappear. Of all the issues that
ESU does not appear to want resolved, the most significant is a definitive handwriting

24

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examination of Rittgers. ESU should have demanded such an examination for the same reason
that they can demand fingerprinting, drug or alcohol tests.
CLAIMS AGAINST DEFENDANTS
Defendants Vietti, Cordle, Anderson, Alexander, Johnson, Lauber, Dow, and Wyatt,
named in Counts III and V, were fully aware that ESU had intentionally caused irreparable harm
to Dr. Hale‟s reputation and integrity by the sham investigation, in violation of his 42 U.S.C. §
1983 and First Amendment protections. The news reporter asking about slander instantly
recognized the implications of the results, and brought this to the attention of Vietti and Johnson.
Asking that question in such a press conference seemed reasonable, and lends credence to the
fact that slander was understood as happening at that very moment. The reporter knew that the
Hales‟ reputation was a casualty of the results of the investigation. Plaintiff Hale is not creating
fiction or hypotheticals by stating that the entire investigation was a tool for his defamation. The
recording of the press conference literally speaks for itself. The results that have followed, the
termination of both he and his wife amidst a hailstorm of recriminations and accusations, has
grievously damaged them for simply reporting racism at SLIM and ESU. That Plaintiff Hale has
been so slandered and misrepresented is grounds for its 42 U.S.C. § 1983 claims, conspiracy
claims, retaliation claims, defamation claims, false light claims, and discrimination claims
against all defendants; thus the basis for Counts II, IV, and VI against all defendants.
Plaintiff agrees with defendants that individuals cannot be sued under Title VII. Plaintiff
will move the Court to strike Count I as to all defendants except ESU. Hale agrees that ESU is
incorrectly named in Count VI, and will request that defendant ESU be stricken from Count VI.

25

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Defendants Gwen Alexander, Chris Hoover, Dr. David Cordle, Judy Anderson, Ray
Lauber, Dr. Jackie Vietti, Dr. Kevin Johnson, Dr. Gary Wyatt, Dr. Mirah Dow, Jason Brooks,
Sarah Spoon, Ariel Cooley, Derek Wilson, Kayla Gilmore and Deidra Elijah, all know that Dr.
Hale was punished for speaking out against what he perceived as racism, and the campus and
public has witnessed the damage for doing so. Dr. Hale does not need any of the aforementioned
defendants to validate his personal feelings about what constitutes a racist act, particularly when
all of the administrative figures are Caucasian, and all appeared to lack empathy.
INJUNCTIVE RELIEF
As for injunctive relief, Plaintiff Hale leaves discretion to the Court as to what remedies
are legally available. Plaintiff Hale alleges in its complaint that he is suffering a direct and
current injury as a result of the sham “investigation,” and will continue to suffer that injury
unless there is legal intervention.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Melvin Hale, Ph.D. prays that judgment be entered against
Defendants Emporia State University, Gwen Alexander, Chris Hoover, Dr. David Cordle, Judy
Anderson, Ray Lauber, Dr. Jackie Vietti, Dr. Kevin Johnson, Dr. Gary Wyatt, Dr. Mirah Dow,
Jason Brooks, Sarah Spoon, Ariel Cooley, Derek Wilson, Kayla Gilmore and Deidra Elijah, and
Does 1-100 for all remedies allowed by law, costs of suit, and for such other and further relief as
the Court may order. Plaintiff respectfully requests this Court to deny Defendant Vietti‟s
pending motion to dismiss directed at Plaintiff‟s Third Amended Complaint.

26

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DATED: April 25, 2016

Respectfully submitted,

______________________________
Melvin Hale, PhD, Plaintiff Pro Se
P.O. Box 6176
Goodyear, AZ 85338
reefresh@yahoo.com
916-690-7927

27

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CERTIFICATE OF SERVICE

Case No. 15-4947-SAC-KGS

I hereby certify that I have served this PLAINTIFF‟S OPPOSITION TO DEFENDANT
VIETTI‟S MOTION TO DISMISS THIRD AMENDED COMPLAINT on April 25, 2016. I
personally mailed a copy of the document in the above action by first class mail, postage prepaid,
addressed to the following:
Anne Gepford Smith
Assistant Attorney General of Kansas
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, KS 66612-1597
Larry Michel
Kennedy Berkley Yarnevich & Williamson, Chartered
119 West Iron Avenue, 7th Floor
P.O. Box 2567
Salina, KS 67402
lmichel@kenberk.com
Attorney for Defendant/Counterclaim Plaintiff Debra Rittgers on her Counterclaim
Paul E. Dean
Patton Putnam & Dean LLC
605 S. Lincoln, P.O. Box 1135
Emporia, KS 66801
pauldeanlawllc@hotmail.com
Attorney for Defendant Deidre Elijah

I am not a party to this matter. I declare under the penalty of perjury that the foregoing is true
and correct.

