Hale v. Emporia State University et al

Filing 121

MEMORANDUM AND ORDER denying 85 Plaintiff's Motion for Summary Judgment; granting in part and denying in part 106 Defendants' Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 11/09/2018. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANGELICA HALE,
Plaintiff,
vs.
Case No. 16-4182-DDC-TJJ
EMPORIA STATE UNIVERSITY,
GWEN ALEXANDER,
DAVID CORDLE, and
JACKIE VIETTI,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Angelica Hale is a former employee of Emporia State University (“ESU”).
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Plaintiff brings this action pro se against defendants ESU, Gwen Alexander, David Cordle, and
Jackie Vietti. Plaintiff asserts a Title VII retaliation claim against ESU, alleging that ESU
terminated her employment as retaliation for complaining about racial discrimination. Also,
plaintiff asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 against defendants
Alexander, Cordle, and Vietti because, plaintiff contends, these three individuals retaliated
against her after she exercised her right to speak out against discrimination and racism.
This matter comes before the court on the parties’ cross motions for summary judgment.
Plaintiff has filed a Motion for Summary Judgment. Doc. 85. Her motion asks the court to enter
summary judgment in her favor on her Title VII and § 1983 claims. Defendants have filed a

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Because plaintiff proceeds pro se, the court construes her pleadings liberally. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that courts must construe a pro se litigant’s
pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers).
But the court does not assume the role of advocate for a pro se litigant by constructing arguments or
searching the record. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

Response, opposing plaintiff’s summary judgment motion. Doc. 109. And plaintiff has filed a
Reply. Doc. 116.
Defendants also have filed a Motion for Summary Judgment. Doc. 106. Plaintiff filed an
Opposition to Defendants’ Motion for Summary Judgment. Doc. 113. And defendants filed a
Reply. Doc. 118.
The motions thus are fully briefed, and the court is prepared to rule. For reasons
explained below, the court grants defendants’ Motion for Summary Judgment in part and denies
it in part. The court denies summary judgment against plaintiff’s Title VII claim but grants
summary judgment against her § 1983 claim. Also, the court denies plaintiff’s Motion for
Summary Judgment. The court explains why, below.
I.

Defendants’ Failure to Controvert Plaintiff’s Statements of Fact

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

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Defendants’ Response to Plaintiff’s Motion for Summary Judgment never controverts
any of plaintiff’s facts specifically. Instead, defendants simply assert: “By Plaintiff’s own
admission, her ‘Statement of Material Undisputed Facts’ are a blending of her arguments and her
facts. As such, the court should disregard Plaintiff’s confused version of what the documents
expressly state.” Doc. 109 at 3. Defendants’ conclusory response does not comply with our
local rules. These rules require a party opposing summary judgment to controvert specifically
the movant’s statements of material fact. See D. Kan. Rule 56.1(a) (“All material facts set forth
in the statement of the movant will be deemed admitted for the purpose of summary judgment
unless specifically controverted by the statement of the opposing party”); see also D. Kan. Rule
56.1(b)(1) (“A memorandum in opposition to a motion for summary judgment must begin with a
section containing a concise statement of material facts as to which the party contends a genuine
issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to
those portions of the record upon which the opposing party relies, and, if applicable, state the
number of movant’s fact that is disputed.”).
Because defendants have not complied with our rules, the court accepts as true plaintiff’s
material facts, but only if the summary judgment record properly supports those facts. See Reed
v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (explaining that when a party opposing
summary judgment waives its right to respond or controvert the facts asserted in the moving
party’s summary judgment motion, the court “should accept as true all material facts properly
asserted and properly supported in the summary judgment motion”). And indeed here, plaintiff
supports most of her asserted statements of fact with her own Declaration. Doc. 86-1. Section
1746 of Title 28 of the United States Code governs the admissibility of declarations. For a
declaration to be admissible under § 1746, the declarant must “subscribe[ ]” that the statement is

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true under penalty of perjury with language substantially similar to the following statement: “I
declare (or certify, verify, or state) under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct,” followed by a date and a signature. 28 U.S.C.
§ 1746. Plaintiff’s Declaration recites: “I declare under penalty of perjury, pursuant to the laws
of the State of California and the United States of America, that the foregoing is true and correct.
This Declaration was executed on April 2, 2018 in Palm Springs, California.” Doc. 86-1 at 10.
After this statement, plaintiff again provides the date of execution and her electronic signature.
In short, plaintiff’s Declaration complies with § 1746. And the facts asserted in that
Declaration—to the extent plaintiff bases the facts on her personal knowledge—are admissible
on summary judgment. Because defendants never controvert any of those facts, the court accepts
them as true on summary judgment.
Also, in response to defendants’ Motion for Summary Judgment, plaintiff filed a
Statement of Additional Facts. Doc. 115. Plaintiff’s Statement of Additional Facts contains 44
separately numbered paragraphs with citations to the portions of the summary judgment record
she relies on to support the facts. Id. By doing so, plaintiff again complied with our local
summary judgment rules governing a memorandum opposing summary judgment. D. Kan. Rule
56.1(b)(2) provides: “If the party opposing summary judgment relies on any facts not contained
in movant’s memorandum, that party must set forth each additional fact in a separately numbered
paragraph, supported by references to the record, in the manner required by subsection (a),
above.” Also, this same subsection of Rule 56.1 provides: “All material facts set forth in this
statement of the non-moving party will be deemed admitted for the purpose of summary
judgment unless specifically controverted by the reply of the moving party.” D. Kan. Rule
56.1(b)(2).

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Defendants’ four-page Reply does not controvert any of plaintiff’s 44 additional
statements of fact. See Doc. 118. Defendants’ Reply briefly references two of the exhibits that
plaintiff submitted with her Response opposing defendants’ summary judgment motion. See
Doc. 118 at 2. And defendants assert—but just as a conclusion—that the exhibits don’t present
any “material facts at issue.” Id. But defendants’ Reply never controverts any of plaintiff’s
additional statements of fact specifically in the manner required by our local rules. See D. Kan.
Rule 56.1(b)(2) (“All material facts set forth in this statement of the non-moving party will be
deemed admitted for the purpose of summary judgment unless specifically controverted by the
reply of the moving party.”); see also D. Kan. Rule 56.1(c) (“In a reply brief, the moving party
must respond to the non-moving party’s statement of additional material facts in the manner
prescribed in subsection (b)(1).”).
In sum, because defendants have failed to controvert plaintiff’s additional statement of
facts specifically as our local rules require, the court also accepts as true plaintiff’s additional
statement of facts, but only if the summary judgment record properly supports those facts. Reed,
312 F.3d at 1195.
II.

