Hale Memorandum To Deny Defendants Motion To Dismiss 2nd Complaint

Case 5:15-cv-04947-SAC-KGS Document 17 Filed 02/16/16 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS
MELVIN HALE, PhD,

Plaintiff
v.
EMPORIA STATE UNIVERSITY (ESU); JACKIE
VIETTI, in her capacity as Interim President of
ESU; DAVID CORDLE, in his capacity as Provost
of ESU, JUDY ANDERSON, in her capacity as
Executive Director of Human Resources at ESU;
GWEN ALEXANDER, in her capacity as Dean of
the School of Library & Information Management
at ESU; CHRIS HOOVER, in his capacity as Chief
of Police at ESU; DEBRA RITTGERS, in her
capacity as Assistant to the Dean of the School of
Library and Information Management at ESU;
KEVIN JOHNSON in his capacity as ESU General
Counsel and as Co-Director of the Koch Center for
Leadership and Ethics at ESU; and RAY LAUBER
in his capacity as HR Specialist at ESU, and DOES
1 to 100,
Defendants.
Case No. 15-4947-SAC-KGS
PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO

DISMISS SECOND AMENDED COMPLAINT
Defendants claim that Hale has failed to state a claim upon which relief can be granted
with respect to his federal question claims (Doc. 15, p.2), and that Defendants are afforded
immunity from prosecution in Federal Court (Doc. 15, p.3). Defendants further claim that Kevin
Johnson and Ray Lauber were not properly served (Doc. 15, p.17), and that Plaintiff has not met
the conditions for injunctive relief (Doc. 15, p.4).
LEGAL ARGUMENTS
THE SUFFICIENCY OF THE CLAIM
In a case brought by a prisoner, Haines v. Kerner, both the district and appeal courts
ruled that the case should be dismissed for failure to state a claim per FRCP 12(b)(6). The
United States Supreme Court reversed and remanded with the following language:
allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to
call for the opportunity to offer supporting evidence. We cannot say with assurance that under
the allegations of the pro se complaint, which we hold to less stringent standards than formal
pleadings drafted by lawyers, it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief. 404 U.S. 519 (1972). Conley v.
Gibson, 355 U. S. 41, 355 U. S. 45-46 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2
1944). According to these rulings, a pro se litigant's complaint cannot be dismissed for failure
to state a claim upon which relief can be granted, Platsky v. C.I.A. 953 F.2d. 25, and Anastasoff
v. United States, 223 F.3d 898 (8th Cir. 2000) relying on Willy v. Coastal Corp., 503 U.S. 131,
135 (1992), United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996),
quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v.
Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of
the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001).
In re Haines: pro se litigants are held to less stringent pleading standards than BAR
registered attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled
to the opportunity to submit evidence in support of their claims. In re Platsky: court errs if court
dismisses the pro se without instruction of how pleadings are deficient and how to repair
pleadings. In re Anastasoff: litigants constitutional rights are violated when courts depart from
precedent where parties are similarly situated. All litigants have a constitutional right to have
their claims adjudicated according the rule of precedent. See Anastasoff v. United States, 223
F.3d 898 (8th Cir. 2000). Statements of counsel, in their briefs or their arguments, are not
sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964,
229 F. Supp. 647.
Under Federal Rule of Civil Procedure 12(b)(6), a complaint should not be dismissed if
it may be supported by showing any set of facts consistent with the allegations in the
complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). Indeed, Rule 12(b)(6)
motions are viewed with disfavor and are properly granted only under extraordinary
circumstances. Yordy v. Astrue, No.1:09-cv-03028-NJV, 2010 U.S. Dist. Lexis 14966, *4 (N.D.
Cal. Feb. 22, 2010). If there are two alternative explanations, one advanced by defendant and
the other advanced by plaintiff, both of which are plausible, plaintiffs complaint survives a
motion to dismiss under Rule 12(b)(6). Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert.
denied, 132 S. Ct. 2101 (2012). In considering a motion to dismiss for failure to state a claim,
the Court must accept as true the allegations of the complaint in question, construe the pleading
in the light most favorable to the party opposing the motion, and resolve all doubts in the
pleaders favor. Hebbe v. Pliler, 627 F.3d 340 (9th Cir. 2010); see also Deepakkumar Himatlal
Soneji v. Dept of Homeland Sec., 525 F. Supp. 2d 1151, 1157 (N.D. Cal. 2007).
Plaintiffs allegations, however inartfully pleaded, support the opportunity to offer
supporting evidence to prove its claims; therefore this Court should exercise its jurisdiction to
hear this matter.
CONDITIONS FOR INJUNCTIVE RELIEF

