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Case 5:16-cv-04182-DDC-TJJ Document 19 Filed 02/14/17 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS

ANGELICA HALE

Plaintiff

v.
Case No. 16-4182-DDC-TJJ

EMPORIA STATE UNIVERSITY, et al.,

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Defendants claim that this Court should dismiss Plaintiff‟s Complaint for the following reasons:

1) Hale‟s Title VII claim fails because Hale did not engage in protected opposition to discrimination

and cannot meet the element of a prima facie case; 2) Hale‟s 42 U.S.C. § 1983 claim fails to state a

claim upon which relief can be granted because Hale‟s alleged speech was not on a matter of public

concern; 3) Defendants Alexander, Cordle, and Vietti are shielded by qualified immunity on Hale‟s 42

U.S.C. § 1983 claim; 4) The Eleventh Amendment precludes Hale‟s official capacity claims against

Defendants Alexander, Cordle, and Vietti; and 5) Hale‟s 42 U.S.C. § 1983 claim fails against

Defendants Alexander, Cordle, and Vietti to the extent they are sued in their official capacity because

they do not constitute persons under § 1983.

The court will dismiss a cause of action for failure to state a claim only when it appears beyond

a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle

him or her to relief, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Maher

v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive.
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See Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts

as true all well-pleaded factual allegations in the complaint, as distinguished from conclusory

allegations, see Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in

favor of the plaintiff. See Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in

resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she

is entitled to offer evidence to support the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.

1683, 40 L.Ed.2d 90 (1974) (overruled on other grounds).

Defendants appear to take a desperation “Hail Mary” approach in attempting to persuade this

Court to ignore the facts of this case, which clearly substantiate both a Title VII claim against Emporia

State University and an Individual Capacity 42 U.S.C. § 1983 First Amendment Retaliation claim

against defendants Alexander, Cordle, and Vietti. In numerous instances defendants even appear to

provide support to Plaintiff‟s case. In their motion to dismiss there is a significant amount of

misinformation and obfuscation.

This case is not primarily about racial discrimination, although it is clear that the defendants did

not care about a reported incident of hate speech which Hale believes was most likely directed at her

and her husband, Dr. Melvin Hale, both of whom are members of a protected class, African Americans.

At the heart of the matter, plaintiff is alleging that but for her complaint about an incident of hate

speech that should concern all students, faculty, staff, parents and community she would not have been

subjected to the loss of her job. Defendant Alexander stated on July 7, 2015 that “what I don‟t

appreciate is that you went over, you know, to the Police.” Plaintiff would like to know what is wrong

with reporting an incident of hate speech to law enforcement. Plaintiff and her husband only made the

report because Alexander did not, and expected to have nothing further to do with the matter after that.

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The anti-retaliation provisions of Title VII make it unlawful to retaliate because an individual

has made a charge, testified, assisted, or participated in any manner in an investigation or hearing under

Title VII. When the Hales met with Provost Cordle on or about June 30, 2015, Judy Anderson, ESU‟s

Title VII administrator and Executive Director of Human Resources, was present, and the matter the

Hales presented was an incident of public concern that violated Title VII; hate speech and vandalism.

This case is about Title VII retaliation after plaintiff and her husband reported this matter of

public concern to the ESU Police and the local district attorney, Marc Goodman, neither of whom made

any effort whatsoever to investigate the matter other than taking the word of the defendants and other

officials at ESU that the matter did not rise to the level of a “hate crime,” which ESU General Counsel

Kevin Johnson said in a variety of ways do not even exist. Johnson went so far as to claim that the

writing of an offensive racial slur is not a crime under any set of circumstances, and that hate crimes do

not even exist in Kansas because Kansas does not have a hate crime statute. Johnson stated that there is

“a general misconception that there are hate crimes. There aren’t” All of this is available on a lawful

recording. A true and accurate copy of a transcript of what Johnson stated is attached as Exhibit A and

is incorporated by reference herein. According to Johnson, who was accompanied by Vietti when these

comments were made, the only instance in which a hate crime exists is during the sentencing phase of a

felony conviction, in which the sentencing guidelines impose a harsher sentence for felonies committed

with hate as a motive. With that rationale as a backdrop, under no circumstances was ESU willing to

acknowledge that a “hate crime” had occurred, neither were they willing to use the term used by the

FBI to describe what happened: “hate speech.” The ESU Police and the local district attorney never

bothered to interview the graduate student, Brenda, in whose office, and whose notebook the racial slur

NIGGAZ was written, nor the plaintiff and her husband, neither did they send police or sheriff officers

to investigate the scene.Office 413 in the William Allen White Library, located on the 4th floor.