Uncontroverted Facts

The following facts are stipulated by the parties in the Pretrial Order (Doc. 78), or are
uncontroverted for purposes of the parties’ summary judgment motions.
In May 2014, ESU offered plaintiff’s husband—Melvin Hale—a tenure-track position as
an assistant professor in ESU’s School of Library and Information Management (“SLIM”). On
May 17, 2014, Gwen Alexander—ESU’s Dean of the SLIM—sent an email to Dr. Hale with an
offer letter. The letter recited that ESU was looking forward to welcoming Dr. Hale to the
school. Dr. Hale began his employment with ESU in July 2014. Also in July 2014, plaintiff

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accepted a position at ESU as an administrative assistant to Dean Alexander.2 Plaintiff is an
African-American female.
On April 8, 2015, a graduate assistant named Brenda Rahmoeller arrived at work to find
her office door unlocked, and she discovered the word “NIGGAZ” written in a personal
notebook located in her office. She reported what she had found to plaintiff. Plaintiff took a
photograph of the racial epithet on her cell phone. She then sent a text message to her
husband—Dr. Hale—informing him of the incident and enclosing a picture of the racial epithet.
When Dr. Hale received the text message, he was in a faculty meeting with Dean Alexander and
others. After the meeting, Dr. Hale went with Dean Alexander to Dean Alexander’s office and
informed her of the report that the graduate student had made to plaintiff. Plaintiff then joined
the meeting with Dr. Hale and Dean Alexander, and she reported what she had seen in the
graduate student’s office. Plaintiff and her husband asked Dean Alexander to follow up with the
student and investigate the incident.
In April 2015, Debra Rittgers was employed by ESU as the office manager for SLIM.
On Friday, June 5, 2015, Dean Alexander emailed a group of SLIM employees informing them
that a furlough may begin on Sunday. The email provided: “If a furlough happens, Deb
Rittgers, [plaintiff], and I are all non-essential and will be on the furloughed list.” Doc. 107-2 at
22.3 Also on June 5, 2015, Dean Alexander sent an email to plaintiff and others advising them of
2

Plaintiff tries to the controvert this fact, asserting that her title was Recruitment Coordinator.
Doc. 114 at 2 (Pl.’s Resp. to Defs.’ Statement of Facts ¶ 2). But the exhibit she cites—defendants’
Exhibit B—doesn’t support her assertion. Also, the parties stipulated to the following fact in the Pretrial
Order: “On July 1, 2014, [plaintiff] began employment with ESU as an Assistant to the Dean of School
of Library and Information Management (‘SLIM’).” Doc. 78 at 3 (Pretrial Order ¶ 2.a.6.). And
plaintiff’s Complaint alleges that ESU hired her as an Assistant to the Dean of SLIM on July 1, 2014.
Doc. 1 at 3 (Compl. ¶ 12).

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Plaintiff disputes this fact because, she contends, the exhibit defendants cite to support the fact is
“not attached to the filing.” Doc. 114 at 4. The exhibit (Exhibit N) is found at Doc. 107-2 at 22, as cited.
Plaintiff never disputes whether defendants have established the proper foundation for this exhibit. But,

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the possibility of furlough, that they are considered non-essential employees, and that “[a]
furlough, or mandatory leave without pay, would begin on Sunday, June 7, until further notice . .
. .” Doc. 107-2 at 23.4 But, on June 6, 2015, ESU Interim President Jackie Vietti announced that
ESU would not implement any furlough for employees. Doc. 113 at 153.
After reporting the incident to Dean Alexander on April 8, plaintiff asked the graduate
student every day if Dean Alexander had followed up with her yet to address the incident. The
graduate student repeatedly informed plaintiff that she had heard nothing from Dean Alexander.
Several weeks later, the graduate student reported to plaintiff that Dean Alexander, on June 7,
finally had asked her about the incident. This inquiry came more than two months after the
graduate student had discovered the racial epithet.
Also, plaintiff spoke with Dr. Mirah Dow5 about the incident sometime after plaintiff had
reported the racial epithet to Dean Alexander. During this conversation, plaintiff expressed her
concerns to Dr. Dow that Dean Alexander had not followed up with the graduate student to
investigate the matter.
A few weeks after the incident involving Ms. Rahmoeller, plaintiff retrieved a box of
printer toner from a supply cabinet at work. She noticed a handwritten tag on the box, and she

as discussed in the analysis section below, the court questions whether it can consider this fact on
summary judgment when defendants haven’t authenticated the exhibit by any of the means permitted by
Fed. R. Evid. 901. And, for the court to consider this evidence on summary judgment, defendants—as the
proponents of the evidence—must establish that the content of the evidence is admissible. See Johnson v.
Weld Cty. Co., 594 F.3d 1202, 1209 (10th Cir. 2010) (explaining that it is “well settled in this circuit” that
courts only can consider admissible evidence on summary judgment).
4

Plaintiff again disputes this fact, contending that the exhibit defendants cite to support the fact is
“not attached to the filing.” Doc. 114 at 4. The exhibit (Exhibit O) is found at Doc. 107-2 at 23, as cited.
Plaintiff never disputes whether defendants have established the proper foundation for this exhibit. But
the court has the same concerns about the foundation for this evidence, as it discussed in n.3 supra.

5

The Pretrial Order describes Dr. Mirah Dow as “Chair of the faculty for SLIM.” Doc. 78 at 5
(Pretrial Order ¶ 3.a.).

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thought it “bore a strong resemblance” to the handwritten racial slur found by the graduate
student. Doc. 86-1 at 8 (Angelica Hale Decl. ¶ 30). Plaintiff knew that Debra Rittgers—the
office manager—had written the words on the toner box. And so, plaintiff “came to suspect
[Ms.] Rittgers as the possible author of the slur.” Id. After plaintiff developed this suspicion,
she hired a forensic examiner to perform a handwriting analysis.
On June 15, 2015, plaintiff’s husband sent an email to ESU Provost David Cordle asking
to meet with him. He advised the Provost that he wanted to discuss the racial epithet that the
graduate student had discovered on April 8. On June 26, 2015, Provost Cordle and Judy
Anderson6 met with plaintiff and her husband about their complaints.7
On July 1, 2015, plaintiff’s husband sent an email to ESU Interim President Jackie Vietti,
copying Provost Cordle and plaintiff. The email advised that plaintiff and her husband had filed
a report with ESU police that a hate crime had occurred on April 8, 2015. On July 2, 2015,
plaintiff’s husband sent another email to Jackie Vietti, copying David Cordle, Dean Alexander,
and plaintiff. The email reported that ESU police had declined to file criminal charges against
Debra Rittgers for allegedly writing the racial epithet on the graduate student’s notebook. But
the email recited that plaintiff and her husband would make sure that the matter was not swept
under the carpet. According to plaintiff, “[a]ll of the Emporia State University officials and the
law enforcement contacted stated that no crime occurred.” Doc. 78 at 5 (Pretrial Order ¶ 3.a.).

6

The parties’ summary judgment papers never identify Ms. Anderson’s title. Plaintiff’s Complaint
refers to Ms. Anderson as ESU’s Director of Human Resources. Doc. 1 at 7 (Compl. ¶ 54).
7

Defendants never cite any summary judgment evidence to support this statement of fact, as D.
Kan. Rule 56.1(a) requires. See Doc. 108 at 3 (Defs.’ Statement of Facts ¶ 21); see also D. Kan. Rule
56.1 (requiring a party moving for summary judgment to provide “a concise statement of material facts”
that “must be numbered and must refer with particularity to those portions of the record upon which
movant relies”). But plaintiff doesn’t dispute this fact (see Doc. 114 at 5 (Pl.’s Resp. to Defs.’ Statement
of Facts ¶ 21)). So, the court includes this fact in its recitation of the undisputed summary judgment facts.