The indispensable condition of injunctive relief is a showing of irreparable injury and the
inadequacy of legal remedies. According to federal law, a plaintiff seeking an injunction must
demonstrate that: (1) it suffered an irreparable injury; (2) remedies at law, such as monetary
damages, are inadequate to compensate for the injury; (3) considering the balance of the
hardships between plaintiff and defendants, a remedy in equity is warranted; and (4) the public
interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388, 391 (2006). Plaintiff will show that all these prerequisites have been met,
individually and collectively.
A showing of irreparable harm is essential to obtaining injunctive relief. Certain causes
of action, in both state and federal law, contemplate injunctive relief and provide for a
presumption of irreparable harm. In the employment law context, certain jurisdictions support a
presumption of irreparable harm in discrimination and retaliation cases. See Baker v. Buckeye
Cellulose Corp., 856 F.2d 167 (11th Cir. 1988). Other circuit courts require irreparable harm to
be proven by the employee in discrimination and retaliation cases before injunctive relief can be
granted. See DeNovellis v. Shalala, 135 F.3d 58 (1st Cir. 1998); Stewart v. U.S. Immigration &
Naturalization Serv., 762 F.2d 193 (2d Cir. 1985); Marxe v. Jackson, 833 F.2d 1121 (3d Cir.
1987); EEOC v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1998). Dr. Hale is prepared to
present evidence of racial discrimination and retaliation at ESU, and that he has suffered
irreparable and continuing harm to his reputation and standing. Remedies at law, such as
monetary damages, may be unavailable when suing State entities. Injunctive relief may thus be
the sole avenue to compensate for such losses and damages.
With respect to the balance of hardships between plaintiffs and defendants, generally,
courts weight the harm to defendant if the injunction is imposed, against the harm to plaintiff if
no injunction is ordered, prior to ordering injunctive relief, which is an equitable remedy. The
decision in Deltek, Inc. v. Iuvo Sys., 2009 U.S. Dist. Lexis 33555), provides that In determining
whether an injunction is appropriate, a district court must apply the balance-of-hardship test.
Under the test, a court should examine the following four factors: 1) the likelihood of irreparable
harm to the plaintiff without the injunction, 2) the likelihood of harm to the defendant with an
injunction, 3) the plaintiff's likelihood of success on the merits, and 4) the public interest.
The foremost injunction sought by Dr. Hale is that Defendant Rittgers be mandated to
submit to a handwriting examination, including a London Letter exam, to conclusively determine
whether or not she is the author of the racial slur, and a polygraph test. Rittgers is on record as
having volunteered to do both. By swiftly and publicly exonerating this suspect, Defendants
sought to place justice beyond the reach of Dr. Hale. Vietti and Johnson demanded conclusive
evidence from Dr. Hale, but then circumvented that possibility by shielding Rittgers from
examination. Dr. Hale believes that the evidence will show that Rittgers is the author of the
racial slur and that Dean Alexander was complicit. This type of conduct does not deserve to go
scot-free. A photo of Debra Rittgers is attached as Exhibit A to Plaintiffs Memorandum and is
incorporated by reference herein. Without a handwriting examination of Rittgers, Dr. Hales
reputation will continue to suffer irreparable harm. The likelihood of harm to the Defendants by
the stated injunctive is only possible if Rittgers is found to have conclusively written the racial
slur, in which case Defendants have caused their own harm by shielding Rittgers and supporting
the retaliatory actions of Dean Alexander. Defendants published the results of a deeply flawed
investigation without first investigating the implications of Wendy Carlsons opinion. That is
not harm caused by an injunction, but by Defendants own conduct and bias.
Plaintiff believes in the merits of its case, and that it will succeed on the merits. A party
seeking to obtain a preliminary injunction on the basis of likelihood of success on the merits
"need not show that success is an absolute certainty." Abdul Wali v. Coughlin, 754 F.2d 1015,
1025 (2d Cir. 1985). Instead, the moving party "need only make a showing that the probability
of his prevailing is better than fifty percent." Here, Plaintiff asserts causes of action for
defamation, false light, due process, freedom of speech, wrongful termination and retaliation.
Because this case involves allegations of racial discrimination and retaliation, an
injunction mandating finality as to the author of the racial slur is in the best interest of the public.
The public would be served by seeing public officials held accountable for obscuring facts that
the public was entitled to know. The public has been drawn into this controversy and is entitled
to know the truth.
Debra Rittgers handwriting is requested according to FRCP 34. Rule 34 permits a party
to inspect, copy, test or sample writings as long as the discovery is relevant and appears
reasonably calculated to lead to the discovery of admissible evidence. Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any partys claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stakeInformation within this scope of discovery need not be admissible in evidence to be
discoverable. FRCP 26(b). Accordingly, courts have increasingly required the production of
handwriting exemplars in the course of civil discovery. See Harris v. Athol-Royalston Regional
school Dist Comm., 200 F.R.D. 18, 20-21 (D. Mass. 2001); Wilstein v. San Tropai Condominium
Master Assoc., 189 F.R.D. 371, 382-83 (N.D. Ill. 1999); Rali Kalfas v. E.F. Hutton & Co., No.
cv-86-3414, 1987 WL 10831, at *9 (E. D.N.Y. April 30, 1987); Blatt v. Shearson
Lehman/American Express Inc., No. 84 Civ. 7715, 1985 WL 2029, at *2 (S.D.N.Y. July 16,
1985); cf. U.S. v. Euge, 444 U.S. 707 (1980) (noting that under common law, witnesses
traditionally had a broad duty to provide relevant, nonprivileged evidence, including
nontestimonial physical evidence.) Similarly, courts have frequently allowed handwriting
exemplars in criminal trials pursuant to Rule 17(c)which provides for the production of
documents before trial. The evidence requested can be shown to be in controversy and there is
good cause for the examination.
Defendants false narratives regarding the incident involving Rittgers were even repeated
as fact by Defendants attorney (Doc. 15, pg. 10). Lyon County Attorney Marc Goodman is
quoted as stating that no crime had been committed. Goodman failed to have law enforcement
investigate the physical scene of the reported crime, and to find, collect and preserve evidence,
and to return Dr. Hales phone call reporting the incident. Had Goodman done any of these
things, he would have learned that numerous aspects of the ESU story were false or implausible.
Physical evidence, such as the notepad, should not have simply disappeared. But this would
have made it difficult for ESU to declare that no hate crime occurred.
What is particularly notable is that when the FBI agent came to SLIM offices on
December 2nd, 2015, that Defendant Rittgers was observed hurrying out of the SLIM office
building to her car parked next to the building, where she drove away mid-afternoon. The FBI
agent, Angelica Hale and Dr. Hale were present, and watched as Rittgers left the premises of
ESU after it was announced that the agent was present. Staff in the SLIM office left with her.
Debra Rittgers left with Kathie Buckman, the Regional Director at SLIM, and Candace
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Kitselman, the business manager at SLIM. It appeared very peculiar that Defendant Rittgers and
the SLIM office staff made themselves unavailable for questioning by the federal agent. The
federal agent later stated that hate speech was the appropriate term in the hate crime spectrum for
what is alleged to have happened in Office 413, and in discussion with the Kansas U.S. Attorney,
that Plaintiff was doing the right thing in suing Defendants in civil court for relief, as the hate
speech incident did not rise to the level of federal statutes for hate crimes and suggested that
Plaintiff compel the handwriting of Defendant Rittgers.
Defendants defamatory portrayal of Dr. Hale cost him countless relationships by
practicing all of the things that Defendants deny, which include impugning Dr. Hales name,
reputation, honor, and integrity. As a direct result of the false narratives denying the truth of a
crime or a suspect, Defendants sought to publicly defame and silence Dr. Hales narrative, which
was diametrically opposed to theirs. At the same time that ESU began to publicly promulgate
the narrative that a hate crime did not occur, people rapidly began to withdraw their support from
Dr. Hale. Jason Brooks, the newly appointed Assistant Dean of Student Affairs for Diversity,
Equity and Inclusion at ESU was promoted from his former role as Director of Diversity and
Inclusion at ESU as an incentive to abandoning the Hales cause. He was also advisor to the
Black Student Union (BSU). Brooks began to inform the BSU, other students as well as faculty
and staff not to communicate with Dr. Hale or his wife shortly after the first march. Brooks was
