See also Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment on her
Retaliation Claims
As discussed under MartinvHowardU, trial was finally held from April 3-28, 2006. The jury found that Prof. Martin
was harassed by the homeless, delusional stalker in her workplace, but oddly, and contradicting Judge Hogan's finding of
law in his 1999 decision, found that the found that the harassment was not based on her sex The is set for was not
"sexual" or on the basis of her sex. This conclusion led to a jury verdict for the defendant, since Title VII jurisdiction
only applies if the harassment is based on race, sex, color, national origin or religion. Ms. Martin has filed motions for
judgment on all of her claims, as a matter of law, asking the Court to set aside the jury verdict. See Plaintiff's Motion for
Judgment on her Sexual Harassment Claim, and Reply; Plaintiff's Motion for Judgment on her Retaliation Claims;
Plaintiff's Motion for Judgment on her Breach of Contract Claim and Reply. Howard has also filed motions for
judgment on all claims, even though the jury verdict was in its favor. See Plaintiff's Opposition to Defendant's Motion
for Judgment on Plaintiff's Sexual Harassment Claim; Plaintiff's Opposition to Defendant's Motion for Judgment on her
Retaliation Claims; Plaintiff's Opposition to Defendant's Motion for Judgment on her Breach of Contract Claim.
If Chief Judge Hogan does not set aside the jury verdict, Ms. Martin will appeal this decision. The verdict clearly
reflects a misunderstanding by the jury as to what constitutes sexual harassment or harassment on the basis of sex.
Judge Hogan held, in 1999 "It is clear from Mr. Harrison's own description of his search for 'Geneva Crenshaw" or
'Valerie Edwards' that he targeted women other than Plaintiff. Plaintiff argues that Mr. Harrison's pursuit of her as his
'wife' was inherently sexual in nature since it was clear that she would not have been sought by Mr. Harrison as his wife
if she were a man. Moreover, Plaintiff claims that she was being stalked by Harrison and that stalking is primarily a
crime against women, with sexual connotations .... In this case, it is clear that Plaintiff was only the object of Mr.
Harrison's attention because she was a female; therefore, the alleged stalking activities do appear to have been "because
of sex" eve if they were not inherently sexual in nature." For Chief Judge Hogan's precedent-setting 1999 decision, see
Martin_v_HU_1999 and MartinvHUPressRelease.
Retaliation Claims
As discussed under MartinvHowardU, trial was finally held from April 3-28, 2006. The jury found that Prof. Martin
was harassed by the homeless, delusional stalker in her workplace, but oddly, and contradicting Judge Hogan's finding of
law in his 1999 decision, found that the found that the harassment was not based on her sex The is set for was not
"sexual" or on the basis of her sex. This conclusion led to a jury verdict for the defendant, since Title VII jurisdiction
only applies if the harassment is based on race, sex, color, national origin or religion. Ms. Martin has filed motions for
judgment on all of her claims, as a matter of law, asking the Court to set aside the jury verdict. See Plaintiff's Motion for
Judgment on her Sexual Harassment Claim, and Reply; Plaintiff's Motion for Judgment on her Retaliation Claims;
Plaintiff's Motion for Judgment on her Breach of Contract Claim and Reply. Howard has also filed motions for
judgment on all claims, even though the jury verdict was in its favor. See Plaintiff's Opposition to Defendant's Motion
for Judgment on Plaintiff's Sexual Harassment Claim; Plaintiff's Opposition to Defendant's Motion for Judgment on her
Retaliation Claims; Plaintiff's Opposition to Defendant's Motion for Judgment on her Breach of Contract Claim.
If Chief Judge Hogan does not set aside the jury verdict, Ms. Martin will appeal this decision. The verdict clearly
reflects a misunderstanding by the jury as to what constitutes sexual harassment or harassment on the basis of sex.
Judge Hogan held, in 1999 "It is clear from Mr. Harrison's own description of his search for 'Geneva Crenshaw" or
'Valerie Edwards' that he targeted women other than Plaintiff. Plaintiff argues that Mr. Harrison's pursuit of her as his
'wife' was inherently sexual in nature since it was clear that she would not have been sought by Mr. Harrison as his wife
if she were a man. Moreover, Plaintiff claims that she was being stalked by Harrison and that stalking is primarily a
crime against women, with sexual connotations .... In this case, it is clear that Plaintiff was only the object of Mr.
Harrison's attention because she was a female; therefore, the alleged stalking activities do appear to have been "because
of sex" eve if they were not inherently sexual in nature." For Chief Judge Hogan's precedent-setting 1999 decision, see
Martin_v_HU_1999 and MartinvHUPressRelease.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/AK
)
)
PLAINTIFF’S RENEWED MOTION FOR JUDGMENT ON HER RETALIATION CLAIMS, PURSUANT TO RULE 50
(B), OR IN THE ALTERNATIVE, FOR A NEW TRIAL, PURSUANT TO RULES 59 AND 60
Plaintiff respectfully renews her April 25, 2006 Rule 50(a) motion for judgment, as a matter of law, pursuant to
Fed. R. Civ. P. 50(b), notwithstanding the jury verdict, on her claim of retaliation, or, in the alternative, for a new
trial, pursuant to Fed. R. Civ. P. 59(a) and (e) and 60(b)(3). Plaintiff incorporates, by reference, all arguments
made in her April 25, 2006 motion for judgment.
MEMORANDUM IN SUPPORT OF MOTION
I. Relationship of Present Motion to Accompanying Motions for Judgment on Retaliation and Breach of
Contract Claims
Plaintiff has simultaneously filed Motions for Judgment on her retaliation and Breach of Contract Claims, or, in
the alternative, for a new trial on all of her claims. Plaintiff incorporates herein, by reference, all arguments
made in each of those motions. The present motion is integrally related to her Motion for Judgment on her
Sexual Harassment Claim. Since the jury determined that the harassment that Plaintiff endured in her
workplace and which Howard University failed to reasonably remedy, was not sexual in nature, or based on
sex, the jury determined that Plaintiff was not engaged in “protected activity” within the meaning of Title VII of
the Civil Rights Act of 1964 or the D.C. Human Rights Act. The jury found no retaliation for protected activity
because it found no protected activity.
As Plaintiff has set forth in her accompanying Motion for Judgment on her Sexual Harassment Claim, the jury’
s conclusion that Plaintiff was did not engage in protected activity was based on a misunderstanding of law
and should be set aside. Since engaging in protected activity – or a good faith belief that one is engaging in a
protected activity -- is a pre-requisite to establishing a prima facie case of retaliation, Plaintiff respectfully
requests that the present motion be considered after her accompanying Motion for Judgment on her Sexual
Harassment Claim is decided.
II. Legal Standard
A. Rule 50(B)
When assessing a Rule 50(b) motion for judgment after a jury verdict, the issue is whether there was
sufficient evidence upon which the jury could base its verdict. Scott v. District of Columbia, 101 F.3d 748, 752-
753 (D.C. Cir. 1996). Although the court cannot substitute its view for that of the jury, and can assess neither
the credibility nor weight of the evidence, the jury's verdict can only stand if the evidence in support of it is
"significantly probative" and "more than merely colorable." Scott at 752-753, citing Mackey v. United States,
303 U.S. App. D.C. 422, 8 F.3d 826, 829 (D.C. Cir. 1993), (citing McNeal v. Hi-Lo Powered Scaffolding, Inc., 826
F.2d 637, 640-41 (D.C. Cir. 1988); Ferguson v. F.R. Winkler GMBH & Co., 79 F.3d 1221, 1224 (D.C. Cir.), cert.
denied, 136 L. Ed. 2d 252, 117 S. Ct. 360 (1996); see also Siegel v. Mazda Motor Corp., 878 F.2d 435, 437 (D.
C. Cir. 1989). The D.C. Circuit’s analysis is consistent with that of the U.S. Supreme Court. Gasperini v.
Center for Humanities, 518 U.S. 415 (1996); Weisgram v. Marley Co., 528 U.S. 440 (2000).
The Court may grant judgment as a matter of law, after trial, where the facts are undisputed and/or no
reasonable juror could find for the opposing party. This standard is the same standard used in the context of
motions for summary judgment. Summary judgment is also appropriate where “no reasonable juror” could
determine the facts in favor of the opposing party, in light of the evidence presented. Adickes v. S.H. Kress and
Co., 398 U.S. 144 (1970); Woodfield v. Providence Hospital, 779A.2d 933, 936 (D.C. 2001). As the U.S. Court
of Appeals for the D.C. Circuit has recently reaffirmed, where there is no genuine dispute as to material facts,
there are no facts for a jury to determine and this case can be decided as a matter of law. Holcomb v. Powell,
433 F.3d 889 (D.C. C. 2006).
B. Rule 59(a) and (e)
Pursuant to Fed. R. Civ. P. 59(a) and (e), motions for new trials, and/or to alter or amend judgment, must be
filed within ten days of the Court’s judgment or jury verdict. New trials granted under Rule 59 are based on
errors of law, evidentiary errors, and/or error may have influenced the jury’s decision. Ashcraft and Gerel v.
Coady, 244 F.3d 948 (D.C. Cir. 2001). The standard for whether a new trial should be granted, pursuant to
Rule 59, is whether there was “a clear miscarriage of justice.” Warren v. Thompson, 224 F.R.D. 236, 238 (D.D.
C. 2004), citing Webb v. Hyman, 861 F. Supp. 1094, 1109-110 (D.D.C. 1994); Nyman v. FDIC, 967 F. Supp
1562, 1569 (D.D.C. 1997), quoting Federal Deposit Ins. Corp v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)..
C. Rule 60(b)(3)
Pursuant to Fed. R. Civ. P. 60(b), a party may file a motion for a new trial based upon the adverse party’s
commission of fraud, misrepresentation or other misconduct. Any such misrepresentation to the Court
simultaneously constitutes a violation of Fed. Civ. R. P. 11 (b)(1), which prohibits a party from:
1) making representations to the court “for any improper purpose, such as to harass or to cause unnecessary
delay, or needless increase in the cost of litigation;” 2) asserting “claims and defenses and other legal
contentions” that are not “warranted by existing law” or are frivolous; 3) asserting “allegations and other factual
contentions” that have no “evidentiary support;” and 4) denying “factual contentions” that are not “warranted on
the evidence.”
III. Legal Precedent Set by Chief Judge Hogan’s 1999 Decision
The case at bar is significant for all working women and for all employers employing women, In Martin v.
Howard University, 1999 U.S. Dist. LEXIS 19516; 81 Fair Empl. Prac. Cas. (BNA) 964; 15 I.E.R. Cas. (BNA)
1587 (D.D.C. 1999), Chief Judge Hogan, following the consistent law of all jurisdictions and EEOC
regulations addressing the issue of sexual harassment in the workplace by non-employees, set precedent for
this Court by holding, as a matter of law, that:
an employer may be held liable for a hostile work environment that is created by a non-employee, including
those non-employees who were invited or permitted to remain on an employer's premises, citing Henson v.
