Dr. Melvin Hale's Opposition To Emporia State University's Motion For Judgment On The Pleadings 4/10/17 (Highlighted)

Case 5:16-cv-04183-DDC-KGG Document 23 Filed 04/10/17 Page 1 of 30
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS
MELVIN HALE, PH.D.,
Plaintiff
v.
EMPORIA STATE UNIVERSITY (ESU),

JACKIE VIETTI, PH.D.,
DAVID CORDLE, PH.D.,
Case No. 16-4183-DDC-KGG
JUDY ANDERSON,
KEVIN JOHNSON,
RAY LAUBER,
MIRAH DOW, PH.D.,
GARY WYATT, PH.D.,
Defendants.
PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR JUDGMENT ON THE

PLEADINGS
Defendants claim that this Court should dismiss Plaintiffs Complaint for the following
reasons:
1. Hales Title VII claim fails as it is barred by the applicable statute of limitations.
2. Hales Title VII claim fails because Hale did not engage in protected opposition to
discrimination. Because Hale cannot meet the element of a prima facie case, his Title VII
claim fails to state a claim upon which relief can be granted.
3. Hales 42 U.S.C. 1983 claim fails to state a claim upon which relief can be granted
because Hales alleged speech was not on a matter of public concern.

4. Defendants Vietti, Cordle, Anderson, Johnson, Lauber, Dow, and Wyatt are shielded
by qualified immunity on Hales 42 U.S.C. 1983 claim.
5. The Eleventh Amendment precludes Hales official capacity claims against Defendants
Vietti, Cordle, Anderson, Johnson, Lauber, Dow, and Wyatt.
6. Hales 42 U.S.C. 1983 claim fails against Defendants Vietti, Cordle, Anderson,
Johnson, Lauber, Dow, and Wyatt to the extent they are sued in their official capacity
because they do not constitute persons under 1983.
I. INTRODUCTION
On June 15, 2016, this Court adjudicated three Motions to Dismiss this action, and
permitted Plaintiffs Title VII Retaliation and First Amendment Retaliation claims to move
forward, 15-4947-SAC-KGS, Doc. 57, p. 30, inviting Plaintiff to illuminate specific actions of
the Defendants which they called the cooling off period for the purpose of determining if the
cooling off period would chill a person of ordinary firmness from engaging in protected speech.
In September 2016, Plaintiff faced severe medical and financial problems, and believed that he
should file for a voluntary dismissal according to Fed. R. Civ. P. 42(c)(2).
In its Order granting Plaintiffs Voluntary Motion to Dismiss filed on September 30,
2016, Judge Crow stated that The court shall grant plaintiffs motion to dismiss this case
without prejudice upon the condition that all pleadings, discovery, testimony, orders or rulings,
or any other substantive matters from these proceedings, will be binding in any later filed action
of the same claims so as not to prejudice either party to this action, with costs to be borne by the
party incurring it. (15-4947-SAC-KGS, Doc. 93, p. 6). Plaintiff re-filed this case on December
8, 2016 with the expectation that Defendants would be bound as stated in the Courts ruling.
They themselves state that Defendants further admit that Plaintiff has previously filed an action
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with the same/similar claims in the District of Kansas in 15-4947-SAC-KGS, and Defendants
note that the court filings in that case speak for themselves. Doc. 20, p. 1. Yet this motion
appears to be a violation of that order.
Defendants should be barred from bringing a Rule 12(c) Motion for Judgment on the
Pleadings (the Motion) immediately upon the re-filing of this action. A minuscule amount of
discovery occurred since the case moved forward, so nothing has materially changed that would
warrant a motion for judgment on the pleadings upon re-filing of the case. A motion for
judgment on the pleadings is essentially adjudicated as a motion to dismiss. "The standard for
addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule
12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006). On a motion to dismiss a complaint under Rule 12(b)(6), a court
assesses whether the complaint "contain[s] sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) Intercept
Pharms., Inc. v. Howard, No. 14-2920-cv (2d Cir. Aug. 28, 2015). The distinction between the
two motions is purely formal, because the court must review a Rule 12(c) motion under the same
standard that governs a Rule 12(b)(6) motion. Resource Cen. for Ind. Living v. Ability
Resources, 534 F. Supp.2d 1204, 3 (D. Kan. 2008). Apparently the complaint contained
sufficient factual matter, accepted as true, to state a claim to relief.
Perhaps Defendants are suggesting that they believe they can obtain a different ruling
from the newly assigned judge Daniel D. Crabtree, than that rendered by Judge Sam A. Crow,
who examined and pruned Plaintiffs claims in its Third Amended Complaint, and allowed Title
VII and First Amendment Retaliation claims to survive and move forward. Viewed in that light,
Defendants motion can be viewed as an affront to the Court and the ends of justice.
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A Rule 12(c) motion is designed to provide a means of disposing of cases when the
material facts are not in dispute between the parties and a judgment on the merits can be
achieved by focusing on the content of the competing pleadings, exhibits thereto, matters
incorporated by reference in the pleadings, whatever is central or integral to the claim for relief
or defense, and any facts of which the district court will take judicial notice. The motion for a
judgment on the pleadings only has utility when all material allegations of fact are admitted or
not controverted in the pleadings and only questions of law remain to be decided by the district
court. In its answer Defendants assert disputes with the majority of the material facts. This case
should be moving forward with discovery where it left off when it was voluntarily dismissed
without prejudice. Trial Rule 12(C) motions like other motions which render adjudications