born and raised in Emporia, Kansas, and his parents and other family members are ESU alumni.
Brooks wife is a graduate of SLIM. Although an early and ardent supporter, when Jason Brooks
defected he never even gave the Hales an explanation, and lied to Dr. Hale about his role in
inducing others to abandon them. A photo of Jason Brooks is attached as Exhibit B to Plaintiffs
Memorandum and is incorporated by reference herein. Interim President Vietti is one of Brooks
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professors in his doctoral program at Baker University. That places Vietti in a position of undue
influence.
A Facebook photo of ESU BSU members wearing March On Emporia t-shirts before the
first march is attached as Exhibit C to Plaintiffs Memorandum to Deny and is incorporated by
reference herein. Photos from the first March On Emporia are attached as Exhibit D to
Plaintiffs Memorandum and are incorporated by reference herein. Photos of the second March
On Emporia are attached as Exhibit E to Plaintiffs Memorandum and are incorporated by
reference herein. Take note of the attendance at both. The number of marchers plummeted from
around 150 to about twenty-five. The BSU was very involved in the first march. An email to
Interim President Vietti from BSU Vice-President Deidra Elijah is attached as Exhibit F to
Plaintiffs Memorandum and is incorporated by reference herein. In it Deidra says: I think it is
truly sad that the University continues to sweep racial issues under the rug. A supportive
message to the Hales posted on Deidra Elijahs Facebook page is attached as Exhibit G to
Plaintiffs Memorandum and is incorporated by reference herein. In it Deidra says: As the
Black Student Union Vice President, we will do any and everything in our power to support!!!
On or about September 17th, 2015, right after the first march, Dr. Vietti conducted a series of
meetings with faculty, staff and students of color from organizations like the BSU. Shortly
thereafter the BSU and most ESU students previously involved with the protest marches abruptly
quit communicating with the Hales. In addition to Deidra Elijah, numerous other ESU students
who had supported the Hales shut him and his wife completely out, such as Derek Wilson, Kayla
Gilmore, Emmanuel Cockrell, Ceanna Trice, Tyia Everidge, Javier Gonzalez and Katelyn
Ferrari. Black adjunct professor Douglass Smith supported Dr. Hale up until the first march,
even signing the letter sent to Interim President Vietti by black faculty and staff at the onset of
9
the controversy (Doc 13, pg.64), but then stopped notifying the Hales of subsequent black
faculty and staff as well as diversity meetings. Recently Dr. Smith sent Dr. Hale an email asking
not to be contacted again. A copy of that email message is attached as Exhibit H to Plaintiff s
Memorandum and is incorporated by reference herein. To make matters worse, the President of
the ESU Black Student Union, Emmanuel Cockrell, worked as an assistant to Interim President
Vietti and is possibly still working as an assistant to the new President Allison Garrett. Dr. Hale
mentioned this conflict of interest to Brooks and to Cockrell. In the event the ESU BSU felt the
need to protest administration policies, such a relationship could present complications to
freedom of speech, and is problematic. Over time, Dr. Hale and his wife witnessed a broad set of
defectors who had previously sympathized with them. Plaintiff believes that his name,
reputation, honor and integrity were indeed disparaged by Defendants in private meetings and
through various public media, such as the school newspaper the ESU Bulletin, because almost
immediately after these meetings and the first march, the Hales were shunned and ostracized.
DEFENDANTS NOT IMMUNE FROM NON-MONETARY JUDGMENTS
State officials can be sued in their official capacities, 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. Government officials may be sued in their official
capacity as persons under 42 U.S.C. 1983 when the suit is for injunctive relief. 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). The failure to identify in which capacity a defendant is
being sued is a critical pleading defect, Colvin v. McDougall, 62 F.3d 1316, 1318 (11th Cir.
1995). The state, and arms of the state, may be immune from prosecution that solely seeks
monetary compensation and relief from the state treasury, Green v. Mansour, 474 U.S. 64
10
(1985). If the Court holds that ESU is afforded Eleventh Amendment immunity, the Court
would be deprived of jurisdiction only with respect to Plaintiffs claims for monetary relief, not
for injunctive or other relief that the Court may impose. 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).
Defendants thusly sued in their official capacities are persons within the meaning of 42 U.S.C.
1983, hence Plaintiff has stated a claim upon which relief can be granted.
THE COURSE OF TERMINATION
[T]he Court is generally confined to consideration of the allegations in the pleadings[.]
Yordy, 2010 U.S. Dist. LEXIS 14966 at *5. However, while the Court cannot accept new facts
alleged in opposition papers, a plaintiffs briefing may always be used to clarify allegations in a
complaint. Id. Plaintiff provides the following narrative as a means to clarify allegations and
misleading statements propounded by Defendants in their Motion to Dismiss Second Amended
Complaint.
Defendants acknowledge that defamation in the course of termination is an actionable
claim under Paul v. Davis 424 U.S.693, 712 (1976), but fail to define a specific time period
which constitutes the course of termination for Dr. Hale. The course of termination is a variable
that depends upon potentially unique circumstances. In December 2014 Dr. Hale accused Debra
Rittgers of a heinous act of racism directed towards his wife and reported that concern to Dean
Alexander. Dean Alexander dismissed Dr. Hales allegation by stating that Angelica is probably
11
too sensitive. As outrageous as it may sound, Dean Alexander even asked Dr. Hale if his wife
had been through menopause. From that point forward Dean Alexander began to defame
Plaintiff and his wife, and to retaliate in various ways, resulting in the resignation of Angelica
Hale as Assistant to the Dean, Marketing, and the termination of Dr. Hale. The course of
termination in this case commenced when Dean Alexander decided to terminate the Hales.
Alexander also started a course of termination for Angelica Hales graduate assistant. That Dean
Alexander, who is white, would argue with Dr. Hale or Angelica Hale, who are black, about their
feelings towards a racialized act is itself problematic. But Dean Alexander has a long history of
retaliatory conduct against staff and faculty, with a predominance of this conduct directed against
persons of color. A lawsuit filed against ESU in Kansas District Court on October 30th, 2015
brought by Dr. Rajesh Singh, a former professor who worked in SLIM from 2009 to 2015,
alleges among other things, racial discrimination and retaliation, and Alexander and the
Associate Dean, Andrew Smith are named as defendants (Case 2:15-cv-09369-JWL-TJJ).
The December 2014 incident involving Debra Rittgers, Angelica Hale, Dr. Hale and
Dean Alexander was emotional but not overly so. A number of seemingly related microaggressions had occurred prior to the December incident, so things came to a head. Debra
Rittgers mouthed an apology, but the damage was permanently done. Dr. Hale informed Dean
Alexander that Angelica would not return to work at SLIM unless certain conditions were met
following this incident. One of those demands was that Angelica Hale be moved to a private
office upstairs on the fourth floor, the top floor of the building where faculty had exclusively
occupied offices. In hindsight, Dr. Hale believes this complaint and the transfer of Angelica, a
non-faculty contractor upstairs to a prime location and the second largest office on the faculty
floor ultimately ignited the anger that resulted in the word NIGGAZ being written in the
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students office on the fourth floor. Dean Alexander conceded to Dr. Hales demands, and
Angelica was moved from the office suite with Rittgers on the third floor to an office on the
fourth floor, directly across the hall from Dr. Hale. Offices on the fourth floor were traditionally
reserved for SLIM faculty. Both offices are large in comparison to other offices. This move
created unspoken tensions. For these reasons, it was not a shock when a handwriting expert
pointed to Rittgers as the most probable suspect. ESU was desperate to convince the campus and
the public that this act was not done by a long-time employee. They hoped that threatening Dr.
Hales job would induce him to retract his belief in Rittgers as the author of the slur. The ESU
student paper, the Bulletin, published an article regarding this predicament on October 1st, 2015
entitled Hale Must Retract or Face the Axe (Doc. 13, pg. 48). This form of coercion was
intended to have a chilling effect on future whistle-blowers inclined to expose racism at ESU.
On information and belief, it is no secret that Dean Alexander and Debra Rittgers are
close personal friends outside of the office. Dr. Hale believes that Dean Alexander commenced