City of Dundee, 682 F.2d 897 (11th Cir. 1992) ("the environment in which an employee works can be rendered
offensive in an equal degree by the acts of supervisors, coworkers, or even strangers in the workplace") and
29 C.F.R. § 1604.11(e) (EEOC Guidelines) ("An employer may also be responsible for the acts of non-
employees with respect to sexual harassment of employees in the workplace").
1999 U.S. Dist. LEXIS 19516 at *7.
Plaintiff, Dawn V. Martin, began with Howard University as a Visiting Associate Professor at of law in July of
1996. Beginning in November of 1997, Professor Martin was stalked in her workplace by Leonard Harrison, a
homeless stranger with a criminal record, a history of violence and a pattern of targeting African-American
female professors and attorneys, pursuing them as his “wife.” Prof. Martin immediately reported the stalking
to the law school administration, Howard security and the D.C. Metropolitan Police Department. She
repeatedly asked the administration, particularly the Dean, Alice Gresham-Bullock, to bar the stalker from
campus, but the University took no reasonable steps to keep the stalker out of the workplace, despite the
availability of barring procedures already set in place by Howard University campus security. Plaintiff endured
a hostile work environment, pervaded by sexual harassment by the stalker, from November 20, 1997 until the
end of her employment with Howard University, in June of 1998.
Plaintiff continued to perform all of her teaching duties, taking certain precautions to protect her students, her
teenage daughter and herself from the stalker. Despite thirteen years of outstanding civil rights legal
practice/policy-making, four years of teaching equal employment law and torts, recognized scholarship in the
area of equal employment law, excellent student evaluations and student petitions and letters in support of
her renewal, Plaintiff was not selected for a permanent position or even a renewed visitorship. Plaintiff had left
a permanent, tenure-track teaching position in Cleveland to return to the Washington, D.C. area, based on
representations that the visiting position would be converted to a permanent, tenure-track position at Howard.
This decision, made after the academic “hiring season,” left Plaintiff without a job, severely damaged her
reputation and tremendously limited her career opportunities. Plaintiff seeks to be restored to the place that
she would have been absent the retaliation. She seeks reinstatement, as a full professor at Howard
University, with tenure, compensatory and punitive damages, as well as attorneys’ fees.
After eight years of litigation, a jury determined that Harrison did harass Prof. Martin in her workplace and that
Howard University failed to take reasonable measures to stop it; however, oddly, the jury also determined that
this harassment was not sexual in nature or based on Prof. Martin’s sex/gender – even though he pursued
her to be his “wife.” The jury’s conclusion reflects a misunderstanding of the law regarding sexual
harassment that resulted, in part, from inadequate jury instructions. As a result of this ruling, Plaintiff’s
retaliation claims were also denied, as having no statutory basis.
In addition to the legal implications of this case, it has strong social implications for women – and particularly
African-American women. Despite the jury’s specific finding that Prof. Martin was harassed by the delusional,
homeless stranger in her workplace, in closing argument, Howard’s outside counsel, a partner in the
employment discrimination defense firm of Venable, told jurors that Prof. Martin “played the sexual
harassment card.” The stalking of women in their workplaces should never be so trivialized – nor should the
woman stalked be so denigrated for asking that basic safety procedures actually be implemented to keep a
serial, delusional, homeless stalker with a criminal record out of the workplaces. The outcome of this case
will contribute to the standard set for employers in stalking workplace violence cases and merits the attention
of the Bar, as well as advocates for women’s rights and civil rights.
IV. Facts as Set Forth in Chief Judge Hogan’s 1999 Decision
Chief Judge Hogan denied Howard’s Motion to Dismiss, or in the Alternative, for Summary Judgment, Martin v.
Howard University, 1999 U.S. Dist. LEXIS 19516; 81 Fair Empl. Prac. Cas. (BNA) 964; 15 I.E.R. Cas. (BNA)
1587 (D.D.C. 1999). Judge Hogan summarized the facts, as alleged in Plaintiff’s Complaint, as follows.
Plaintiff Dawn Martin was a Visiting Associate Professor at Howard University School of Law from July 1996
through May 1998.
….
Plaintiff alleges that she has been the victim of hostile work environment sexual harassment as a result of the
conduct of Mr. Leonard Harrison, a homeless person who resided in a shelter and was neither an employee
nor a student of the University but who regularly used Howard University's Law School library. Specifically,
Plaintiff claims that Defendants knowingly allowed Mr. Harrison, a man characterized by the D.C. Metropolitan
Police Department as a "stalker" with a criminal record and history of violence, free access to the law school
campus and buildings, thereby facilitating his sexual harassment of Plaintiff in her workplace. Due to this
alleged inaction, Plaintiff claims that Defendants have violated both Title VII and the DCHRA as well as caused
her intentional infliction of emotional distress. Plaintiff also claims that due to her complaints, Defendant
Bullock took retaliatory measures, on five different occasions, to ensure that Plaintiff was not offered a
permanent professorship or a renewed visitorship at the Law School. Furthermore, Plaintiff alleges that
Defendants Howard University and Howard University School of Law breached their contract with Plaintiff in
failing to renew her contract or selecting her for a tenure-track position in violation of Professor Taslitz's
alleged oral promise to Plaintiff that she would placed into a tenure track position as soon as one became
available. And finally, Plaintiff claims that she was forcefully and prematurely evicted from her office in
retaliation for her filing of a charge with the U.S. Equal Employment Opportunity Commission ("EEOC").
(Emphasis added)
1999 U.S. Dist. LEXIS 19516 at 2-4.
Judge Hogan elaborated on the facts setting forth Plaintiff’s specific claims of retaliation.
Title VII makes it illegal for an employer to take adverse employment actions against an employee for
engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3. In order to establish a prima facie case
of retaliation, Plaintiff must show that: (1) she was engaged in protected activity under Title VII, (2) she was
subjected to adverse employment action, (3) and a causal connection exists between the protected activity
and the adverse action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 67 L. Ed.
2d 207, 101 S. Ct. 1089 (1973); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973); Barnes v. Small, 268 U.S. App. D.C. 265, 840 F.2d 972, 976 (D.C. Cir. 1988).
Plaintiff asserts that Dean Bullock took five separate actions against her because she complained about a
hostile work environment and requested protection from Mr. Harrison. Specifically, Plaintiff alleges that Dean
Bullock retaliated against her by: (1) denying her application for a permanent EEO position at the Law School
on December 18, 1997; (2) failing to authorize the Appointment Promotion and Tenure ("APT") Committee to
fill vacant positions in January, 1998, because she believed the ATP Committee would recommend Plaintiff for
one of these positions; (3) converting a Constitutional Law/Civil Rights position into a Tax/Trusts and Estates
position in April 1998 so that the APT Committee could not consider her for the position; (4) leaving a tenure-
track position vacant in the Spring of 1998, so that the APT Committee would not consider Plaintiff for the
position; (5) ordering Plaintiff on May 26, 1998, to vacate her office by Friday, May 29, 1998, and actually
"forcing" her out of the office in early June 1998. (Emphasis added)
With respect to the other four alleged adverse actions, this Court does not read Title VII to suggest that the
protections afforded by this statute against retaliation are only available against individuals who have filed
formal charges with the EEOC. See Brandau v. State of Kansas, 968 F. Supp. 1416, 1421-22 (D. Kansas
1997) (holding that it was undisputed that plaintiff had engaged in protected opposition to discrimination
because she spoke directly with the alleged harasser and reported his conduct to her supervisors); Powell v.
Las Vegas Hilton Corp., 841 F. Supp. 1024, 1025 (D. Nev. 1992) (holding that where the harasser is a non-
employee, protected opposition under Title VII includes the statement to the employee, "I don't have to take
this," or a simple request to the employer to "do something."). Moreover, whether or not Plaintiff's letter was
sufficiently detailed to put Dean Bullock on notice that she believed she had been the victim of a hostile work
environment is a question of fact for the jury. See Howard U. v. Green, 652 A.2d 41, 46 (D.C. App., 1994)
(holding that there are no "magic words" which must be chanted in order to invoke Title VII protection), citing
EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-1013 (9th Cir. 1983). Since an EEOC complaint is not
a legal prerequisite for a retaliation claim and since the Court cannot find that no reasonable juror could
decide that Plaintiff had engaged in "protected activity" under Title VII when she informed Dean Bullock of Mr.
Harrison's activities and complained about what she felt was the inadequacy of campus security, Defendants'
motion for summary judgment on the other four retaliation claims must also be denied. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 To the extent that the causal connection is in dispute, the Court finds that since the Plaintiff's complaints
about Mr. Harrison and campus security were closely followed by the alleged adverse actions, a sufficient
causal connection has been established to create a triable issue of material fact with regard to Plaintiff's
retaliation claims. See Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994)
(adverse action a month and a half after protected activity constituted circumstantial evidence of retaliation).
1999 U.S. Dist. LEXIS 19516 at *14-18.
V. Plaintiff Engaged in “Protected Activity”
A. Plaintiff’s Complaints Constituted Protected Activity
The jury form first asked whether Plaintiff was engaged in “protected activity.” This answer depended upon the
jury’s answer to the first series of questions, regarding whether the conduct that Plaintiff reported, Harrison
stalking her in her workplace, constituted sexual harassment or harassment on the basis of her sex/gender,
in order to bring her into the protections against retaliation provided by Title VII of the Civil Rights Act of 1964
and/or the D.C. Human Rights Act. Since the jury determined that Harrison’s harassment of Prof. Martin, was
not sexual in nature or based on her sex/gender, even though he pursued her to be his “wife,” the jury’s inquiry
did not proceed to examine whether the purported legitimate non-discriminatory reasons offered by Howard
for Plaintiff’s non-selection and non-renewal were false or pre-textual.
The jury’s conclusion, that Plaintiff had not engaged in protected activity prior to the adverse actions taken
against her, was an error of law and contradicted by all relevant evidence of record. See Plaintiff’s
Accompanying Motion for Judgment on her Sexual Harassment Claim, incorporated herein, by reference. The
following discussion, then, proceeds from a reversal of that finding and judgment or a new trial for Plaintiff on
her sexual harassment claim.
B. Plaintiff’s Complaints Regarding Harrison’s Stalking in her Workplace Constituted Protected Activity, as
a “Good Faith” Complaint
Even if a jury had reasonably determined Harrison’s harassment of Prof. Martin was not sexual in nature or
based on her sex or gender, Plaintiff engaged in protected activity by reporting harassment that she perceived
was based on her sex. An employee is protected against retaliation for opposing perceived discrimination, if
s/he had a reasonable and good faith belief that the opposed practices were unlawful. Little v. United
Technologies, 103 F.3d 956, 960 (11th Cir. 1997); Trent v. Valley Electric Association, Inc., 41 F.3d 524, 526
(9th Cir. 1994).
Plaintiff does not need to prove the underlying sexual harassment that she opposed in order to establish a
case of retaliation based on her complaint about what she believed was sexual harassment or harassment
on the basis of sex. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.1978). See also Payne v.
McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A Sept. 1981); cert. denied, 455 U.
S. 1000, 102 S. Ct. 1630, 71 L.Ed.2d 866 (1982).
Plaintiff and Officer Sirleaf both testified that Plaintiff complained to him that Harrison was harassing her and
pursuing her as his wife. She testified that viewed Harrison’s pursuit as sexual in nature and because of her
sex. In fact, she and Mrs. Bruner both testified that she had Mrs. Bruner watch the Ladies room because she
feared an attack by Harrison in her workplace. Plaintiff testified that she feared that such an attach by Harrison
could include a sexual assault, in light of his obsession with her and the fictional character in Prof. Bell’s
book, as his “natural wife.” Plaintiff perceived Harrison’s conduct as sexual or based on her sex, even if the
jury did not; accordingly, Plaintiff’s good faith belief brought her within the protections of Title VII and the D.C.
Human Rights Act.
C. Plaintiff’s EEOC Charge Constituted Protected Activity
Howard acknowledged, as did the Court, that Plaintiff’s May 14, 1998 EEOC charge constituted protected
activity within the meaning of Title VII and the D.C. Human Rights Act; 1999 U.S. Dist. LEXIS 19516 at *16-17.
Plaintiff clearly engaged in protected activity before Dean Newsom ordered her to vacate her office by May 29,
1998, even before her EEO class grades were due.
VI. The Jury Verdict Form Improperly Restricted Plaintiff’s Retaliation Claims
A. Content of the Verdict Form
The jury form restricted the jurors to the decision that the APT Committee made, on December 18, 1997,
selecting Visiting Assistant Professor Cunningham, over Plaintiff, Visiting Associate Professor Martin, to fill the
newly allotted EEO/Labor law position, teaching the EEO course that Plaintiff had been teaching at Howard for
the previous two years and had taught at Cleveland-Marshall College of Law for two years prior to joining
Howard’s faculty.
B. In 1999, Judge Hogan Held all of Plaintiff’s Alleged Adverse Actions to be Adverse Actions, as a Matter
of Law
In his 1999 decision, Judge Hogan specifically identified the adverse actions that were being upheld in this
case, to proceed to a jury trial.
Plaintiff also claims that due to her complaints, Defendant Bullock took retaliatory measures, on five different
occasions, to ensure that Plaintiff was not offered a permanent professorship or a renewed visitorship at the
Law School. (Emphasis added)
1999 U.S. Dist. LEXIS 19516 at 4.
Specifically, Plaintiff alleges that Dean Bullock retaliated against her by: (1) denying her application for a
permanent EEO position at the Law School on December 18, 1997; (2) failing to authorize the Appointment
Promotion and Tenure ("APT") Committee to fill vacant positions in January, 1998, because she believed the
ATP Committee would recommend Plaintiff for one of these positions; (3) converting a Constitutional Law/Civil
Rights position into a Tax/Trusts and Estates position in April 1998 so that the APT Committee could not
consider her for the position; (4) leaving a tenure-track position vacant in the Spring of 1998, so that the APT
Committee would not consider Plaintiff for the position; (5) ordering Plaintiff on May 26, 1998, to vacate her
office by Friday, May 29, 1998, and actually "forcing" her out of the office in early June 1998. (Emphasis added)
With respect to the other four alleged adverse actions ….Defendants' motion for summary judgment on the
other four retaliation claims must also be denied.
1999 U.S. Dist. LEXIS 19516 at 15-16.
Chief Judge Hogan’s 1999 decision correctly summarized the allegations in Plaintiff’s First Amended
Complaint generally, and specifically, 147, 258, 300, 242, 263, 268, 298, 313, and 316. All applications
produced as exhibits demonstrated that Plaintiff applied for “any” tenure-track position and never restricted her
application to the EEO/Labor position. There was never any valid basis, therefore, to restrict the jury verdict
form to Plaintiff’s rejection for this one position. The law of the case and res judicata therefore prohibited the
dismissal of the retaliation claims specifically identified in Judge Hogan’s 1999 decision – particularly since
the decision was based on sound law at the time and was reaffirmed as sound law by recent cases decided
by the U.S. Court of Appeals for the D.C. Circuit.
C. Howard Obtained a Limited Jury Verdict Form Based on Fraud and Misrepresentation
In its Motion in Limine to Clarify that Plaintiff’s Retaliation Claim is Limited to Her Rejection for The EEO/Labor
Position, Howard argued, for the first time, that MJ Facciola’s Report limited Plaintiff’s retaliation claim to the
EEO position and excluded events occurring after December 18, 1997. Howard claimed that MJ Facciola
limited Plaintiff’s retaliation claims to her December 18, 1997 rejection for the EEO/Labor position and that no
evidence pertaining to retaliation, retaliatory animus or vacant positions after December 18, 1997, should be
admitted into the record. In fact, MJ Facciola’s Report expressly included Plaintiff’s claims of non-renewal
beyond December 18, 1997, including her April 8, 1998 rejection for a permanent position. Martin v. Howard
University, 2003 U.S. Dist. LEXIS 18501 at * 31-32. MJ Facciola never even mentioned the December 18,
1997 date, nor did he limit the claim to the EEO/Labor position.
Only HU's Decisions Not to Reappoint Martin or Offer Her Another Position Are Cognizable
It is settled in this circuit that an act, claimed to be retaliatory, must constitute an adverse employment action.
An adverse action is one that has materially adverse consequences affecting the terms, conditions, or
privileges of her employment such that a reasonable finder of fact could conclude that the plaintiff has suffered
objectively tangible harm. Brown v. Brody, 339 U.S. App. D.C. 233, 199 F.3d 446, 457 (D.C. Cir. 1999). Two of
Martin's retaliation claims easily meet this criterion: 1) the decision, formalized in Bullock's letter of November
3, 1997, not to reappoint her as Visiting Associate Professor, and 2) the decision, formalized in Bullock's letter
of April 8, 1998, rejecting Martin's application for any position on the HU faculty. Combined, they led to Martin's
dismissal and the loss of her job. (Emphasis added.)
Martin v. Howard University, 2003 U.S. Dist. LEXIS 18501 at * 31-32.
Howard has not retracted its misrepresentation, despite Plaintiff’s January 17, 2006 Motion for
Reconsideration, quoting from MJ Facciola’s Report clearly exposing Howard’s misrepresentations. Howard’
s misconduct is sanctionable, under Fed. R. Civ. P. 11. Certainly, no court order should stand where it was
based on the false representations of a party.
VII. Recent, Controlling Case Law Requires Reversal of MJ Facciola’s Partial Grant of Summary Judgment
to Defendant with respect to Plaintiff’s Most Compelling Retaliation Claims
A. MJ Facciola’s Reversal, in part, of Judge Hogan’s 1999 Decision
Although MJ Facciola did not limit Plaintiff’s retaliation claims to her December 18, 1997 rejection for the
EEO/Labor position, he did conclude, sua sponte, contrary to Judge Hogan’s 199 decision, that two of Plaintiff’
s retaliation claims were not based on adverse actions.
1) Dean Bullock’s withholding of vacant positions from the APT Committee to prevent the Committee from
recommending that Plaintiff be retained to fill one of those positions; and
2) Dean Bullock’s March 6, 1997 conversion of an advertised Constitutional Law/Civil Rights position, to a tax
position, to prevent the APT Committee from considering Plaintiff for the Constitutional Law position, or any
other position, for which she qualified.
MJ Facciola determined that:
It is … clear that the other acts of which she complains, the conversion of the Constitutional Law/Civil Rights
position into a Visiting Tax, Trust position and the decision to leave certain faculty positions vacant, do not
qualify as adverse actions. They lack a direct and immediate impact upon Martin that would permit them to be
characterized as causing objectively tangible harm. While these acts ultimately led, in Martin's view, to her
departure from HU despite her desire to stay in any faculty position, they did not in themselves cause her any
harm cognizable as retaliatory.
….
Title VII applies only to ultimate employment decisions such as hiring or discharging…. (Emphasis added)
Martin v. Howard University, 2003 U.S. Dist. LEXIS 18501 at * 31-32.
B. Current Case Law Requires Restoration of Plaintiff’s Retaliation Claims
It is now clear that, in this Circuit, adverse actions are not restricted to ultimate, tangible employment actions
such as firing, hiring or promotion.
[a]dverse employment actions are not confined to hirings, firings promotions or other discrete incidents…. So
long as a plaintiff meets the statutory requirement of being “aggrieved” by an employer’s action, 42 U.S. C. §
2000(e-16(c) (2000), we do not categorically reject a particular personnel action as nonadverse simply
because it does not fall into a cognizable type…. Although “purely subjective injuries” such as dissatisfaction
with a reassignment, public humiliation, or loss of reputation, are not adverse actions, the threshold is met
when an employee “experiences materially adverse consequences affecting the terms, conditions, or
privileges of employment of future employment such that a reasonable trier of fact could find objectively
tangible harm.” (Emphasis added)
Holcomb v. Powell, 433 F.3d 889 at 902.
The recent stream of cases flowing from the D.C. Circuit clarifying, expanding and re-evaluating the definition
of “adverse action” within the meaning of Title VII, demonstrates that Plaintiff’s repeated warnings that MJ
Facciola’s grant of summary judgment on these claims constituted reversible error were based on sound
legal principles. This trend began with Holcomb v. Powell, 2006 U.S. App. LEXIS 520 at *30-31 (D.C. Cir.
2006) (Jan.10, 2006), holding that adverse actions included acts that affected future employment
opportunities. Next, it decided Rochon v. Gonzales, 2006 U.S. App. LEXIS 5028 (D.C. Cir. 2006), holding that
Title VII makes unlawful any act of retaliation by an employer that might dissuade a reasonable employee from
making or supporting a charge of discrimination pursuant to Title VII – whether it is related to current
employment opportunities, future employment opportunities, or even potentially adverse consequences
completely unrelated to employment.
The D.C. Circuit’s most recent holding on the issue is Chappelle-Johnson v. Powell, 2006 U.S. App. LEXIS
6600 (D.C. Cir. 2006) (March 17, 2006), holding that an adverse action includes the denial of an opportunity to
compete for a vacant position. These holdings, independently, and together, demonstrate that Dean Bullock’s
conversation (or feigned conversion) of a position and withholding of vacant positions, for which Plaintiff
qualified, constituted an adverse action within the meaning of Title VII, as defined by the U.S. Court of Appeals
for the D.C. Circuit.
Dean Bullock denied Prof. Martin the opportunity to compete for a vacant position when she left positions
vacant and converted the Constitutional Law/Civil Rights position, rather than permit the APT Committee to fill
the needed positions, for fear that the Committee would fill one of the positions with Prof. Martin. The
consequences for Prof. Martin were certainly “significant” and “material,” since they resulted in her removal
from the faculty and left her unemployed.