on the merits convert into motions for summary judgment if the court accepts and uses
materials supplementary to the pleadings. Entry of judgment following such a motion, like
dismissal under T.R. 12(B)(6), constitutes an adjudication on the merits and bars its subsequent
assertion. Cf. Ragnar Benson, Inc. v. Wm. F. Jungclaus Co. (1976), Ind. App., 352 N.E.2d 817
(dismissal on grounds of failure to state claim constitutes adjudication on merits). Foshee v.
Shoney's, Inc, 637 N.E.2d 1277, 1280 (Ind. 1994). The inverse must also be true. The claims in
Plaintiffs current complaint moved forward on June 15, 2016 because of the merits, and
according to the ruling of the Court on September 30, 2016, all pleadings, discovery, testimony,
orders or rulings, or any other substantive matters from these proceedings, will be binding in any
later filed action of the same claims. (15-4947-SAC-KGS, Doc. 93, p. 6). Plaintiff has provided
copious supplemental material in previous pleadings to support the facts in this case; material
which proves that Defendants representation of the facts is false and misleading. The narrative
they weave in their 12(c) motion is both a misrepresentation and an obfuscation of the facts.
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Hale has stated a prima facie case of malicious and intentional retaliation, and the
muzzling of Constitutionally-protected free speech by state actors who knew that Hale was
participating in protected activity on matters of public concern in direct violation of his
Constitutional rights, and they knew that what they were doing was illegal because it violated
their own policies, mentioned in Hales Complaint in 161 and 238. Their Motion for
Judgment on the Pleadings should be denied with prejudice. Considering that Defendants are
represented by the Office of Kansas Attorney General Derek Schmidt, perhaps the Court should
consider sanctions against the Attorney General of Kansas for bringing this motion. It is difficult
enough for a diligent pro se to contend with legal heavyweights in federal court. A pro se should
not have to contend with state-funded attorney misconduct. This matter should have settled by
now. It appears that Defendants are primarily engaged in a protracted legal battle to wear down
a pro se litigant who will not surrender. They have no concern about having to potentially pay
opposing attorney fees; are funded by tax dollars; and are willing to use disreputable legal tactics
to accomplish their goal, which is a manifest injustice.
II. LEGAL ARGUMENT
The court will dismiss a cause of action for judgment on the pleadings 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. 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
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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).
This case is not about a singular incident of racial discrimination, which Defendants
continue to harp upon as not rising to the level for a case of racial discrimination. This case is
about retaliation and the suppression of freedom of speech protected by the First Amendment. It
is about the malevolent conduct of Interim President Jackie Vietti who led the effort to silence
Hale by encouraging students, faculty and staff to ignore Hale and his calls for an independent
investigation, not the internal investigation led by Ray Lauber, a longtime family friend of the
only suspect in the case. It is about a cover-up and a whitewash directed by Vietti, Johnson,
Cordle, Wyatt, Anderson, Lauber and Dow. Vietti repeatedly refused to have a dialog with Hale,
an Assistant Professor at ESU, in direct violation of ESUs policy prohibiting such conduct,
amidst her repeated statements to the press and the campus that ALL voices were heard. Hale
references this conduct in 130. By banishing and relegating him to the sidelines of the
university community, ESU et al. violated Hales Constitutional right to freedom of speech on a
matter of public concern, 238. This conduct was hateful, detestable, and intentional.
This case is about Provost David Cordle and his refusal to do his job, and demand a
truthful investigation, and his role in conceiving and enacting the cooling off period, which
would arguably chill a person of ordinary firmness from speaking out about racism and the
corrupt behavior of a university determined to suppress freedom of speech, 237. Cordle was
joined and supported in this reprehensible conduct by Jackie Vietti, Kevin Johnson, Gary Wyatt,
Ray Lauber, Judy Anderson, and Mirah Dow.
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Provost Cordle defined Hales extended cooling off period as follows: The current
prohibition on your being present in any SLIM office or area will remain in effect through the
end of your 2015-16 academic year appointment. The current prohibition on communication
between you and anyone at SLIM beyond what is necessary for the instruction of your assigned
courses will remain in effect through the end of your 2015-16 academic year appointment; since
no instruction will be assigned for Spring Semester 2016, you are therefore prohibited from
contacting any SLIM faculty member, staff member, administrator, or student for any reason
after December 15, 2015. Emphasis added. Such a prohibition amounted to an explicit
Constitutional violation because Hale was engaged in a public dispute over the manner in which
ESU handled the report of hate speech and racial discrimination.
This case is about Ray Lauber, who conveyed the message across campus to faculty and
staff to stop talking to Hale, 199. Lauber admitted having a long-term familial relationship
with Debra Rittgers, 70 to 73, the suspect in the writing of the racial slur according to a
nationally respected forensic document examiner, 69, but he architected the investigation,
which was nothing less than a full-scale ad hominem attack against Hale and his wife.