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On July 6, 2015, Interim President Jackie Vietti sent an email to plaintiff’s husband. It
included information about how to file an administrative complaint of discrimination so that he
and plaintiff could file a complaint. On July 8, 2015, plaintiff’s husband sent an email to Dean
Alexander. It recited, among other things, that plaintiff’s husband did not intend to file a
complaint with ESU’s Human Resources department. The email does not say anything about
plaintiff or her intent to file a complaint.
On July 7, 2015, plaintiff’s husband met with Dean Alexander. He again raised concerns
about the racial epithet that the graduate student had discovered on April 8. And plaintiff’s
husband complained to Dean Alexander about his perception that Dean Alexander had failed to
take action on his and his wife’s complaints about the racial epithet.
On July 8, 2015, plaintiff sent an email to Dean Alexander. This message asked if ESU
planned to extend plaintiff’s employment contract after it ended on August 15, 2018. Dean
Alexander responded, explaining that plaintiff’s temporary contract and current employment
would end on August 15. Dean Alexander noted that she planned to search for two permanent
new positions in the fall or spring, depending on financial circumstances. And Dean Alexander
told plaintiff that she was welcome to apply for those positions. Dean Alexander also told
plaintiff that she had done a “very good job” in her position and had made a “tremendous
contribution to SLIM during the past year.” Doc. 86-5 at 183.
Plaintiff asserts in her Declaration that ESU renewed her contract “multiple times” before
she complained about discrimination. Doc. 86-1 at 6 (Angelica Hale Decl. ¶ 20). Plaintiff also
asserts that, before she complained about discrimination, she received feedback from Dean
Alexander that she was “exceeding expectations for [her] work.” Id. Plaintiff contends that
Dean Alexander had talked with her about making her job permanent before plaintiff complained

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about discrimination. Also, Dean Alexander encouraged plaintiff to enroll in classes at ESU to
complete a bachelor’s degree. Dean Alexander told plaintiff that having a bachelor’s degree
would provide plaintiff with more job opportunities at ESU. In response to Dean Alexander’s
encouragement, plaintiff enrolled in classes at ESU. But, after plaintiff stopped working at ESU,
she had to drop her enrollment because she no longer qualified for tuition-free enrollment as an
ESU employee.
On July 20, 2015, plaintiff and her husband met with Ray Lauber to discuss their
concerns about the racial epithet. Plaintiff identifies Ray Lauber as “HR Assistant Director.”
Doc. 78 at 6 (Pretrial Order ¶ 3.a.).
On July 27, 2015, plaintiff sent a letter to Dean Alexander complaining that ESU had
“treated” plaintiff and her husband “badly” for reporting a hate crime. Doc. 46-2 at 5 (Angelica
Hale Decl. at ¶ 18); Doc. 47-3 at 6–7 (Pl.’s Ex. V). Plaintiff’s letter also advised that she was
“departing now” from her employment. Id.
On September 21, 2015, plaintiff filed a complaint with the Kansas Human Rights
Commission. Her Complaint alleged:
I.

I am African American. I have openly opposed acts and practices forbidden by
the Kansas Act Against Discrimination.

II.

I was employed by the Respondent from July 2014, to August 15, 2015. I last
held the position of Assistant to the Dean/Marketing.
A. On April 8, 2015, I was subjected to derogatory racial names that were written
on notepads. However, on this same date, I complained of the derogatory
racial names to the Dean, but nothing was done about it.
B. On August 15, 2015, I was terminated, in that I was notified that my contract
was not being renewed.

III.

I hereby charge Emporia State University and its Representatives with a violation
of the Kansas Act Against Discrimination, in that I was subjected to derogatory
racial names due to my race, African American, and terminated as an act of
retaliation for having openly opposed acts and practices forbidden by the Kansas
Act Against Discrimination.
10

Doc. 1-2 at 1–2; Doc. 107-2 at 46–47. Defendants assert that August 15, 2015, likely would
have been plaintiff’s last day of work had she not resigned in July.
III.

Summary Judgment Standard

Summary judgment is appropriate when the moving party demonstrates that “no genuine
dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When it applies this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
11

Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
The court applies this same standard to cross motions for summary judgment. Each party
bears the burden of establishing that no genuine issue of material fact exists and that it is entitled,
as a matter of law, to the judgment sought by its motion. Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Cross motions for summary judgment “are to
be treated separately; the denial of one does not require the grant of another.” Buell Cabinet Co.
v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where the cross motions overlap, the court
may address the legal arguments together. Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149,
1155 (D. Kan. 2010) (citation omitted).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
IV.

Analysis

Because the parties’ cross motions for summary judgment overlap, the court addresses
their legal arguments together. Defendants assert that they are entitled to summary judgment as
a matter of law against plaintiff’s Title VII and § 1983 claims. Plaintiff contends that she is
entitled to summary judgment in her favor on both of her two claims. The court addresses each
of those claims, separately, below.
A. Plaintiff’s Title VII Retaliation Claim Against Defendant ESU
Plaintiff asserts that defendant ESU terminated her employment by refusing to renew her
employment contract as retaliation for complaining about racial discrimination. Title VII

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prohibits an employer from discriminating against an employee “because [she] has opposed any
practice made an unlawful employment practice by this subchapter, or because [she] has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a retaliatory discharge
claim under Title VII, “a plaintiff must establish that the decision to terminate her resulted from
retaliatory animus.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 549 (10th Cir. 1999). A
plaintiff can satisfy this burden in either one of two ways. Id.
“Typically, a plaintiff will rely on the familiar framework” of the McDonnell Douglas
burden-shifting test. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973)). The McDonnell Douglas consists of three parts. First, it requires a plaintiff to establish
a prima facie case of retaliation by showing that: “(1) [s]he engaged in protected activity; (2)
[s]he suffered an adverse employment action; and (3) there is a causal connection between [her]
protected activity and the adverse employment action.” Davis v. Unified Sch. Dist. 500, 750
F.3d 1168, 1170 (10th Cir. 2014) (citing Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998
(10th Cir. 2011)). “The Supreme Court has recently clarified the causation standard for Title VII
retaliation claims, explaining: ‘[A] plaintiff making a retaliation claim under § 2000e-3(a) must
establish that his or her protected activity was a but-for cause of the alleged adverse action by the
employer.’” Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)).
Next, if plaintiff meets this prima facie burden, the burden shifts to defendant to articulate a
legitimate, non-retaliatory reason for the adverse employment action. Crowe v. ADT Sec. Servs.,
Inc., 649 F.3d 1189, 1195 (10th Cir. 2011). And, last, where defendant satisfies this
requirement, the burden shifts back to plaintiff to show that defendant’s proffered reasons for its
actions are pretextual. Id. (citing Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006)).

