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IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

ANGELICA HALE,

v.

Plaintiff

EMPORIA STATE UNIVERSITY (ESU), JACKIE VIETTI, PH.D., DAVID CORDLE, PH.D., GWEN ALEXANDER, PH.D.,

Defendants.

Case No. 16-4182-DDC-TJJ

Case Assigned to the Honorable DANIEL D. CRABTREE

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

COMES NOW Plaintiff in this action, Angelica Hale (―Angelica‖ or ―Ms. Hale‖) pro se,

in opposition to Defendant‘s Motion for Summary Judgment. Plaintiff opposes defendant‘s

motion principally on the grounds she provided the Court with direct evidence of retaliatory

motive. ECF 86, pg. 184. That evidence links Angelica‘s termination and denial of permanent

employment to reporting what she believed to be a hate crime to the Provost and the Emporia

State Police. She still believes that a hate crime was committed. ESU blocked a law enforcement

investigation, and instead conducted a sham internal ―investigation.‖

An official HR document from ESU‘s own internal ―investigation‖ unambiguously states

that Angelica‘s report of the hate speech incident to the Provost and the ESUPD played a direct

role in her not being offered the position of Marketing Coordinator, which her co-workers in

SLIM wanted and expected. The position was discussed in the April 22, 2015 SLIM faculty

meeting. See Exhibit A. This admission by ESU HR is a confession to retaliatory motive.

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Plaintiff was openly retaliated against by SLIM Dean Gwen Alexander (―Gwen‖ or ―Dr.

Alexander‖), and it was authorized by Interim President Jackie Vietti (―Jackie‖ or ―Dr. Vietti‖)

and Provost David Cordle (―David‖ or ―Dr. Cordle‖). In a sworn deposition taken in this district

in Case No. 15-9369 JWL-GEB Gwen described the termination of the contracts of Dr. Rajesh

Singh and Dr. Cameron Tuai in 2014, a matter which will be discussed in more detail further on.

She described it as a joint decision between her and the Provost, and sometimes the President.

She said: ―Now, let me say this: That whole decision wasnt just mine. You know? That was

upper administration… I‘m not sure who made that decision, but everything that happened was

discussed with the provost. And some of what happened was discussed with the president.‖ ECF

112-3, pgs. 210 (See Exhibit B). 1 Plaintiff was not offered the position of Marketing

Coordinator on account of decisions made by Dr. Alexander and upper administration, namely

defendants Dr. Cordle, who signs the contracts submitted by Dr. Alexander, and Dr. Vietti.

ESU stated that a hate crime could not have been committed using a technicality: the

State of Kansas does not have a law specifically called a hate crime statute. In a meeting on

September 9, 2015 in which plaintiff was present and recorded the conversation, Dr. Vietti asked

Johnson to explain the ―rationale‖ for why ESU had come to the conclusion in their internal

―investigation‖ that no hate crime occurred. Johnson stated:

―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

1 Rule 804(b)(1) of the Federal Rules of Evidence and FED. R. CIV. P. 32(a)(4) permits the admission of prior action depositions into evidence in a subsequent action under certain circumstances. Rule 32(a)(4) provides for the use of depositions from a prior action when the subsequent action involves the “same subject matter” and the “same parties or their representatives or successors in interest.”

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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.ECF 19-1,

pg.2.

Dr. Vietti made the same comment to the ESU Black Alumni group the Emporia

Connection. Writing to Allie Flanary, a Black Oregon SLIM alum. ECF 64-1, pg. 61. Johnson

and Dr. Vietti are flat out wrong about what constitutes a hate crime. 2 The FBI website defines

hate crime as: ―[A] traditional offense like murder, arson, or vandalism with an added element of

bias.‖ ECF 64-1, pg. 55. ESU‘s official stance is that hate crimes do not actually exist. That

designation according to them is pointless and/or too difficult to define.ECF 86, pg. 75. ESU

violated its own Employee Grievance policy, which states: ―It is not intended that a grievance

shall fail or succeed upon a technicality. Therefore, all applications of any part of this policy

shall be equitable and reasonable.‖ See Exhibit C. Plaintiff has herein expounded upon the topic

of hate crimes, and the defendant‘s views towards them, because the views the defendants held

on this subject best explains their retaliatory conduct. Each defendant knew that they were

violating clearly established law when they took adverse employment actions against Ms. Hale.

I. RESPONSE TO DEFENDANTS’ STATEMENT OF FACTS

[See attached]

II. PLAINTIFF’S STATEMENT OF ADDITIONAL FACTS

[See attached]

2 Angelica and Dr. Hale attended the Hate Crimes Symposium 2015 training session put on by then U.S. Attorney for Kansas, Hon. Barry R. Grissom, and spoke with him personally. ECF 53-1, pgs. 66-68. They learned that any crime, big or small, can be considered a hate crime if bias against a member of a protected class is a motivating factor. That includes vandalism. Hate crime encompasses a spectrum of illegal behaviors, including hate speech, and is not limited to sentencing guidelines for felony convictions. This is in direct opposition to the highly technical hate crime definition that ESU’s General Counsel Kevin Johnson used to justify the denial of a hate crime in the results of their “investigation.”

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III. HISTORY OF THE CASE

On March 20, 2014, Dr. Melvin Hale applied for the position of Assistant Professor at

ESU SLIM. See Exhibit D. He had just completed the requirements for the doctorate in

Information Studies at the University of California, Los Angeles (UCLA) during the winter

quarter. See Exhibit E. Dr. Hale was the first (and oldest) in his cohort of seven to graduate with

his Ph.D., at age 59. More importantly, he graduated by defending a theory of visual cognition

called KBI. He was the only candidate to graduate with a theory in his cohort. Theory defenses

are rare in the social sciences, and valuable for an academic career. Dr. Hale was awarded a full

four-year fellowship, the Eugene V. Cota-Robles Fellowship funded by the University of

California Office of the President, the UCLA Graduate Division and the UCLA home

department, when he was accepted into the doctoral program in 2009. See Exhibit F. In April

2010 Dr. Hale was honored for academic excellence and leadership by UCLA Chancellor Block,

along with about 400 other students out of an enrollment of over 40,000 students. See Exhibit G.

He earned a 94% on the GRE Verbal examination with less than two weeks to prepare when he

applied to UCLA, on a timeline of less than 90 days. More could be said about Dr. Hale‘s

academic qualifications.

On April 3, 2014, about two weeks after he applied for the position of Assistant

Professor, Melvin was informed that he was invited to participate in a live interview via Skype.

That interview took place on April 11th. See Exhibit H. On April 22nd, he was informed by Dr.

Sarah Sutton, the SLIM Search Committee Chairperson, that he was invited to an in-person

interview at SLIM on either May 12th or 13th. See Exhibit I. Melvin chose May 12th. On April

24 th , Dr. Hale learned from Dr. Sutton that he would have to pay for his travel expenses in

advance for the interview, and that SLIM would reimburse him afterwards. Dr. Hale responded:

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I regretfully will have to withdraw my name from consideration for this position, as the travel arrangements will place too great a financial burden on my family at this time. Although I was the first in my cohort to complete my degree, due to the timing of the process, I was unable to obtain a dissertation year fellowship which meant that I had to use my own finances to pay for my last three quarters in the PhD program, and that depleted our reserves…I have not made use of credit cards during my time in graduate school, so that is not an option.‖ See Exhibit J. Emphasis added.

This action is significant because it demonstrates that Angelica and Dr. Hale were

deceived, and they would not have come to Emporia State University at all if they had known the

truth. SLIM offers a hybrid teaching program for its Master of Library Science (MLS) degree,

which means that part of the class is taught online, and part face-to-face. There are two separate

long weekends where the instructors travel to distant satellite locations in Oregon, Utah,

Colorado, South Dakota and Overland Park to conduct face-to-face instruction and classroom

interaction. Dr. Hale turned down the position at SLIM offered by Dr. Alexander (for not only a

tenure track-professor position, but also a Director of Archives Studies position) when he learned

that he would have to front his travel expenses at SLIM. Dr. Hale was pursuing other

opportunities for employment. Gwen promised Melvin that he would have the use of an

institution-provided credit card for travel when he arrived at ESU, and that he would not have to

front his own money. That didn‘t happen. This is the first of many things that did not happen as

promised. That is why Angelica and Dr. Hale found themselves in a financial crisis shortly after

they arrived at SLIM. That is why they sold one of their Jaguars to Debra Rittgers, who saw an

opportunity to acquire the vehicle from Angelica and Dr. Hale in a vulnerable situation. She got

a very good deal on it to say the least, but plaintiff felt the sacrifice for the new job was worth it

at the time. Angelica and Dr. Hale had owned the car for over fourteen years, and it ran

impeccably. Photos of the two Jaguars on their way to Kansas are attached. See Exhibit K.