This case is about Kevin Johnson, ESUs General Counsel, who doubled down and even
referenced Hale and his wife Angelica as being banished from the campus to the FBI agent who
came to ESU, 222 to 230. Johnson claimed that hate crimes are a misconception and do not
actually exist, and pointed to a lack of a specific hate crime statute in Kansas, 107 to 111.
This case is about Mirah Dow, head of SLIM faculty, who assumed the role of Interim
SLIM Dean when Gwen Alexander was forced to step down. Dow prevented Hale from
returning to his office, and became an enforcer of the cooling off period in which he was
muzzled in his own department. Dow, whose conduct can best be described as duplicitous, said
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herself that she was surprised that Dean Alexander was remiss in her response to the hate speech
incident, 55, and that she believed a crime was committed, 104, and that Hale did nothing
wrong, 105, yet Dow still closed ranks with the administration in their efforts to silence Hales
voice. She told Hale that the administration was looking for any excuse to terminate him, 192,
and that he shouldnt even sound tense because theyre looking for anything they can, 195.
Ultimately, Dow chose to keep her power over doing the right thing, 197. Dow was
complicit in the effort to silence Hale from making his voice heard about official corruption at
ESU, an affront to free speech on a matter of public concern.
This case is about Assistant Provost Gary Wyatt who was Interim SLIM Dean for a
period after the departure of Gwen Alexander. Wyatt prevented Hale from returning to his
office, and became an enforcer of the cooling off period in which he was muzzled in his own
department. Wyatt was a leader in the effort to suppress the facts and in promoting the cover-up
and whitewash, 103, 153, and 234. Wyatt was an integral player in official corruption that
stripped Hale of his Constitutional rights to confront official misconduct by government actors.
This case is about Judy Anderson, Director of Human Resources at ESU, and Laubers
supervisor; the Title VII officer who supported the cooling off period which silenced Hale in
violation of explicit Title VII policies against repeated ignoring of a member of the university
community. Rather than go against the actions of Vietti and others, she acquiesced, and called a
law enforcement matter a personnel matter in a corrupt attempt to prevent transparent access to
information which should be made freely available to the public, 58 and 120.
"The First Amendment right of free speech includes not only the affirmative right to
speak, but also the right to be free from retaliation by a public official for the exercise of that
right." A plaintiff seeking to recover for First Amendment retaliation must allege that (1) she
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engaged in protected First Amendment activity, (2) the defendants took some action that
adversely affected her First Amendment rights, and (3) there was a causal relationship between
her protected activity and the defendants' conduct. Id. at 686. Suarez Corp. Indus. v. Mc-Graw,
202 F.3d 676, 685 (4th Cir. 2000).
This case is about racism being tolerated and defended by Emporia State University, and
the extent to which a corrupt and racist administration would go to deny racism using a sham
investigation as a cover-up foisted on the public to obscure the stark reality of both overt and
covert racism at ESU, which Dr. Hale, a black man, describes as palpable. Hale communicated
this foul truth to the public because the public has a right to know when a public institution is
violating Constitutional rights by suppressing someone who speaks out against official
corruption. This case should move forward so that the triers of fact can make a determination as
to liability and damages.
Individual Capacity 42 U.S.C. 1983 First Amendment Retaliation claims against Vietti,
Cordle, Anderson, Johnson, Lauber, Dow and Wyatt are appropriate because they knowingly and
willfully violated Hales Constitutional rights in retaliation for his reporting hate speech and for
reporting their corruption. It is indisputable that Hale engaged in protected First Amendment
activity. See Trulock v. Freeh, 275 F.3d 391, 404-05 (4th Cir. 2001) (holding that the plaintiff
adequately alleged First Amendment retaliation based on government officials' response to his
publication of an article criticizing the FBI and other federal agencies). Hale criticized ESUs
improper handling of the reporting of the hate speech incident to The Associated Press, which
published its article in on July 29, 2015. The cooling off period was put into effect on or about
August 27, 2015. First Amendment retaliation is actionable because "retaliatory actions may
tend to chill individuals' exercise of constitutional rights." ACLU of Md., Inc. v. Wicomico
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County, Md., 999 F.2d 780, 785 (4th Cir. 1993). Not all retaliatory conduct tends to chill First
Amendment activity, however, DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995), and a
plaintiff seeking to recover for retaliation must show that the defendant's conduct resulted in
something more than a "de minimis inconvenience" to her exercise of First Amendment rights,
ACLU of Md., 999 F.2d at 786 n. 6. Both Hale and his wifes contracts were not renewed after
their complaints about corruption at ESU, in a public manner more akin to a lynching; certainly
something much more than a "de minimis inconvenience."
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.
In the following sections Plaintiff will address (A) Protected activity, (B) Materially
adverse action, (C) Causal connection, (D) Defendants retaliatory motive satisfies the "but for"
cause of the adverse employment action, (E) Plaintiff was in his right to complain to someone