her hostile and retaliatory actions in response to Plaintiffs accusations of racism against her
good friend and right-hand assistant, Debra Rittgers. Dr. Hale further believes that Dean
Alexander practices racial bias as evidenced by her own statements to Dr. Hale and her track
record. At the time of Hales discussion with Alexander, Dean Alexander stated that she did not
understand why Angelica was so sensitive about what Angelica and Dr. Hale perceived as a
gross instance of racial discrimination. Thus it was clear that Dean Alexander either did not
believe that racial discrimination had occurred, or that she did not intend to do anything about
this particular incident. Alexander asked Plaintiff if his wife had gone through menopause, as
if Angelica Hale were irrational, hyper-sensitive, and riding a hormonal rollercoaster. At no time
did Dean Alexander acknowledge that anything official needed to be done to address the
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incident, regardless of whether a suspect existed or not. Dean Alexander did not show any
interest in the matter again until Dr. Hale and his wife went to the Provost and Police. She did
nothing. Dean Alexander ridiculed the notion of racism and disparaged the victim. This would
be the stance of ESU administrators towards Dr. Hale and his wife from that point forward.
The official narrative of what happened on or about April 8th, 2015 does not need a nonprivate office story unless the storyteller was trying to deflect as much attention away from
Defendant Rittgers as possible. ESU has stated publicly that nothing of the kind described by
Dr. Hale or his wife ever happened. That is why the Hales became a meme for perpetrating a
hate hoax on the Internet. ESU semantically altered the crime scene and exonerated the
suspect. Dr. Hale believes that Dean Alexander settled on a strategy whereby she would retire
in order to buy political cover for Rittgers, so ESU removed her from role as Dean of SLIM to
work on special projects and Dr. Mirah Dow has been appointed Interim Dean until a search
results in a new dean. As background, Dean Alexander was appointed Interim Provost at ESU in
the 2012 to 2013 academic year, and she often bragged of her political capital. She used that
political capital to shield Rittgers. Dr. Hale believes that Dean Alexander participated in
planning the crime.
After moving to the fourth floor, Angelica Hale and her graduate assistant had limited
interaction with Rittgers, who Dean Alexander herself described as territorial towards
Angelica. Rittgers terminated all except necessary communications with Angelica after the
move. She failed to have Angelicas phone transferred upstairs for almost 6 months, which is
part of her duty as the Office Manager and interfered with Angelicas assignments for her
graduate assistant. This new arrangement was unpleasant for Debra Rittgers who had worked in
SLIM for over ten years and at ESU for about twenty years, and has her own way of doing
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things. She also likes to gossip. Plaintiff believes that Rittgers and Alexander viewed the Hales
as having too much autonomy, and that eventually she resorted to insulting them in a show of
defiance and power. Angelica Hales graduate assistant reported hostilities on the job as well.
She rarely touched bases with the SLIM office on the third floor, where Rittgers had a sign-in
board and other control mechanisms. Power is perceived in many ways, and it was being
perceived that the Hales were not only non-conformist, but being black they represented a threat
to the racial lens at SLIM.
Dr. Hale believes that racial animus sparked by jealously and hate from Rittgers escalated
to the point where she planned and committed the act of entering Angelicas graduate assistants
office with the intent of leaving the racial epithet NIGGAZ directed at the Hales and the
student on said students notepad. Dr. Hale believes that the act of vandalizing the students
notebook with a racial slur was directed at him and his wife and her assistant as an act of
retaliation for their boldness, which is uncommon in the ESU institutional racial climate. It is a
white-dominated culture that doesnt feel the need to integrate. Dr. Hale reacted in a manner that
is consistent with his values despite the costs.
Defendants concocted false narratives about the hate speech act that occurred in Office
413 where the racial slur was found in order to mislead and decontextualize Debra Rittgers
motives, and to decriminalize the writing of the slur. They began by calling the private office a
non-office in an open area where people came and went throughout the day. That description
is patently false, but it leaves the impression that the students notepad was accessible to a wide
audience of transients. Nothing is further from the truth. Photos of the private office are
attached as Exhibit I to Plaintiffs Memorandum and are incorporated by reference herein.
Defendants claim that no crime was committed in the writing of the racial epithet, but Plaintiff
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believes that three crimes occurred when the act was done in the private office: unlawful entry,
vandalism and hate speech. These may not rise to the level of felonies, but not all crimes are
felonies. Hate speech is on the hate crime spectrum per information obtained at the 2015 U.S.
Attorneys Kansas Hate Crimes Symposium hosted by U.S. Attorney Barry R. Grissom held on
November 4, 2015 in Kansas City, Kansas. A copy of the agenda for the symposium is attached
as Exhibit J to Plaintiffs Memorandum and is incorporated by reference herein. By stating that
no crime occurred in the writing of the racial epithet, Defendants are lying, and have done so
repeatedly and publicly, portraying Dr. Hale as a liar. Defendant Johnson explicitly stated that
nothing happened. The impression intentionally given to the public is that Dr. Hale and his
wife made this story up as a publicity stunt. Examples of the public responding to Defendants
false allegations have been included in the Second Amended Complaint (Doc. 13, pg. 16,
Exhibits O, P, Q, R, S and T). Defendants counsel repeats these false allegations by stating
Without a crime having been committed there is nothing to which the designation hate crime
can be attached. Thus, there has been no hate crime not to mention, much less impugn, Hales
name, reputation, honor, or integrity. This false statement itself is defamatory. It impugns Dr.
Hales name, reputation, honor, and integrity. Either a hate crime occurred, or it did not. Dr.
Hale claims that ESU is lying. The converse is obviously true as well. Rittgers has the answer.
Defendants cannot categorically state that Rittgers is innocent when forensic science
accepted in courts across the United States strongly suggests otherwise. The Defendants should
have addressed this matter themselves at the onset of this controversy so that this dark cloud of
suspicion would not be hanging over their heads or over that of Dr. Hale and his wife. In all
fairness, Rittgers should now be ordered to undergo a conclusive forensic handwriting
examination and polygraph test whereby the Court and all involved can utilize scientific
16
evidence to reach conclusions. Either a crime directed at the Hales was committed in retaliation
or it was not.
Ray Lauber, the Defendant who conducted the report-turned-internal-investigation for
ESU and wrote a summary report based on it, allegedly was babysat by Defendant Rittgers when
she worked with his mother in the Alumni Center at ESU almost two decades ago. Defendants
manufactured an internal investigation report that reads like a tabloid-level ad hominem attack.
Photos of Ray Lauber, Judy Anderson, Kevin Johnson and Chris Hoover are attached as Exhibit
K to Plaintiffs Memorandum and are incorporated by reference herein. Lauber focuses his
investigation on the Hales and not on the hate crime allegations. When confronted, Lauber
denied that he was babysat by Debra Rittgers, but admits that she and his mother were good
friends and co-workers when he was young. Email correspondence with Ray Lauber on this
subject is attached as Exhibit L to Plaintiffs Memorandum and is incorporated by reference
herein. Lauber is not a credible impartial investigator by any measure, and these shortcomings
were known to all the Defendants, yet they allowed Lauber to concoct a flawed, unprofessional
and highly offensive investigation. They plowed ahead despite Plaintiffs objections. The
very selection of Ray Lauber can be viewed as an insult and a statement of white power
dominance at ESU. The record will show that Provost Cordle, who was supposed to referee
these types of faculty disputes, was silent in implicit support of the cover-up of the hate crime.
Dr. Hale assumed that Dean Alexanders retaliation would not conclude until he was
terminated, and that belief has come true. Plaintiff believed that the course of his termination
was never going to be an instantaneous act, but rather a persistent grinding away of his
reputation amid false allegations of poor performance. That is the ESU way. Provost Cordle
developed and extended a Cooling Off Period to deprive Dr. Hale of access to his colleagues,
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instructional technology and potentially incriminating evidence. A photo of Dr. Cordle is