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Despite being lied to about travel arrangements and not being paid the additional

compensation he was promised as Director of Archives Studies upon starting the job, Melvin and

Angelica, who both had to travel for their jobs at SLIM, made the best of the situation. They

even negotiated a way to acquire a house in Emporia before 2014 was over. They committed to

working on restoring a 1930‘s Colonial just one block from Alexander‘s home and within

walking distance to SLIM. See Exhibit L. The Hales were hoping for a long stay at ESU SLIM.

Most professors want a tenure-track teaching position, especially right out of graduate

school; but not Dr. Hale. He was not willing to place himself or his wife in a financially

challenging position after 5 years of struggling at UCLA and recovering from the downfall of the

economy in 2008. All total, Dr. Hale‘s doctorate cost approximately $250,000, a portion of

which included student loans. SLIM wanted Dr. Hale bad enough to waive the prepayment plan

for purposes of the interview. They purchased his airfare and had him picked up and returned to

the Wichita airport by SLIM employees. This background information is pertinent because the

defendants have attempted to portray Angelica and her husband in a false light with respect to

their financial dealings with ESU, mentioning things like personal loans from Gwen and the

purchase of one of their cars by Rittgers. ESU completely fails to mention that Dr. Hale refused

to take the job when it was first offered to him. Plaintiff and Dr. Hale wishes now he had never

taken the job. Coming to Kansas and ESU, and the debacle which has followed, have destroyed

Angelica‘s work and educational opportunities and Dr. Hale‘s opportunities for teaching in his

chosen field. He has no career after putting in years of hard work to satisfy nitpicky professors in

one of the most rigorous academic institutions on Earth, UCLA; a real accomplishment for an

underprivileged Black kid from the projects. Dr. Hale has a Bachelor‘s degree, two Masters, and

a Ph.D. He has done many things in his life, but he has never sued an employer.

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Angelica is a consummate professional. She wants to see results for her hard work. She is

intimidatingly competent at marketing and media communications. People rave about her

thoroughness and professionalism. Angelica did not anticipate a job at SLIM, but when she was

offered an opportunity by Gwen to help her in a bad situation where she needed help with

marketing and promotion. Defendants knew that they would have difficulty dirtying-up

Angelica, so they unleashed a volley of negative portrayals of Dr. Hale. They wrote:

―While Angelica was generally liked, it wasn‘t long before Plaintiff‘s husband, Melvin Hale, a newly minted ESU professor, brought hate and hostility to the department by bullying secretaries, staff, and even students. Melvin Hale made SLIM unbearable with his attacks on colleagues and subordinates alike, and often using Angelica as both a target and shield for his bad behavior.‖ ECF 107, pg. 2.

Angelica worked closely with Gwen, as seen in the production of a photo shoot with

Gwen for a marketing campaign Angelica was working on. See Exhibit M. Melvin was a good

neighbor and painted a room in the basement of her house. Gwen made her famous cheesecake

for him. See Exhibit N. At conferences and retreats he can be seen looking positive and relaxed

around the faculty and staff in SLIM. See Exhibit O. When Gwen was away on business trips,

which was too often according to many in the department, Angelica would take Gwen‘s two

dogs, Chica and Nina, to the groomer, the vet, and for walks, at times asking her graduate

assistant to help handle the dogs, both during business hours and outside of business hours.

Angelica would sometimes walk down the street to Gwen‘s house to join Gwen for walks with

her dogs. See Exhibit P. But Gwen is a chameleon. Some would call this behavior sociopathic.

Rather than place the blame for Dr. Alexander for not doing her job by allowing the

original document with the racial slur to be tossed away by the graduate student months later,

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ESU attempts to place that blame on Angelica. It‘s called victim-blaming. 3 They stated that

―Plaintiff has provided a copy of the picture she took with her phone, but the original was

destroyed by the GA Angelica allowed to keep the original.‖ ECF 109, footnote pg. 8. It was not

Angelica‘s job to pressure the dean, especially as a brand new employee still learning the ropes

at her new job. Rather than do that, Angelica asked Dr. Mirah Dow (―Mirah‖ or ―Dr. Dow‖), the

most senior SLIM faculty member, to follow-up with Gwen. Mirah did exactly that, multiple

times and was rebuffed. ECF 47, pg. 49. Even with previous inquiries to Gwen unfulfilled, Mirah

sent Gwen an email on July 2, 2015, the day after plaintiff went to the ESUPD, virtually begging

Gwen to work things out with Angelica and Melvin because she believed that they were ―great

contributors‖ to SLIM. See Exhibit Q.

On August 27, 2015 Dr. Hale went to Gwen‘s office asking for an explanation for the

falsehoods being told about him and his wife. Dr. Alexander and Dr. Smith instantly became

enraged and came towards Dr. Hale with their voices raised and bellowing telling him to get out.

Dr. Hale responded in a slightly raised voice, but not any louder than Alexander and Smith, and

he never shouted or used profanity. Gwen demanded that Dr. Hale open her office door, which

Dr. Hale had quietly closed when he was invited into her office. When he demanded answers he

was forced to back out of her office with Gwen and Andrew in his face amid the stares of staff

and faculty. Dr. Cordle made use of this confrontation to place Dr. Hale in a permanent Cooling

off period,but he has never had any discussion with Dr. Hale to talk about his side of what

transpired. Dr. Cordle acted capriciously when penalizing Dr. Hale which violates ESU policy.

Gwen was placed on paid leave. Andrew Smith was not punished. See Exhibit R.

3 Victim-blaming occurs when the victim of a crime or any wrongful act is held entirely or partially at fault for the harm that befell them. Rape victims are often treated as responsible for the way they treated. Racists routinely dismiss the performance of white supremacy and disparage the victim. Victim-blaming creates a chilling effect.

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A 2017 study published in a peer-reviewed journal by the American Psychological

Association stated that: ―[P]eople see black men as larger and more threatening than similarly

sized white menThroughout all these tests, researchers produced the same results: When

participants believed the man in the images is black, they generally saw the man as larger, more

threatening, and potentially more harmful in an altercation than a white person. And they were

more likely to say use of force was justified against the black men than the white men.‖ See

Exhibit S. This repugnant and twisted narrative seems to resonate with a segment of regressive

elements in the White community. In Goodwin v. City of Pittsburgh, the plaintiff, an African

American traffic control worker, experienced discrimination in his wages and job classification.

He was asked to withdraw an EEOC charge. In the course of a discussion in which he refused to

do so, he called one of these superiors a liar, and was terminated because of his ―uncooperative

attitude‖ and ―disruptive influence.‖ 116 480 F. Supp. 627 (W. D. Pa. 1979) aff‘d 630-31 F.2d

1090 (3rd Cir. 1980). After a bench trial, the district court held that the city‘s contention that it

fired Goodwin for insubordination must be considered in relation to his prior protected activities.

It concluded that a ―retaliatory motive

.played a substantial causal role in the decision to fire

Goodwin when, on only one occasion, he called his boss ―a ‗liar,‘ under circumstances which

were, at the least, provoked, and, at most justified.‖ Id. at 634. Emphasis added. Goodwin‘s Title

VII complaint was granted. Dr. Hale has been falsely made out to be a bully, but that is a ruse.

Disrespectfully, Gwen allowed staff at SLIM to joke that Dr. Hale has a ―preacher‘s voice.‖

When Dr. Hale made his presentation at SLIM most of the SLIM faculty were present.

Dr. Tuai and Dr. Singh were Asian, and the only persons of color on-site representing SLIM.

That was May 12, 2014. When Dr. Hale arrived at SLIM on July 1, 2014, imagine his surprise

when he learned that both Dr.Tuai and Dr. Singh had been terminated. Dr. Tuai was about to

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leave the State with his family, and Dr. Singh was still living in Emporia, but had no office in

SLIM. Not long after Melvin‘s presentation for his job interview Gwen had Dr. Tuai escorted out

of the SLIM offices by the Emporia State University police by whom some at SLIM perceived

was ESU‘s HR enforcer, Ray Lauber. Dr. Singh was told he was not attaining tenure, and had

been locked out of his corner office on the fourth floor. In a retaliatory move, the Associate

Dean, Andrew Smith, took possession of Singh‘s office. Dr. Singh‘s computer and other

personal property were withheld from him. SLIM faculty, staff and students were in a substantial

uproar about what had just happened. Dr. Singh ultimately filed a lawsuit in fall 2015 after his

grievance at ESU was turned down. When Melvin was hired, Gwen gave no hint of the

turbulence in SLIM until after he signed the contract to come to ESU and was informed by

fellow employees that there were problems. At that point, Gwen shared information about Dr.

Singh. It was clear that Gwen abhorred Dr. Singh.