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The second means a plaintiff can use to satisfy her burden to establish that her
termination resulted from retaliatory animus is by providing direct evidence of retaliation.
Medlock, 164 F.3d at 550. In that case, “the McDonnell Douglas framework is inapplicable.”
Id. (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 557–58, 560 (10th Cir. 1996)).
“‘Direct evidence is evidence, which if believed, proves the existence of a fact in issue
without inference or presumption.’” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th
Cir. 2007) (quoting Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 855 (10th Cir. 2007)). Our
Circuit has explained direct evidence in this fashion: “‘Strictly speaking, the only “direct
evidence” that a decision was made “because of” an impermissible factor would be an admission
by the decisionmaker such as “I fired him because he was too old.”’” Twigg, 659 F.3d 1000 n.8
(quoting Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 181 (2d Cir. 1992) (quoting Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir. 1992))). In contrast, “[e]ven a highlyprobative statement like ‘You’re fired, old man’” is not direct evidence because it “still requires
the factfinder to draw the inference that the plaintiff’s age had a causal relationship to the
decision.” Id. (quoting Ostrowski, 968 F.2d at 181).
As an example, our Circuit has held that a suspension letter and subsequent termination
letter provided direct evidence of retaliation because the letters recited that the employer had
made its suspension and termination decisions because plaintiff had complained about racial
discrimination. Medlock, 164 F.3d at 550. In that Tenth Circuit case, the suspension letter
recited: “[a]s a result of issues raised in your deposition, effective immediately, you are
suspended from all duties on behalf of the Company.” Id. The Circuit explained that, “[o]n its
face, defendant’s suspension letter admits that defendant considered the subject matter of
plaintiff’s deposition in its decision to terminate him, a deposition which included testimony

14

about his Title VII race discrimination claim.” Id. (emphasis added). And the termination letter
also provided that one of the reasons for plaintiff’s discharge was his “communication of his
dissatisfaction with his compensation”—which, plaintiff had alleged, “was the product of racial
discrimination.” Id. at 549, 550. The Circuit thus concluded that “the suspension and
termination letters in conjunction with the timing of plaintiff’s suspension and ultimate discharge
constitute[d] direct evidence of retaliatory animus . . . .” Id. at 551.
Here, plaintiff asserts that her summary judgment papers have provided direct evidence
of retaliation. Doc. 113 at 1, 17, 23 (Pl.’s Opp’n to Defs.’ Mot. Summ. J.) (citing Doc. 86 at
184). Plaintiff relies on her Exhibit DD, which she describes as “one of [Ray Lauber’s]
Memorandums of the investigation to [Interim President] Vietti dated August 20, 2015.” Doc.
86-1 at 7 (Angelica Hale Decl. ¶ 27). Exhibit DD consists of four pages of findings, but it
includes no date and it never identifies the author.8 One page of this exhibit includes the
following conclusion: “[A]lthough not racially motivated, it is the conclusion of this
investigation that [plaintiff’s] meeting with the Provost did play a part in Dr. Alexander’s
decision not to reappoint [plaintiff] to the temporary position or to the post the vacancy.” Doc.
86 at 184; see also Doc. 86-4 at 3. Plaintiff asserts that ESU, with this conclusion, has conceded
that it did not renew her employment contract because she had complained to the Provost about
the racial epithet. Doc. 113 at 23. And indeed, the summary judgment facts establish that
plaintiff and her husband met with Provost David Cordle on June 26, 2015, to complain about

8

Whether plaintiff has laid a proper foundation for Exhibit DD is an issue, it appears. Plaintiff’s
Declaration asserts that Exhibit DD is part of Mr. Lauber’s findings of the investigation and that she
“received it in discovery” from defendants. Doc. 86-1 at 7 (Angelica Hale Decl. ¶ 27). Defendants never
object or otherwise assert that plaintiff lacks personal knowledge to authenticate the exhibit, or that the
evidence otherwise is inadmissible. The court thus receives this exhibit as part of the summary judgment
record and considers it when ruling the summary judgment motions.

15

the racial epithet. About two weeks later, Dean Alexander told plaintiff that ESU would not
renew her contact after it expired on August 15, 2018.
Defendants’ Reply never responds to this argument. Doc. 118. The court could treat
defendants’ omission as a waiver of this issue. See Cayetano-Castillo v. Lynch, 630 F. App’x
788, 794 (10th Cir. 2015) (holding that an appellant who does not respond to an argument in its
reply brief “‘waives, as a practical matter anyway, any objections not obvious to the court to
specific points urged by the appellee’” because the court is not “required to do his work for him
and dissect [the appellee’s] plausible argument”) (quoting Hardy v. City Optical, Inc., 39 F.3d
765, 771 (7th Cir. 1994)).
But, even if the exhibit amounts to direct evidence of retaliation, that evidence neither
entitles plaintiff to summary judgment as a matter of law nor precludes summary judgment
against plaintiff’s Title VII retaliation claim. To prevail on her Title VII retaliation claim—even
with direct evidence—plaintiff still must establish that: (1) she engaged in protected activity,
and (2) she sustained an adverse employment action (3) because of her protected activity. See
Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002) (explaining that
for a retaliation plaintiff to prevail on “obtaining [or] preventing summary judgment” by relying
on direct evidence, the evidence must establish that plaintiff “engaged in protected activity . . .
and as a result suffered the adverse employment action of which [s]he complains”); see also
Clark v. Cache Valley Elec. Co., 573 F. App’x 693, 702 (10th Cir. 2014) (holding that, although
plaintiff may have provided direct evidence that his employer fired him because he had
complained, “this by itself is insufficient to survive summary judgment on the retaliation claim”
because the plaintiff still “must . . . show that he complained because he reasonably believed that
[the employer’s] conduct violated Title VII.”); Apgar v. State of Wy., No. 99-8029, 2000 WL

16

1059444, at *10 (10th Cir. Aug. 2, 2000) (applying the McDonnell Douglas framework to a
retaliation claim even though the summary judgment record included “direct evidence” of a
causal connection between plaintiff’s protected activity and the adverse employment action).
The court thus applies the McDonnell Douglas test to the summary judgment facts here.
1. Prima Facie Case
As discussed, a prima facie case of retaliation requires plaintiff to establish that: “(1)
[s]he engaged in protected activity; (2) [s]he suffered an adverse employment action; and (3)
there is a causal connection between [her] protected activity and the adverse employment
action.” Davis, 750 F.3d at 1170 (citing Twigg, 659 F.3d at 998). The court addresses each
element of plaintiff’s prima facie case here, in turn, below.
a. Protected Activity
Defendants assert two arguments to support their contention that the summary judgment
facts fail to establish a triable issue whether plaintiff engaged in protected activity under Title
VII. First, defendants argue, plaintiff cannot rely on any purported protected activity that
occurred outside the time period asserted in her charge of discrimination. Second, defendants
contend, plaintiff’s complaints about the racial epithet did not constitute protected activity under
Title VII. The court address each argument, separately.
First, defendants argue that plaintiff has failed to exhaust her administrative remedies for
any incidents occurring before April 8, 2015, and after August 15, 2015. Doc. 107 at 5. The
Tenth Circuit has explained that “‘[a] plaintiff normally may not bring a Title VII action based
upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received
a right-to-sue-letter.’” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181 (10th Cir. 2018) (quoting
Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004)). “‘This individual filing