other than his employer, (F) Retaliation is a separate claim from discrimination, (G) Plaintiffs
actions as a government employee amounted to engaging in free speech as a private person and
on a matter of public concern, (H) Defendants cannot proffer legitimate, non-retaliatory rationale
for taking adverse actions against Hale that are in fact not pretextual, (I) Defendants lacked
clearly articulated policies for the reporting of bias incidents, (J) Defendants sued in their
individual capacities do not automatically have Eleventh Amendment Immunity against 42
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U.S.C. 1983 First Amendment Retaliation claims, (K) Injunctive relief not barred by immunity,
(L) Qualified immunity, and (M) Equitable tolling of the statute of limitations.
A. Protected activity.
Although Hale was involved in more than one activity which could be characterized as
protected, the initial protected activity was reporting the writing of the racial slur found on a
graduate assistants notepad to a school official, Dean Alexander, with the expectation that it
would be followed up with some affirmative actions to investigate the matter and take steps to
deter a repetition. When Alexander ignored Hale, Hale went to Defendant Dow to see if she
could get a different reaction from Alexander. Ultimately, Hale and his wife took the matter to
Defendant Cordle and Anderson, and to the ESU Police Department and local district attorney
Marc Goodman, 59 to 64.
Hale was thereafter contacted by the Associated Press, and he reported racially
discriminatory conduct and official corruption to the media, 100. Hale also participated in
protest marches demanding an end to racism, retaliation, falsified investigations and cover-ups,
and was shut down for this, 206 to 210. 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).
Additionally, Plaintiffs filing of a police report is considered protected activity which
provided him with qualified immunity in most jurisdictions, and absolute immunity in others. In
Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla. 1992) (The primary question we must answer in
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this case is whether defamatory statements made to the authorities prior to the initiation of
criminal proceedings are absolutely privileged as within the course of judicial proceedings. ) . . .
Thus, although there are no recent Supreme Court decisions on this issue, it appears from these
cases that the district courts are dissatisfied with the results of the absolute privilege as set forth
in Ange and Robertson. Turning to other jurisdictions, it appears that a majority of states that
have addressed this issue have embraced a qualified privilege, see Kahermanes v. Marchese, 361
F. Supp. 168, 172 (E.D.Pa. 1973); Marsh v. Commercial Sav. Bank, 265 F. Supp. 614, 621
(W.D.Va. 1967); Miller v. Nuckolls, 77 Ark. 64, 91 S.W. 759, 761-62 (1905); Flanagan v.
McLane, 87 Conn. 220, 87 A. 727, 728 (1913).
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 "materially adverse"
standard, but defined "materiality" objectively from the perspective of a "reasonable employee."
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Hale believes that his claims survive under the narrowest reading, but that the middle reading is
more appropriate: An employment action that a reasonable employee would find "materially
adverse," i.e. resulting in tangible injury or harm. By banishing Hale from his co-workers and
terminating his contract, when he had a reasonable expectation of becoming a tenured professor,
Defendants actions satisfy the second element of a Title VII retaliation claim, adverse action.
For the purposes of a First Amendment Retaliation claim under 1983, a plaintiff suffers
adverse action if the defendant's allegedly retaliatory conduct would likely deter "a person of
ordinary firmness" from the exercise of First Amendment rights. Washington v. County of
Rockland, 373 F.3d 310, 320 (2d Cir. 2004); Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir.
2002); Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001); Smith v. Plati, 258 F.3d 1167, 1176
(10th Cir. 2001); Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000); Bloch v. Ribar, 156
F.3d 673, 678 (6th Cir. 1998); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982); cf. Suarez
Corp., 202 F.3d at 688 (noting that retaliatory disclosure of information may constitute adverse
action if it is "sufficiently embarrassing, humiliating, or emotionally distressful" and citing
Bloch's "ordinary firmness" standard). Hale was humiliated by being banished from his office
and colleagues. Whether the cooling off period would chill a person of ordinary firmness from
reporting hate speech, or official misconduct that violated free speech, is a matter best reserved
for the triers of fact, but it is highly probable on the face of it.
C. Causal connection between Plaintiffs protected activity and the materially adverse
action.
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
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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. On July 7, 2015, less than a week after Plaintiff took his
concerns about the incident of hate speech to the campus police, and asked them to do something
about it, Dean Alexander stated in a legally recorded conversation in her office that What I
dont appreciate is that you went over, you know, to the Police. Within two weeks Alexander
terminated Angelica Hales contract and began removing duties from Hale, 204 to 206. There
are virtually no degrees of separation between the report to the campus police, and obvious
dissatisfaction from the administration, which ultimately was manifest in the cooling off period
and the termination of his contract. Both animus and loathing are palpable in Alexanders tone
on the recording. Immediately after Hales July 7th conversation with Alexander, Angelica Hale