Dr. Hale is an exceptional orator, and his presentation on April 12, 2014 nearly brought a

standing ovation from the audience, which was somewhat embarrassing because he was one of

four presenters/candidates that day, and his competitors were allowed to be present in the

audience. This form of interviewing is very unusual. Immediately after the presentations were

over, Gwen couldn‘t hide her enthusiasm for Dr. Hale. She virtually offered him the job on the

spot. At that time, Melvin mentioned that his wife, Angelica, was very good at marketing and

social media. When Angelica and Melvin set foot in Emporia, the atmosphere in SLIM was acrid

and toxic and it would only get worse. As mentioned previously, shortly after their arrival they

were bombarded by both sides in the dispute over the firing of Dr. Tuai and Dr. Singh, and other

actions taken by Dr. Alexander. They were actively solicited almost daily to take sides in the war

against Gwen and her dictatorial and non-collegial management style, and her appointed

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henchman, Andrew Smith. Plaintiff was now on notice that SLIM culture was polarized, but for

a time, like many in the department, she just wanted to do her job. On one side was Dr. Capps

and Dr. Hinson and others who made no bones about their displeasure with Dr. Alexander. On

the other side was Debra Rittgers, Candace Kitselman and Andrew Smith among others in SLIM,

who supported Gwen no matter what. They were the beneficiaries of perks and protections due to

her abuse of power.

Despite the turmoil, Angelica did a great job. But she also came to learn that Gwen was

known on campus as ―the hatchet lady‖ for her brash reputation and her role in eliminating a

slew of jobs. Gwen was selected to be Interim Provost and Vice President for Academic Affairs

in the 2012-2013 school year. On Angelica‘s first day of work, Gwen bragged to plaintiff that

she had ―taken one for the university,‖ which plaintiff interpreted as Gwen having acquired a fair

amount of skill, political power and untouchable status at ESU for taking the heat instead of

President Michael Shonrock for firing undesirables and by allowing Shonrock‘s role as the nice

guypresident intact. During plaintiff‘s trip to Utah with Gwen she was present when Gwen

purchased a Lizzie Borden ―hatchet lady‖ portrait to display in her office, to represent her

persona of running the department, and she relished and was quite amused with the concept.

However, she would hide the portrait most of the time, and bring it out when insiders were

around for laughs about who‘s next in line. See Exhibit T. Another reason for Gwen‘s power

was due primarily to the higher out-of-state tuition SLIM could command at its satellite

locations, so it was a profit center for the university. SLIM was the cash cow for ESU. What

Gwen wanted, Gwen got. Gwen had swagger at ESU, and seemed proud of the fact that she was

controversial and disliked by so many. According to her, she broke gender barriers at United

Airlines, becoming one of the earliest high-level female managers. She tried to run SLIM like a

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business unit of United Airlines and many at ESU were upset about that. In numerous ways,

those cultures differ. Tolerating diverse opinions is the bedrock of academic culture, along with

promoting cultural diversity. Cultivating and fostering civility and collegiality among faculty and

staff was outside her circle of interest. Gwen was all about the power.

When Dr. Singh filed a formal grievance against Dr. Alexander in 2014 with ESU HR, it

was due to allegations of racial discrimination associated with his being denied tenure. SLIM

was established in 1902, but it had never promoted a person of color to tenure in its 115-year

history. Currently, there are still no core Black faculty in SLIM. During Gwen‘s eight year reign

at SLIM turnover was astronomical, and the majority of those let go were persons of color. The

Grievance Committee for Dr. Singh, comprised of five ESU professors, ultimately did not

support Dr. Singh‘s appointment to tenure, but they were nonetheless deeply troubled by what

their investigation had uncovered, and unanimously they felt compelled to send a letter to then

President Michael Shonrock and Provost Cordle which painted a very disturbing and grim

picture of the climate and working conditions in SLIM. See Exhibit U. The Grievance

Committee Letter (―GCL‖) stated that:

―Among the SLIM Administrative staff, specifically Ms. Candace Boardman, there appears to have been blatant prejudice, expressed openly, toward various racial and ethnic groups, genders, members of various sexual orientations, and veneration of despicable individuals such as Adolph Hitler. The concern regarding Ms. Boardman was presented in a signed Affidavit. We note that Ms. Boardman is no longer listed in the Faculty/Staff Directory, but the knowledge that this manner of offensive behavior was allowed to continue unchecked is troubling to us.

Candace Boardman worked closely with Gwen, Debra Rittgers and Candace Kitselman in

the SLIM administrative office as Director of Program Administration. See Exhibit V. That was

not all. The GCL goes on to state that:

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It is our observation that within SLIM there appears to be a pervasive micro- management of faculty and staff, and an undue attention to ‗protocol;‘ an insistence that things are only done a certain way, and must be adhered to by all. This seems unusual in an academic settingThere appears to be a lack of an inclusive atmosphere, where the contributions and ideas of all faculty and staff are welcomed and respected…There appears to be a leadership style among the school administration that is more suited for a private sector organization than an academic setting.

In its conclusion they wrote:

We simply felt strongly as a committee, after we worked through the grievance documents, that some ‗climate‘ issues were present that were inhibiting the smooth and productive performance of our colleagues in SLIM.

If one committee report on the climate within SLIM is not enough, the final report of the

American Library Association (ALA) External Review Panel (ERP) which examined SLIM in

2014 for accreditation said virtually the same thing as the Grievance Committee. See Exhibit W,

pgs. 12-13. In response to SLIM‘s Program Presentation, which made neutral claims about high

turnover in the department it stated:

―[T]he ERP has noted that what was stated in the Program Presentation was not the sole cause of the turnover. Following the interviews with the Provost and based on unsolicited information, the ERP believes that the situation was more complex and that the former dean‘s managerial style contributed to a number of faculty leaving, both voluntarily and involuntarily.‖ Pg. 3.‖

Despite the collegiality evident among the current faculty, it was apparent that previous faculty and the previous Dean did not work together either to make the major decisions,

such as about curriculum, evaluation of progress, student issues, plans for the future, etc., or to evaluate the results of the decisions and make amendments as necessary.Pgs. 24-

25.

The administration of the program has to be considered in flux. There is currently no dean, and the university administration could not share the details of the plans for administration in the near future. The strategic plan appears to be largely duplicated from 2009 2015, which could be a result of a top-down management strategy. There is a jarring difference in the requirements for annual evaluation at the SLIM level and the university requirements for tenure.‖ Pg. 35.

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The ERP team agrees that the program has many positives, and hopes for the hiring of a new dean with a collegial management style that can channel the energy of the faculty into a positive future.‖ Pg 35.

Plaintiff and Dr. Hale were led into a dark room filled with gunpowder, and when they

tried to light a candle of truth to illuminate a simple matter that could have easily been dealt with

by some acknowledgement, investigation and some sensitivity training on race, Gwen exploded.

Dr. Hale did not do this. Angelica Hale did not do this. The graduate assistant did not do this.

The toxic climate in SLIM was a pre-existing condition. Dr. Alexander has to own the climate

of intolerance in SLIM and the lack of collegiality. As a glaring example of non-collegiality,

SLIM Business Manager Candace Kitselman refused to allow Angelica to donate $1 of her own

money towards the annual ESU Foundation Capital Campaign in Kitselman‘s name for the

department to achieve 100% participation, which would have been a first for SLIM in its history

of fundraising for ESU. The previous year, there were only two donors in the fundraising

campaign from the entire department: Gwen and Mirah. Nonetheless, Angelica won an award for

her record-breaking fund-raising activities on behalf of the ESU foundation. See Exhibit X.

When Dr. Hale arrived at SLIM in May 2014 for his interview and presentation, the

following eight faculty members were listed on the SLIM website: Anne O’Niell, Mirah Dow,

Andrew Smith, Janet Capps, Rajesh Singh, Sarah Sutton, Cameron Tuai and Christopher

Hinson. See Exhibit Y. When the fall semester ended in December, the faculty consisted of five

members: Mirah Dow, Andrew Smith, Sarah Sutton, Robin Kurz and Melvin Hale. See Exhibit

Z. The expectation of joining a friendly and collegial faculty right out of graduate school was

shattered on day one. Plaintiff and Dr. Hale had hoped to work with everyone he met at SLIM.

The dysfunctional climate and leadership at SLIM was discussed by Dr. Hale and Dr. Dow in

detail on August 17, 2015, a conversation which Dr. Hale recorded. Excerpts from that

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conversation are attached. See Exhibit AA. Student and community comments on the climate in

ESU SLIM and Emporia are also attached. During that period many of GAs had made, or were

about to make, exits from their student jobs in SLIM due to the toxic climate. See Exhibit BB.