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However, both the ESU PD and Goodman, at the direction of the defendants, stated with the full

authority of their offices that “no hate crime occurred.” Hale has referred to these actions as evidence of

institutional racism. Dr. Hale is already involved in litigation against Emporia State University in this

district, which moved forward on Title VII and Section 1983 First Amendment retaliation on June 15,

2016 on the orders of District Judge Sam. A. Crow. Plaintiff Angelica Hale has been closely involved

in editing and proof-reading Dr. Hale‟s case over the last eighteen or so months because he is

proceeding pro se, thus she has learned a great deal about the law with respect to retaliation, and is

relying on that experience in filing her Title VII case pro se, however, plaintiff has requested

appointment of an attorney because she cannot rely on the work done by Dr. Hale to litigate her case.

On December 2, 2015, when the Hales were visited at their request by a Special Agent from the

Topeka FBI in Dr. Hale‟s office in SLIM, Dr. Cordle informed the agent that neither of the Hales were

supposed to be on campus, which although untrue, serves to illustrate the point that they were both

being prevented from speaking out about violations of Title VII. Kevin Johnson, who was with Cordle

at that time, stated that the Hales were “banned from campus.”

Plaintiff‟s Individual Capacity 42 U.S.C. § 1983 First Amendment Retaliation claim against

defendants Alexander, Cordle, and Vietti, is that they each and every one participated in her course of

termination with the motive to silence her speaking out against Title VII violations and discrimination.

A retaliation claim challenging action taken because of EEO-related activity has three elements:

 (1) protected activity: "participation" in an EEO process or "opposition" to discrimination;

 (2) materially adverse action taken by the employer; and

 (3) requisite level of causal connection between the protected activity and the materially

adverse action.

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LEGAL ARGUMENT

A. Protected activity.

According to Title VII, “Complaining to management about discrimination against oneself or

coworkers, likely constitutes protected activity.” Plaintiff informed ESU management that she believed

the hate speech incident was directed at her and her husband. At some point in June 2015, plaintiff

learned that the incident may have been the work of Debra Rittgers, the dean‟s assistant due to an

opinion offered by handwriting expert Wendy Carlson.

Plaintiff expected ESU administrators or the ESU Police Department to follow-up with Carlson

to rule out Rittgers as the author of the slur. It was only after no action by the defendants that plaintiff

took her concerns to the ESU Police Department, who stated, that on direct orders from the

administration no crime occurred, and they refused to investigate the matter further as requested by

plaintiff and her husband. Ultimately, defendant Vietti publicly exonerated Rittgers just because she

had the power to do so, without ever requiring Rittgers to submit to a handwriting examination.

Reporting or opposing discrimination meets the requirements for Title VII 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). Plaintiff spoke out against discrimination during ESU‟s internal

investigation and to the defendants on several occasions, which defendants concur.

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Complaining or threatening to complain about alleged discrimination against oneself or others

may constitute protected activity. The doctrine of anticipatory retaliation (also called preemptive

retaliation) prohibits an employer from threatening adverse action against an employee who has not yet

engaged in protected activity for the purpose of discouraging him or her from doing so. See, e.g.,

Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002) (holding that threatening to fire

plaintiff if she sued "would be a form of anticipatory retaliation, actionable as retaliation under Title

VII"); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1128 (10th Cir. 1993) ("Action taken against an individual

in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory

than action taken after the fact."). Hale made it clear that she was not going to allow the matter to be

swept under the rug, and as a result her contract was not renewed, and she was not made permanent as

she had been led to believe based on her performance.

B. Materially adverse action.

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 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

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"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. Hale believes that her 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.” By terminating plaintiff‟s contract when she had a

reasonable expectation of being made a permanent employee, defendant‟s actions satisfy the second

element of a Title VII retaliation claim, adverse action.

C. Causal connection between plaintiff’s protected activity and the materially adverse action.

Hale‟s job performance was more than satisfactory before she reported the hate speech incident.

In an email to the SLIM staff on July 29, 2015, in which Alexander reveals that Hale was no longer

working for her she stated: “Her experience with social media and marketing has been a big help to us

and we will miss her contributions in that role.” A true and accurate copy Alexander‟s email is attached

as Exhibit B and is incorporated by reference herein. Why would Alexander terminate such an

employee? 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, supra (citing Sumner). The evidence presented in this case

demonstrates that the temporal proximity between the protected activity and the adverse action are

intertwined. There are virtually no degrees of separation. Alexander is heard on the recording made on

July 7, 2015 reacting in a hostile manner to the fact that plaintiff and her husband reported the hate

speech incident to the Provost and the ESU Police. Before the month of July was over, plaintiff was

told that her contract was not being renewed, and ostensibly, she would not be made permanent. The

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Fifth Circuit has held that although "close timing" can support a prima facie case of retaliation, "once

the employer offers a legitimate, non-discriminatory 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). As soon as Hale made the hate speech incident a matter of

public interest, she was on the road to being terminated shortly thereafter.