observed Alexander engaged in a long conversation with Vietti in the ESU parking lot. The
actions Defendants took to shut Hale down and silence him were brazen and shameless.
Vietti sought to extinguish Hales professional credibility by demanding that he retract
his belief that Debra Rittgers was a bona fide suspect in the writing of the slur, 132, 133. She
too labeled his complaint a personnel matter, which he refused to do. In response to a letter from
a student questioning the actions of the university, Vietti wrote a response on August 11, 2015
that implies misconduct on the part of Hale, and suggests Hale should have made a personnel
complaint instead of a police report. Plaintiff steadfastly refused to file a personnel complaint
about the hate speech incident, because in his view it is not a personnel matter; it is a law
enforcement matter. ESU has a long history of treating police matters as personnel matters so
that they can refuse to comment on the subject and avoid freedom of information act requests
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from the press and the public, while retaliating against employees with grievances. Defendants
doubled down on the its a personnel matter defense, and used this weapon to squelch all
discussion about the hate speech incident on the entire ESU campus, 134 to 138, and 179 to
181. The chilling effect was universally felt. Virtually everyone quit speaking to the Hales and
avoided and ignored them.
In a press conference, held on September 9, 2015, Defendants Vietti and Johnson
concocted a raft of falsehoods about Plaintiff, his wife, and the hate speech incident, going so far
as to state that if the Dean had been present on April 8, 2015, when Plaintiff learned of the hate
speech incident in a text from his wife, and then reported it, in person, to the Dean, that he and
his wife would not have even known about the incident, and that they came to know about it only
as a fluke, 213 to 217. Their entire press conference was filed with lies and disturbing
innuendoes about the character of the Hales. A recording of the press conference is available on
KVOEs website at the following URL: http://kvoe.com/newsedit/10322-esu-no-racial-
discrimination-or-hate-crime-in-slim-department. It is located at the bottom of the page, entitled:
Full ESU News Conference: Sep. 9, 2015.
Vietti and Johnson stated that their internal investigation had the strongest possible
factual, fair, and logical foundation, but their story of what happened was nothing less than pre-
packaged lies prepared for a friendly media audience who would uncritically consume them
without daring to challenge or embarrass them. ESU is the bedrock institution and biggest
employer in Emporia. Without it Emporia would quickly become just another ghost town in the
Midwest. Hale and his wife were portrayed as opportunists who had a different perception than
others by Vietti and Johnson, and who were activated by a fluke. He and his wife were
skewered by trolls on the Internet, and their names were added to an Internet site for hate hoax
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perpetrators, 137. All of this was orchestrated by the Defendants and their supporters. Despite
this, Hale and his wife were courageous enough to step outside the limits of free speech at
Emporia State University to tell the truth, and they both have paid a heavy price. This should not
be allowed at an institution supported by federal, state, and local tax dollars.
D. Defendants retaliatory motive satisfies the "but for" cause of the adverse employment
action.
Plaintiff asserts that but for his reporting of a hate speech incident to law enforcement,
and to senior members of the Emporia State administration, he would not have been subject to
adverse employment action of any kind. Hale was highly regarded and respected for his work as
an Assistant Professor. 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).
Hale contends that the evidence will show that until he complained of a matter of public
concern, the universities refusal to conduct a fair and transparent investigation into a repugnant
incident of hate speech, that his status in SLIM was not in question. The faculty members in
SLIM held Hale in high regard, and his student reviews before the cooling off period were
exemplary for a new professor, 80.
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E. Plaintiff was in his right to complain to someone other than his employer, such as the
ESU Police Department and the local district attorney.
"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
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).
17
F. Retaliation is a separate claim from discrimination.
Retaliation is a separate claim from discrimination, and does not require racial
discrimination even though Hale contends that repeated ignoring meets the threshold for
proving a hostile work environment. 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)).
G. Plaintiffs 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 him which was motivated by his 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
18
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
employees 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). These conditions are met in Hales complaint.
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 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 his wife reported, is an outrage, and the manner in
19
which Hale and his wife 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 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.
Plaintiff was informed of an incident that he reasonably believed was not socially benign or
acceptable in a university setting involving the word NIGGAZ. Hales report of what he
considered a hate crime, although technically it is hate speech, was not part of his regular duties.