attached as Exhibit M to Plaintiffs Memorandum and is incorporated by reference herein. Dr.
Hales student evaluations before the Cooling Off Period were excellent. Student evaluations
after Plaintiff was excluded from SLIM were mixed. Transcripts of Dr. Hales student feedback
for a summer 2015 course called LI815 Information Technology is attached as Exhibit N to
Plaintiffs Memorandum and is incorporated by reference herein. Photos of Dr. Hale working
with his colleagues are attached as Exhibit O to Plaintiffs Memorandum and are incorporated
by reference herein. Photos of Dr. Hale with his students are attached as Exhibit P to Plaintiffs
Memorandum and are incorporated by reference herein.
Dr. Hale was unable to regularly access his office during the Cooling Off Period and was
therefore unable to create a portfolio for review of his research and service contributions, but
Defendants want to blame Dr. Hale for this. The exclusion of Plaintiff from his colleagues and
the support services of the department, particularly for new faculty goes against University
policy. The ESU Policy Manual specifies that suspension of a faculty member during a
grievance proceeding is justified only if immediate harm to the faculty member or others is
threatened by continuance of service. Plaintiffs enforced isolation from his office, the SLIM
Department, and SLIM students was humiliating and damaging to his reputation, and was wholly
unreasonable and unjustified. Dr. Hales stand against racial discrimination should be counted as
an extraordinary contribution to community service.
ESU instituted a program called the University Diversity Initiative (UDI) as a direct
result of Dr. Hales protest against racism, but Dr. Hale did not benefit, and was not only
excluded from participating in those meetings, he was disparaged at the same. ESUs UDI is but
another example of retaliation under the pretense of reformation. This is an exceedingly callous
18
program in light of the treatment of someone who dared report an alleged hate crime. A news
story about a UDI meeting held on December 4th, 2015, includes the following statement by Dr.
Vietti: "Our journey regarding diversity and inclusion began earlier this fall when the university
committed to building a better, stronger, more inclusive Hornet Nation." More inclusive of
everyone else perhaps, but not of Dr. Hale and his wife. A true copy of the article is attached as
Exhibit Q to Plaintiffs Memorandum and is incorporated by reference herein. Dr. Viettis
statement is missing the part about muzzling and terminating Dr. Hale. Dr. Hale has direct
evidence that ESU offered incentives to students to attend their diversity summit meetings
because an earlier meeting in October failed to attract more than twenty-five students. ESU is
having trouble selling its diversity initiative.
The accreditation report of SLIM by the American Library Association (ALA), and
approved by Karen OBrien of the ALA showed evidence of significant bias against Dr. Hale
and his claims of a hate crime. The ALA swallowed the University position that no hate crime
occurred, despite being provided significant direct primary evidence of egregious conduct at
SLIM for months. In spite of a record which included not one but two federal lawsuits, an
unacceptably high faculty turnover rate, and a Dean which had to be removed from regular
duties, the ALA went outside the bounds of their own standards to re-accredit SLIM in a manner
that raises significant concerns about their integrity and commitment to social justice. In the
same year in which the SLIM program was under review by the ALA, which currently occurs
every seven years, Dr. Mirah Dow from SLIM was appointed by ALA President Sari Feldman to
serve on the ALA Task Force on the Context of Future Accreditation on October 30th, 2015.
This appointment of Dow was announced in the midst of SLIMs own accreditation period,
which wasnt completed until January 2016. That sends the wrong message ethically. A copy of
19
this ALA announcement is attached as Exhibit R to Plaintiff s Memorandum and is incorporated