Holcomb held that the defendant’s reassignment of the plaintiff’s duties, to tasks far below her grade level,
constituted an adverse action, although she experienced no reduction in pay, grade or title. The court held that
the plaintiff experienced tangible harm because the reduction in the quality of her assignments could affect
future employment opportunities. Prof. Martin’s non-renewal had both immediate and future tangible effects
on her employment. It immediately left her unemployed. In addition, her non-renewal indicated to potential
employers that she had not met the requirements for tenure or had failed to fulfill her duties as a law
professor, particularly after she had left a tenure-track position in Cleveland and forfeited opportunities with
other schools to join Howard’s faculty.
Rochon v. Gonzales, 2006 U.S. App. LEXIS 5028 (D.C. Cir. 2006), expressly expanded the definition of
“adverse action” to include any action taken by the employer to deter or punish protected activity under Title VII
-- even to retaliatory acts that are not related to the employment at all.
We hold Title VII makes unlawful any act of retaliation by an employer that well might dissuade a reasonable
employee from making or supporting a charge of discrimination pursuant to Title VII.
2006 U.S. App. LEXIS 5028 at *24-25. See also 2006 U.S. App. LEXIS 5028 at *2, 15-18, 22.
In Rochon, the plaintiff, an FBI agent alleged that, in retaliation for his EEO complaint against his employer, the
FBI, the FBI violated its own policy and failed to investigate a death threat that a federal prisoner made against
him and his wife. The Court of Appeals expressly rejected the defendant government’s argument that the
plaintiff did not suffer an “adverse personnel action” and was therefore not the victim of retaliation cognizable
under Title VII. 2006 U.S. App. LEXIS 5028 at *12.
The Court of Appeals specifically adopted, for Title VII, the definition of adverse action that it had set forth in
Passer v. American Chemical Society, 935 F. 2d 322 (D.C. Cir. 1991), an Age Discrimination in Employment
Act (ADEA) case. Rochon, 2006 U.S. App. LEXIS 5028 at *16. Passer held that an employer had illegally
retaliated against the plaintiff, under the ADEA, when it cancelled a symposium that was to be held in the
plaintiff’s honor. Id. Although there was no loss of a material, tangible job benefit, the symposium
cancellation was prohibited because it was based on a retaliatory motive and it might reasonably deter other
employees from engaging in protected activity.
Certainly, if the cancellation of an honorary symposium constitutes and adverse action under Title VII, the
cancellation, withholding and/or a conversation of a faculty position to prevent Plaintiff’s selection for it, must
constitute an adverse action – particularly when it actually results in the loss of the very job that Plaintiff holds
at the time of the conversion or withholding. Even ordering Plaintiff to vacate her office, while she is using it to
grade exams, and while the similarly situated exiting Visiting Professor who had not protested sexual
harassment was not required to vacate her office, constitutes an adverse action based on the analysis set
forth in Rochon and Passer. The jury was not properly instructed on this issue, despite Plaintiff’s requests
that adverse action be re-defined and the jury verdict form reflect the current definition. In the present case,
Plaintiff alleged retaliatory non-renewal of her teaching contract, as a law professor, at Howard University, for
the 1998-1999 academic year and beyond.
MJ Facciola’s October 20, 2003 Report and Recommendation changed the course of this litigation by
dismissing the retaliation claims that Chief Judge Hogan had left intact in his 1999 decision. Martin v. Howard
University, 1999 U.S. Dist. LEXIS 19516 (D.C.D. 1999), reversed in part by Report and Recommendation of
Magistrate Judge Facciola, 2003 U.S. Dist. LEXIS 18501 (D.D.C. 2003), adopted as Court Order, September
24, 2005, reversed in part, November 21, 2005, reversed in part January 10, 2006 , Motion for
Reconsideration, based on Holcomb v. Powell, denied, March 6, 2006.
In Chappelle-Johnson, the district court granted summary judgment to the defendant agency, holding that the
plaintiff had failed to prove a prima facie case, under McDonnell Douglas v. Green, 411 U.S. 792 (1973),
because she did not assert that the position that she sought was actually filled by someone outside of her
protected class(es). 2006 U.S. App. LEXIS 6600 at *6. The Appellate Court reversed and restored plaintiff’s
retaliation claim, holding:
Here, Chappell-Johnson does not attempt to show that the position remained open and that the employer
continued to seek applicants (the McDonnell Douglas formulation). Rather, she attempts to demonstrate that
the FDIC denied her an opportunity for advancement that it gave to non-African American and younger
employees, namely, the opportunity to compete for a vacant position with a grade for which she would
otherwise be ineligible. This is a perfectly acceptable way to try to satisfy her prima facie burden, which, under
Brown, she may do by producing any evidence that gives rise to an "inference of discrimination" (along with
evidence sufficient to satisfy Brown's other two elements, see infra pp. 8-9). (Emphasis added)
2006 U.S. App. LEXIS 6600 at *9-10.
Chappell-Johnson alleged that her supervisor facilitated promotions for non-African-American and younger
employees, but not for her. 2006 U.S. App. LEXIS 6600 at *1. Her supervisor refused to reduce an advertised
Grade 13 position to a Grade 11 to facilitate plaintiff’s ability to apply for it. The plaintiff had previously held a
GS-11 position and was qualified for the position but for the advertised grade. The plaintiff alleged that
advertised grades had been lowered, in the past, to allow non-African-American, younger employees to apply
for positions listed at grades above their eligibility levels.
Ms. Chappelle-Johnson did not meet the exact factual test of McDonell-Douglas, but she did meet it in the
flexible terms intended by the Supreme Court. The Court of Appeals held that it is not necessary that the
plaintiff "show that the position remained open and that the employer continued to seek applicants." It was
enough that the plaintiff alleged that the employer "denied her an opportunity for advancement." In Chappelle-
Johnson, the adverse action was the denial of "the opportunity to compete for a vacant position with a grade
for which she would otherwise be ineligible." Plaintiff Martin was also denied “the opportunity to compete for
a vacant position.” As discussed below, Martin’s claims are far stronger than the adverse action sustained in
Chappelle-Johnson.
1. Bullock’s Conversion (or Feigned Conversion) of the Advertised Constitutional Law/Civil Rights Position
Constituted an Adverse Action because it Deprived Prof. Martin of the Opportunity to Compete for a Vacant
Position
On March 6, 1998, Plaintiff, Prof. Martin, wrote to Dean Bullock, with copies to all APT Committee members,
specifically requesting that she be considered for the advertised Constitutional Law/Civil Rights position. Prof.
Martin noted that she had just learned, from a friend at the U.S. Department of Justice, that the original
selectee, a Justice Department employee, had declined Howard’s offer and accepted a teaching position
elsewhere. APT Committee members declared that, up until they received Plaintiff’s memorandum, they
believed that the position had been filled because the original selectee had accepted Howard’s offer. In
immediate response to Plaintiff’s application, on the very same day, March 6, 1998, Bullock wrote to the APT
Committee stating that she was converting the funds from the Constitutional Law/Civil Rights position to fund
a tax position. In the same March 6, 1998 memo, Bullock instructed the APT Committee to hire Adjunct
Professor Angela Vallario to fill the position.
Bullock’s conduct, in conjunction with other evidence of retaliatory motive, is precisely the type of “evidence that
gives rise to an 'inference of discrimination’” that the D.C. Circuit held could be used to establish or expand
upon the prima facie case.
2. Bullock’s Withholding of Vacant Positions Constituted an Adverse Action, Depriving Prof. Martin of the
Opportunity to be Considered for a Position
Even after Bullock purportedly used the funds allocated for the advertised Constitutional Law/Civil Rights
position, there were admittedly at least three additional vacant faculty positions for which funding was already
authorized. Bullock withheld this knowledge and information from the Appointments (APT) Committee. Prof.
Martin was highly qualified for any of the three vacant, undesignated positions. Prof. Martin only sought
renewal of the contract she already held. She was already performing the duties of the precise job for which
she applied. Plaintiff was the only candidate for a faculty position at the time that Bullock was withholding the
vacant positions. Students were protesting Prof. Martin’s reappointment and the lack of courses, as well as
the shortage of professors. At least one APT Committee member, Prof. Laurence Nolan, specifically asked
Dean Bullock whether there were any available positions for which Prof. Martin could be considered. Dean
Bullock lied to her own colleague, APT Committee member, Prof. Nolan, stating that there were no faculty
vacancies, but that she (Bullock) was trying to help Prof. Martin obtain employment elsewhere (another false
statement).
By granting summary judgment to Howard on Plaintiff’s retaliation claims of retaliatory withholding and
conversion of positions that Plaintiff was highly qualified to fill, MJ Facciola removed from this case the most
compelling instances of retaliation. With the restoration of these claims, Plaintiff’s motion for summary
judgment must be now reconsidered, including these claims, since MJ Facciola never considered them.
Accordingly, Plaintiff renews her motion for summary judgment.
VIII. Under Current Controlling Law, Plaintiff is Entitled to Judgment, a Matter of Law
As discussed in Pl. MSJ, at 24-44, in order to shift the burden of production back to Plaintiff, Howard was
obligated to produce credible evidence that the APT Committee members not only believed that Prof. Martin
was less qualified for the EEO position than was Prof. Cunningham, but that Martin was less qualified than no
one at all. In effect, Howard would have to prove that Martin was qualified for a faculty position than an empty
chair. Even if Howard could convince a jury that it was a “close call” between Profs. Martin and Cunningham,
all doubt of retaliation is removed by Bullock’s actions in the spring of 1998. Bullock withheld vacant positions
and converted (or pretended to convert) a Constitutional Law/Civil Rights position to a tax position to prevent
the APT Committee from considering Prof. Martin for these positions, even when some Committee members
were specifically asking whether there was a vacant position to which Prof. Martin could be appointed. Pl. MSJ
at 21. Although Howard has represented that Bullock converted the position, both Profs. Nolan and Smith
testified that the Constitutional Law/Civil Rights position advertised in 1997-1998 was not cancelled, but
remained open and vacant for several years. Nolan depo at 326; Smith depo at165-169.
In her Answer to the Complaint, Dean Bullock admitted that, in the spring of 1998, after two of the advertised
positions were filled, the law school had three vacant tenure-track positions that Prof. Martin was qualified to
fill. Pl. MSJ at 42; Facts 236; Bullock’s Answer to First Amended Complaint 313, 326. Plaintiff’s applications
– including her applications in the fall of 1997 -- were consistently for any faculty position, including any tenure-
track position and/or, in the alternative, a renewed visitorship. See Plaintiff’s October 2, 1997 and November
5, 1997 application memoranda, Exs. PP and YY, respectively, of Plaintiff’s Motion for Summary Judgment.