Had it been objective and impartial, the investigation envisioned by Hale would have relieved
him of any further involvement in the matter except as requested or directed by his employer.
Hale was being repeatedly ignored on the directions of each and every Defendant, 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 of corruption at ESU
was carried by the Associated Press and numerous news and media outlets nationwide, and has
subsequently been followed by hundreds of supporters online, should solidify the matter as one
of public interest.
In November 2016 Hale published a book entitled Django Unchained and the March on
Emporia State: Institutional Racism as Practiced on an Academic Plantation in Kansas. It
appears both callous and contemptuous for the Attorney Generals office to misrepresent Hales
stance as anything other than a principled stand against racism and discrimination, no different
than Rosa Parks stand in Montgomery, Alabama. Instead of standing with Hale, the Attorney
Generals office would rather throw Hale under the bus, and drive him into poverty. The actions
of the Attorney Generals office appear to be in defense and promotion of official misconduct.
20
Hale viewed his actions as necessary protected activity not bound in any manner to his
work as an Assistant Professor. 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 him to state
his views in public. ESU forced Hale to go public because the matter was one of public concern.
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). Hales work performance was satisfactory before the cooling off period,
thus defendants cannot possibly proffer legitimate, non-retaliatory rationale for taking adverse
actions against Hale that are in fact not pretextual. Defendants have never offered to Hale, or
anyone, a specific legitimate, non-retaliatory rationale for taking adverse actions against Hale.
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
21
designed to encourage the creation of anti-harassment policies and effective grievance
mechanisms. Ellerth, 118 S. Ct. at 2270. Dean Alexander stated that ESU did not have a
policy for reporting the racial incident that occurred, 50.
An anti-harassment policy and complaint procedure should contain, at a minimum, the
following elements:
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 Emphasis added.
J. Defendants 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 Vietti, Cordle, Anderson,
Johnson, Lauber, Dow, and Wyatt in their individual capacities dismissed. They argue that
Vietti, Cordle, Anderson, Johnson, Lauber, Dow, and Wyatt are qualified immune from suit. The
1
EEOC, Enforcement Guidance.
22
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).
The legal standards set forth above govern the court's decision as to qualified immunity,
and the two prongs, 1) violation of federal constitutional and statutory rights, and 2) that the
rights violated were clearly established, have been adequately met in Plaintiffs complaint.
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,
Plaintiffs asks for leave to amend its complaint. A plaintiff may amend his 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
23
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 states sovereignty. The Supreme Court held in Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), held that the Eleventh Amendment does not bar
a suit against a State official for prospective injunctive relief. In order to determine whether this
doctrine applies, we "need only conduct a straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective." Verizon Md., Inc. v. Public Serv. Comm'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 152
L.Ed.2d 871 (2002) (internal quotations omitted). We do not consider the merits of the plaintiff's
claims; it is enough that the complaint alleges an ongoing violation of federal law. Id. at 646, 122
S.Ct. 1753. 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).
24
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 engages 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 publicly retract their claim that a fair, logical and thorough investigation
was done.
C. That the Court order Debra Rittgers to submit to a forensic handwriting examination
and a polygraph test to determine whether or not she wrote the offensive racial epithet.
D. That the ESU Bulletin retracts false comments attributed to Hale, and admit to
publishing false narratives and allegations against Hale.
E. That Defendants be required to contact all media entities previously contacted by
them to inform them that their investigation into the allegations made by Hale was biased and
falsified to make it appear that ESU was discrimination and hate crime-free.
F. 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.
25
G. That Plaintiff Hale is permitted to engage in post-judgment discovery to ensure
compliance with the injunctive relief granted.
L. Qualified immunity
In the case of Saucier v. Katz, the United States Court of Appeals for the Ninth Circuit
considered an interlocutory appeal from the denial of qualified immunity, 194 F.3d 962 (1999).
The Court of Appeals affirmed, noting at the outset its two-part analysis for qualified immunity
questions. First, the Court of Appeals considers "whether the law governing the official's
conduct was clearly established." Id., at 967. If it was not, that ends the matter, and the official is
entitled to immunity. If, however, the law was clearly established when the conduct occurred, the
Court of Appeals' second step is to determine if a reasonable officer could have believed, in light
of the clearly established law, that his conduct was lawful. Ibid.
The university context in which this suit arises is constantly addressing issues involving
freedom of speech and academic freedom, so it is reasonable to conclude that the Defendants
were aware of the First Amendment. It is reasonable to conclude that they knew without a doubt