/s/ Angelica G. Hale
P.O. Box 6176
Goodyear, AZ 85338

28

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EXHIBIT “A”

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 2 of 21

ESU formally exonerates employee accused of racial
slur
B 1m Email

SEPTE BER 10TH, 2015
WRITTEN BY AJ DO ME

ESU Interim Pres. Dr. Jackie Vietti answers questions during a news conference Wednesday
about thefindings 0 an inves igation into an alleged racial incident. Photo by AJ Dome/KVO
News.
mporia S ate University has publicly exo erated the employee accused of lri ing a racial slur that sparked an
internal investigation earlier this summer.
Interim President Dr. Jackie Vietti announced hat move Thursday to bene t Deb Ri gers, a long ime employee
accused of 'Iriting the racial slur on a no ebook in the School of Library and Information Management back in
early April. Vietti said there 'las no substantive evidence produced during he inves igation 0 link Rittgers to he
ind den . Rittgers and other SLI employees said they did not writ the word in question. She also offered to take
both a pojyqraph and handwnting test to clear her name.
http://kvoe . com/newsedtt/a 0322-esu-no-racia l-d iscri m i natton-or-hate-crl me-l n-sll m-depa rtment

(Retrieved from KVOE website, 4-23-2016)

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 3 of 21
Vietti's comments don't name anybody, but an open letter from Dr. Melvin and Angelica Hale, the couple who
made he ini ial allegations of racial rnisco ouct, names Ri gers as he individual in question. e Hales say their
attorney, David Trevino, has submitted substantive evidence to back their claim. Details of that evidence have not
been released.
The Hales say G t en Alexander, the dean of the School of Library and Information Management, promised to
investigate their claims but didn' and created a hostile work environment for the couple. ESU Legal Counsel
Kevin Johnson said ednesday the working conditions could have improved but they did not qualify as hostile.
Alexander, Rittgers and Melvin Hale remain employed by ESU. Angelica Hale resigned her position earlier this
summer.
On Wednesday, Emporia State announced plans 0 create a work group geared towards fostering a more
inclusive atmosphere as veil as plans to revie .. the current grievance policies and procedures to make sure
complaints are handled more quickly.
The Hale have organized a arch on mporia set to begin at 11 :30 am Tue day outside Plumb Hall The Hale
say they '/ill commen at the march. If that happens, it would be their first intervie '/S with local media after the
allegations came to light.
7:30 pm Wednesday: ESU finds no racia l discrimination or hate crime in SLJ

department

Emporia State University has determined there was no hate crime or racial discrimination in the School of
Library and Information anagemen folio '/ing an allegation of racial misconduct stemming from an incident this
past spri g.
In a ne '/S conference at PI mb Hall veonesoay In erim President Dr. Jackie Vietti said the in ernal revie\ , which
later ind uded t '10 external consultants, involved inter .ews vith nearly 20 witnesses a resul ed in a 350.page
report. It found a racial slur had been zritten on a no ebook in the SLIM graduate assis ant offi ce and was
discovered by an unnamed grad student. The inciden was reported to Angelica Hale, an assistant to SLI Dean
Gwen Alexander, when Alexander '/as no immediately available. SU Legal Counsel Kevin Johnson says the
evidence s ggests no crime took place.

00:00

Johnson:

00:29

riting a Word Isn a Crime

He says the grad student admitted in intervie s that they had no idea ho could've written the slur on the
notebook and left it here.

00:00

Johnson: Any

00:38

umber of People Could've...