by reference herein.
Each member of the accreditation team that visited SLIM was a white
female, indicative of the racial insensitivity and tone-deafness at the ALA that has led some to
call the ALA #ALASOWHITE. Dr. Hale believes the ALA made a significant contribution
towards his defamation, and against the cause of social justice, by giving its unreserved blessings
to a program that many in the library community feel deserved to receive conditional status until
it was determined whether or not the instant litigation would be heard in Federal Court.
The fact remains that the course of Plaintiffs termination was drawn out over time by a
number of factors, including the academic school year, the marches, and accreditation visits by
the Higher Learning Commission and the American Library Association, but Defendants
intentions were apparent from the time that the racial epithet was discovered and nothing was
done about it by anyone. ESU administrators then set out to protect Dean Alexander and her
protg Debra Rittgers. Dr. Hale stands by his assertion that he has been terminated. The ESU
college paper, The Bulletin, recently printed an article that states that Plaintiff is a former
employee. A copy of this article is attached as Exhibit S to Plaintiffs Memorandum and is
incorporated by reference herein. The same Bulletin issue goes on to defame Dr. Hale by falsely
attributing a comment to him which it manufactured to inflame hatred towards Dr. Hale by ESU
students, faculty, alumni, etc. In large letters as a header title for a story written by Editor Sarah
Spoon, which is supposed to be a transcript of an interview with Dr. Hale, the article claims that
Dr. Hale stated: I dont feel safe in a town where, as a black person, I can see a Confederate
flag fly on the main students tower." This transcript is false. What Dr. Hale actually said was:
I dont feel safe in a town as a black person when I can see the confederate flag flying on the
main street of the town almost any month of the year. So thats not where I came from and thats
20
not what I expected How does the Managing Editor/reporter who needs do nothing more
than transcribe a conversation get it wrong? Dr. Hale pointed out Sarah Spoons error, along
with other egregious errors in that transcript to the Bulletin to Ariel Cooley, Editor-in-Chief, and
even shared his recording of the interview, but the Bulletin refused to correct their false
statements and to mitigate any reputational harm they may have caused. In yet another example
of the flip flops caused by Defendants defamation of the Hales, the same Bulletin
editor/reporter, Sarah Spoon, accompanied Angelica Hale to the fourth floor of the SLIM offices
in October 2015, and observed and agreed that Office 413 is a private office. Upon leaving the
SLIM offices, Sarah can be seen giving Dr. Hale, who is taking the picture, the thumbs up.
There is no excuse for the Bulletin to disparage and turn the campus and community against Dr.
Hale by reporting false information in an unprofessional manner. This type of conduct is nothing
less than malicious, and had to be approved by an ESU faculty advisor before publication. This
is just a recent example of the conduct that ESU supports of to impugn the name, reputation,
honor and integrity of Dr. Hale. A photo of Angelica Hale and Sarah Spoon after viewing Office
413 in SLIM is attached as Exhibit T to Plaintiff s Memorandum and is incorporated by
reference herein.
Plaintiff believes that the appearance of the FBI on campus in December 2015, and the
interest of the U.S. Department of Justice in this case, made it difficult for ESU to terminate him
in the highhanded manner they had terminated so many others. As a well-performing tenuretrack professor recruited from UCLA, Dr. Hale had every reason to expect that his contract
would be extended as it was commonly done for all other professors with his record. Dr. Hale
was the sole tenure-track black male employee at ESU, a University that is 150+ years old. Dr.
Hales student feedback demonstrates his exceptional teaching abilities at the onset of his
21
academic teaching career. Despite never having taught a college class, Dr. Hale has better
metrics than many experienced faculty, and he is willing to compare his student evaluations with
anyone at SLIM. Dr. Hales previous annual evaluation, done on or around December 2014 by
Dean Alexander, is attached as Exhibit U to Plaintiffs Memorandum and is incorporated by
reference herein. Some of the comments Alexander made in that evaluation include: Dear Dr.
Hale: It is my pleasure to acknowledge your achievements during your first semester as an
Assistant Professor with SLIM. You are already a valued member of the faculty and I
congratulate you on your contributions to the collaborative culture, our efforts toward consistent
learning outcomes for students, and for ultimately making a difference in the ways our graduates
contribute to the common good of the communities they serve My experience observing you
in the classroom and the videos you have recorded are that you are able to engage students and
help them to understand what is expected of their performance. Although we have yet to receive
the student evaluations for the courses you taught, all informal comments I have heard are
favorable It is my pleasure to recommend to Provost Cordle that your appointment be
continued. Thank you for the many ways you have added to the success of SLIM during your
short time as part of the team and best wishes for continued advancement and enjoyment of our
profession.
ESUs termination decision of Dr. Hales employment was illegal. Dr. Hale was
subjected to extreme hostility resulting in his wrongful termination, unprecedented removal from
his office and denial of due process of a hearing, all with the full endorsement of Provost Cordle
and Interim President Vietti. ESU and SLIMs unlawful termination has affected Dr. Hales
professional career negatively, delaying tenure and causing him physical and mental stress as
well as financial hardship.
22
JURISDICTION FOR TITLE VII CLAIMS