Never, at any time, did Plaintiff limit her application to the EEO/Labor position or exclude herself from
consideration for the Constitutional Law/Civil Rights position. This Constitutional Law/Civil Rights position is
the same position that was advertised in 1997-1998, and again in 1999-2000, and additional years, but which
Dean Bullock pretended to convert to a tax position, in March of 1998, to prevent the APT Committee from
considering Prof. Martin for it. Pl. MSJ at 42. In the 1999-2000 AALS Newsletter, Howard re-listed the position,
but changed the requirements to exclude experienced professors from applying from a tenure track position:
“The positions would be tenure track or, for experienced teachers, look-see visitorships.” August 5, 1999
AALS Newsletter; Nolan depo at 305. The vacancy remained an “empty chair” for years, although Martin
applied for it for several consecutive years. 2000 AALS Newsletter; Nolan depo at 317-326.
Visiting Prof. Betsy Levin was leaving at the end of the spring 1998 semester, after two years at Howard. Pl.
MSJ at 41-42. Prof. Levin was hired to teach Constitutional Law and related civil rights courses, as stated in
Dean Bullock’s August 5, 1996 memo from then Associate Dean Bullock to Howard’s Vice President of
Academic Affairs, regarding salary justifications for Appointments of Visiting Professors Levin and
Cunningham. Prof. Levin also had expertise in EEO law and school desegregation law, which Dean Bullock
deemed a special addition to Howard’s faculty.
With Prof. Levin leaving Howard, this left a need for teaching in these areas – which were also areas of
expertise for Prof. Martin. As discussed in Pl. MSJ at 29, 35-36, Prof. Martin had seventeen years of
exceptional experience as a civil rights attorney, including as a Trial Attorney for the United States Department
of Justice, Civil Rights Division, Education Section, hired through the Honors’ Program, from 1981-1985,
litigation school desegregation cases. Martin had been a law professor for four years, teaching EEO law, in
addition to Torts I and II, Evidence and Race as a Factor in American Law. Pl. MSJ at 2, 38, 43. She had
excellent teaching evaluations and exceptional student support. Pl. MSJ at 2, 19. Martin was recognized as a
national expert in EEO law, based, in part, on her national policy-making experience with the EEOC and her
contributions to a Treatise on EEO law, as well as writing the Introduction to a Symposium on the Americans
with Disabilities Act. Pl. MSJ at 37.
No reasonable juror could conclude that, absent retaliatory motive, Prof. Martin was not more qualified to teach
at Howard than an “empty chair” -- particularly while students were protesting both the shortage of courses
and faculty members and Prof. Martin’s non-renewal and there were specific teaching needs in Martin’s area
of expertise; accordingly, Plaintiff is entitled to summary judgment on her claims of retaliatory removal from the
faculty, through the rejection of her applications for any tenure-track position and/or a renewed visitorship.
IX. Howard’s Purported Legitimate Reasons for Plaintiff’s Non-Renewal are False and Pre-Textual
Had the jury properly found that Plaintiff had participated in protected activity, it would have proceeded to the
next jury question, which was whether Howard’s purported legitimate, non-retaliatory reasons for her non-
renewal were false and/or pre-textual. The undisputable evidence of record demonstrates that all of Howard’s
ever-changing purported reasons for Prof. Martin’s non-renewal are false and/or pretextual. Howard could not
produce evidence to support even its untimely, improperly admitted, ever-changing defenses. Even Howard’s
July 13, 2001 articulated reasons for failing to renew Plaintiff were completely contradicted by the APT
Committee members, as well as the actual resumes and applications of Plaintiff and the selectees, Profs.
Cunningham and Mtima.
When Prof. Martin and Ms. Cunningham were hired in 1996, both sought to teach EEO law and Torts. In the
spring of 1996, Howard selected Prof. Martin as the superior candidate to teach both of these courses. Two
years later, Howard claimed that the junior Visiting Assistant Professor Cunningham was a “far superior”
candidate than was Visiting Associate Prof. Martin to teach the very EEO course that Professor Martin had
been teaching at Howard for two years and in Cleveland for an additional two years, whereas Prof.
Cunningham had never taught it at all. The logical question is, what happened within two years that so
changed the positions of these two professors? The answer is that Prof. Martin was stalked in her workplace
by a homeless stranger and Prof. Cunningham was not. There is no explanation that rebuts the prima facie
case of retaliation against Howard.
On the heels of Prof. Martin’s stalking complaint, the “retaliation road” began with Bullock, proceeded to
Newsom and then to Tazlitz. From that point on, “all roads lead to Taslitz.”
At trial, Howard stated that it used four criteria to select Prof. Cunningham over Prof. Martin. Each will be
examined below to determine whether Howard has produced any credible evidence to support its claim or
whether its assertions are clearly false and/or pretextual.
A. Teaching
In response to discovery request, in a May 11, 2001 memorandum, page 2 (Pl.’s Trial Exhibit 33), the APT
Committee, via its Chair, Isaiah Leggett, stated:
Professor Martin and Professor Cunningham (sic) were among the four candidates applying for the second
tenure track position covering labor law, collective bargaining and other general course subjects. …. All of
the four candidates … were found to be quite competent as teachers and capable of fulfilling the Law School’s
instructional needs in this area…. Students participating in the process appeared to be mixed in their
preference of Professor Martin and Cunningham. The Committee did receive a petition from a number of
students asking that we select Professor Martin for the position.
Howard’s admission, – made even three years into this litigation, precludes any conclusion that Prof. Martin’s
non-renewal was due to any question of teaching ability. In fact, Howard’s admissions are consistent with
Dean Bullock’s admission, in her Answer to the Complaint, that Prof. Martin was a very good teacher, with
above average teaching evaluations, as well as the deposition testimony of APT Committee members, Profs.
Nolan, Leggett, Smith and LaRue. See Pl.’s MSJ at ___. In addition, students wrote letters to Dean Bullock
and/or University President Swygart, protesting Prof. Martin’s non-renewal and praising her for her teaching
ability, exam-taking classes and materials and extensive t availability for assistance and her overall dedication
to her students. See Pl.’s MSJ at ___.
B. Scholarship
The APT Committee May 11, 2001 memorandum, page 2-3 (Pl.’s Trial Exhibit 33), stated:
Individual faculty members who participated in the process clearly favored Professor Cunningham, primarily
for her academic vigor, research and publication abilities and potential for growth s a scholar…. Although
Professor Martin had been involved in the legal profession longer, the quality of her academic and scholarly
production was viewed by the members of the faculty and the APT Committee to be less substantive than
Professor cunningham’s research and publication potential…. She had already published one article and did
extensive legal research in her position as a clerk for a U.S. District Court Judge, Constance Baker Motley….
During her initial visit to Howard, she was able to actually publish another article, and she made a very
favorable impression on the Committee with the vast amount of work she had accomplished on a variety of
other research and publication projects in process. Prof. Martin did not complete a publication during the
same visitation period at Howard. (Emphasis added.)
The Committee’s statement is blatantly false and proven to be so by simply reading the resumes and
applications of both Profs. Martin and Cunningham from the fall of 1997. In their 2002 depositions, and again
at trial, all of the APT Committee members admitted that they knew that Prof. Martin’s extensive 141 page
(typeset, rather than manuscript pages) article, “911: How Will Police and Fire Departments Respond to
Public Safety Needs and the Americans with Disabilities Act?” was not only “complete[d]” by the beginning of
the fall, 1997 semester, and in the typing pool, where it had been corrupted and had to be retyped (due to no
fault of Prof. Martin), but also that the article had been sent out to Journals on December 1, 1997 and accepted
for publication on December 17, 1997.
By the same date, as Cunningham’s own resume and application clearly state, her 67 page article (published
pages) was not yet in print, but was accepted for publication in the spring of 1998 – the same status as
Plaintiff’s article. Pl. MSJ at 34-35. Profs. Martin’s and Cunningham’s own resumes and applications
demonstrate that Taslitz’ representations regarding their scholarship were false. Pl. MSJ at 31-35. In fact,
both Plaintiff’s and Cunningham’s articles were published in the Winter of 1998 (first page of Trial Exhibit 133,
internet version of Cunningham article with copyright date and Exhibit __, first page of internet version of
Plaintiff’s article (offered as a rebuttal exhibit at trial, but excluded by Court) – a full year after the APT
Committee’s December 18, 1997 decision.
The resumes and applications clearly show that it was Prof. Martin, by far, who had the superior record of
scholarship to Cunningham, in the fall of 1997. Prof. Cunningham’s pending article was to be her first
publication since law school, “The Rise of Identity Politics I: The Myth of the Protected Class in Title VII
Disparate Treatment Cases.” Prof. Martin had published five articles since law school, and had been credited
with at least four by Howard when she joined Howard’s faculty in 1996. Pl. MSJ at 34-35.
Taslitz credited Cunningham with two additional articles in progress, when, in fact, she had merely stated her
intention to expand the article she had just written into two more articles, “The Rise of Identity Politics II” and
“The Rise of Identity Politics III,” relying on the same research and thesis she had already used for her first
article. Pl. MSJ at 34. In sharp contrast, since joining Howard’s faculty, Prof. Martin had not only expanded her
previously completed article, “911: How Will Police and Fire Departments Respond to Public Safety Needs
and the Americans with Disabilities Act?” by 70 manuscript pages, but had also completed a draft of a second
article, “Lights, Camera, Discrimination! ‘Playing’ the Victim under Title VII,” and had a title, thesis and
preliminary research for a third article, “Still Racist after all these Years – and Protected by the Americans with
Disabilities Act?” All three articles involved completely different theses and research. Taslitz did not raise
Prof. Martin’s articles in progress when he presented the candidates’ qualifications to the Committee. Pl. MSJ
at 25-26.
Contrasted with Prof. Martin’s five previous publications, Prof. Cunningham had no previous publications,
except for a “student note,” which is normally not counted at all or is counted with little weight, when
considering a faculty member for a promotion, raise, tenure or re-appointment. Plaintiff’s MJS at 34. When
Cunningham was hired, two years earlier, Bullock’s memo justifying Cunningham’s requested salary did not
represent her as anyone with a “record of scholarship,” but rather as:
…a young lawyer … who has already demonstrated interest in and potential for research and writing. While
still a law student she published Unmaddening: A Response to Professor Angela Harris, 4 Yale J.I., &
Feminism 155 (1991).
During her two years at Howard, she had only produced the one article, not yet published, as of December 18,
1997; yet, Taslitz touted Cunningham, as compared to Martin, as being the “only candidate as with a “record of
scholarship.” Pl. MSJ at 34-35.
MJ Facciola specifically acknowledged that Prof. Leggett, the named Chair of the APT Committed, relied on
another Committee member’s representations regarding the candidates’ publications, rather than read them
himself.
Nevertheless, when asked why he chose Cunningham, Leggett testified that Cunningham had not only
published during her time at Howard but had also presented "sufficient information" to suggest that she would
publish again and was in the process of doing so. Id. at 160:6-19. Although Leggett testified that publication
was a "crucial" factor in his decision, he admitted to not even having read Cunningham's article. Id. at 170:19-
20.
Prof. Nolan specifically testified that she voted in favor of Prof. Cunningham, over Plaintiff, because “someone
on the Committee” had represented that Cunningham’s article was actually in print, rather than just accepted
for publication and that Cunningham had demonstrated more potential for than had Prof. Martin. Pl. MSJ at
32-36.