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 4 of 21

AlSO, federal law does no have a specific "hate crime" felony on he books, only a departure sen ence for

feloni es which would increase the criminal sentence if hate motivated the crime. Johnson says the student
sho 'led Angelica Hale he notebook and the word, and 'las to by Hale to take a photo of the slur. The s udent
later thre 'I a lay the piece of paper.
On July 1, SLIM faculty member Dr. MeMn Hale andAngelica told ESU Police an Safety abou the incident a
alleged a co-worker had written the racial slurin q es ion. Only July 2, ESU police completed its review and
determined that no hate crime had occurred. Lyon Cou ty Attorney Marc Goodman received the departmen 's
notes on the ma er, and he also la er de ermined hat no crime had taken place. On July 5, Dr. Hale sent an email
to Vietti expressing concern aboutthe police investigation. Vietti encouraged him to file a formal complain . On
July 8, Hale replied 0 Vietti, saying he would not file a complain .
An in ernal investigation was started July 10. That investigation and the review by the external consul an s found
no hate crime or racial discrimina 'on had occurred. Both Alexander and Dr. Hale are still employed with he
university. Angelica Hale resigned from her temporary position t '/0 weeks before it was set to end.
Vietti says this act Vias s ill reprehensible, and she along \ ith SU administration will work with faculty and s aft
to build a more inclusive community campus-wide and 'Iithinthe SLIM department, saying there are now "defined
expecta ions" for SLIM employees.

0000

00'47

Vietti: Diversity

It will also review grievance policy and procedures to make sure complain s are addressed in a more timely
fashion. Johnson said, of he possible hostilework environ en that i was found to be uncomfortable at imes
but not unbearable. Vietti says black and Hispanic facul y and staff groups have expressed interest in being part
of the sohmon, andwill work ogether with the university and wi h the workgroup to cultivate a more incl sive
community.
I

00:00

00:23

Vietti: Work Group, Plan of Action

Nationally-known diversity strategist Juan Johnson will be mediating the first work group session on Oct. 7.
Johnson said the Hales have not shared any of their own documents or possible evidence in this incident. The
Hales have scheduled march on campus for Sep. 15, to address wha they say are concerns 0 equality.

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 5 of 21
KVOE News has been in email contac with the Hales since last (W) nigh . When asked for a general comment,
he Hales ini ial y referred us to a Facebook event page for the arch on mporia. That link accuses mporia
Sta e 0 "prac icing insti utional racism" and the inves Igation simply swep what it called blatant racism under he
rug. The Hales original said they discovered the racis no e in question a d immediately complained. hen
asked to clarifythe timeline, KVOE News was directed to an open letter to Alexander saying he racial epithe
'las directed at hem and Alexander failed to investigate as she promised - ins ead, crea ing a hostile vork
environmen to he poin whereAngelica Hale resigned.
The Hales say they Vil li commen at the march Tuesday. If thathappens, It would be their first mtervie 'IS with local
media after the allegations came to light.

00:00

48: 7

Full ESU News Conference: Sep. 9 2015

KVOE Ne 'IS Director Chuck Samples contributed to this report

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 6 of 21

EXHIBIT “B”

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 7 of 21

EMAIL MESSAGES IN MAY 2015 REGARDING EVALUATION
OF ANGELICA HALE’S GRADUATE ASSISTANT

From: Angelica Hale
Sent: Tuesday, May 05, 2015 6:22 PM
To: Gwen Alexander
Subject: RE: GA evaluations

Hi Gwen:
Andrew sent the form to me last week, so I filled it out and gave it to him at that time.
Angelica
From: Gwen Alexander
Sent: Tuesday, May 05, 2015 6:20 PM
To: Angelica Hale
Subject: FW: GA evaluations
Please fill this out for Brenda’s work. Thanks.
Gwen
From: Andrew Smith
Sent: Friday, May 01, 2015 9:14 AM
To: Mirah Dow; Robin Kurz; Sarah Sutton; Kathie Buckman; Angelica Hale; Gwen Alexander
Subject: GA evaluations

Hi Folks:
Attached please find an evaluation form for evaluating your graduate assistant. I would greatly
appreciate your assistance in completing this evaluation, as we are currently conducting
interviews of both current and prospective graduate assistants as we look to staff our GA
positions for next year.
Many thanks,
Andrew
Andrew J. M. Smith, Ph.D.
Associate Professor & Associate Dean
School of Library and Information Management
Emporia State University
Campus Box 4025
1 Kellogg Circle
Emporia, KS 66801-5415

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 8 of 21

EXHIBIT “C”

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 9 of 21

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EXHIBIT “D”

Investigation concludes:
no hate
crime at ESU - Emporia Gazette: News
http://www.emporiagazette.com/news/article_c5eb6ef9-072a-5ffd-b809-...
Case
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Document
49-1 Filed 04/25/16 Page 11 of 21

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Posted: Thursday, September 10, 2015 9:15 am
By Jessie Wagoner jessie@emporia.com |

0 comments

After an intensive investigation, Emporia State University
has determined that there was no racial discrimination in
the School of Library and Information Management
following an allegation of racial misconduct stemming
from an incident that occurred in April of 2015.
Interim ESU President Jackie Vietti and ESU Legal
Counsel Kevin Johnson participated in a news
conference at ESU on Wednesday. During that news
conference, the duo answered three important questions
that guided the investigation.