Despite Defendants claims to the contrary, all administrative prerequisites and
conditions have been met by Dr. Hale as it pertains to his EEOC and KHRC filings. Defendants
refused to participate in recommended mediation sessions through Midland Mediation &
Settlement Services. A true and accurate transcript of the invitation to utilize Midland is
attached as Exhibit V to Plaintiffs Memorandum and is incorporated by reference herein. [A]
prima facie case of retaliation requires a plaintiff to show that (1) he engaged in protected
opposition to discrimination; (2) he was subjected to adverse employment action by the
employer; and (3) a causal connection exists between the protected activity and the adverse
action. Cuenca, 265 F. Supp. 2d at 1207. Plaintiff believes that he can prove a causal
connection between the adverse employments actions performed by the Defendants and his
protected opposition to discrimination. Plaintiffs Right-to-Sue Letter from the Civil Rights
Division of the U.S. Department of Justice is attached as Exhibit W to Plaintiffs Memorandum
and is incorporated by reference herein.
In an October 12th, 2015 meeting with Provost Cordle, Dr. Hale was informed that no
other option other than signing a separation letter they had prepared was available to him. When
asked if there were any other administrative options to pursue his complaints, Provost Cordle
stated that there were none, foreclosing any and all remedies allegedly available within ESU.
Cordle made it clear that Dr. Hale had exhausted his administrative remedies. Dr. Hale filed the
instant litigation on October 14th, 2015. A partial transcript of the audio recording from that
meeting is attached as Exhibit X to Plaintiffs Memorandum and is incorporated by reference
herein.
23
SERVICE OF KEVIN JOHNSON AND RAY LAUBER