that their muzzling of Hale was unlawful. Hale himself raised this issue explicitly with Vietti,
Johnson, Cordle, Dow, Lauber and SLIM Dean Gwen Alexander, as well as with the ESU Police
Department. Each Defendant, Vietti, Cordle, Anderson, Johnson, Lauber, Dow, and Wyatt, in
their individual capacities, did take actions that placed unlawful limits on Hales First
Amendment activities. On information and belief, Hale contends that Defendants actions were
undertaken because they believed that he was unable to afford legal representation to confront
them in court, and that he lacked the legal knowledge and stamina to do so himself, so they
casually and flagrantly violated his Constitutional rights. Hale also believes that Defendants
Vietti, Johnson and Cordle exhibited explicit and unconcealed animus towards him. He believes
26
that they showed him no professional respect whatsoever, and in his presence looked at him with
eyes full of disdain and contempt. In the meeting with Cordle and Johnson referenced in 218
Hale asked Cordle if he would like to hear his side of the matter, to which Cordle responded that
If I were interested in that we would have done that by now. Cordle and Johnson looked at
Hale in stony silence when Hale stated that he felt that their conduct was racist.
"Under the doctrine of qualified immunity, `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." Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d
584, 592 (10th Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); cf. Harris v.
Board of Educ. of the City of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997) ("In all but the most
exceptional cases, qualified immunity protects government officials performing discretionary
functions from the burdens of civil trials and from liability for damages."). The key to the
qualified immunity inquiry is the "objective reasonableness of the official's conduct in light of
the legal rules that were clearly established at the time the action was taken." Melton v. City of
Oklahoma City, 879 F.2d 706, 727 (10th Cir. 1989) (quotations omitted), modified on other
grounds, 928 F.2d 920 (10th Cir. 1991). The Defendants conduct in this case is not objectively
reasonable, borne out by the fact that they flagrantly lied on Hale and misrepresented the facts of
the hate speech incident to the public and the press in order to cover-up racism, whitewash the
connotations, and make an example of Hale for confronting racism and corruption, 213 to
222. Lies are intentional and indicative of malice and animosity aforethought.
27
M. Equitable tolling of the statute of limitations
As to whether or not the Court is permitted to consider equitable tolling of the statute of
limitations for Plaintiffs Title VII claim, Plaintiff believes that equitable tolling is warranted.
Federal precedent equitably tolls the limitations period in three circumstances: (1) where the
plaintiff has actively pursued his or her judicial remedies by filing a timely but defective
pleading; (2) where extraordinary circumstances outside the plaintiff's control make it impossible
for the plaintiff to timely assert his or her claim; or (3) where the plaintiff, by exercising
reasonable diligence, could not have discovered essential information bearing on his or her
claim. Abbott v. State, 979 P.2d 994, 998 (Alaska 1999). We have allowed equitable tolling
in situations where the claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant has been induced or tricked by his
adversary's misconduct into allowing the filing deadline to pass. We have generally been much
less forgiving in receiving late filings where the claimant failed to exercise due diligence in
preserving his legal rights. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151
(1984), Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (U.S. 1990).
In this litigation, it has been noted by the Court that Plaintiff has been diligent in
litigating this case, 15-4947-SAC-KGS, Doc. 93, p. 4. Plaintiff asks this Court to consider at
least two extraordinary circumstances outside of its control that made it impossible to continue
litigating at the point where the Fed. R. Civ. P. 42(c)(2) was filed. Defendants actions against
Plaintiff caused his loss of income, as well as that of his spouse. The physical stress of such
events was a contributing factor to serious physiological ailments that resulted in Plaintiff having
to seek emergency room treatment on five occasions within three weeks, not including numerous
follow-up doctor visits. Claimant has done his best to exercise due diligence in preserving his
28
legal rights. Equitable tolling, unlike estoppel, does not require active deception or employer
misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights.
Machules v. Dep't of Admin., 523 So.2d 1132, 1133-1134 (Fla. 1988). Plaintiff does not know if
it would have been more appropriate to have filed for a continuance instead of a voluntary
motion to dismiss because he was too ill to even figure this out due to his pain and suffering.
Defendants do not deserve to benefit from a miscarriage of justice based on a defective pleading
by a pro se litigant who was otherwise diligent and is now in forma pauperis due to their illegal
actions.
III. CONCLUSION
For the reasons set forth above, and the undisputed evidence that conclusively shows that
Defendants knowingly violated Plaintiffs Constitutional rights, Hales Complaint is entitled to
move forward as previously ordered by this Court.
WHEREFORE, Hale respectfully requests that this Court deny Defendants Motion for
Judgment on the Pleadings, and grant such further relief as may be necessary to promote the ends
of justice.
Dated: April 10, 2017 Respectively submitted,
______________________________
/s/ Melvin Hale, Defendant Pro Se
P.O. Box 6176
Goodyear, AZ 85338
reefresh@yahoo.com
916-690-7927
29
CERTIFICATE OF SERVICE
Case No. 16-4183-DDC-KGG