Prof. Smith also testified that “someone on the Committee” represented that Prof. Cunningham’s scholarship
achievements were superior to that of Prof. Martin and that Cunningham had produced more scholarship than
had Prof. Martin since joining Howard’s faculty. Pl. MSJ at 35-36. Taslitz admitted that he was the APT
Committee member who presented the candidates to the other four members of the Committee,
summarizing their qualifications. Pl. MSJ at 36. Tazlitz misled Profs. Nolan, Legget and LaRue into believing
that it was Cunningham, rather than Martin, who had the “superior record of scholarship” and had
demonstrated greater potential for scholarship, when, in fact, the opposite was true.
Taslitz misrepresented the facts to his colleagues on the APT Committee when he told them that
Cunningham’s article was “in print,” on December 18, 1997 and that she had the “superior record of
scholarship,” as compared to Martin. Once the APT members were deposed, there was no way that Howard
could continue to conceal Taslitz’ improper conduct. Again, all roads lead to Taslitz. The reason that Howard
lied in Court filings for three years was because the truth was completely unconscionable, unethical, “non-
collegial” and illegal under Title VII and the D. C. Human Rights Act.
C. Service to the Law School
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Exhibit 33), stated:
Martin and cunningham were both viewed favorably regarding service to the legal profession, the community
and the University.
This statement precludes any assertion that Prof. Martin did not contribute sufficiently to the University, the
community or the legal profession. As Prof. Martin set forth in her November 5, 1997 application for a tenure-
track position, or in the alternative, a renewed visitoship (Pl.’s Trial Exhibit 33), she provided Howard students
with extra bar preparation classes, on Saturdays and other non-class days, including recruiting an Assistant
Maryland Bar Examiner participate, to give help students achieve maximum success in law school exams and
the bar exam, particularly since the Howard Law School passage rate for Maryland had become a major
concern and even national publicity. (MSJ at 29; Facts 142) Even Dean Bullock testified that she was aware
that Plaintiff gave extra exam taking classes and prepared extensive sample exams and answers for
students. (MSJ at 29; Facts 142) Profs. Boyer and Nolan testified that Plaintiff spent a great deal of time
meeting with students. (MSJ at 29) Plaintiff acted as a judge, on a Saturday, for Howard’s Trial Advocacy
Program, volunteered and participated in Howard’s mentoring program, “Close Up,” and taught exam taking
for the Regional BALSA (Black Allied Law Students Association) conference at Howard. (MSJ at 29; Facts 142)
D. Collegiality
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Exhibit 33), stated:
Martin and cunningham were both viewed favorably regarding service to the legal profession, the community
and the University.
These statements are admissions of a party-opponent – made three years into this litigation, and do not in
any way imply that Prof. Martin was not collegial or viewed by the faculty as having any personality flaws, as
indicated by Taslitz – once again, the only APT Committee member who had private conversations with Dean
Bullock about Prof. Martin’s candidacy.
Howard’s own APT Committee members deny that there were any allegations of “non-collegiality” or “bad
judgment” in its deliberations regarding Prof. Martin. The undisputed evidence of record establishes that four
of the five Committee members had never heard any allegations of non-collegiality or bad judgment regarding
Prof. Martin. Pl. MSJ at 27-29. In fact, all five of the APT Committee members testified that the found Plaintiff to
be very collegial and that they all liked and respected her. Pl. Facts 185-186. Howard has produced no
evidence that the APT Committee ever considered any allegations of “non-collegiality” or “bad judgment” in its
deliberations. Plaintiff sought APT Committee notes in discovery, but Howard refused to produce them. Pl.
MSJ at 48-49.
Even MJ Facciola acknowledged that Taslitz is contradicted by his fellow Committee members.
The third suggestion of pretext is rooted in the Committee's assessment of Martin's judgment. Leggett
testified, contrary to Taslitz' assertion, that he found Cunningham and Martin "basically both qualified . . .
judgment-wise." Leggett Dep. at 194:22-195:3. Leggett also testified inconsistently with Taslitz on the issue of
faculty comments about Martin. Leggett received comments from faculty members about Martin that were not
negative. In fact, according to Leggett, faculty members generally had "good things [to say] about [Martin's] . . .
work," Leggett Dep. at 249:7-12, and there was "no faculty concern brought to [Leggett's] attention regarding
Martin's appointment." Id. at 251:13-15. Leggett himself admitted that he found Martin "to be collegial" based
on his personal contact with her. Id. at 258:20-259:7.
… the articulated reasons for firing Martin are contradicted by the potential testimony of members of the ATP
committee who have voiced positive views of Martin.. …contrary to HU's contention that Martin displayed poor
judgment, there is evidence that certain faculty members had positive impressions of Martin and that both she
and Cunningham were viewed as equally qualified in terms of their exercise of judgment.
Finally, that Martin's professional experience in EEO law was greater than Cunningham's undercuts the
argument that Cunningham was substantially more qualified than Martin. (Emphasis added)
2003 U.S. Dist. LEXIS 18501 at 25-26.2003 U.S. Dist. LEXIS 18501 at *24-26.
Prof. Nolan specifically asked Dean Bullock if there were any vacant positions for which Plaintiff could be
considered, and that Bullock told her that there no more vacant positions. Bullock’s statements to Nolan were
completely false. Pl. MSJ at 40.
X. Howard’s Misrepresentations of both Plaintiff’s and Cunningham’s Credentials are Evidence of
Discrimination/Retaliation
Holcomb held that an employer’s substantive misrepresentations regarding a candidate’s qualifications
constitutes evidence of discrimination. 2006 U.S. App. LEXIS 520 at *15-16, citing Aka v. Washington Hospital
Ctr., 156 F.3d 1284, 1289 (D.C. Circ. 1998). As discussed in Pl. MSJ at 31-39, Taslitz grossly exaggerated and
misrepresented the qualifications of Prof. Cunningham while under-representing, misrepresenting and
omitting Prof. Martin’s qualifications, both to the remaining four APT Committee members and to the Provost,
in the memorandum recommending the selected three professors for appointments, Cunningham, Mtima
and Robinson.
XI. Defendant Cannot Produce Evidence of a Legitimate, Non-Discriminatory Reason for Plaintiff’s Non-
Renewal and Cannot Defeat Plaintiff’s Motion for Summary Judgment Holcomb
Holcomb clarifies that, in order to defeat a MSJ, the non-moving party must not just articulate a defense, but
actually produce evidence that create a “genuine” issue of material fact that could arguably prove the facts
alleged and result in a verdict for the non-movant. 2006 U.S. App. LEXIS 520 at 8-9.*
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to produce evidence
that the plaintiff was rejected for a legitimate, non-discriminatory reason. (Emphasis added)
2006 U.S. App. LEXIS 520 at *11, citing Reeves v. Sanderson, 530 U.S. 133, 142 (2000) and Lathram v. Snow,
336 F.3d 1085, 1088 (D.C. Cir. 2003). If the employer produces such evidence, the presumption of
discrimination, established by the prima facie case, “drops out of the case. Id.
As Plaintiff argued in her MSJ, at 24-43, Howard never produced any evidence of a legitimate, non-
discriminatory reason for Prof. Martin’s non-renewal. MJ Facciola stated:
In Howard's Answers to Interrogatories dated October 17, 2000, Howard stated that Martin was refused tenure
in part because as of December 18, 1997 Martin had "no scholarship articles accepted for publication."
Plains. Mot. at 25. In fact, HU was aware that Martin's 911 article had been accepted for publication on
December 17, 1997, that she had substantially completed work on a second article (Lights), and that she was
in the process of researching a third. Taslitz Dep. at 159:12-162:13. Significantly, four of the five APT
Committee members testified that they knew of the article's publication. Plains. Statement of Facts at 27.
Taslitz even testified that he had informed the other members that Martin's article was recently accepted for
publication. Taslitz Dep. at 141:7-16.
Leggett testified that not only was he made aware that the 911 article had been approved by the time of the
December 18 meeting, but that he was even considering giving Martin credit for two different articles. Leggett
Dep. at 117:15-121:8.
2003 U.S. Dist. LEXIS 18501 at * 22-24.
MJ Facciola denied Howard’s MSJ since Plaintiff had produced evidence disputing Howard’s asserted
material facts, holding that the dispute must be resolved by a jury; however, MJ Facciola did not examine this
evidence to consider Plaintiff’s Motion for Summary Judgment. Once the APT members were deposed, it
was an undisputed fact that they were all well aware, by December 18, 1997, that Prof. Martin’s article, “911:
How will Police and Fire Departments Respond to Public Safety Needs and the Americans with Disabilities
Act?” had been accepted for publication for the spring of 1998.
Howard never had an iota of evidence to support its articulated purported legitimate, non-retaliatory reason for
Prof. Martin’s non-selection. Howard simply lied to this Court and to Plaintiff, in discovery, in blatant violation of
Fed. R. Civ. P. 11 and 26(h), for years. Howard should not be permitted to survive summary judgment based
on a blatantly false assertion, contradicted by its own witnesses. Such a result violates Fed. R. Civ. P. 11 and
26(h) and should be sanctioned, not rewarded.
XII. Howard Violated Civ. R. P. 8(c) by Asserting Untimely Defenses not Raised in its Answer to the
Complaint
Pursuant to Fed. R. Civ. P. 8(c), Howard was required to raise all enumerated defenses in its Answer to the
Complaint or its Motion to Dismiss, filed before its Answer. Harris v. Sec. of U.S. Dept. of Veteran’s Affairs,
126 F.3d 339, 343 (D.C. Cir. 1997) Three years in to this litigation, after Howard’s own witnesses and records
proved that Howard’s original reason was false and pre-textual, Howard asserted a litany of new purported
reasons for Plaintiff’s renewal. These new defenses included allegations that some of Prof. Martin’s
colleagues did not find her “collegial” and that she had “bad judgment.” Since Howard did not raise a defense
of “non-collegiality” or “bad judgment” in its Answer to the Complaint, or in its Motion to Dismiss, it waived its
right to raise this defense three years later. Howard never made any claims of collegiality of bad judgment
until 2001 and never mentioned it in its Answer to the Complaint or in responses to Plaintiff’s EEOC charge in
1998 or 1999.
Howard has not offered any reason why it should be permitted to violate Fed. R. Civ. P. 8(c). Defendant has
attempted to amend its Answer, at will and whim, without explanation, years into the litigation. It is now more
than six years into the litigation and Howard has never attempted to amend its Answer. In this case, that
includes the testimony of professors and clerical persons who have left Howard, as well as memories that
have faded. It should not now be permitted to do so. In order to amend pleadings to include untimely Rule 8
(c) defenses, pursuant to Fed. Civ. R. 15(a), the movant must prove that “justice so requires,” if there is no
undue prejudice to the opposing party and that the movant has not acted with bad faith or undue delay. Id.