Hale has thus met her burden to prove that Title VII retaliation is an appropriate claim against

Emporia State University. The following legal arguments further support plaintiff‟s claims against all

defendants.

D. Defendants’ retaliatory motive satisfies the "but for" cause of the adverse employment

action.

Plaintiff asserts that but for her reporting of a hate speech incident to law enforcement, and to

senior members of the Emporia State administration, she would not have been subject to adverse

employment action of any kind. Hale was highly regarded and respected for her work in marketing.

Defendants did not raise any concerns about plaintiff‟s job performance in their motion. In a

recent decision, the Supreme Court expressly rejected the EEOC's view that a Title VII retaliation

plaintiff need demonstrate only that retaliation was one of several motivating factors in the employer's

decision, instead deciding that such a plaintiff must prove that the employer's retaliatory motive was the

"but for" cause of the adverse employment action. Univ. of Tex. Southern Med. v. Nassar, 133 S. Ct.

2517, 570 U.S., 186 L. Ed. 2d 503 (2013).

Angelica Hale contends that the evidence will show that until she complained of a matter of

public concern, the writing of a hate speech message in her graduate assistant‟s notebook, her status in

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SLIM was not in question, and that she was expecting to be converted from a contract position to a

permanent position. She was starting to complete her Bachelor‟s degree while working according to the

understanding that she would be made a permanent employee of ESU. Defendants did not disagree that

Hale had this expectation, which was based on interactions she had with her supervisor, Gwen

Alexander, dean of the School of Library and Information Management (SLIM), and Dr. Andrew

Smith, Associate Dean.

All of the faculty members in SLIM were expecting that Hale would be retained because she

had been doing such an exemplary job, and in particular, Dr. Mirah Dow, who was head of the faculty.

E. Plaintiff was in her right to complain to someone other than her employer, such as the

ESU Police Department.

"Courts have not limited the scope of the opposition clause to complaints made to the employer;

complaints about the employer to others that the employer learns about can be protected opposition."

Employment Discrimination Law 15-20 (5th ed. 2012). Although opposition typically involves

complaints to managers, it may be a reasonable manner of opposition to inform others of alleged

discrimination, including union officials, coworkers, an attorney, or others outside the company. Cf.

Crawford, 555 U.S. at 276 (endorsing the EEOC's position that communicating to one's employer a

belief that the employer has engaged in employment discrimination "virtually always" constitutes

"opposition" to the activity, and stating that any exceptions would be "eccentric cases"); see, e.g.,

Minor v. Bostwick Labs., Inc., 669 F.3d 428, 438 (4th Cir. 2012) (holding that plaintiff's meeting with a

corporate executive to protest a supervisor's direction to falsify time records to avoid overtime was

FLSA protected activity). See Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013)

(observing that "there is no dispute that writing one's legislator is protected conduct"); Conetta v. Nat'l

Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001) (ruling that employee's complaints of sexual

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harassment to coworker who was a son of general manager was protected opposition); Johnson v. Univ.

of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (stating that "there is no qualification on . . . the party

to whom the complaint is made known," and it may include management, unions, other employees,

newspaper reporters, or "anyone else"). Scarbrough v. Bd. of Trs. Fla. A&M Univ., 504 F.3d 1220,

1222 (11th Cir. 2007) (concluding a reasonable jury could find that university employee engaged in

protected activity by involving the campus police after he was threatened and physically accosted as a

result of rejecting his supervisor's sexual advances).

F. Retaliation is a separate claim from discrimination.

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 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 Cir. 1999) (citation omitted)).

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G. Plaintiff’s actions as a government employee amounted to engaging in free speech as a

private person and on a matter of public concern, and defendants took an adverse action against

her which was motivated by her free speech.

The Supreme Court noted that for many years "the unchallenged dogma was that a public

employee had no right to object to conditions placed upon the terms of employment — including those

which restricted the exercise of constitutional rights." Connick, 461 U. S., at 143. That dogma has been

qualified in important respects. See id., at 144-145. The Court has made clear that public employees do

not surrender all their First Amendment rights by reason of their employment. Rather, the First

Amendment protects a public employee's right, in certain circumstances, to speak as a citizen

addressing matters of public concern. See, e. g., Pickering v. Board of Ed. of Township High School

Diet. 205, Will Cty., 391 U. S. 568 (1968); Rankin v. McPherson, 483 U. S. 378, 384 (1987); United

States v. Treasury Employees, 513 U. S. 454, 466 (1995). Using the first step of the Pickering analysis,

if the free speech is made pursuant to the employee‟s ordinary job duties, then the employee is not

speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547

U.S. 410, 421 (2006). But if the “employee spoke as a citizen on a matter of public concern, the

inquiry turns to whether the relevant government entity had an adequate justification for treating the

employee differently from any other member of the general public.” “However, to be protected, speech

must do more than just generally relate to a matter of public interest; it must also be sufficiently

informative to be useful to the public in evaluating government conduct.” Brin v. Kansas, 101 F. Supp.