17

requirement is intended to protect employers by giving them notice of the discrimination claims
being brought against them, in addition to providing the EEOC with an opportunity to conciliate
the claims.’” Id. (quoting Foster, 365 F.3d at 1195). The exhaustion requirement mandates that
“‘each discrete incident of [discriminatory or retaliatory] treatment constitutes its own “unlawful
employment practice” for which administrative remedies must be exhausted.’” Id. (quoting
Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)).
Recently, the Tenth Circuit held in Lincoln v. BNSF Railway Co. that “a plaintiff’s failure
to file an EEOC charge regarding a discrete employment incident merely permits the employer to
raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming
jurisdiction over a claim.” Id. at 1185. “In practical terms, [Lincoln’s] holding means that the
defense of failure to timely exhaust a Title VII claim ‘is subject to waiver, estoppel, and
equitable tolling.’” Payan v. United Parcel Serv., 905 F.3d 1162, 1169 (10th Cir. 2018) (quoting
Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982)).
Here, defendants asserted the failure to exhaust as an affirmative defense in the Pretrial
Order. Doc. 78 at 14 (Pretrial Order ¶ 4.b.10.). Also, because defendants asserted it pre-Lincoln,
the court can treat defendants’ exhaustion argument on summary judgment as having raised an
affirmative defense of failure to exhaust. Payan, 905 F.3d at 1169 (treating a defendant’s
jurisdictional argument based on failure to exhaust under the “now-abrogated framework” postLincoln as having raised an affirmative defense of failure to exhaust); see also Doc. 107 at 6
(asserting jurisdictional argument based on failure to exhaust under existing case law that
Lincoln since has abrogated); Doc. 109 at 4 (same).
The court agrees with defendants’ argument that it cannot consider any incidents that
occurred before April 8, 2015, and after August 15, 2015, when analyzing plaintiff’s Title VII

18

retaliation claim. Plaintiff never exhausted such incidents in her charge of discrimination. “[A]
plaintiff’s claim in federal court is generally limited by the scope of the administrative
investigation that can reasonably be expected to follow the charge of discrimination submitted to
the EEOC.” Jones v. United Parcel Serv., 502 F.3d 1176, 1186 (10th Cir. 2007) (citation and
internal quotation marks omitted). The Tenth Circuit instructs courts to “liberally construe
charges filed with the EEOC in determining whether administrative remedies have been
exhausted as to a particular claim.” Id. (citation omitted).
Here, plaintiff’s charge asserts that, on April 8, 2015, she was subjected to derogatory
racial names written on notepads. Doc. 107-2 at 46–47. Also, plaintiff’s charge alleges that she
complained to the Dean about the derogatory names on the same day—i.e., April 8—but nothing
was done about it. Id. Plaintiff’s charge asserts that ESU terminated her employment on August
15, 2015, when it didn’t renew her employment contract. Id. And plaintiff’s charge alleges that
ESU terminated her “as an act of retaliation for having openly opposed” discrimination. Id.
Even under the most liberal construction, the court cannot read plaintiff’s charge as complaining
about acts before April 8, 2015, or after August 15, 2015. Plaintiff’s charge specifically limits
her allegations to that time frame. And thus, the court does not consider any conduct outside it
because plaintiff has not exhausted her administrative remedies for such conduct.
But, to the extent defendants argue that the court cannot consider other complaints that
plaintiff made about the racial epithet because the charge never specifically describes those
complaints, the court rejects that argument. Liberally construing plaintiff’s charge, she alleges
that: (1) she complained about the racial epithet and nothing was done about it; and (2) ESU
terminated her employment because she complained about the racial epithet. From these
allegations, an administrative investigation of plaintiff’s retaliation claim “can reasonably be

19

expected to follow the charge of discrimination.” Jones, 502 F.3d at 1187 (citation and internal
quotation marks omitted). And it is reasonable to expect that the administrative investigation
would investigate other communications that plaintiff had with ESU about her complaint of the
racial epithet and Dean Alexander’s response to her complaint. Thus, the court considers the
other complaints plaintiff asserted after she learned about the racial epithet on April 8, 2015, but
before her termination on August 15, 2015, when analyzing the parties’ summary judgment
motions.
Second, defendants’ summary judgment motion argues that plaintiff’s complaint about
the racial epithet was not protected activity under Title VII because plaintiff cannot establish that
the April 8 incident amounts to an unlawful employment practice prohibited by Title VII. Doc.
107 at 11. Defendants’ summary judgment motion argues that no reasonable jury could
conclude from the summary judgment facts that plaintiff was complaining about a hostile work
environment based on just one instance of discrimination—i.e., finding the word “NIGGAZ”
written on a notepad. A hostile work environment is one that it is “permeated with
discriminatory intimidation, ridicule, and insult[ ] that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th
Cir. 2015) (citation and internal quotation marks omitted). Importantly, “‘[p]ervasiveness and
severity are independent and equal grounds’ upon which” plaintiff may establish a hostile work
environment claim. Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008) (quoting
Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998)).
Our Circuit has cautioned that “‘the severity and pervasiveness evaluation is particularly
unsuited for summary judgment’ because it is inherently fact-found by nature.” Lounds, 812 F.3d
at 1222 (quoting O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999)). At

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the same time, the Circuit also has recognized “there is not, and by its nature cannot be a
mathematically precise test for a hostile work environment claim.” Id. (citation, internal
quotation marks, and internal alterations omitted). Instead, “the totality of the circumstances is
the touchstone of a hostile work environment analysis.” Id. (citation, internal quotation marks,
and internal alterations omitted).
When analyzing the totality of the circumstances, courts consider “a variety of factors . . .
including the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Id. (citations, internal quotation marks, and internal
alterations omitted). Also, “courts assess whether the work environment is both subjectively and
objectively hostile or abusive.” Id. (citation, internal quotation marks, and internal alterations
omitted).
Here, plaintiff asserts just one incident of alleged racial harassment—i.e., the word
“NIGGAZ” written on a notepad. But, as our Circuit has recognized, “courts frequently have
found to be appropriate for jury consideration (and thus not appropriate for rejection at the
summary-judgment phase)” evidence of “the use of the word ‘nigger’—more specifically, the
variant, ‘nigga’” because of these words’ “potentially powerful race-based effect.” Lounds, 812
F.3d at 1229; see also id. at 1230 (“‘[P]erhaps no single act can more quickly alter the conditions
of employment than the use of an unambiguously racial epithet such as nigger by a supervisor.
This single incident might well have been sufficient to establish a hostile work environment.’”
(quoting Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (other citations and
internal quotation marks omitted)); Tademy, 614 F.3d at 1144 (“Indeed, it is difficult to imagine
a message more calculated to make an African-American feel unwelcome in the workplace than

21

‘nigger’ engraved in his or her individual workspace.”). Viewing the summary judgment facts
here in plaintiff’s favor, the court concludes that a reasonable jury could conclude that finding
the word “NIGGAZ” written in the work place could constitute severe or pervasive harassment
sufficient to support a complaint of hostile work environment. The court recognizes that a
reasonable jury also could reach the opposite conclusion. But the court cannot find—as a matter
of law—that the summary judgment facts here present no triable issue whether plaintiff engaged
in protected activity by complaining about a hostile work environment. The court thus rejects
defendants’ argument supporting their motion for summary judgment on this basis.
Also, in their Response to plaintiff’s summary judgment motion, defendants argue that
plaintiff did not engage in protected activity by reporting the racial epithet to Dean Alexander
because—as the graduate student’s manager—plaintiff was acting within the course of her
normal duties and not engaging in protected opposition to discrimination. See, e.g., Weeks v.
Kansas, 503 F. App’x 640, 642 (10th Cir. 2012) (“To engage in protected opposition [a
manager] must instead ‘step outside . . . her role of representing the company and either file (or
threaten to file) an action adverse to the employer, actively assist other employees in asserting
[Title VII] rights, or otherwise engage in activities that reasonably could be perceived as directed
towards the assertion of rights protected by [Title VII].’” (quoting McKenzie v. Renberg’s Inc.,
94 F.3d 1478, 1486–87, 1486 n.8 (10th Cir. 1996)).
There are two problems with defendants’ argument. First, the summary judgment facts
don’t establish as undisputed facts that: (a) plaintiff was the graduate student’s manager; or (b)
plaintiff was acting in the course of her normal duties by reporting discrimination. Second, and
even if the facts established that plaintiff was the graduate student’s manager, the summary
judgment record contains facts from which a reasonable jury could conclude that plaintiff was