I hereby certify that on this 10th day of April, 2017, 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/ Melvin Hale

P.O. Box 6176
Goodyear, AZ 85338
916-690-7927
30

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Case 5:16-cv-04183-DDC-KGG Document 23 Filed 04/10/17 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

MELVIN HALE, PH.D.,

EMPORIA STATE UNIVERSITY (ESU),

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR JUDGMENT ON THE

claim fails to state a claim upon which relief can be granted.

because Hales alleged speech was not on a matter of public concern.

by qualified immunity on Hales 42 U.S.C. 1983 claim.

Vietti, Cordle, Anderson, Johnson, Lauber, Dow, and Wyatt.

because they do not constitute persons under 1983.

should file for a voluntary dismissal according to Fed. R. Civ. P. 42(c)(2).

appears to be a violation of that order.

sufficient factual matter, accepted as true, to state a claim to relief.

(dismissal on grounds of failure to state claim constitutes adjudication on merits). Foshee v.

participating in protected activity on matters of public concern in direct violation of his

to accomplish their goal, which is a manifest injustice.

II. LEGAL ARGUMENT

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

Ray Lauber, Judy Anderson, and Mirah Dow.

ESU handled the report of hate speech and racial discrimination.

ESU, an affront to free speech on a matter of public concern.

202 F.3d 676, 685 (4th Cir. 2000).

to liability and damages.

something much more than a "de minimis inconvenience."

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

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

individual capacities do not automatically have Eleventh Amendment Immunity against 42

Marc Goodman, 59 to 64.

Additionally, Plaintiffs filing of a police report is considered protected activity which

McLane, 87 Conn. 220, 87 A. 727, 728 (1913).

B. Materially adverse action.

How "adverse" must an employer's actions be to constitute retaliation? The Supreme

an "objective standard" under which an action challenged as retaliatory must be "materially

ultimately resolved the "Circuit Split" in favor of a middle-of-the-road "materially adverse"

action if it is "sufficiently embarrassing, humiliating, or emotionally distressful" and citing

Vietti sought to extinguish Hales professional credibility by demanding that he retract

avoided and ignored them.

In a press conference, held on September 9, 2015, Defendants Vietti and Johnson

KVOEs website at the following URL: http://kvoe.com/newsedit/10322-esu-no-racial-

discrimination-or-hate-crime-in-slim-department. It is located at the bottom of the page, entitled:

Full ESU News Conference: Sep. 9, 2015.

be allowed at an institution supported by federal, state, and local tax dollars.

exemplary for a new professor, 80.

ESU Police Department and the local district attorney.

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

F. Retaliation is a separate claim from discrimination.

G. Plaintiffs actions as a government employee amounted to engaging in free speech as a

against him which was motivated by his free speech.

Emporia State: Institutional Racism as Practiced on an Academic Plantation in Kansas. It

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

actions against Hale that are in fact not pretextual.

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

designed to encourage the creation of anti-harassment policies and effective grievance

policy for reporting the racial incident that occurred, 50.

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

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;

the extent possible;

it determines that harassment has occurred.1 Emphasis added.

Eleventh Amendment Immunity against 42 U.S.C. 1983 First Amendment Retaliation