2d 1343, 1351 (D. Kan. 2000).

Matters of public concern are those of interest to the community, whether for social, political or

other reasons. Lytle, 138 F.3d at 863. Matters solely of personal interest to government employees,

however, are not protected by the First Amendment. Connick, 461 U.S. at 147. Although speech related

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to internal personnel disputes ordinarily do not involve public concern, "speech which discloses any

evidence of corruption, impropriety, or other malfeasance on the part of city officials . . . clearly

concerns matters of public import." Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988). In assessing

whether speech is protected, we must consider the "content, form and context of a given statement, as

revealed by the whole record." Connick, 461 U.S. at 147. Defendants refusal to acknowledge that an

incident of hate speech occurred, and their resultant disavowal of what Hale and her husband reported,

is an outrage, and the manner in which Hale and her husband were treated for the legitimate reporting

of the hate speech incident reveals corruption at the highest levels of the university that is simply

breathtaking.

Plaintiff's speech was motivated by her concern that potentially damning evidence was not

being disclosed, and that the handwriting opinion was disregarded, because if the employee suspected

of writing the slur remained an employee without discipline, other students could be in similar danger.

She continued to voice her concerns even after she was terminated, and was the one who conceived the

two protest marches at ESU which were live-streamed and re-broadcast on the Internet. Thus, Plaintiff's

speech constituted something other than a mere personnel matter. Furthermore, Plaintiff's motive was

not to air personal grievances or disputes with no relevance to the public interests, but to bring to light

the mishandling of a heinous act of hate in a student‟s office, which included unlawful entry and

vandalism.

Plaintiff was informed of an incident that she reasonably believed was not socially benign or

acceptable in a university setting involving the word “NIGGAZ.” Hale‟s report of what she considered

a hate crime, although technically it is hate speech, was not part of her regular duties, and such a matter

was certainly one of public concern considering the manner in which it was done. Had it been objective

and impartial, the investigation envisioned by Hale would have relieved her of any further involvement

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in the matter except as requested or directed by her employer. Hale was being repeatedly ignored, so

Hale believed that the public, including the students on campus, had a right to know what had

happened, and more importantly, to know about the abject failure of university public policy on the

reporting of discrimination and harassment. The fact that Hales‟ story was carried by the Associated

Press and numerous news and media outlets nationwide, and was followed internationally by the public

solidifies the matter as one of public interest.

Since leaving ESU, plaintiff has tirelessly and unselfishly employed her commended upon

marketing and social media talents to share the injustice and corruption that occurred there. She

manages a website that shares updates and reflections on the racial incident and marches at

www.marchonemporia.com visited by thousands of viewers; she created and maintains public interest

social media accounts called March on Emporia on Facebook, Instagram and Twitter by the same

name, the latter of which has nearly 700 followers and growing; she shares important documents,

updates and press releases on www.scridb.com which has more than 5000 views collectively; and

promotes a Change.org petition that garnered over 300 signatures and dozens of support comments

from across the country. All of the social media channels have resulted in conversations about campus

racism at ESU and beyond in addition to her personal plight. Plaintiff‟s husband published a book in

November 2016 entitled Django Unchained and the March on Emporia State: Institutional Racism as

Practiced on an Academic Plantation in Kansas.

The public has reacted strongly to the disturbing way that ESU has handled the incident, which

happened almost 2 years ago, but the matter has not been ignored, or treated as a personal personnel

matter, because it is not a personnel matter. ESU wanted the matter to be treated as a personnel matter

so that they could refuse to comment on the subject, avoid freedom of information act requests from the

press and the public, and justify retaliatory actions against the Hales. It appears both callous and

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contemptuous for the Attorney General‟s office to misrepresent Hale‟s stance as anything other than a

principled stand against racism and discrimination, no different than Rosa Park‟s stand in Montgomery,

Alabama. Instead of standing with Mrs. Hale, the Attorney General‟s office would rather throw Hale

and her husband under the bus, and drive them into homelessness and poverty ostensibly to support a

university that would rather exonerate a white employee suspected of writing a racially offensive slur in

a student‟s notebook. The actions of the Attorney General‟s office appear to be in defense and

promotion of official misconduct.

Students in SLIM have shown their concern about the hate speech incident. In response to a

letter from student questioning the actions of the university, Vietti wrote a response that implies

misconduct on the part of the Hales, and suggests the Hales should have made a personnel complaint

instead of a police report. A true and accurate copy of the letter Vietti wrote is attached as Exhibit C

and is incorporated by reference herein. In recent months another student, wishing to remain

anonymous, because of fear of reprisal, sent Dr. Hale a supportive message, and mentioned that others

in SLIM were still supportive. A true and accurate copy of that email is attached as Exhibit D and is

incorporated by reference herein.