ESU press conference

In order to answer those questions and complete the
investigation, two external reviewers, who were not
named, concurred with the findings and the methods
used for the investigation. The investigation included
interviews with 19 witnesses and resulted in approximately 350 pages of notes, documentation and other
information.
Was a hate crime committed on or about April 8, 2015?

Johnson says it is important to note that there is no state or federal law for “hate crimes.” Rather, if a crime is
committed and an individual is convicted of that crime, a departure from sentence could be granted to increase the
sentence if the criminal act was motivated by hate.
On or about April 8, 2015, a graduate student found a racial slur written on her notebook. The notebook was in a
room that was unlocked and numerous people had access to.
“It was not a private office,” Johnson said. “It had an open door, was a place where things were stored. People
came in and out of that office all day long and it was typically not locked for most of the day or evening. Access to
the SLIM offices are possible from the library.”
The graduate student found the slur and attempted to show the item to the SLIM dean, who was not in her office.
The student then went to the assistant to the dean, Angelica Hale, and showed her the slur. Hale took a picture of
the notebook with the slur on her cell phone and showed it to her husband Melvin Hale, an assistant professor in
the department.
“Nobody broke into an office, nobody did anything criminal in order to get access to the notebook and then write

4/21/2016 8:53 AM

Investigation concludes:
no hate
crime at ESU - Emporia Gazette: News
http://www.emporiagazette.com/news/article_c5eb6ef9-072a-5ffd-b809-...
Case
5:15-cv-04947-SAC-KGS
Document
49-1 Filed 04/25/16 Page 12 of 21

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the word on there, so there was no crime at all,” Johnson said. “The county attorney concluded that there was no
crime.”
Johnson clarified that writing a word does not constitute a crime. It can be considered offensive and inappropriate
but it is not criminal.
“It was an offensive word,” Johnson said. “And it was written, there is no question that there was a written word.
Writing a word down, writing one word down on a piece of paper is not a crime.”
During the conference it was confirmed that the investigation revealed there is no evidence to show that the slur
was directed to the Hales in any way. If the SLIM dean would have been in the office at the time the graduate
student initially found the item it would have been unlikely the Hale’s would have even seen the notebook or the
slur.
“We don’t have evidence that it was written to offend them,” Johnson said. “If Dean Alexander had been there that
day there is a good chance that neither Mr. or Mrs. Hale would have seen it. It is kind of a fluke that they saw it to
begin with. We can’t reasonably conclude that it was written to offend them.”

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Did racial discrimination occur in SLIM during the 2014-2015 academic year?
The investigation found that racial discrimination did not occur in SLIM during the 2014-2015 academic year.
Employees in SLIM were interviewed as part of the investigation.

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“In reading the investigative reports, it wasn’t even a close call,” Johnson said. “It was very clear that there was not
a discriminatory intent.”
ESU has given a copy of the investigative summary to the Hale’s attorney, David Trevino, that highlights each
instance as well as the conclusion of the investigation and the basis of the conclusion.
Though racial discrimination was not found to have occurred there were issues brought to light that ESU found
concerning and will address.

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“There is the legal threshold for things,” Johnson said. “And the university’s position is that the legal threshold has
not been met for unlawful discrimination. So it is not that type of a legal issue. However, there were things that
were learned. There were some events, practices, behaviors that could be better. Things that will probably have to
be changed.”
Due to confidentiality surrounding personal issues, Johnson and Vietti were not able to discuss who the concerns
involved and if any SLIM employees face corrective action. They could confirm that the dean and Marvin Hale are
both still employed by ESU.
Are there further observations or recommendations to be made for SLIM?
Vietti says that there are a number of recommendations that have been made for SLIM and the university as a
whole as a result of the investigation. To begin with, Vietti will work with a group of Emporia State faculty, staff and
students to elevate the conversation of inclusivity on campus and develop an action plan to build a more inclusive
campus community. In addition, the university’s polices and procedures surrounding grievances will be reviewed to
ensure a situation is addressed in a more timely manner.