In his ruling on the Motion for Summary Judgment filed by the defendants in Dr. Rajesh

Singh‘s lawsuit, Case No. 15-cv-9369-JWL-GEB, District Judge John W. Lungstrum stated:

―[Dr. Singh‘s] evidence demonstrates that Dr. Morales advised defendant Cordle that the materials in the pre-grievance binder gave the ‗appearance of bias against people of color‘ within SLIM; that defendant Cordle agreed that the materials, at ‗face value,‘ gave that appearance; that Dr. Morales strongly suggested to defendant Cordle that he investigate plaintiff‘s allegations; that defendant Cordle declined to investigate that ‗bigger issue‘ in light of time constraints; and that defendant Cordle admittedly made his non-renewal decision based on his review of the materials in the binder. In light of those facts, a jury could reasonably conclude that plaintiff’s speech about the culture of discriminatory bias within SLIM motivated defendant Cordle, who did not want to deal with those allegations at that time, to non-renew plaintiff’s appointment. This issue requires resolution at trial.‖ ECF 128, pg. 36. Emphasis added.

When plaintiff and her husband asked Dr. Cordle to discuss Dr. Hale‘s ―cooling

off period,‖ and the results of the ―investigationon October 12th, Dr. Cordle said:

―You know, I think it‘s probably fair to say that everything that has happened up to this point realistically, I don‘t think, I don‘t think we can realistically expect that we‘re going to see that the same way, because if we were, it would have happened by now. And that‘s why, at least for me, I‘m speaking only for myself here, I just don‘t see any value in debating what has happened before now.ECF 53-1, pg. 83-84. Emphasis added.

Those are his words. Dr. Cordle saw no value in listening to what Angelica and Dr. Hale

had to say, which can only be seen as deliberate indifference. Angelica and Dr. Hale wanted

dialog on the issues that ESU got wrong in their ―investigation,‖ and an independent

investigation. That was asking too much. Defendant‘s motion for summary judgment is the first

time Emporia State University has provided any answers for its actions in 2015, and its answers

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are deficient in numerous ways. Dr. Cordle knew that Angelica and Dr. Hale‘s complaints were

made in the context of a department reeling from the recent terminations of Dr. Tuai and Dr.

Singh, and a pattern of many others before them, and the imminent termination of both

supporters Capps and Hinson, but Dr. Cordle did nothing to address these problems. Plaintiff and

Dr. Hale being vilified for sowing hate and discord in SLIM causing it to become an unbearable

place to work would be laughable were it not for the seriousness of retaliation and the

consequences that they would have to endure for courageously taking a stand against bigotry and

hate.

IV. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if it could affect the outcome of the

suit under the governing law; a dispute is "genuine" where the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Angelica carries the burden of proving that violations of Title VII and Free

Speech occurred even if defendants‘ pretext is discredited (see St. Mary's Honor Center v. t, 509

US 502 1993, Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981). A factual

dispute is "material" only if it "might affect the outcome of the suit under the governing law."

Anderson, 477 U.S. at 248, Bennett v, Windstream Commc’ns, Inc., 792 F.3d 1261, 1265-66

(10th Cir. 2015). A "genuine" factual dispute requires more than a mere scintilla of evidence.

Anderson. at 252.

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V. LAW AND ARGUMENT

A. Retaliation

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Title VII makes it unlawful for an employer to discriminate against an employee

"because he has opposed any practice made an unlawful employment practice" by Title VII. 42

U.S.C. § 2000e-3(a). To prevail on a retaliatory discharge claim, a plaintiff must establish that

the decision to terminate her resulted from retaliatory animus. Medlock v. Ortho Biotech, Inc .,

164 F.3d 545, 549 (10th Cir. 1999). A plaintiff may meet that burden in two ways. Id. Typically,

a plaintiff will rely on the familiar framework enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-05 (1973). However, the plaintiff may also establish discrimination directly,

in which case the McDonnell Douglas framework is inapplicable. Id . at 550 (citing Greene v.

Safeway Stores, Inc., 98 F.3d 554, 557-58, 560 (10th Cir. 1996)). Plaintiff in the instant litigation

is relying on direct evidence. ECF 86, pg. 184. ―[R]etaliation against an employee because she

has ‗opposed‘ any practice made unlawful by Title VII,‖ such as reporting an alleged hate crime

to law enforcement and management, is forbidden. Stover v. Martinez, 382 F.3d 1064, 1070

(10th Cir. 2004) (quoting 42 U.S.C. § 2000e-3(a)). She may either (1) offer direct evidence that

retaliation ―played a motivating part‖ in an employment decision adverse to her interests, or (2)

rely upon circumstantial evidence under ―the familiar three-part McDonnell Douglas framework

to prove that the employer‘s proffered reason for its decision is a pretext for retaliation.‖ Fye,

516 F.3d at 1225; accord Estate of Bassatt v. Sch. Dist. No. 1, 775 F.3d 1233, 1238 (10th Cir.

2014); see Debord v. Mercy Health Sys. of Kan., 737 F.3d 642, 655 (10th Cir. 2013).

Defendant‘s legal arguments throughout appear directed at a complaint for discrimination

and not retaliation. They state that discrimination requires ―a series of separate acts that

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collectively constitute one ‗unlawful employment practice.‘‖ ECF 107, pg. 11. This line of

arguments misses the mark entirely. The EEOC official website defines workplace retaliation

and provides several examples of prohibited conduct. It states that: it is unlawful to retaliate

against applicants or employees for ―communicating with a supervisor or manager about

employment discrimination, including harassment.‖ It further states that retaliation could be

manifest by adverse actions against one‘s spouse. ―[T]reat[ing] a family member negatively (for

example, cancel[ing] a contract with the person's spouse), could be seen as retaliation.‖ 4 See

Exhibit CC. Plaintiff was subjected to both of these forms of retaliation. By claiming that

plaintiff was a victim of her husband‘s conduct, defendant‘s briefing could be interpreted as

inferring that Angelica was punished on account of her husband, against whom defendants

unleashed a full frontal attack. That would be illegal.

It is well established that an employee who complains about discrimination need not be

proven right, so long as the complaint was reasonable and made in good faith. Judges and juries

can find in favor of the employer on discrimination while finding for the employee on retaliation.

Title VII: 42 U.S ,C. § 2000e-3(a), Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 547 (8th Cir.

2008) (―‗[A] plaintiff employee need not establish that the conduct he opposed was in fact

prohibited under Title VII‘‖ (quoting Bakhtiari v, bennett, 507 F.3d 1132, 1137 (8th Cir. 2007));

Moore v. City of Philadelphia, 461 F,3d 331,344 (3d Cir. 2006) (―[A] victim of retaliation ‗need

not prove the merits of the underlying discrimination complaint‘ in order to seek redress.‖

(quoting Aman v. Cort Furniture Rental Corp)., 85 F.3d 1074, 1085 (3d Cir. 1996))). Kessler v.

4 In Thompson v. N. Am. Stainless the U.S. Supreme Court ruled that: “*W+e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliationcollateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.” LP, 131 S.Ct. 863 (2011).

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Westchester County Dep’t of Social Servs, 461 F.3d 199,210 (2d Cir. 2006) (quoting McMenemy

v. City of Rochester, 241 F.3d 279, 285 (2d Cir. 2005)); Moore, 461 F.3d at 341 ("Whether the

employee opposes, or participates in a proceeding against, the employer's activity, the employee

must hold an objectively reasonable belief, in good faith, that the activity they oppose is

unlawful under Title VII.").

The moving party bears the initial burden of showing the absence of any genuine issue of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga.

Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden

shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those

dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First

Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc.,

939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on her pleadings but must

set forth specific facts. Applied Genetics, 912 F.2d at 1241. The Court must view the record in a

light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v.

Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).

"In a response to a motion for summary judgment, a party cannot rely on ignorance of

facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope

that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require

submission to the jury or whether it is so one-sided that one party must prevail as a matter of

law." Anderson, 477 U.S. at 251-52. Plaintiff has herein provided the Court with relevant facts

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and evidence so one-sided that it is sufficient enough to ascertain that defendants are not entitled

to summary judgment as a matter of law.

B. Qualified Immunity

―Qualified immunity ‗gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.‘‖ Lane v. Franks, 134 S. Ct. 2381, 2374 (2014)

(quoting Ashcroft v. alKidd, 563 U.S. 731, 743 (2011)). This doctrine ―protects ‗all but the

plainly incompetent or those who knowingly violate the law.‘‖ al-Kidd, 563 U.S. at 743 (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). ―When the defendant has moved for summary

judgment based on qualified immunity, the court should view the facts in the light most

favorable to the non-moving party and resolve all factual disputes and reasonable inferences in

its favor.‖ Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir. 2015). ―Unlike most affirmative

defenses, however, the plaintiff would bear the ultimate burden of persuasion at trial to overcome

qualified immunity by showing a violation of clearly established federal law.‖ Id. ―Thus, at

summary judgment, the court must grant qualified immunity unless the plaintiff can show (1) a

reasonable jury could find facts supporting a violation of a constitutional right, which (2) was

clearly established at the time of the defendant‘s conduct.‖ Id. [The court] may, at [its]

discretion, consider the two parts of this test in the sequence [it] deem[s] best in light of the

circumstances in the particular case at hand.‖ Bowling v. Rector, 584 F.3d 956, 963 (10th Cir.