Hale viewed her actions as necessary and protected activity not bound in any manner to her

work as an Assistant to the Dean. In Garcetti, the Supreme Court ruled that “Giving employees an

internal forum for their speech will discourage them from concluding that the safest avenue of

expression is to state their views in public. Garcetti at 424. Defendants did exactly the opposite,

unlawfully refusing to have any real meaningful dialog with Hale, thereby forcing her to state her views

in public, which she did when she wrote the Open Letter and suggested to Dr. Hale that they should

conduct a protest march against the manner in which the university set out to sweep a matter of public

safety under the rug. ESU forced Hale to go public because the matter was public.

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H. Defendants cannot proffer legitimate, non-retaliatory rationale for taking adverse actions

against Hale that are in fact not pretextual.

“[A]t the pretext stage the plaintiff must produce evidence beyond the mere assertion that the

alleged justification is implausible and show that discriminatory animus actually motivated the

employer's decision (citing pre-Reeves decisions)); Hamilton v. Boise Cascade Exp., 280 F. App'x. 729,

731 (10th Cir. 2008)(“Although we do not require „pretext plus,‟ specifically that a plaintiff

demonstrate that the reason was false and a motive for discrimination, the falsity combined with other

circumstances in the case must permit the inference that unlawful discrimination was a motivating

factor in the decision”); Thoman v. Philips Med. Sys., 2007 WL 203943 (D.N.J. 2007).” By publicly

agreeing that Hale‟s work performance was satisfactory, defendants cannot possibly proffer legitimate,

non-retaliatory rationale for taking adverse actions against Hale that are in fact not pretextual.

Alexander cannot, for instance, proffer that there were budgetary reasons for terminating Hale, as she

immediately requested faculty and staff to assist her in finding a replacement for Hale in the previously

referenced email. What Alexander does not share in the email is that she provoked Angelica to resign

after informing her that her contract was not being renewed, among other things.

I. Defendants lacked clearly articulated policies for the reporting of bias incidents.

“It generally is necessary for employers to establish, publicize, and enforce anti-harassment

policies and complaint procedures. As the Supreme Court stated, „Title VII is designed to encourage

the creation of anti-harassment policies and effective grievance mechanisms.‟” Ellerth, 118 S. Ct. at

2270.

“An anti-harassment policy and complaint procedure should contain, at a minimum, the following

elements:

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 A clear explanation of prohibited conduct;

 Assurance that employees who make complaints of harassment or provide information related

to such complaints will be protected against retaliation;

 A clearly described complaint process that provides accessible avenues of complaint;

 Assurance that the employer will protect the confidentiality of harassment complaints to the

extent possible;

 A complaint process that provides a prompt, thorough, and impartial investigation; and

 Assurance that the employer will take immediate and appropriate corrective action when it

determines that harassment has occurred.”1

Alexander stated that the university did not have a policy for reporting a hate crime where the

suspect was unknown. Such a “requirement,” to have a known suspect in order to have a policy, is

ludicrous because victims often do not know the identity of the perpetrator(s). ESU has recognized this

as a serious problem since Hale pinpointed it, hence the creation of the University Diversity Initiative

(UDI), which will address policies and procedures for reporting discrimination and harassment.

However, even after Alexander was informed that Rittgers was a bona fide suspect according to

Carlson, she still did nothing to address Hale‟s report of hate speech, except to terminate Hales‟

contract.

1
EEOC, “Enforcement Guidance.”

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J. Defendants Alexander, Cordle and Vietti are sued in their individual capacities, and do

not automatically have Eleventh Amendment Immunity against 42 U.S.C. § 1983 First

Amendment Retaliation Claims.

Defendants attempt to have plaintiff's claims brought against Alexander, Cordle and Vietti in

their individual capacities dismissed. They argue that Alexander, Cordle and Vietti are qualified

immune from suit. The doctrine of qualified immunity holds that "government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

It is well-settled that "[w]hen a defendant pleads qualified immunity, the plaintiff has the heavy burden

of establishing: (1) that the defendant's actions violated a federal constitutional or statutory right; and

(2) that the right violated was clearly established at the time of the defendant's actions." Greene v.

Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999). Moreover, "[w]here a qualified immunity defense is

asserted in a 12(b)(6) motion . . . we apply a heightened pleading standard, requiring the complaint to

contain specific, non-conclusory allegations of fact sufficient to allow the district court to determine

that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of

clearly established law." Dill v. City of Edmond, 155 F.3d 1193 (10th Cir. 1998) (internal quotation and

citation omitted).