22

asserting her own rights under Title VII by complaining to Dean Alexander—as well as to
Provost Cordle and law enforcement—about a perceived hostile environment that the racial
epithet created at ESU. The court thus rejects defendants’ summary judgment motion based on
their argument that the summary judgment facts present no triable issue whether plaintiff
engaged in protected activity.
b. Adverse Employment Action
The Supreme Court has explained that Title VII protects employees from retaliation that
produces an injury or harm. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006). A
challenged employment action is “adverse” for the purposes of a Title VII retaliation claim if “a
reasonable employee would have found [it] materially adverse.” Id. at 68. This means that the
challenged action “well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. (citation and internal quotation marks omitted).
One of defendants’ filings asserts that plaintiff cannot establish that she sustained an
adverse employment action because the undisputed summary judgment facts show that she quit
her job on July 27, 2015, before her employment contract expired. Doc. 109 at 9. But the
undisputed summary judgment facts also show that plaintiff quit her job after Dean Alexander
told her in a July 8 email that ESU would not renew her employment contract. Another one of
defendants’ filings appears to concede that ESU’s decision not to renew plaintiff’s contract
constitutes an adverse employment action. See Doc. 107 at 5 (“[T]he only adverse employment
action that arguably occurred was the non-renewal of Plaintiff’s contract.”). The court thus
concludes that a reasonable jury could conclude that plaintiff sustained an adverse employment
action when ESU refused to renew her employment contract.

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c. Causal Connection
Finally, to establish a prima facie case of retaliation, plaintiff must show a causal
connection between her protected activity and ESU’s decision not to renew her employment
contract. The Tenth Circuit has explained that “[t]he ‘critical inquiry’ at this prima facie stage is
‘whether the plaintiff has demonstrated that the [employer’s] action occurred under
circumstances which give rise to an inference of unlawful discrimination.’” Metzler v. Fed.
Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006) (quoting Garrett v. HewlettPackard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)). The temporal proximity between plaintiff’s
protected activity and her termination may demonstrate “a causal connection sufficient to ‘justify
an inference of retaliatory motive.’” Id. (quoting Haynes v. Level 3 Commc’ns, LLC, 456 F.3d
1215, 1228 (10th Cir. 2006)). But temporal proximity alone will not establish the necessary
causal connection unless “‘the termination is very closely connected in time to the protected
activity.’” Id. (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)).
The Tenth Circuit has determined that a period of six weeks between the protected activity and
termination may, by itself, establish the requisite causal connection. Anderson, 181 F.3d at 1179.
But a period of three months does not. Id.
Here, plaintiff asserts that she engaged in protected activity when she complained about
the racial epithet to Dean Alexander immediately after she learned of it on April 8, 2015. Also,
plaintiff asserts that she complained about the racial epithet on several other occasions. Viewed
in plaintiff’s favor, the summary judgment facts show that on June 15, 2015, plaintiff and her
husband met with ESU Provost David Cordle and Judy Anderson to complain about the racial
epithet. On July 1, 2015, plaintiff’s husband sent an email to Interim President Vietti, copying
Provost Cordle and plaintiff, advising that plaintiff and her husband had filed a report with ESU

24

police about a hate crime occurring on April 8, 2015. And, on July 7, 2015, plaintiff’s husband
met with Dean Alexander to express concerns about the racial epithet and his perception that the
Dean had failed to take action on his complaints and those of his wife about the incident. The
following day, July 8, Dean Alexander told plaintiff by email that ESU was not renewing her
employment contract when it expired on August 15, 2015. From these facts, a reasonable jury
could infer that the temporal proximity between plaintiff’s complaints about the racial epithet
and ESU’s decision not to renew her contract establishes a causal connection. See Anderson,
181 F.3d at 1179 (holding that a period of six weeks between the protected activity and
termination may, by itself, establish a causal connection).
Also, a reasonable jury could infer from Ray Lauber’s report that plaintiff has established
the requisite causal connection to support her retaliation claim. As already discussed, this report
provides: “[A]lthough not racially motivated, it is the conclusion of this investigation that
[plaintiff’s] meeting with the Provost did play a part in Dr. Alexander’s decision not to reappoint
[plaintiff] to the temporary position or to the post the vacancy.” Doc. 86 at 184; see also Doc.
86-4 at 3. Viewing the facts in plaintiff’s favor, a jury could find that ESU refused to renew her
employment contract because she had met with Provost Cordle to complain about the racial
epithet. The court thus denies defendants’ summary judgment motion based on their argument
that plaintiff has failed to present a triable issue whether a causal connection exists between her
protected activity and ESU’s refusal to renew her employment contract.
2. Legitimate Non-Retaliatory Reason
Because the summary judgment record presents a triable issue whether plaintiff has
established a prima facie case of retaliation, the McDonnell Douglas burden shifts to defendants
to articulate a legitimate, non-retaliatory reason for the adverse employment action. Crowe v.

25

ADT Sec. Servs., Inc., 649 F.3d 1189, 1195 (10th Cir. 2011). Defendants’ assertions on this
score are perplexing. Defendants’ summary judgment filings assert several different reasons
why ESU decided not to renew plaintiff’s employment contract.
Defendants’ summary judgment motion asserts that “the non-renewal of [plaintiff’s]
contract was purely related to budgetary issues impacting the university following the nearfurlough of many employees in June 2015 and the fact that she should have never been hired into
a position that she was not qualified for in SLIM.” Doc. 107 at 5. But in defendants’ Response
to plaintiff’s Motion for Summary Judgment, defendants assert that it took no adverse
employment action against plaintiff because she quit her job. The Response also contends that,
even if plaintiff hadn’t quit her employment, ESU “had more than sufficient cause to discharge
Plaintiff . . . based on the hostile work environment that she had created for Debra Rittgers.”
Doc. 109 at 10. This filing makes no argument that ESU decided against renewing plaintiff’s
contract based on budgetary concerns, or because she was not qualified for the job.
While defendants’ multiple reasons are curious, they do not drive the analysis. For even
if the court assumes that these different reasons—taken together or individually—provide a
legitimate, non-retaliatory basis for ESU’s decision not to renew plaintiff’s employment contract,
the summary judgment record, viewed in plaintiff’s favor, presents triable issues about pretext.
These issues preclude the court from granting defendants’ summary judgment motion against
plaintiff’s Title VII retaliation claim. The court discusses the pretext issues in the next section.
3. Pretext
Assuming that defendants had established a legitimate and non-retaliatory reason for the
decision not to renew plaintiff’s employment contract, the burden shifts back to plaintiff to show
that the proffered reasons for defendant ESU’s actions are pretextual. Crowe, 649 F.3d at 1195