2009). University administrators cannot claim ignorance of the First Amendment.

C. Protected Activity

The Supreme Court has ruled that 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.

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Nassar, 133 S. Ct. 2517, 570 U.S., 186 L. Ed. 2d 503 (2013). Ms. Hale has provided direct

evidence which confirms that until she complained of discrimination, her status in SLIM was not

in question. The defendants refused to renew plaintiff‘s contract, but her protected activity was

not just one of many motivating factors in their decision, it was the ―but-for‖ factor, meaning that

but-for Ms. Hale‘s protected activity she would have been hired as the Marketing Coordinator

for SLIM. It was the only reason she was terminated.

As a threshold matter, plaintiff‘s report of the alleged ―hate crime‖ to the Provost and the

ESU Police Department is the protected activity on which this lawsuit is based. Defendant‘s

motion appears to be entirely constructed around incorrect dates, legal arguments, and the wrong

protected activity. Angelica reported the April 8th hate speech incident as a hate crime to Dr.

Cordle and the ESUPD on June 26, 2015 and July 1, 2015 respectively. The initial April 8th

report of the hate speech incident to Gwen is not the protected activity on which this case is

based, although that report too was privileged. Gwen did nothing about Angelica‘s original

report whatsoever; neither did she take action when she was confronted about the hate speech

incident numerous times by Mirah before Ms. Hale reported the matter to the police.

According to the ESU policy manual: ―Supervisors and administrators are obligated to

report complaints of discrimination and/or harassment to the Affirmative Action Officer. In some

instances the supervisor or administrator may have handled the complaint through the informal

process; however the obligation to inform the Affirmative Action Officer still exists.‖ ECF 53-1,

pg. 8. Ms. Hale was a temporary contract employee, so when the hate speech incident was

reported to her, and she discreetly informed Gwen, it became Gwen‘s responsibility to take it

from there and file a formal report. But it soon became obvious that Gwen had no intentions of

doing anything, ever. That non-action by Gwen eventually became apparent and it was not

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acceptable to Ms. Hale or Dr. Hale. It was not acceptable to Dr. Dow. It shouldn‘t be acceptable

to anyone. There were no actionable adverse employment actions for initially reporting the

matter to Gwen, just a leadership vacuum. On July 2nd, after multiple inquiries to Gwen about

the matter, Dr. Dow sent an email to Gwen which stated in part: ―Gwen, Melvin and Angelica

are really feeling badly about things at SLIM. I'm so sorry about that. I am so much in hopes

that we can make clear to both of them that we want and need their great participation.‖

See Exhibit Q. Before the email was sent by Mirah, Gwen had previously stated to her that she

did not want to hear about this anymore, and there was possibly no response by Gwen.

Plaintiff was notified that her contract would not be renewed the day after Gwen met with

Dr. Vietti. This meeting occurred directly after Dr. Hale and Gwen had a meeting in her office

which he recorded. ECF 86-2, pg. 1.

TIMELINE TO TERMINATION

December 2014

April 2015

June 2015

July 2015

Dr. Hale discusses his concerns about the perceived discriminatory conduct of Debra Rittgers towards him and his wife. Angelica Hale is transferred from the 3 rd floor in SLIM to the 4 th floor, to a large office across from Dr. Hale.

On April 8 th the graduate assistant (GA) assigned to work with Hale comes to work around 1:00 pm and finds her office unlocked, things tampered with, and the word ―NIGGAZ‖ on her notepad. Dean Alexander is notified by Dr. Hale and Angelica Hale, and is asked to investigate. By all accounts, Alexander did nothing.

After 2 months of inaction by Alexander, during which time Dr. Mirah Dow, faculty head in SLIM sought to get answers from Alexander, Dr. Hale sends Provost Cordle an email on June 15 th requesting a meeting to discuss the incident and perceived retaliation by Alexander. Dr. Hale and Angelica meet with Cordle on June 26 th .

The Hales attempt to file a Police report with the ESU PD on July 1 st . Dr. Hale discusses the matter with Alexander on July 7 th , at which time she stated that she did not appreciate the Hales contacting the Provost and the ESU Police Dept. Alexander then talks with Vietti that day. Angelica Hale is notified on July 8 th that her contract would not be renewed when it expired.

This Court indicated, in its ruling on defendant‘s earlier motion to dismiss, that it viewed

the report to Dr. Cordle and the ESUPD as the relevant protected activity at issue in this case:

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―[A]fter the Hales complained to the Provost and the ESU Police Department about the April 8, 2015 incident, Dr. Alexander told plaintiff that ESU would not renew her contract and that she would not become a permanent employee. Because of this decision, plaintiff had to drop her enrollment in the college courses at ESU.‖ ECF 30, pg. 5. Order on Motion to Dismiss.

D. Direct Evidence

―‗Direct evidence is evidence, which if believed, proves the existence of a fact in issue

without inference or presumption.‘ Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th

Cir.1999) (alterations and quotations omitted), overruled on other grounds by Desert Palace, Inc.

v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Direct evidence requires proof of

an existing policy which itself constitutes discrimination,Tomsic v. State Farm Mut. Auto. Ins.

Co., 85 F.3d 1472, 1477 (10th Cir.1996) (quotations omitted), or ‗oral or written statements on

the part of a defendant showing a discriminatory motivation,‘ Kendrick v. Penske Transp. Servs.,

Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).‘‖ ESU HR admitted that Dr. Alexander retaliated

against Ms. Hale for reporting the alleged hate crime to the Provost, and by extension to the

Police. There is no need for inference or presumption. ESU hid this evidence for almost three

years.

E. Prima Facie Case

Defendants contend that plaintiff cannot establish a prima facie case of retaliation

because she cannot show that the termination of her contract took place under circumstances

giving rise to an inference of retaliation. This burden was met at the motion to dismiss stage, so it

does not have to be re-argued at the motion for summary judgment stage. To raise an inference

of retaliation at the prima facie stage in a retaliatory discharge case, a plaintiff‘s burden is not

onerousshe need only show that she engaged in protected activity; that she was qualified for

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her job; and that the job was not eliminated after her discharge.Perry v. Woodward, 199 F.3d

1126, 1138 (10th Cir. 1999); see also Nguyen v. Gambro BCT, Inc., 242 Fed. Appx. 483, 487-89

(10th Cir. 2007) (prima facie step is utilized to eliminate the two most common explanations for

termination-lack of qualification or the elimination of the position). Plaintiff met this burden at

the motion to dismiss stage.

After plaintiff resigned, Dr. Alexander sent an email to the SLIM faculty praising plaintiff‘s work, informing them of her resignation, and asking for recommendations to fill the vacant position. Plaintiff alleges that this email shows that Dr. Alexander did not terminate plaintiff‘s contract based on her performance or a budget shortfall.‖ ECF 30, pg. 5. Order on Motion to Dismiss. 5

According to the ALA ERP final report dated December 14, 2014:

―SLIM has maintained and even increased enrollment numbers, and tuition revenue from regional locations was sufficient to mitigate OOE (other operating expenses) budget cuts…Overall, SLIM has not suffered any serious threats to faculty lines or general funding for other operating expenses and does not anticipate any in the foreseeable future.Exhibit W., Pg. 27.

Plaintiff‘s position was not eliminated due to budgetary reasons despite what the

defendants are now claiming. Defendants point to the budget standoff that the state of Kansas

went through in 2015 as evidence that SLIM could not afford Ms. Hale. First, this allegation

contradicts the report that SLIM gave to the ALA ERP on the great financial condition it was in,

and secondly, the crisis was short-lived and in no way impacted anyone at ESU. Dr. Vietti sent

out an announcement that there would be no effect on the university a month before Gwen

notified Angelica of her termination. See Exhibit DD. The budget crisis was solved when the

Governor signed the budget. No one was furloughed. Dr. Andrew Smith received his

appointment as Associate Dean, but Angelica was told she was going to be terminated.

5 The email referenced is ECF 19-2, pg. 2.

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ESU claims that plaintiff has not met her burden to exhaust administrative remedies. The

KHRC had plaintiff‘s case for over 300 days and took no action on it whatsoever. On July 8,

2016, Barbara Girard from the KHRC provided Angelica with the process for closing out the

KHRC complaint and getting an EEOC Rightto-Sue Letter. See Exhibit EE. The EEOC Right-

to-Sue-letter is attached. See Exhibit FF.

G. Pretext

―Pretext can be inferred from evidence revealing ‗weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions‘ in the employer‘s explanation…Macon v.