Plaintiff agrees that the legal standards set forth above govern the court's decision as to qualified

immunity, and asserts that the two prongs, 1) violation of federal constitutional and statutory rights, and

2) that the rights violated were clearly established, and both prongs have been adequately met in its

complaint. Defendants violated Title VII by retaliating against by Hale by terminating her contract after

17
Case 5:16-cv-04182-DDC-TJJ Document 19 Filed 02/14/17 Page 18 of 23

she reported a racial incident involving hate speech, and defendants certainly were aware of Title VII

anti-discrimination and anti-retaliation laws, which are federal statutes that govern public universities.

In the event the court does not agree that plaintiff has established facts necessary to determine

that defendants both violated and knew they were in violation of federal statutes, plaintiff‟s asks for

leave to amend its complaint. A plaintiff may amend her complaint after the qualified immunity

defense is raised. See id. at 1204 ("After the defense is raised, Plaintiff may amend his complaint to

include additional specific, nonconclusory allegations of fact sufficient to allow the district court to

determine whether Defendants are entitled to qualified immunity.") (internal quotations omitted);

Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988) ("[O]nce the

defense has been raised, the court must allow the plaintiff the limited opportunity . . . to come forward

with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law

and that law was clearly established when the alleged violation occurred.").

K. Injunctive relief not barred by immunity

Under ex parte Young, private parties can sue state officials in their official capacity to enforce

federal laws and regulations, but only for prospective injunctive and declaratory relief, 209 U.S. 123

(1908) (holding that the Eleventh Amendment does not bar suits against state actors for injunctive relief

because preventing a state official from performing allegedly illegal acts does not infringe upon a

state‟s sovereignty. State officials can be sued in their official capacities for injunctive relief, and in

their individual capacities for money damages. Will v. Michigan Dept. of State Police, 491 U.S. 58.

This is because injunctions are not barred by the 11th Amendment, and because injunctions look

forward, not back. Such a suit does not represent a suit against the government entity for which he is

associated, Kentucky v. Graham, 473 U.S. 159, 165 (1985).

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Case 5:16-cv-04182-DDC-TJJ Document 19 Filed 02/14/17 Page 19 of 23

Plaintiff believes that the specific mode of any injunctive relief should be deferred until after

discovery, but offers the following as preliminary proposals:

A. That the Court find that Defendants engaged in conduct subject to penalty under 42 U.S.C.

§1983 and Title VII, and that injunctive relief is appropriate to prevent them from engaging in further

such conduct.

B. That the Court find that Defendants engaged in a sham investigation and a cover-up

involving allegations of a bias incident at ESU, and that injunctive relief is appropriate to demand that

Defendants retract their claim that a fair, logical and thorough investigation was done.

C. That the Court order Defendant Rittgers to submit to a forensic handwriting examination and

a polygraph test to determine whether or not she wrote the offensive racial epithet; or that the existing

opinion from Wendy Carlson is admitted as evidence.

D. That the ESU Bulletin retracts false comments attributed to Hale or her husband, and admit

to publishing false narratives and allegations against Hale.

E. That ESU reinstates Angelica Hale as Assistant to the Dean for Marketing in SLIM.

F. That Defendants be required to contact all media entities previously contacted by them to

inform them that their “investigation” into allegations made by Hale was biased, flawed and falsified to

make it appear that ESU was discrimination and hate crime-free.

G. Granting of a permanent injunction enjoining Defendant ESU, its officers, agents, servants,

employees, and all persons in active concert or participation with it, from maintaining a racially hostile

work environment and from any other employment practice that discriminates on the basis of race, and

from retaliating against employees who oppose unlawful discrimination, make a charge of unlawful

discrimination, or participate in an investigation of unlawful discrimination.

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H. That this Court order that Plaintiff Hale is permitted to engage in post-judgment discovery

to ensure compliance with the injunctive relief granted.

The Sufficiency Of The Claim

Under Federal Rule of Civil Procedure 12(b)(6), a complaint should not be dismissed if “it may

be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 563 (2007). Indeed, “Rule 12(b)(6) motions are viewed with disfavor

and are properly granted” only “under extraordinary circumstances.” Yordy v. Astrue, No.1:09-cv-

03028-NJV, 2010 U.S. Dist. Lexis 14966, *4 (N.D. Cal. Feb. 22, 2010).

In a case brought by a prisoner, Haines v. Kerner, both the district and appeal courts ruled that

the case should be dismissed for failure to state a claim per FRCP 12(b)(6). The United States Supreme

Court reversed and remanded with the following language: “…allegations such as those asserted by

petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting

evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we

hold to less stringent standards than formal pleadings drafted by lawyers, it appears „beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.‟ 404

U.S. 519 (1972). Conley v. Gibson, 355 U. S. 41, 355 U. S. 45-46 (1957). See Dioguardi v. Durning,

139 F.2d 774 (CA2 1944).” According to these rulings, a pro se litigant's complaint cannot be

dismissed for failure to state a claim upon which relief can be granted, Platsky v. C.I.A. 953 F.2d. 25,

and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) relying on Willy v. Coastal Corp., 503

U.S. 131, 135 (1992), “United States v. International Business Machines Corp., 517 U.S. 843, 856

(1996), quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v.

Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the

Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001).

20
Case 5:16-cv-04182-DDC-TJJ Document 19 Filed 02/14/17 Page 21 of 23

In re Haines: pro se litigants are held to less stringent pleading standards than BAR registered

attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the

opportunity to submit evidence in support of their claims. In re Platsky: court errs if court dismisses

the pro se without instruction of how pleadings are deficient and how to repair pleadings. In re

Anastasoff: litigants‟ constitutional rights are violated when courts depart from precedent where parties

are similarly situated. All litigants have a constitutional right to have their claims adjudicated

according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

Statements of counsel, in their briefs or their arguments, are not sufficient for a motion to dismiss or for

summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.

“If there are two alternative explanations, one advanced by defendant and the other advanced by

plaintiff, both of which are plausible, plaintiff‟s complaint survives a motion to dismiss under Rule

12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). In

considering a motion to dismiss for failure to state a claim, the Court must accept as true the allegations

of the complaint in question, “construe the pleading in the light most favorable to the party opposing

the motion, and resolve all doubts in the pleader‟s favor.” Hebbe v. Pliler, 627 F.3d 340 (9th Cir.

2010); see also Deepakkumar Himatlal Soneji v. Dep’t of Homeland Sec., 525 F. Supp. 2d 1151, 1157

(N.D. Cal. 2007).

Plaintiff‟s allegations, however inartfully pleaded, support the opportunity to offer supporting

evidence to prove its claims; therefore this Court should exercise its jurisdiction to hear this matter.

PRAYER FOR RELIEF

Defendants retaliated against Mrs. Hale in violation of 42 U.S.C. § 1983. Defendants retaliated

against Mrs. Hale in violation of the Equal Protection Clause of the Fourteenth Amendment.

21
Case 5:16-cv-04182-DDC-TJJ Document 19 Filed 02/14/17 Page 22 of 23

Defendants retaliated against Mrs. Hale for engaging in activities protected by 42 U.S.C. § 1981, the

First Amendment to the U.S. Constitution, and the Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution. Defendants acted under color of state law when they violated

Mrs. Hale‟s rights. Mrs. Hale has been damaged by the illegal conduct of the Defendants. Mrs. Hale is

entitled to pursue relief against Defendants under 42 U.S.C. § 1983.

WHEREFORE, Plaintiff Angelica Hale prays that judgment be entered against Defendants

Emporia State University, Gwen Alexander, David Cordle, and Jackie Vietti 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‟s pending motion to dismiss.

DATED: February 14, 2017 Respectfully submitted,

______________________________
/s/ Angelica Hale, Plaintiff Pro Se
P.O. Box 6176
Goodyear, AZ 85338
angelicahale@yahoo.com
916-690-7927

22
Case 5:16-cv-04182-DDC-TJJ Document 19 Filed 02/14/17 Page 23 of 23

CERTIFICATE OF SERVICE

Case No. 16-4182-DDC-TJJ
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
I hereby certify that on this 14th day of February, 2017, I electronically filed the foregoing with the
Court using the email address KSD_Clerks_Topeka@ksd.uscourts.gov, and a notice of electronic filing
was sent via the CM/ECF system to Defendants‟ attorney of record, Anne Gepford Smith, who receives
electronic notification in the case at anne.smith@ag.ks.gov.
/s/ Angelica Hale
Angelica Hale, Plaintiff Pro Se

23
Case 5:16-cv-04182-DDC-TJJ Document 19-1 Filed 02/14/17 Page 1 of 2

EXHIBIT “A”
Case 5:16-cv-04182-DDC-TJJ Document 19-1 Filed 02/14/17 Page 2 of 2

Transcript of ESU General Counsel Kevin Johnson’s Comments

September 15, 2015

Individuals present: Jackie Vietti, Kevin Johnson, Angelica Hale, Melvin Hale, David Trevino
(Hale’s attorney)

Background: ESU General Counsel Kevin Johnson and Dr. Jackie Vietti releasing the results of
the “internal investigation.” After Dr. Vietti asked the first question about whether or not a hate
crime was committed on or around April 8th, 2015, and answered her own question that there
was not, she said: “Kevin, please explain the rationale for that.”