26

(citing Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006)). “A plaintiff may show
pretext ‘by demonstrating such weaknesses, implausibilities, inconsistencies, incoherenc[i]es, or
contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and hence infer that the employer did
not act for the asserted nondiscriminatory reasons.’” Id. at 1196 (quoting Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007)). “Pretext may also be shown by
providing direct evidence that the proffered rationale is false, or that the plaintiff was treated
differently from similarly-situated employees.” Id. (citing Swackhammer, 493 F.3d at 1167–68).
Viewing the summary judgment facts in plaintiff’s favor, a reasonable jury could infer that
defendants’ proffered reasons are pretextual for several reasons.
First, defendants’ shifting explanations for the employment decision could permit the
jury to infer pretext. See, e.g., Fassbender v. Correct Care Sols., 890 F.3d 875, 890 (10th Cir.
2018) (finding that defendant’s “shifting explanations for terminating” plaintiff—along with
other evidence—“could all be circumstantial evidence of pretext”); Berkemeier v. Standard
Beverage Corp., 171 F. Supp. 3d 1122, 1139 (D. Kan. 2016) (concluding that a “genuine issue of
material fact [existed] whether Defendant’s inconsistent and shifting explanations for Plaintiff’s
termination evidence pretext”). Here, defendants’ summary judgment motion provides one set of
reasons for not renewing plaintiff’s employment contract—i.e., budget concerns and plaintiff’s
lack of qualifications. But defendants’ response to plaintiff’s motion provides a different set of
reasons—i.e., plaintiff quit her employment before her contract expired, but even if she had not
quit, ESU would have fired her for allegedly harassing Debra Rittgers in the workplace. A
reasonable jury could infer pretext based on these shifting reasons.

27

Second, the summary judgment facts present a triable issue whether defendants’ various
reasons for the decision not to renew plaintiff’s contract are pretextual. Defendants’ first
proffered reason for the decision is that ESU refused to renew plaintiff’s contract because of
budgetary concerns. Viewing the summary judgment facts in plaintiff’s favor, a reasonable jury
could find this proffered reason is pretext. Defendants rely on communications showing that
ESU had anticipated implementing a furlough of non-essential employees—including plaintiff—
in June 2015. As noted above, the court questions whether it can consider the documents
defendants have submitted to support this assertion because defendants have not authenticated
them. See Johnson v. Weld Cty. Co., 594 F.3d 1202, 1209 (10th Cir. 2010) (explaining that it is
“well settled in this circuit” that courts only can consider admissible evidence on summary
judgment). But, even if properly authenticated, the summary judgment record contains evidence
that ESU never implemented that furlough. Also, Dean Alexander’s email to plaintiff on July 8,
informing her that her employment contract would end on August 15, says nothing about
whether budget concerns factored into ESU’s decision not to renew plaintiff’s contract. Instead,
it describes how Dean Alexander was planning to search for two new permanent positions in the
fall or spring “depending on financial circumstances this coming year.” Doc. 86-5 at 183. Also,
the summary judgment record contains evidence that ESU had renewed plaintiff’s contract
several times since she had started working for ESU less than a year earlier. Thus, a jury could
infer from these facts that budget issues had not prevented ESU from renewing plaintiff’s
contract and that defendants’ proffered reason of budget concerns is pretext.
Defendants’ second proffered reason for refusing to renew plaintiff’s contract is that she
was not qualified for her job. But defendants cite no summary judgment facts—none—to
support this assertion. To the contrary, the summary judgment record shows that ESU had

28

renewed plaintiff’s contract several times before she complained about race discrimination.
Also, before plaintiff complained about race discrimination, she had received positive feedback
from Dean Alexander about her work and Dean Alexander had encouraged her to enroll in
classes at ESU so that she could be eligible for more job opportunities. The court finds that these
facts in the summary judgment record present a triable issue whether defendants’ second
proffered reason is pretext.
Defendants’ third proffered reason for not renewing plaintiff’s contract is that plaintiff
quit before her contract ended. But plaintiff didn’t quit until July 27—after Dean Alexander told
plaintiff on July 8 that ESU did not plan to extend plaintiff’s contract when it ended on August
15. Also, defendants assert, even if plaintiff hadn’t quit, “ESU would have had more than
sufficient cause to discharge Plaintiff (had that actually happened) based on the hostile work
environment she created for Debra Rittgers.” Doc. 109 at 10. On this point, the summary
judgment record is murky at best. The evidence in the summary judgment record establishes that
plaintiff accused Ms. Rittgers of authoring the racial slur and that plaintiff tried to file a police
report against her. The summary judgment record also includes evidence of an “open letter” that
plaintiff wrote to Dean Alexander on July 27, 2015. The letter advised Dean Alexander of
plaintiff’s decision to resign, described Debra Rittgers as the “most ‘highly likely’ suspect” for
writing the racial epithet, and recited other criticisms about ESU, its administration, and its
faculty. Doc. 47-3 at 7. From these facts, a reasonable jury might accredit ESU’s assertion that
it would have terminated plaintiff for creating a hostile work environment. But a reasonable jury
also could reach the opposite conclusion—finding that plaintiff’s complaints and concerns were
legitimate based on ESU’s purported failure to investigate her complaint about the racial epithet.

29

The court thus concludes that the summary judgment record presents a triable issue whether
defendants’ third proffered reason for refusing to renew plaintiff’s contract is pretextual.
Finally, plaintiff has discharged her burden to defeat summary judgment by offering
direct evidence of retaliation through Mr. Lauber’s investigation memorandum. See Conner v.
Schnuck Mkts., Inc., 121 F.3d 1390, 1397 (10th Cir. 1997) (explaining that “the defendant is
entitled to summary judgment unless the plaintiff produces either direct evidence of
discrimination or evidence that the defendant’s proffered reason for the action taken was
pretextual”). As discussed, this memorandum recites: “[A]lthough not racially motivated, it is
the conclusion of this investigation that [plaintiff’s] meeting with the Provost did play a part in
Dr. Alexander’s decision not to reappoint [plaintiff] to the temporary position or to the post the
vacancy.” Doc. 86 at 184; see also Doc. 86-4 at 3. The summary judgment facts establish that
plaintiff and her husband met with Provost David Cordle on June 26, 2015, and complained
about the racial epithet. About two weeks later, Dean Alexander told plaintiff that ESU would
not renew her contact after it expired on August 15, 2018. And Mr. Lauber’s memorandum
recited that plaintiff’s meeting with the Provost played a part in the decision not to renew
plaintiff’s employment contract. A reasonable jury could infer from this evidence in the
summary judgment record that ESU chose not to renew plaintiff’s employment contract as
retaliation for complaining about racial discrimination.  
For all these reasons, the summary judgment record—when viewed in plaintiff’s favor—
presents triable issues whether defendant ESU refused to renew plaintiff’s employment contract
as retaliation for complaining about racial discrimination, thus violating Title VII. The court
thus denies defendants’ motion seeking summary judgment against plaintiff’s Title VII claim.