United Parcel Serv., Inc., 743 F.3d 708, 714 (10th Cir. 2014) (quoting Morgan v. Hilti, Inc., 108

F.3d 1319, 1323 (10th Cir. 1997)). It may also be alleged ―by providing direct evidence

discrediting the proffered rationale, or by showing that the plaintiff was treated differently from

others similarly situated.‖ Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir.

2012). The critical question regarding this aspect of the McDonnell Douglas rubric is whether ―a

reasonable factfinder could rationally find [the employer‘s rationale] unworthy of credence and

hence infer that the employer did not act for the asserted [non-retaliatory] reasons.‖ Crowe, 649

F.3d at 1196 (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir.

2007)). ESU‘s claim that it lacked the funding to hire plaintiff, or that she was not qualified, is

unsupported by the facts, and is thus pretext.

H. Matter of Public Concern

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

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on her own initiative, but in answering questions during an employer's internal investigation.‖

555 U.S. 271, 129 S. Ct. 846, 849 (2009). In Connick v. Myers, 461 U.S. 138, 140 (1983) the

Supreme Court stated that ―racial discrimination‖ is ―a matter inherently of public concern.‖ ECF

30, Order on Motion, pg. 12.

I. HR Grievance and Internal Investigation v. Law Enforcement Investigation

ESU continues to harp on the fact that Angelica and her husband did not file a grievance

with HR. The reason is simple. Plaintiff wanted an investigation done by law enforcement. She

expected Gwen to contact law enforcement on the front-end. Contacting the police with a report

of a hate crime or harassment is considered best practices in most universities. An example is the

Action Matters program which is a national program and is active at the University of Wisconsin

Oshkosh. See Exhibit GG. The Action Matters program suggests that the complainant call

university police, and ask for them to come and take pictures, etc… i.e., preserve the evidence.

Grievance proceedings and crime reports should not be conflated unless you are doing

something wrong. All universities have policies relating to student and employee grievances. The

complaint policy for discrimination and harassment at Kansas State University (K-State) for

example, is submitted through the Office of Institutional Equity (OIE). K-State‘s grievance

policy, like several others that plaintiff has researched, makes it clear that those who believe a

crime has occurred need to file a separate police report, and that the filing of a police report and

a harassment complaint are not to be conflated:

―If a person believes that criminal conduct has occurred, then the person should report that conduct to the police. CARE staff should also encourage the person to file a complaint with the police and will provide assistance in doing so if asked. The CARE staff member will also advise the person that he/she may decline to notify the police directly. The criminal justice system and this Policy are separate procedures, however,

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and complaints/reports must be made under both procedures if a complainant wants both processes to go forward.‖ ECF 53, pg. 5.

Plaintiff had no reason to trust an internal investigation, especially one led by Ray

Lauber. ECF 86, pg. 24 ¶ 53-54. Dr. Dow shared that concern. She said, ―Those things never turn

out right.Angelica and Dr. Hale tried to get law enforcement to investigate. Then they could

walk away from this messy situation. However, ESU does not give its employees or student the

option to go to the police under these circumstances. ESU and K-State are both governed by the

Kansas Board of Regents. How can they have such divergent policies on the reporting of

discrimination and crime? It appears that the defendants were attempting to steer the Hales to use

a grievance policy that would effectively deprive them of claiming to have engaged in ―protected

activity,‖ and hence there would be no Title VII claim. This appears to be why they are upset

with plaintiff, and her husband. In their opposition to plaintiff‘s motion for summary judgment

(ECF 109, pg.6) they wrote:

Plaintiff cannot be alleging a claim based on the ‗participation clause‘ as it only protects participation in proceedings that occur in conjunction with or after the filing of a formal EEOC charge. It does not include internal investigations like the one conducted by ESU - an internal investigation that was initiated, not by Plaintiff, but by Defendant Vietti when she made the formal request pursuant to ESU‘s written policy (both Hales having refused to initiate the complaint process). Mackley, 296 F.R.D at 670. Plaintiff neither filed a charge nor participated in an EEOC proceeding until two months after she quit her employment with ESU, so her actions do not constitute protected participation.

The problem here is a lack of choice. Defendants intentionally steer complainants to

use the HR grievance policy to minimize their legal liability. That can only be viewed as

unethical and detrimental to the complainant. Complaints to law enforcement constitute

protected activity. Complaints to employers are protected activity. Angelica reported what she

perceived as a hate crime and it was dismissed out-of-hand.

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J. Failure to Follow Company Policies May Be Proof of Retaliation

In a case sent to the Fifth Circuit Court of Appeals, the Court affirmed a jury verdict in a

retaliation claim in part because: ―Xerox‘s policies generally state that counseling and coaching

of employees should occur prior to the issuance of formal warning letters, yet Xerox offered no

documentation supporting Jankowski‘s claim that he counseled Smith before placing her on

probation. Smith v. Xerox Corp., 371 Fed. Appx. 514 (5th Cir. Mar. 2010). ESU clearly based

their results on a technicality (there‘s no hate crime statute in Kansas), and that clearly violates

their own grievance policy. This technicality bothered the press and the public causing Dr. Vietti

to come out and tell another big lie: ―Emporia State is not hiding behind the legal definition of a

hate crime.‖ ECF 86, pg. 96. But there is no other way to interpret their ―rationale.

K. Constructive Discharge

To prevail on a constructive discharge claim, a plaintiff must show either that (1) "the

employer by its illegal discriminatory acts has made working conditions so difficult that a

reasonable person in the employee's position would feel compelled to resign," Sanchez, 164 F.3d

at 534 (quotation omitted), or (2) the employer by its discriminatory actions forced the plaintiff

to choose between resignation or termination, Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978

(10th Cir.1996); Acrey v. Am. Sheep Indus. Ass'n, 981 F.2d 1569, 1573-74 (10th Cir.1992).

Defendants claim that plaintiff‘s case fails because she quit, and that ESU did not terminate

plaintiff, nor did it take any other materially adverse action as to Plaintiff. ECF 107, pgs. 2-3.

Plaintiff acknowledges that she quit, but only after Dr. Alexander began retaliatory actions that

made her working conditions trying and unbearable, and she demanded that Angelica interface

with Debra Rittgers in a subservient manner. ECF 30, pg. 5.

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VI. CONCLUSION

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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 an employer effectively retaliated against an employee by taking actions not directly related

to his employment or by causing him harm outside the workplace, and even after the victim is no

longer employed. A provision limited to employment-related actions would not deter the many

forms that effective retaliation can take. Hence, such a limited construction would fail to fully

achieve the anti-retaliation provision‘s ―primary purpose,‖ namely, ―[m]aintaining unfettered

access to statutory remedial mechanisms.‖ Robinson v. Shell Oil Co., 519 U. S. 337, 346 (1997),

quoted in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67 (2006). ESU

and the defendants desperately want the Court and the world to believe that Angelica and Melvin

went rogue, and conjured a report of a hate crime out of thin air and tampering as a publicity

stunt, capitalizing on a fluke per Kevin Johnson and Dr. Vietti. ECF 86, pg. 76, even though Dr.

Hale‘s first evaluation was excellent. See Exhibit HH. This fictional narrative is highly

offensive and part and parcel of a cover-up of official misconduct designed to make ESU look

blameless. In a shocking turn, defendants are now accusing the graduate assistant (GA) of

writing the racial slur in her notepad. Important to note is how they stated it. It was just the

―GA‘s haphazard doodles.‖ ECF 109, pg. 2. In 2015 Dr. Vietti said: ―The University has stated

publicly that the written racial slur discovered by a SLIM graduate student in her notebook is

reprehensible.‖ ECF 86, pg. 96. Vietti also said in 2015: ―No one has admitted to writing the

word.‖ ECF 64-1, pg. 158. Now they are accusing the student of this act. That claim belongs in

the trash bin along with defendant‘s claim that Angelica and Dr. Hale came to ESU in the hopes

of ―making quick millions off of patsy and passive Midwesterners…that they were targeting all

29

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Document 113

Filed 06/19/18

Page 30 of 166

along with their litigious lifestyle.‖ ECF 109, pg. 13. Both plaintiff and Dr. Hale‘s familial roots

are actually based in the Midwest, so it‘s a highly offensive statement to them.

When Gwen had completed the requisite components proscribed by the administration

for returning to her dean‘s position in SLIM after a month in a cooling off period, the faculty

voted no confidence in her leadership. She lasted exactly 8 hours before the reins of power were

removed from her hands, permanently. The ALA ERP stated that: ―It is important to note that the

Hale incident was not cited by administration as the sole reason for the dean‘s administrative

leave. Additional input from faculty was also cited.‖ See Exhibit V, pg. 3. Despite all the

problems she had caused at SLIM, ESU still allowed Gwen to retire with full benefits, and she

was honored by the university in the 2015 commencement program. See Exhibit II.