Kevin Johnson: “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. The circumstances under which the
word was written shows there was no crime committed in order to get that word onto that paper.
There was just no crime committed. Also, under Kansas law, there is nothing that is called a hate
crime. There is no criminal statute that says, this is a hate crime. There is just all the regular
crimes that there are. However, in the sentencing statutes, there is a departure sentence can be
given after there has been a felony conviction. A person that has been convicted of a felony, and
it’s the sentencing hearing, then the prosecutor can, if the prosecutor chooses, request or argue
for a departure from the maximum penalty and ask for a penalty that is beyond what the
maximum is by statute. It’s what’s called a departure from the guidelines. And there are several
reasons under which that can be done, and one of them is if the person has been convicted of a
felony, if it’s proven in a separate hearing beyond a reasonable doubt that they committed the
crime against this particular victim on the basis of race, color, religion, all of the different
classifications, for any one of them or more, then the sentence can be enhanced, it can be more,
and it is not called a hate crime, but that is where the hate crime idea comes from. There’s kind
of a general misconception that there are hate crimes. There aren’t. That’s how it works. The
sentence can be made stiffer. And I think that the perception, and I’m just guessing, comes from
TV, comes from common usage. There are a lot of things that seem to be the way things are
accepted, as being the way things are, but they really aren’t, and so, the only way there could be
a hate crime in this situation is if a felony had been committed, and someone was convicted
of that felony, and it was shown that they committed that felony for the purpose of one of those
reasons. So, if there is no underlying crime, there’s no underlying felony, there can’t be a hate
crime. It’s just nothing in there. And the Lyon County attorney, he’s the prosecutor for this
county, it’s his job to make a determination, as to whether or not to prosecute anything, and he
said there was no crime. So that’s that!”
Case 5:16-cv-04182-DDC-TJJ Document 19-2 Filed 02/14/17 Page 1 of 2

EXHIBIT “B”
Case 5:16-cv-04182-DDC-TJJ Document 19-2 Filed 02/14/17 Page 2 of 2

; Dale Monobe

Wednesday, July 29, 2015 11:41 AM

Dear SLIM folks:

This is to let you know that Angelica Hale decided to discontinue working for SLIM a few
weeks earlier than the end of her contract (August 15) and resigned effective on Monday of this
week. Angelica began working for us when Melvin and she arrived last fall and we were able to
hire her on a temporary basis for the semester. After that, she agreed to continue during the
spring semester and we had the money to put her on temporary assignment again. Her
experience with social media and marketing has been a big help to us and we will miss her
contributions in that role.

f ’ f f ’ f p f
and we will begin a search to fill that position this fall. Going forward, we are in need of an
employee who can continue the social media and marketing work that Angelica began and also
be the person in charge of handling the administrative part of our new certificates and MS in
Informatics. I am working on that job description now and welcome your suggestions.

Andrew Smith has agreed to continue in the role of Interim Associate Dean for the fall semester
while we conduct a search for a permanent appointment for this position.

Thank you all for your contributions to the SLIM Program Presentation for our reaccreditation
review in September. The document is now at the printer and will be forwarded to the ALA
Office of Accreditation, our visiting team, and all of the members of the ALA Committee on
Accreditation the end of this week. I will forward an electronic copy to you at the same time. The
document refers to a lot of supporting evidence in SkyBox that is being populated now in
p p f ’ . fp p
I’ p f the outcomes of your efforts, so am thanking you not only for gathering
materials and writing portions of the document, but also for accomplishing everything that we
reported.

Gwen

Gwen Alexander, Ph.D.
Dean and Richel Distinguished Professor
School of Library and Information Management
Emporia State University
Box 25, 1 Kellogg Circle
Emporia, KS 66801
620-341-5203
galexan1@emporia.edu
Case 5:16-cv-04182-DDC-TJJ Document 19-3 Filed 02/14/17 Page 1 of 2

EXHIBIT “C”
Case 5:16-cv-04182-DDC-TJJ Document 19-3 Filed 02/14/17 Page 2 of 2
Case 5:16-cv-04182-DDC-TJJ Document 19-4 Filed 02/14/17 Page 1 of 2

EXHIBIT “D”
Case 5:16-cv-04182-DDC-TJJ Document 19-4 Filed 02/14/17 Page 2 of 2

12/31/16 at 9:49 PM
To: Melvin Hale

Melvin,

I wanted to let you know that students at SLIM still support you. During a lunch I had with my
classmates, about 6 of us, your general cause was brought up when some of them reflected on
how when they began at SLIM your protests were happening. They felt SLIM should've
addressed this as a department and come clean about it.

If you need me to reach out to any of your former students, let me know.

I am willing to testify in any capacity as well, but I do not know what value I would be since I
never had you as a professor.

I've also been through mediation in a federal civil rights court case myself, and I will be going to
law school in the Fall of 2017.

I am not an attorney, but if you needed any help with your case, I would be willing to be present
or consult for free.

It still sickens me to know that the Kansas Attorney General's Office is counsel for the
university, tax payer dollars should not be spent this way.

Hang in there on your filing. Reach out to the other professor and his counsel, as you probably
have already considered or done.

All the best