30

Also, the court cannot conclude as a matter of law that plaintiff is entitled to summary
judgment in her favor on her Title VII claim. Viewing the summary judgment evidence in
defendants’ favor, a reasonable jury might accredit defendants’ proffered explanations for
deciding not to renew plaintiff’s contract and find no evidence of a causal connection or pretext.
Also, a reasonable jury could reach the opposite conclusion based on the summary judgment
facts presented here. As such, the court cannot decide this claim on summary judgment as a
matter of law. The court thus denies plaintiff’s motion seeking summary judgment in her favor
on her Title VII claim.
B. Plaintiff’s § 1983 Claim Against the Individual Defendants
The court now turns to plaintiff’s § 1983 claim. Plaintiff asserts that defendants Cordle,
Alexander, and Vietti violated § 1983 by terminating her employment contract because she
exercised her First Amendment right to speak out against racism and discrimination. Doc. 78 at
12–13 (Pretrial Order ¶¶ 4.a.1–2.). Defendants assert two arguments to support their motion for
summary judgment against plaintiff’s § 1983 claim. The court addresses each one, below.
First, defendants assert that plaintiff’s § 1983 claim fails as a matter of law because the
summary judgment record contains no facts showing any of the three individual defendants
personally participated in the purported constitutional violation. A viable § 1983 claim requires
the plaintiff to establish “a [constitutional] violation traceable to a defendant-official’s ‘own
individual actions.’” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009)) (emphasis added). A plaintiff may not seek to hold
government officials liable “‘for the unconstitutional conduct of their subordinates under a
theory of respondeat superior.’” Id. (quoting Iqbal, 556 U.S. at 676). Instead, a plaintiff must
establish “‘an affirmative link . . . between the constitutional deprivation and either the

31

supervisor’s personal participation, his exercise of control or direction, or his failure to
supervise.’” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Green v.
Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)).
Here, plaintiff never responds to defendants’ argument that the summary judgment record
contains no facts capable of supporting a finding or inference that any of the three individual
defendants personally participated in the alleged constitutional violation. The court thus could
treat plaintiff’s omission as a waiver. Nevertheless, viewing the summary judgment record in
plaintiff’s favor, the undisputed facts show that plaintiff complained to Provost Cordle, Interim
President Vietti, and Dean Alexander about racial discrimination. But no evidence in the
summary judgment record permits a jury to find or infer that Provost Cordle or Interim President
Vietti participated in the decision to terminate plaintiff’s employment contract.9
In her asserted statements of fact, plaintiff makes conclusory assertions about ESU
administrators’ involvement in the employment decisions of other employees. She also contends
that she saw Dean Alexander speaking with Interim President Vietti the day before Dean
Alexander told plaintiff that ESU would not renew her contract. But plaintiff cannot establish
Provost Cordle or Interim President Vietti’s personal participation in the non-renewal decision
based on her conclusory and speculative assertions. See Bones v. Honeywell Int’l, Inc., 366 F.3d
869, 875 (10th Cir. 2004) (explaining that, to defeat a motion for summary judgment, the nonmoving party’s “evidence, including testimony, must be based on more than mere speculation,
conjecture, or surmise”). As the party opposing summary judgment, plaintiff must come forward

9

In contrast, a jury could infer from Mr. Lauber’s memorandum that Dean Alexander made the
decision not to renew plaintiff’s contract. The relevant portion of the memorandum reads: “[I]t is the
conclusion of this investigation that [plaintiff’s] meeting with the Provost did play a part in Dr.
Alexander’s decision not to reappoint [plaintiff] to the temporary position or to the post the vacancy.”
Doc. 86 at 184 (emphasis added); see also Doc. 86-4 at 3 (emphasis added).

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with “‘specific facts showing a genuine issue for trial [on] those dispositive matters for which it
carries the burden of proof.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010)
(quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)). Plaintiff has not shouldered that
burden here. Thus, the court grants summary judgment against plaintiff’s § 1983 claim asserted
against defendants Cordle and Vietti because no reasonable jury could infer from the summary
judgment facts that either one of these defendants personally participated in the alleged
constitutional deprivation.
Second, defendants assert that all three of them are entitled to qualified immunity against
plaintiff’s § 1983 claim. “Qualified immunity ‘gives government officials breathing room to
make reasonable but mistaken judgments about open legal questions.’” Lane v. Franks, 573 U.S.
228, __, 134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
This doctrine “protects ‘all but the plainly incompetent or those who knowingly violate the
law.’” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Qualified
immunity shields a government official from liability for money damages in his or her personal
capacity “unless ‘the official violated a statutory or constitutional right,’ and ‘the right was
“clearly established” at the time of the challenged conduct.’” Lane, 134 S. Ct. at 2381 (quoting
al-Kidd, 563 U.S. at 735).
So, when a defendant moves for summary judgment based on a qualified immunity
defense, the burden shifts to the plaintiff to demonstrate that: (1) the defendant violated her
constitutional or statutory rights; and (2) the right was clearly established at the time of the
alleged unlawful activity. Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Puller v.
Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “In their discretion, courts are free to decide which
prong to address first ‘in light of the circumstances of the particular case at hand.’” Weise v.

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Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) (quoting Pearson, 555 U.S. at 236). “Ultimately,
the record must clearly demonstrate the plaintiff has satisfied [t]his heavy two-part burden;
otherwise, the defendant is entitled to qualified immunity.” Puller, 781 F.3d at 1196 (citation,
internal quotation marks, and internal alterations omitted).
Plaintiff doesn’t provide much of a response to defendants’ qualified immunity argument,
even though she bears the “heavy . . . burden” on summary judgment to establish the two parts of
the qualified immunity test. Id. Plaintiff’s Opposition to defendants’ summary judgment motion
does recite the law governing qualified immunity. Doc. 113 at 20. And then, plaintiff provides
one sentence to argue that qualified immunity does not apply here: “University administrators
cannot claim ignorance of the First Amendment.” Doc. 113 at 20. This conclusory statement
will not suffice to satisfy plaintiff’s burden to overcome the qualified immunity defense.
Plaintiff fails to direct the court to any evidence in the summary judgment record that could
create a triable issue whether the three individual defendants violated plaintiff’s constitutional
rights—i.e., that the individual defendants decided not to renew plaintiff’s contract because she
spoke out on a matter of public concern as opposed to her own personal grievances—as
defendants contend she did. See Doc. 109 at 11. Also, plaintiff never cites any evidence in the
summary judgment record that could permit a reasonable jury to find that her right was clearly
established at the time of the unlawful activity. Because plaintiff has not shouldered her burden
to satisfy the two-part test to overcome a qualified immunity defense, the court grants summary
judgment against plaintiff’s § 1983 claim against the three individual defendants. They are
entitled to qualified immunity.
In sum, the court grants summary judgment against plaintiff’s § 1983 claim asserted
against defendants Cordle and Vietti for two independent reasons: (1) the summary judgment

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facts fail to present a triable issue whether Provost Cordle and Interim President Vietti personally
participated in the alleged constitutional violation; and (2) Provost Cordle and Interim President
Vietti are entitled to qualified immunity. Also, the court grants summary judgment against
plaintiff’s § 1983 claim asserted against Dean Alexander because she is entitled to qualified
immunity.
V.

Conclusion

For reasons explained above, the court grants defendants’ summary judgment motion in
part and denies it in part. Also, the court denies plaintiff’s summary judgment motion.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Summary Judgment (Doc. 85) is denied.
IT IS FURTHER ORDERED THAT defendants’ Motion for Summary Judgment
(Doc. 106) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 9th day of November, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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