Defendants claim that Kevin Johnson and Ray Lauber were improperly served. Plaintiff
has served all court filings on Defendants agent, which is the Offices of Kansas Attorney
General Derek Schmidt. Until now the Kansas Attorney Generals Office has not had any
objections to service. At the commencement of this action Defendant Kevin Johnson was
personally served on October 15th, 2015 in the foyer of Plumb Hall at Emporia State University.
Johnson is the General Counsel for ESU. Johnson informed the server that personal service was
improper because he was not the agent for service. Angelica G. Hale, the server, requested that
Johnson keep the service envelope and subsequently determined that the Kansas Attorney
Generals Office is the proper agent for service for Kansas State entities, and then also served the
initial Complaint on that office, and has since served all parties through that office, which
comports with FRCP 4(e)(2)(c). A true and accurate transcript of the Declaration of Angelica G.
Hale is attached as Exhibit Y to Plaintiff s Memorandum and is incorporated by reference
herein. A photo of Angelica G. Hale serving Kevin Johnson is attached as Exhibit Z to
Plaintiffs Memorandum and is incorporated by reference herein. Johnson and Lauber played
key roles in the illegal conduct complained of in this case.
PRAYER FOR RELIEF
Defendants discriminated against Dr. Hale on the basis of his race and color, in violation
of 42 U.S.C. 1983. Defendants discriminated against Dr. Hale on the basis of his race, color,
and national origin in violation of the Equal Protection Clause of the Fourteenth Amendment.
Defendants retaliated against Dr. Hale for engaging in activities protected by 42 U.S.C. 1981,
the First Amendment to the U.S. Constitution, and the Equal Protection Clause of the Fourteenth
24
Amendment to the U.S. Constitution. Defendants acted under color of state law when they
violated Dr. Hales rights. Dr. Hale has been damaged by the illegal conduct of the Defendants.
Dr. Hale is entitled to pursue relief against Defendants under 42 U.S.C. 1983. Dr. Hale had a
property interest in his appointment, in his annual evaluations, in a fair tenure review process,
and in continued employment. Defendants violated Dr. Hales rights under the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution. Defendants violated Dr. Hales
rights under color of state law. Dr. Hale has been damaged by Defendants illegal conduct. Dr.
Hale is entitled to pursue relief against Defendants under 42 U.S.C. 1983.
WHEREFORE, Plaintiff Melvin Hale, Ph.D. prays that judgment be entered against
Defendants Emporia State University, Jackie Vietti, David Cordle, Judy Anderson, Gwen
Alexander, Chris Hoover, Debra Rittgers, Kevin Johnson, and Ray Lauber, and Does 1-100 for
all remedies allowed by law, costs of suit, and for such other and further relief as the Court may
order. Plaintiff respectfully requests this Court to deny Defendants pending motion to dismiss
directed at Plaintiffs Second Amended Complaint.
Dated: February 16, 2016
Respectfully submitted,
______________________________
Melvin Hale, PhD, Plaintiff
Appearing Pro Se
P.O. Box 724
Emporia, KS 66801
melvinhale@ucla.edu
916-690-7927
25
CERTIFICATE OF SERVICE
Case No. 15-4947-SAC-KGS
I hereby certify that I have served this Memorandum to Deny Defendants Pending Motion to
Dismiss on February 16, 2016. I personally mailed a copy of the document in the above action
by first class mail, postage prepaid, addressed to:
Anne Gepford Smith
Assistant Attorney General of Kansas
Memorial Bldg., 2nd Floor
120 SW 10th Avenue
Topeka, KS 66612-1597
I am not a party to this matter. I declare under the penalty of perjury that the foregoing is true
and correct.
/s/ Angelica G. Hale

P.O. Box 6176
Goodyear, AZ 85338
26
Case 5:15-cv-04947-SAC-KGS Document 17-1 Filed 02/16/16 Page 1 of 74

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Case 5:15-cv-04947-SAC-KGS Document 17 Filed 02/16/16 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

MELVIN HALE, PhD,

Case No. 15-4947-SAC-KGS

PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO

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CONDITIONS FOR INJUNCTIVE RELIEF

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instructional technology and potentially incriminating evidence. A photo of Dr. Cordle is

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this ALA announcement is attached as Exhibit R to Plaintiff s Memorandum and is incorporated

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JURISDICTION FOR TITLE VII CLAIMS

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SERVICE OF KEVIN JOHNSON AND RAY LAUBER

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Case No. 15-4947-SAC-KGS

/s/ Angelica G. Hale

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