On September 15, 2015, Angelica and Dr. Hale conducted a march against racism where

a large number of students and others attended in person, and over a thousand individuals and

more than 100 organizations took part virtually on a matter of public concern. ECF 86, pg. 220-

222. Just because plaintiff and her husband called out racism and intolerance does not make them

bullies or opportunists. The problem is that racists are unwilling to adapt to social change which

empowers minorities.

WHEREFORE, Plaintiff Angelica Hale prays the Court to deny Defendant‘s Motion for

Summary Judgment, and to grant its Motion for Summary Judgment.

Dated: June19, 2018

Respectfully submitted,

/s/ Angelica Hale, Plaintiff Pro Se 3806 Pinnacle Circle Lawrence, KS 66049 angelicahale@yahoo.com

916-690-7927

30

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Filed 06/19/18

CERTIFICATE OF SERVICE

Case No. 16-4182-DDC-TJJ

Page 31 of 166

I hereby certify that on this 19th day of June, 2018, I electronically filed the foregoing with the

Court by email at ksd_clerks_topeka@ksd.uscourts.gov, and a notice of electronic filing was sent

via the CM/ECF system to all counsel of record.

/s/ Angelica Hale

Angelica Hale 3806 Pinnacle Circle Lawrence, KS

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 32 of 166

IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

ANGELICA HALE,

v.

Plaintiff

EMPORIA STATE UNIVERSITY (ESU), JACKIE VIETTI, PH.D., DAVID CORDLE, PH.D., GWEN ALEXANDER, PH.D.,

Defendants.

Case No. 16-4182-DDC-TJJ

Case Assigned to the Honorable DANIEL D. CRABTREE

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

 

Page

I. RESPONSE TO DEFENDANTS’ STATEMENT OF FACTS

3

II. PLAINTIFF’S STATEMENT OF ADDITIONAL FACTS

3

III. HISTORY OF THE CASE

4

IV. STANDARD FOR SUMMARY JUDGMENT

16

V. LAW AND ARGUMENT

17

A. Retaliation

17

B. Qualified Immunity

20

C. Protected Activity

20

D. Direct Evidence

23

E. Prima Facie Case

23

F. Administrative Exhaustion

25

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H.

Matter of Public Concern

25

I. HR Grievance and Internal Investigation v. Police Investigation

26

J. Failure to Follow Company Policies May Be Proof of Retaliation

28

K. Constructive Discharge

 

28

VI.

CONCLUSION

29

 

INDEX OF EXHIBITS

#

Subject

 

Page

A.

April 22, 2015 faculty meeting minutes discussing Marketing Coordinator position

1

B.

Deposition of Gwen Alexander in Case No. 15-9369 JWL-GEB

2

C.

ESU grievance policy rejecting “technicalities”

3

D.

Dr. Hale email applying for Asst. Professor position at ESU

4

E.

Dr. Hale Certificate of Completion of Ph.D. at UCLA

4

F.

Eugene V. Cota-Robles Fellowship

 

4

G.

Hale honored by UCLA Chancellor Block for academic excellence and leadership

4

H.

Dr. Hale invited to participate in a Skype interview on April 3, 2014

4

I.

Dr. Hale invited to an in-person interview at ESU on April 22, 2014

4

J.

Dr. Hale withdraws name from consideration due to travel arrangements

5

K.

Photos of plaintiff’s two Jaguar automobiles

5

L.

Photo of plaintiff’s home in Emporia, Kansas

6

M.

Angelica coordinating the production of a photo shoot with Gwen

7

N.

Photo of the basement room Melvin painted for Gwen

7

O.

Photos of Angelica and Dr. Hale with SLIM faculty, staff and students

7

P.

Photos of Gwen’s dogs Nina and Chica

7

Q.

Mirah’s July 2, 2015 email asking Gwen to work things out with plaintiff

8, 22

R.

Letter to Dr. Hale from Dr. Cordle placing him in a “Cooling off period”

8

S.

2017 study by the American Psychological Assoc. re: false perceptions of black men

9

T.

Portrait of Lizzy Borden the “hatchet lady” similar to one purchased by Gwen

11

U.

Email to Shonrock and Cordle from Grievance Committee re: SLIM climate issues

12

V.

Candace Boardman’s SLIM profile

 

12, 30

ii

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W.

American Library Assoc. report on SLIM accreditation

13, 24

X.

Angelica’s award for outstanding fundraising efforts

15

Y.

SLIM faculty members in March 2014

15

Z.

SLIM faculty members in December 2014

15

AA.

Excerpts of conversation between Melvin and Mirah on August 17, 2015

15

BB.

Student and community comments on the climate in ESU SLIM and Emporia

15

CC.

EEOC document defining retaliation against family member as illegal

18

DD.

Dr. Vietti announcement that there would be no furloughs at ESU June 6, 2015

24

EE.

Email from KHRC to Angelica detailing process for closing her complaint

25

FF.

Angelica’s DOJ Right-to-Sue Letter

25

GG.

Univ. of Wisconsin-Oshkosh Action Matters program

26

HH.

Dr. Hale’s first evaluation from Gwen Alexander

29

II.

Gwen Alexander honored at ESU 2015 commencement upon retiring

30

Federal Rule of Evidence 901(a) provides in general terms that the requirement of authentication or identification as a condition precedent to the admissibility of evidence is satisfied by proffered proof sufficient to support a finding that the matter in question is what its proponent claims it to be. A foundation for authentication of sound recordings was established in the federal courts in United States v. McKeever, 169 E Supp. 426, 430 (S.D.N.Y. 1958), rev'd on other grounds, Todisco v. United States, 298 E2d 208 (9th Cir. 1962).

TABLE OF AUTHORITIES

FEDERAL CASES

Acrey v. Am. Sheep Indus. Ass'n

Page

981

F.2d 1569, 1573-74 (10th Cir.1992)

28

Aman v. Cort Furniture Rental Corp). 85 F.3d 1074, 1085 (3d Cir. 1996)

18

Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc.

912

F.2d 1238, 1241 (10th Cir. 1990)

19

Bacchus Indus., Inc. v. Arvin Indus., Inc. 939 F.2d 887, 891 (10th Cir. 1991)

19

iii

Case 5:16-cv-04182-DDC

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Bakhtiari v, Lutz

507

F.3d 1132, 1137 (8th Cir. 2007)

 

18

Bennett v, Windstream Commc’ns, Inc.

 

792

F.3d 1261, 1265-66 (10th Cir. 2015)

 

16

Bowling v. Rector

584

F.3d 956, 963 (10th Cir. 2009)

 

20

Brannum v. Mo. Dep 't of Corr.

 

518

F.3d 542, 547 (8th Cir. 2008)

 

18

Burks v. Oklahoma Publ'g Co.

81

F.3d 975, 978 (10th Cir.1996)

 

28

Conaway v. Smith

853

F.2d 789, 794 (10th Cir. 1988)

 

19

Debord v. Mercy Health Sys. of Kan.

 

737

F.3d 642, 655 (10th Cir. 2013)

 

17

Deepwater Invs., Ltd. v. Jackson Hole Ski Corp.

 

938

F.2d 1105, 1110 (10th Cir. 1991)

 

19

Estate of Bassatt v. Sch. Dist. No. 1

 

775

F.3d 1233, 1238 (10th Cir. 2014)

 

17

Goodwin v. City of Pittsburgh

480

F. Supp. 627 (W. D. Pa. 1979) aff’d 624 F.2d 1090 (3rd Cir. 1980)

9

Greene v. Safeway Stores, Inc.

98

F.3d 554, 557-58, 560 (10th Cir. 1996)

17

Henderson v. Glanz

813

F.3d 938, 952 (10th Cir. 2015)

20

Hicks v. City of Watonga. Okla.

942

F.2d 737, 743 (10th Cir. 1991)

19

iv

Case 5:16-cv-04182-DDC

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Jaramillo v. Adams Cty. Sch. Dist. 14,

Filed 06/19/18

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680

F.3d 1267, 1269 (10th Cir. 2012)

25

Kendrick v. Penske Transp. Servs., Inc.,

220

F.3d 1220, 1225 (10th Cir. 2000)

23

Kessler v. Westchester County Dep’t of Social Servs,

461

F.3d 199,210 (2d Cir. 2006)

18

Macon v. United Parcel Serv., Inc.

743

F.3d 708, 714 (10th Cir. 2014)

25

McMenemy v. City of Rochester

241

F.3d 279, 285 (2d Cir. 2005)

19

Medlock v. Ortho Biotech, Inc .

164

F.3d 545, 549 (10th Cir. 1999)

17

Moore v. City of Philadelphia

461

F,3d 331,344 (3d Cir. 2006)

18, 19

Morgan v. Hilti, Inc.

108

F.3d 1319, 1323 (10th Cir. 1997)

25

Nguyen v. Gambro BCT, Inc.