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“While any action, slur or otherwise, that marginalizes any member or group of Hornet Nation is reprehensible, it is
now time for us to move forward and continue to work together for a better, stronger Hornet Nation in order to
achieve our vision of changing lives to serve the common good,” Vietti said.
A work group has been established to focus on cultivating a more inclusive community on campus. The first group
meeting is scheduled for Oct. 7 and will be facilitated by Juan Johnson — a nationally-known diversity strategist.
“The university is committed to working with all faculty and staff to address any issues that are not contributing to a
positive work environment,” Vietti said. “The university is committed to building a better, stronger, more inclusive
environment for all within Hornet Nation.”
Additional questions
The Hale’s distributed an open letter regarding the incident in late July. In that letter, the Hales stated that a
handwriting expert analyzed the handwriting and could prove who wrote the racial slur. ESU advised that the Hales
have not submitted any of that evidence to the university or for consideration during the investigation.
Additionally, the Hale’s only had a photograph of the slur taken with Angelica Hale’s cell phone. The graduate

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4/21/2016 8:53 AM

Investigation concludes:
no hate
crime at ESU - Emporia Gazette: News
http://www.emporiagazette.com/news/article_c5eb6ef9-072a-5ffd-b809-...
Case
5:15-cv-04947-SAC-KGS
Document
49-1 Filed 04/25/16 Page 13 of 21

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student who the notebook belonged to discarded the notebook at the end of the semester.

Commented

Some have asked why the Hales waited until July to report the incident to Vietti and law enforcement, when the
actual incident occurred in April. Johnson and Vietti advised that they could not speak for the Hales.
The Hales have not spoken with local media regarding the incident or the investigation results. Their attorney only
had the following statement.
“My clients and I will also be meeting with representatives of ESU to discuss the report,” Trevino said.
The Hales have scheduled a march on campus for Sept. 15 to address what they say are concerns of racial
discrimination.
Timeline of events
On or around April 8, 2015, a graduate student in SLIM discovered a racial slur written in his or her notebook,
which was left in the graduate students’ office. The student reported the discovery to Angelica Hale, then assistant
to the dean. The discovery was then reported to SLIM Dean Gwen Alexander. There was no formal follow up at
that time.
July 1 — Angelica Hale and her husband, Melvin Hale, assistant professor in SLIM, contacted Emporia State
University Police and Safety, told an officer about the April incident and alleged that a co-worker had written the
word.
July 2 — ESU police completed its review and determined that no hate crime had occurred. The department’s
investigative notes were forwarded to the Lyon County Attorney for review. Melvin Hale contacted Interim President
Jackie Vietti to express his dissatisfaction with the police finding. She acknowledged his email.

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July 5 — Melvin Hale sent an email to Interim President Jackie Vietti expressing concern about the ESU police
investigation.
July 6 — Vietti responded to Hale and encouraged him to file a complaint as outlined in the University Policy
Manual.

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July 8 — Hale informed Vietti that he did not intend to file a complaint under university policy in the immediate
future.
July 9 — Lyon County Attorney Marc Goodman concurred with the ESU police finding that a hate crime had not
occurred.
July 10 — Vietti directed that an investigation be conducted as outlined in the University Policy Manual.

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July 14 — Ray Lauber, associate director of Human Resources, launched an investigation. The director of HR did
not handle the investigation because she had been involved in earlier discussions with the Hales.
Week of Aug. 24 — Two independent consultants were secured to review Emporia State’s investigation process
and findings. One was an attorney and the other a human relations consultant who is a former member of the
Higher Learning Commission Board of Trustees.

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4/21/2016 8:53 AM

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EXHIBIT “E”

The Bulletin : Investigation
reveals
no evidence of hate crime
http://esubulletin.com/20062/news/investigation-reveals-no-evidence-of-...
Case
5:15-cv-04947-SAC-KGS
Document
49-1 Filed 04/25/16 Page 15 of 21

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Filed under Breaking News, News

Emma Anne DePriest, staff writer • September 10, 2015 • Leave a Comment

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4/21/2016 8:45 AM

The Bulletin : Investigation
reveals
no evidence of hate crime
http://esubulletin.com/20062/news/investigation-reveals-no-evidence-of-...
Case
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Document
49-1 Filed 04/25/16 Page 16 of 21