Howard has not offered any reason for its three year delay and cannot do so. If any of the reasons that
Howard asserted in 2001 had actually been the reasons for Martin’s non-renewal in 1997 through 1998,
surely, Howard would have known it in 1999, when it responded to the EEOC and answered the Complaint in
this Court. Howard’s purported defenses, in its 1999 Answer to the Complaint, its 2000 Answers to
Interrogatories and its 2001 “Supplemental” Answers to Interrogatories were all filed in bad faith, with no
evidence to support even one of Howard’s allegations. In fact, all APT Committee members except Taslitz
seemed oblivious to any the purported reasons for Prof. Martin’s non-renewal asserted by Howard in either
set of its Answers to Interrogatories. Pl. MSJ at 24-29.
Justice certainly does not require that Howard be permitted to fabricate defenses three years into the litigation,
when Plaintiff no longer has available to her the evidence that would have been available three years earlier. A
defendant should not be permitted to make up a litany of new defenses after it has had the benefit of discovery
against the Plaintiff and after discovery by Plaintiff has revealed that its original defense was nothing more
than a baseless lie. Howard hoped to conceal this lie by making discovery so difficult and expensive that
Plaintiff would never be able to obtain the evidence to prove its defense false. When Plaintiff did survive his
ordeal, Howard resorted to fabricating a list of additional lies, all of which are easily disproved, except for the
nebulous claim of “non-collegiality” and “bad judgment,” which amounts to a self-serving mudslinging
campaign by Taslitz and his best friend, Gavil. Taslitz’ credibility has already been destroyed since he lied to
fellow APT Committee members about the status of the scholarship of the candidates, Profs. Martin and
Cunningham. Taslitz’ word, then, cannot be enough to create a genuine dispute of fact, where all other
evidence contradicts his word.
XIII. Howard Violated Civ. R. P. 26(h) by Untimely Changing its Answers to Interrogatories Three Years into
this Litigation
Plaintiff has repeatedly objected to the admission of the untimely evidence offered by Howard, in violation of
Fed. R. Civ. P. 26(h). Plaintiff’s August 8, 2001 Motion for a Default Judgment Based on Untimely, Incomplete
and Falsified Evidence, incorporated, by reference, into Plaintiff’s Motion for Summary Judgment. Plaintiff
incorporated her Motion for a Default Judgment, into her MSJ at 47, and incorporates them both herein, by
reference.
XIV. Holcomb Held that the Defendant’s “Discriminatory Statements” and “Attitudes” are Evidence of
Discrimination
Where the alleged discriminating official has made statements that indicate discriminatory or retaliatory
animus, or other “attitudes” suggesting that the alleged discriminator harbors discriminatory attitudes toward
the plaintiff for a prohibited reason, these statements constitute evidence of discriminatory motive. Holcomb,
2006 U.S. App. LEXIS 520 at * 21-22, 26-27, citing Dunaway v. International Brotherhood of Teamsters, 310 F.
3d 758 (D.C. Circ. 2002).
Despite the protocol at the law school that the Dean is not to interfere with the decision of the APT Committee,
Dean Bullock privately shared her animus against Prof. Martin to Taslitz, the Vice Chair of the APT Committee.
Pl. MSJ at 17. Bullock and Taslitz both admit that Bullock privately told him that she did not want Prof. Martin
on the faculty. Pl. MSJ at 18-19.
As set forth in Pl. MSJ at 16, Dean Bullock made specific statements exhibiting extreme hostility toward
Plaintiff in response to her requests that Howard take reasonable steps to bar a serial stalker, with a criminal
record, from the law school. Dean Bullock told the EEOC:
Martin did not seem satisfied with my response. I was left with the impression that she wanted me to wrestle
the stalker down. (Emphasis added)
Dean Bullock told Prof. Taslitz that she was having a “bad day” and had “a lot to do” with respect to Prof. Martin’
s complaints about being stalked by Harrison at the law school (Pl. MSJ at 16-17); yet, Bullock did not even
take the most basic steps to keep Harrison from Martin in her workplace. Dean Bullock told Taslitz that Prof.
Martin had “bad judgment,” but would not provide even one example of such alleged bad judgment, even
though Prof. Taslitz asked for one, several times. MSJ at 18. Dean Newsom also testified that Dean Bullock
had told him that she intended to take action to exclude Prof. Martin from the faculty and that Martin was on a
“short list” of people causing problems for Howard, although he could not explain why. MSJ at 19-20.
Despite private statements to Taslitz and Newsom that she wanted Prof. Martin removed from the faculty,
Dean Bullock told Prof. Nolan that she was trying to find another job for Prof. Martin since there were no
positions left at Howard. Pl. MSJ at 21. Dean Bullock told Dean Samuel Thompson, of the University of Miami,
that the only reason that Prof. Martin was not being renewed was that she needed a teacher to teach tax, but
that Martin was regarded as a very good teacher. Pl. Facts 227; Bullock depo at 150. Dean Bullock told the
EEOC: “There is no particular reason that I would not want Martin to teach at Howard University School of
Law.” Pl. MSJ at 19.
Dean Bullock’s secret conversations with Taslitz and Newsom demonstrate that she recognized that her
motives for removing Martin from the faculty were improper and illegal. Bullock concealed her retaliatory
animus toward Martin from everyone except the two people that she enlisted to effectuate her removal from the
faculty: 1) Prof. Taslitz, as the Vice Chair and controlling member of the APT Committee; and 2) Associate
Dean Newsom, who was her assistant.
On December 3, 1997, two days after Harrison stood in her office, before Officer Dowdy chased him out of the
building, off campus and into the woods, Dean Bullock called Prof. Martin personally; however, it was not the
call in response to her December 2, 1997 memorandum that Prof. Martin expected. Pl. MSJ at 14. Instead,
without any comment on the “chase” of Harrison, Dean Bullock ordered Prof. Martin to pick up a “very important
letter,” which had been returned by the Post Office.
This purportedly “very important letter” was simply the November 3, 1997 form letter sent to all visiting
professors (including Cunningham and Levin, both in 1996 and 1997), whose contracts were scheduled to
end at the close of the spring semester, irrespective of whether they would be renewed or reappointed by the
APT Committee. Pl. MSJ at 14. Normally, such clerical matters were handled by a secretary; however, Dean
Bullock chose to make this call personally. Pl. MSJ at 10. In sharp contrast, Dean Bullock did not regard
Harrison’s stalking of Prof. Martin in her workplace worthy of a personal call or any response – ever -- to her
December 2, 1997 memorandum, written or oral.
Within days after the stalking began, Dean Bullock enlisted Dean Newsom in a campaign of retaliation
against Prof. Martin. Pl. MSJ at 14. In addition to doing absolutely nothing to protect Prof. Martin from the
stalker, Dean Newsom drastically reduced the number of journals to which Prof. Martin could send her article,
“911: How Will Police and Fire Departments Respond to Public Safety Needs and the Americans with
Disabilities Act?” from 180 to 30 journals – despite the norm of approximately 200 journals, thus reducing her
chances of having it accepted for publication. Pl. MSJ at 14.
Then, on December 10, 1997, when classes had ended, professors were no longer keeping office hours, and
new hours would have to be established for the upcoming semester, Dean Newsom wrote Martin a
memorandum, falsely stating that she had not provided his office with a list of her office hours. Pl. MSJ at 14.
Newsom chastised Martin and cautioned her that if she did not keep office hours, she was in violation of her
duties as a law professor. Pl. MSJ at 14.
Prof. Martin responded that: 1) she had, in fact, provided Dean Newsom with her office hours months earlier;
2) she had always maintained office hours far beyond those required; 3) her office hours were posted on her
bulletin board outside her office door, with a student “sign up” sheet; 4) Dean Newsom had been to her office
many times and clearly saw her office hours posted; 5) Dean Newsom was aware that she had been holding
office hours in the cafeteria, and had a notice so stating, posted on her door; 6) in her memorandum to Dean
Bullock, with a copy to Newsom, Martin had clearly stated that the stalker obtained her office hour from the
notice posted outside her door; 7) that she was afraid to be in her office, for her students and herself, if the
stalker came to her office, since he was not being kept out of the building; and 8) office hours had ended with
the end of classes. Pl. MSJ at 14.
Dean Newsom’s memorandum, particularly when he had no response at all to the paramount matter at hand,
a stalker in the workplace, was clearly designed to create additional emotional distress for Prof. Martin, to
cause her to worry about her employment, knowing that the Dean’s office was trying to build a written record
against her to get rid of her. At a time when she was afraid to be in her office, the Dean’s office was conveying
to her that if she did not stay in her office (even during the semester break), waiting, like a “sitting duck” for
Harrison, she could lose her job. The actions of the Dean’s office clearly demonstrate a callous disregard for
Martin’s safety very life, reflecting hostility, retaliatory animus and discriminatory “attitude,” as defined by
Holcomb.
Since Howard did not carry its burden of producing evidence to support its articulated defense, Plaintiff’s
prima facie case of retaliation remained un-rebutted and the presumption of retaliation remains in the case.
Plaintiff’s prima facie case is further strengthened by undisputed evidence of retaliatory animus by Dean
Bullock. Pl. MSJ, at 24-43. Under Holcomb, Howard must produce evidence by which a reasonable jury could
conclude that its articulated reason for Martin’s non-renewal is true. Howard has not done so. Plaintiff is
therefore entitled to summary judgment.
XV. Taslitz Implemented Dean Bullock’s Retaliatory Removal of Prof. Martin from the Faculty
Taslitz’ self interest, as an accused discriminator, and proven lack of credibility, must be considered in
examining the competence and credibility of his testimony. Taslitz admitted that he never raised any
allegations of non collegiality” or “bad judgment” in any APT Committee meeting or in deliberations. In fact,
Taslitz testified that he did not share Gavil’s purported perception of Prof. Martin, but instead, found her to be
very collegial and “warm.” Pl. Facts 186. Taslitz even testified that he considered himself a “friend” of Prof.
Martin. Id.
Taslitz admitted that he never discussed Gavil’s November 10, 1996 story with her or otherwise indicated to
her, in any way, prior to the December 18, 1997 decision, that anyone was disappointed with her performance
or would not support her renewal. Pl. MSJ at_23. To the contrary, Taslitz purported to act as Prof. Martin’s
mentor, in October and early November of 1997, even asking to review her application before she submitted it
to the Committee, to make any suggestions for editing to ensure her renewal. Pl. MSJ at 21-22. All of that
changed after the stalking began, on November 20, 1997. Taslitz appears to be saying that he set aside his
own opinion of Prof. Martin’s personality and professionalism and voted in accordance with Gavil’s purported
views, based on a nebulous account of a trivial student complaint and Martin’s response to it. Even if this
were true, Taslitz’ had only one vote.
On March 31, 1997, Martin wrote to Taslitz, asking for his assistance in speaking to Dean Bullock, telling him
that she was aware that there were two to three vacant faculty positions. Pl. MSJ at 21. Taslitz immediately
turned this personal letter over to Dean Bullock, along with a cover letter asking for legal representation from
the University in case Plaintiff sued. Pl. MSJ at 21. Taslitz never asked Dean Bullock whether the positions
were vacant. Pl. MSJ at 21. He knew that, no matter how many positions became available, Bullock would
ensure that none of them went to Plaintiff.