242

Fed. Appx. 483, 487-89 (10th Cir. 2007)

24

Perry v. Woodward

199

F.3d 1126, 1138 (10th Cir. 1999)

24

Shorter v. ICG Holdings, Inc.

188

F.3d 1204, 1207 (10th Cir.1999)

23

Smith v. Xerox Corp.

371

Fed. Appx. 514 (5th Cir. Mar. 2010)

28

Stover v. Martinez

382

F.3d 1064, 1070 (10th Cir. 2004)

17

v

Case 5:16-cv-04182-DDC

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Swackhammer v. Sprint/United Mgmt. Co.

Filed 06/19/18

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493

F.3d 1160, 1167 (10th Cir. 2007)

25

Todisco v. United States

298

E2d 208 (9th Cir. 1962)

iii

Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir.1996)

23

United States v. McKeever

169

E Supp. 426, 430 (S.D.N.Y. 1958)

iii

U.S. SUPREME COURT

Anderson v. Liberty Lobby, Inc.

477

U.S. 242, 247 (1986)

16, 19

Ashcroft v. alKidd

563

U.S. 731, 743 (2011)

20

Burlington Northern & Santa Fe Railway Co. v. White

548

U.S. 53, 67, 68 (2006)

29

Celotex Corp. v. Catrett

477

U.S. 317, 323 (1986).

19

Connick v. Myers,

461

U.S. 138, 140 (1983)

26

Crawford v. Metro Gov't of Nashville & Davidson County

555

U.S. 271, 129 S. Ct. 846, 849 (2009)

25

Desert Palace, Inc. v. Costa

539

U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)

23

Lane v. Franks,

134

S. Ct. 2381, 2374 (2014)

20

vi

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp

475

U.S. 574, 586-87 (1986)

19

McDonnell Douglas Corp. v. Green

411

U.S. 792, 802-05 (1973)

17, 25

Robinson v. Shell Oil Co.

519

U.S. 337, 346 (1997)

29

Texas Dept. of Cmty. Affairs v. Burdine,

450

U.S. 248, 255-56 (1981)

16

Thompson v. N. Am. Stainless LP, 131 S.Ct. 863 (2011)

18

Univ. of Tex. Southern Med. v. Nassar

133

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

21

STATUTES AND RULES

Title VII

First Amendment

42

U.S.C. § 1983

42

U.S.C. § 2000e-3(a)

Fed. R. Civ. P. 32(a)(4) Fed. R. Civ. P. 56(c) Fed. R. Evidence 804(b)(1) Fed. R. Evidence 901(a)

Kan. Rule 6.7 Kan. Rule 7-1

vii

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EXHIBIT “A”

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 40 of 166

5:16-cv-04182-DDC Document 113 Filed 06/19/18 Page 40 of 166 SLIM Faculty Meeting Minutes April 22, 2015

SLIM Faculty Meeting Minutes

April 22, 2015

Present: Mirah, Gwen, Andrew, Sarah, Robin, Melvin

Meeting called to order: Dr. Dow

Minutes of the April 8 th Faculty Meeting were approved: Andrew moved, Robin seconded.

Dr. Sutton: Discussed Faculty Senate meeting activities:

Dr. Singe is looking for volunteers for an HR video. Needs faculty and students.

Online Instruction Taskforce exploring tweaks to the Classroom Teaching Policy to include online instruction.

Email usage policy was accepted.

The subject of salary equity to be taken up in the Faculty Senate in the fall.

Two bills, one regarding faculty performance and recognition, and the other regarding the definition of “majority” for Faculty Senate voting, will be voted on in two weeks, which will be the last meeting before the fall semester.

Dr. Sutton has been asked by KBOR to serve on the Presidential Search Committee.

Dr. Smith discussed a variety of items:

Grad Council Agreed to no term limits for course work taken for licensure, however, limits may be imposed on a case-by-case basis. Discussed shared hours for dual-degree programs.

Proposed a schedule for faculty meetings for 2015-2016.

Reviewed graduate faculty status for Anne Liebst, Kris Kern, Randy Silverman, Christine Woods, Beverly Buller and Shelly Guerke. Dr. Dow moved and Dr. Sutton seconded that we accept these candidates. The motion was carried unanimously.

Discussed IDEA in its new electronic format. Suggested that we review it again in the fall.

Case 5:16-cv-04182-DDC

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Dr. Sutton gave a brief review of Zoom. Will schedule a preview and introduction for faculty in the near future.

Dr. Smith announced that sixty-three curriculum changes have been updated for the new catalog providing greater uniformity.

Dean Alexander discussed a number of items:

The increase of hours for full-time status from 8 to 9 hours has an immediate effect on student funding, and that SLIM will have to make adjustments for this. The new rules are being waived for summer 2015, but will take effect in the fall.

Four new faculty have been offered and have accepted positions. The four new faculty are Brendan Fay, Jim Walther, Jenny Ma and Sandy Valenti. All four will be performing work as adjuncts for the department in the summer.

Due to ESU policy, there will be a search for an Associate Dean and for a Marketing Coordinator in SLIM.

Dr. Dow discussed the PhD Spring Retreat which was to be held in Overland Park on April 25 th . The speaker for the morning is Julia McBride from the Kansas Leadership Institute. Roundtable discussions are planned for the evening. Activities end at 3:30, after which there will be an advising session for PhD students.

Dean Alexander reminded us that we will be accepting PhD applications starting in June for the 2016 cohort. The size of the new cohort is under review.

Minutes taken by Dr. Hale

Meeting adjourned.

Case 5:16-cv-04182-DDC

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EXHIBIT “B”

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 43 of 166

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 44 of 166

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 45 of 166

Case 2:15-cv-09369-JWL

Document 112-3

Filed 06/07/17

Page 8 of 12

GWEN DO L YN

J .

AL EXA ND ER,

PH. D.

0 8 /1 6 /1 6

173

1

Q.

And

 

you

d id n 't

h a v e

 

a nyt h ing

to

do

wi t h

hi m

 

2

ge

tt ing

hi m ki

ck

e

d

o f f

t he

co mm it tee?

 

3

A.

I

ma

y

h a v e.

I

ma y

ha v e

ca lled

t hem

a nd

sa id

 

4

h

e'

s

no

l on g er

ex pected

to

pa rtic ipate

in

a ny -

5

th

i

ng

he

re .

Now ,

l e t

me

 

say

th is :

 

Th at

who le

6

dec is io n

was n 't

jus t

min e.

 

You

know?

That

was

7

upper

ad min ist ra t ion .

Thi s

i s

mi n e

I

guess .

 

8

But

 

so

ma ny

tim e

s

so

mu ch

 

o f

th is

 

o u

t

o f

9

context

a nd

so

p

rec ise

i n

a

way

t hat 's

n o t

1 0

suppo r ted .

 

11

Q.

I

t' s

so

p rec ise

i n

a

way

 

that

i t'

s

not

 

12

s

up po rted .

 

13

A.

Wel l

,

we 've

got

h e r

e

--

we 've

got

 

t hree

and

a

 

1 4

h

a lf

pages

of

wo rd - for -word

conversatio n

me mor y

15

un

less

he

was

r e

c or din

g

it.

If

he

was

 

1 6

r e

c or din g

i t,

I' d

lik e

to

 

h e ar

the

r e c or din g.

 

1 7

Q.

Okay .

Whe n

d id

you

mak e

 

t he

dec isio n

to

ki ck

18

Dr .

 

S i ngh

ou t

o f

h is

of f

ice

at

S LI M?

 

1 9

A.

I

d id n ' t

make

t hat

dec is

io n .

 

20

Q.

Who

 

ma d e

t hat

dec is ion?

 

21

A.

Th

a t

dec is io n

was

--

I' m not

sure

 

who

made

tha t

22

dec

is io n

,

b u t

eve ryt

h i ng

 

t hat

happened

was

22 dec is io n , b u t eve ryt h i ng   t

23

d iscussed

wi th

t he

p rovos t .

And

some

o f

what

2 4

h

app en e d

was

d iscussed

wit h

the

pr e si d e n t.

 

25

But

 

I

thin k

i t

was

th e

p ract ice

i

f

somebody

was

HARRI SON ELLI OTT REPORTING

( 31 6)

267 -8278

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 46 of 166

EXHIBIT “C”

Case 5:16-cv-04182-DDC

Document 113

Filed 06/19/18

Page 47 of 166

5:16-cv-04182-DDC Document 113 Filed 06/19/18 Page 47 of 166 UNIVERSITY POLICY MANUAL TABLE OF CONTENTS GUIDING

UNIVERSITY POLICY MANUAL TABLE OF CONTENTS

GUIDING FRAMEWORK

. Equal Employment Opportunity, Equal Educational Opportunity and

University Mission Statement

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Non-discrimination Policy

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Affirmation of Values Statement

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Positioning Statement

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Organizational Chart

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