AMANDA GOERING
Kevin Johnson, Emporia State legal counsel, explains the location of offices from one to another in the School of Library
Information and Management on Wednesday at the press conference held in the President’s Conference Room. Johnson
pointed out that the note left on a desk went through many means of travel before the issue was brought to light.
On Sept. 9, Jackie Vietti, interim president, and Kevin Johnson, Emporia State general counsel, sat down with media
associates from The Emporia Gazette, KVOE and The Bulletin to discuss the conclusions of the internal investigation that
has been taking place since July 10 to determine whether or not a racially motivated hate crime occurred in April of 2015.
The press release from ESU stated, “No hate crime or racial discrimination found in investigation.”
“On July 1, Angelica and Melvin Hale filed a complaint of an alleged hate crime with the Emporia State University Police
Department,” Vietti said. “Our on-campus police department investigated the alleged complaint that was related to the
writing of a racial slur in the notebook of a graduate student within the School of Library and Information Management. The
police department concluded its investigation the following day and determined that no hate crime had been committed. But
as is standard operating procedure for our on-campus police department, it provided a report to the Lyon County attorney.
Seven days later, the Lyon County attorney also determined no hate crime had been committed.”
The investigation has been taking place since Angelica Hale, former assistant to the Dean of SLIM, and Melvin Hale,
assistant professor in SLIM, made accusations against SLIM Dean Gwen Alexander, stating that she had looked the other
way when the alleged hate crime was brought to her attention. She then supposedly harassed the couple and terminated
Angelica’s contract with the department. During the time between July 1 and July 9, Vietti was contacted by Melvin Hale
about the investigation taking place. Vietti encouraged him to report his complaint formally, but he declined taking that step.
When The Bulletin originally wrote an article about this, the Hales were approached about speaking about their feelings and
the actions taking place, but they declined to comment until such their lawyer could look over the questions and pre-print
article, which is against The Bulletin’s policy. They could not be reached at this time for comment.
Vietti and her administration conducted a separate internal investigation, contacting the Assistant Director of Human
Resources, Ray Lauber. They then contacted two other independent consultants to go over the findings, an attorney and a
human relations consultant, formerly of the Higher Learning Commission Board of Trustees, both of which have no ties to
ESU.

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4/21/2016 8:45 AM

The Bulletin : Investigation
reveals
no evidence of hate crime
http://esubulletin.com/20062/news/investigation-reveals-no-evidence-of-...
Case
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Document
49-1 Filed 04/25/16 Page 17 of 21
“In Kansas, there’s no such thing as a hate crime, it’s not unique to Kansas, it’s just the way it is in all the states in federal
criminal law,” said Johnson. “But there are sentence enhancements that can be done. A lot of people have a lot of
misconceptions about what hate crimes are.”
Johnson is correct, having stated that in Kansas if someone is up for sentencing due to a federal crime, the prosecutor can
ask for a departure sentence, which is more severe than the maximum sentence the law allows for that crime. Hate crimes
based on protected classifications falls under this.
After the investigation began, the Hales took to social media, creating the March on Emporia, where they and members of
the community will march against racism, possibly with the help of Black Lives Matter. In response to the results of the
investigations, the administrators of the March on Emporia Facebook page had this to say, “ESU is indeed practicing
institutional racism, using a self-serving “internal investigation” to sweep racial discrimination under the rug. SHAME ON
YOU!!!”
Those investigating interviewed 19 witnesses, according to the university’s press release, and gathered over 350 pages worth
of documentation. These notes will not be available for review by the public due to privacy laws.
“Regardless of the University’s conclusion that no hate crime occurred, the act was still reprehensible,” said Vietti.
“Whether it was directed at an individual or a group within the Emporia State University Hornet Nation we take with all due
seriousness, the offensiveness of that kind of behavior…we’ll address our efforts to create a better, stronger, more inclusive
Hornet Nation.”

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EXHIBIT “F”

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EXHIBIT “G”

Case 5:15-cv-04947-SAC-KGS Document 49-1 Filed 04/25/16 Page 21 of 21

EMAIL FROM ANGELICA HALE TO WENDY CARLSON NOTIFYING HER THAT THE
ESU POLICE DEPARTMENT MIGHT BE CONTACTING HER RE: RITTGERS
HANDWRITING

From: Angelica Hale
To: Wendy Carlson
Sent: Wednesday, July 1, 2015 7:07 PM
Subject: Re: update/London Letter/payment

Dear Wendy,
I just wanted to give you an update. The campus police met with me today
regarding the handwriting incident and I have not been able to get the
London Letter done (I am planning to request that it be administered). I
would like to pay you for the report. I was hoping to have the London Letter
results included though. Should I just pay you now for the results that you
have thus far?
I can make a payment to you by Friday when I get my paycheck.
Thanks,
Angelica