Hale v. Emporia State Univ.

ANGELICA HALE, Plaintiff, v. EMPORIA STATE UNIVERSITY,GWEN ALEXANDER, DAVID CORDLE, and JACKIE VIETTI, Defendants.

Case No. 16-4182-DDC-TJJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

November 9, 2018

MEMORANDUM AND ORDER

Plaintiff Angelica Hale is a former employee of Emporia State University ("ESU"). Plaintiff brings this action pro se¹ against defendants ESU, Gwen Alexander, David Cordle, and Jackie Vietti. Plaintiff asserts a Title VII retaliation claim against ESU, alleging that ESU terminated her employment as retaliation for complaining about racial discrimination. Also, plaintiff asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 against defendants Alexander, Cordle, and Vietti because, plaintiff contends, these three individuals retaliated against her after she exercised her right to speak out against discrimination and racism.

This matter comes before the court on the parties' cross motions for summary judgment. Plaintiff has filed a Motion for Summary Judgment. Doc. 85. Her motion asks the court to enter summary judgment in her favor on her Title VII and § 1983 claims. Defendants have filed aResponse, opposing plaintiff's summary judgment motion. Doc. 109. And plaintiff has filed a Reply. Doc. 116.

Defendants also have filed a Motion for Summary Judgment. Doc. 106. Plaintiff filed an Opposition to Defendants' Motion for Summary Judgment. Doc. 113. And defendants filed a Reply. Doc. 118.

The motions thus are fully briefed, and the court is prepared to rule. For reasons explained below, the court grants defendants' Motion for Summary Judgment in part and denies it in part. The court denies summary judgment against plaintiff's Title VII claim but grants summary judgment against her § 1983 claim. Also, the court denies plaintiff's Motion for Summary Judgment. The court explains why, below.

I. Defendants' Failure to Controvert Plaintiff's Statements of Fact

Before reciting the uncontroverted facts that govern these summary judgment motions, the court describes how defendants have failed to controvert plaintiff's asserted statements of fact in the fashion required by this court's local rules. The pro se plaintiff has filed a Motion for Summary Judgment containing 55 separately numbered statements of fact. Doc. 86-3 at 11-25; Doc. 86-5 at 11-25. Each of plaintiff's facts cites the specific portion of the summary judgment record she relies on to support the fact. Id. By doing so, plaintiff has complied with our local summary judgment rules that require a party moving for summary judgment to provide a "concise statement of material facts as to which the movant contends no genuine issue exists" that are "numbered and . . . refer with particularity to those portions of the record upon which movant relies." D. Kan. Rule 56.1(a). Also, D. Kan. Rule 56.1(a) provides: "All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party."

Defendants' Response to Plaintiff's Motion for Summary Judgment never controverts any of plaintiff's facts specifically. Instead, defendants simply assert: "By Plaintiff's own admission, her 'Statement of Material Undisputed Facts' are a blending of her arguments and her facts. As such, the court should disregard Plaintiff's confused version of what the documents expressly state." Doc. 109 at 3. Defendants' conclusory response does not comply with our local rules. These rules require a party opposing summary judgment to controvert specifically the movant's statements of material fact. See D. Kan. Rule 56.1(a) ("All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party"); see also D. Kan. Rule 56.1(b)(1) ("A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed.").

Because defendants have not complied with our rules, the court accepts as true plaintiff's material facts, but only if the summary judgment record properly supports those facts. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (explaining that when a party opposing summary judgment waives its right to respond or controvert the facts asserted in the moving party's summary judgment motion, the court "should accept as true all material facts properly asserted and properly supported in the summary judgment motion"). And indeed here, plaintiff supports most of her asserted statements of fact with her own Declaration. Doc. 86-1. Section 1746 of Title 28 of the United States Code governs the admissibility of declarations. For a declaration to be admissible under § 1746, the declarant must "subscribe[ ]" that the statement istrue under penalty of perjury with language substantially similar to the following statement: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct," followed by a date and a signature. 28 U.S.C. § 1746. Plaintiff's Declaration recites: "I declare under penalty of perjury, pursuant to the laws of the State of California and the United States of America, that the foregoing is true and correct. This Declaration was executed on April 2, 2018 in Palm Springs, California." Doc. 86-1 at 10. After this statement, plaintiff again provides the date of execution and her electronic signature. In short, plaintiff's Declaration complies with § 1746. And the facts asserted in that Declaration—to the extent plaintiff bases the facts on her personal knowledge—are admissible on summary judgment. Because defendants never controvert any of those facts, the court accepts them as true on summary judgment.

Also, in response to defendants' Motion for Summary Judgment, plaintiff filed a Statement of Additional Facts. Doc. 115. Plaintiff's Statement of Additional Facts contains 44 separately numbered paragraphs with citations to the portions of the summary judgment record she relies on to support the facts. Id. By doing so, plaintiff again complied with our local summary judgment rules governing a memorandum opposing summary judgment. D. Kan. Rule 56.1(b)(2) provides: "If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above." Also, this same subsection of Rule 56.1 provides: "All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party." D. Kan. Rule 56.1(b)(2).

Defendants' four-page Reply does not controvert any of plaintiff's 44 additional statements of fact. See Doc. 118. Defendants' Reply briefly references two of the exhibits that plaintiff submitted with her Response opposing defendants' summary judgment motion. See Doc. 118 at 2. And defendants assert—but just as a conclusion—that the exhibits don't present any "material facts at issue." Id. But defendants' Reply never controverts any of plaintiff's additional statements of fact specifically in the manner required by our local rules. See D. Kan. Rule 56.1(b)(2) ("All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party."); see also D. Kan. Rule 56.1(c) ("In a reply brief, the moving party must respond to the non-moving party's statement of additional material facts in the manner prescribed in subsection (b)(1).").

In sum, because defendants have failed to controvert plaintiff's additional statement of facts specifically as our local rules require, the court also accepts as true plaintiff's additional statement of facts, but only if the summary judgment record properly supports those facts. Reed, 312 F.3d at 1195.

II. Uncontroverted Facts

The following facts are stipulated by the parties in the Pretrial Order (Doc. 78), or are uncontroverted for purposes of the parties' summary judgment motions.

In May 2014, ESU offered plaintiff's husband—Melvin Hale—a tenure-track position as an assistant professor in ESU's School of Library and Information Management ("SLIM"). On May 17, 2014, Gwen Alexander—ESU's Dean of the SLIM—sent an email to Dr. Hale with an offer letter. The letter recited that ESU was looking forward to welcoming Dr. Hale to the school. Dr. Hale began his employment with ESU in July 2014. Also in July 2014, plaintiffaccepted a position at ESU as an administrative assistant to Dean Alexander.² Plaintiff is an African-American female.

On April 8, 2015, a graduate assistant named Brenda Rahmoeller arrived at work to find her office door unlocked, and she discovered the word "NIGGAZ" written in a personal notebook located in her office. She reported what she had found to plaintiff. Plaintiff took a photograph of the racial epithet on her cell phone. She then sent a text message to her husband—Dr. Hale—informing him of the incident and enclosing a picture of the racial epithet. When Dr. Hale received the text message, he was in a faculty meeting with Dean Alexander and others. After the meeting, Dr. Hale went with Dean Alexander to Dean Alexander's office and informed her of the report that the graduate student had made to plaintiff. Plaintiff then joined the meeting with Dr. Hale and Dean Alexander, and she reported what she had seen in the graduate...