Mrs. Bruner testified that Taslitz took minutes during the APT Committee meetings and that she typed them.
Pl. MSJ at 48; Pl. Facts 181. Prof. LaRue testified that he Prof. Taslitz took notes during the meetings and
distributed minutes of the meetings. Pl. MSJ at 48; Pl. Facts 181. Prof. Nolan testified that she took notes
during the meetings, but that she destroyed them. Pl. Facts 182. Considering that Plaintiff began contesting
her non-renewal immediately after the decision was made, continued to contest it throughout the spring of
1998, and filed an EEOC charge on May 14, 1998, Howard should have instructed all APT members to keep
and provide it with notes taken during these meetings.
Certainly, any law professor, including Taslitz and Nolan, realizes that such notes would be requested in
discovery. At a minimum, notes should have been maintained to assist the APT Committee members in
refreshing their recollection for later testimony. Plaintiff is entitled to an adverse inference that Taslitz’ minutes
and Nolan’s notes would have been incriminating to Howard. Pursuant to Fed. R. Ev. 1002, the Best Evidence
Rule, Taslitz should have been precluded from testifying that Prof. Martin was not renewed based on “non-
collegiality” or “bad judgment.”
XVI. Plaintiff Renews her Motion to Vacate MJ Facciola’s 2003 Report and Recommendation
Plaintiff has requested that MJ Facciola’s published Report be vacated and/or reconsidered based on
numerous, independent errors of law, including: 1) MJ Facciola’s erroneous definition of adverse action; 2) MJ
Facciola’s improper dismissal of claims, sua sponte, where Howard waived any possible right to raise such a
defense; 3) MJ Facciola’s inconsistent, confused and unsupported “findings” of fact; 4) Howard’s
misrepresentation of MJ Facciola’s decision as limiting Plaintiff’s retaliatory non-renewal claim to her
December 18, 1997 rejection for the EEO/Labor position, where the Report specifically includes an April 8,
1998 rejection and does not mention a December 18, 1997 rejection at all; and 5) case law decided by the U.
S. Court of Appeals for the D.C. Circuit since January 10, 2006 that directly and clearly conflicts with the
definition of adverse action adopted by MJ.
Despite MJ Facciola’s reference to Prof. Leggett’s view of Prof. Martin as “collegial,” he concluded that three
members of the APT Committee, constituting a majority of the five member Committee, questioned Plaintiff’s
judgment or collegiality. MJ Facciola erroneously concluded that “two other Committee members,” in addition
to Taslitz (2003 U.S. Dist. LEXIS 18501 *17), questioned Plaintiff’s judgment (2003 U.S. Dist. LEXIS 18501 at
*17, 20-23). In arriving at this conclusion, MJ Facciola made numerous material factual errors, which are
contradicted by the undisputed evidence.
1) Gavil was not a member of the 1997-1998 APT Committee and had no vote regarding Prof. Martin’s
applications for reappointment or renewal. Pursuant to Holcomb, Gavil’s testimony never raised an issue of
genuine disputed issue of material fact to be determined by a jury and should not have been a basis for
denying Plaintiff’s motion for summary judgment. Plaintiff has repeatedly pointed out that Gavil was not a
member of the 1997-1998 APT Committee, and cited references to the record demonstrating that it was
undisputed that the five members of the Committee were: 1) Isaiah Leggett; 2) J. Clay Smith; 3) Laurence
Nolan; 4) Homer LaRue; and 5) Andrew Taslitz.
This one material error of fact alone changes the basis of MJ Facciola’s conclusion that three members of the
APT Committee, a majority, either found Plaintiff not to be collegial or took into account the opinions of one or
more other faculty members that Plaintiff was not collegial. Since Gavil had no vote, his “opinion” of Prof.
Martin – whether real in 1997-1998 or fabricated four years later -- is irrelevant to the APT Committee’s
decision and his testimony should have been excluded at trial.
Summary judgment must also be based on competent and credible evidence of record. Although credibility
determinations are normally left to a jury, where no reasonable juror could believe a witness’ testimony, in
light of the contradictory evidence, such testimony cannot defeat a motion for summary judgment. Woodfield v.
Providence Hospital, 779 A.2d 933, 936 (D.C. 2001). In the present case, Taslitz is an alleged discriminator,
motivated to testify falsely to conceal his own illegal conduct. Three years into this litigation, Taslitz suddenly
claimed that his best friend, Andrew Gavil, told him of a discussion. Taslitz claimed that Gavil told him of that a
student in Prof. Martin’s class complained to him about her, that Gavil was “very upset” with her and thought
that she should have “sought advice from other faculty members before acting the way [she] did” and “thought
it was very bad judgment.” Taslitz depo at 248, lines 3-19. Despite these strong statements, Taslitz could not
provide any information about what the alleged “behavior” was that so “upset” Gavil or what type of advice she
should have sought.
The November 15, 1996 conversation between Profs. Martin and Gavil occurred less than three months after
she had joined the faculty, and more than a year prior to the December 18, 1997 decision. Gavil testified that
he could not recall the nature of the student’s complaint, the name of the student complaining, the
circumstances or location of the conversation about the student or the outcome of the complaint. Plaintiff’s
November 11, 2002 Motion to Strike Defendant’s Motion for Summary Judgment (“Mot. to Strike”) at 8-12.
Although Gavil claimed that he recalled nothing else of the conversation about this student, he insisted that he
was sure that during the conversation, Prof. Martin referred to the student as “that bitch” – a claim that Plaintiff
vehemently denies. Martin freely states that, she said that the student was a “brat” in this private conversation
with her colleague who suddenly confronted her with the trivial complaint that she did not call on the student
often enough in class. Martin used the word “brat” because the student’s behavior childish, disruptive, and
inappropriate for an adult law student. Gavil’s vague, subjective, unsubstantiated testimony is completely
irrelevant and immaterial to this case.
MJ Facciola ignored the sworn declaration of the student in question, now a local practicing attorney, filed as
Exhibit A of Plaintiff’s Motion to Strike. Motion to Strike at 8. This student apologized to Prof. Martin for her bad
behavior during her first semester of law school, took every course that Prof. Martin ever taught at Howard,
including four courses, praised Martin as one of her best professors, and not only signed, but helped circulate
a petition protesting Martin’s non-renewal. Pl. Mot. to Strike at 8.
Plaintiff wrote a November 16, 1996 memorandum to Dean of Students, Denise Purdie-Spriggs, with a cover
memo to Prof. Gavil, documenting their conversation about the student in question, including her name. Gavil
had reported the student’s complaint about Prof. Martin to Denise Purdie-Spriggs. Prof. Martin was extremely
perplexed at Gavil’s motives for reporting such a trivial student complaint. Dean Purdie-Spriggs expressed
agreement with Prof. Martin. Dean Purdie-Spriggs tried to return the memo to Prof. Martin, but Prof. Martin
insisted that she keep the memo in her files to ensure that these events would not be misrepresented at a
later date. Pl. Mot. to Strike 3-4; Pl. MSJ at 28-29, fn.10; Facts 225. MJ Facciola completely ignored Martin’s
memorandum to Purdie-Spriggs, (Exhibit ZZZ of Pl. MSJ), as well as Plaintiff’s sworn declaration about the
incident (Exhibit J of Pl. MSJ), which she recalled vividly, in sharp contrast to Gavil’s purported vague
recollection.
2) Nolan Never Questioned Prof. Martin’s Character, but Lobbied for her Retention MJ Facciola did not name
Prof. Nolan in his Report, but referred to Taslitz’ deposition testimony wherein Taslitz claimed that Prof. Nolan
questioned Prof. Martin’s veracity with respect to her representations about the status of her article. 2003 U.S.
Dist. LEXIS 18501 at *17. In fact, Prof. Nolan testified that she did not question Plaintiff’s statements or
disbelieve her. Pl. MSJ at 289. MJ Facciola’s factual conclusion was again based on his blanket acceptance
of Howard’s false representation of the record, based on the testimony of an alleged discriminator and proven
liar, Taslitz, ignoring Plaintiff’s citations to the record correcting this, as well as other, erroneous factual
assertions made by Howard. MJ Facciola’s conclusion that Prof. Nolan found some personality flaw in Prof.
Martin is a based on a complete misrepresentation of Prof. Nolan’s testimony.
With both Gavil and Nolan subtracted from the equation, MJ Facciola’s purported majority of three APT
Committee members questioning Prof. Martin’s judgment or collegiality then, is reduced to an exclusive
minority of one – Tasliz – the instrument of Dean Bullock’s retaliation. It is not possible, then, and no
reasonable juror could conclude, that despite Prof. Martin’s credentials, a majority of the Committee member
voted against her because of a perceived personality flaw.
3) MJ Facciola Relied Primarily on Taslitz’ Testimony, despite his Proven Lack of Credibility and
Competence. Despite the undisputable evidence that Taslitz lied to his colleagues about Martin’s and
Cunningham’s credentials, MJ Facciola’s Report relies heavily on Taslitz’ testimony, even where it conflicts
with that of other witnesses and documentation. See discussion in Section ___.
CONCLUSION
Plaintiff respectfully requests that this Court grant Plaintiff judgment, as a matter of law, set the case for a new
trial on damages, and direct the jury to determine compensatory and punitive damages. In the alternative,
Plaintiff reqeusts a new trial pursuant to Fed. R. Civ. P. 59(b) and 60(b)(3).
Respectfully submitted,
Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
1090 Vermont Avenue, N.W, Suite 800
Washington, D.C. 20005
(202) 408-7040 telephone; (703) 642-0208 facsimile
DVMARTINLAW@yahoo.com
www.firms.findlaw.com/dvmartinlaw
FOR THE DISTRICT OF COLUMBIA
____
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/AK
)
)
PLAINTIFF’S RENEWED MOTION FOR JUDGMENT ON HER RETALIATION CLAIMS, PURSUANT TO RULE 50
(B), OR IN THE ALTERNATIVE, FOR A NEW TRIAL, PURSUANT TO RULES 59 AND 60
Plaintiff respectfully renews her April 25, 2006 Rule 50(a) motion for judgment, as a matter of law, pursuant to
Fed. R. Civ. P. 50(b), notwithstanding the jury verdict, on her claim of retaliation, or, in the alternative, for a new
trial, pursuant to Fed. R. Civ. P. 59(a) and (e) and 60(b)(3). Plaintiff incorporates, by reference, all arguments
made in her April 25, 2006 motion for judgment.
MEMORANDUM IN SUPPORT OF MOTION
I. Relationship of Present Motion to Accompanying Motions for Judgment on Retaliation and Breach of
Contract Claims
Plaintiff has simultaneously filed Motions for Judgment on her retaliation and Breach of Contract Claims, or, in
the alternative, for a new trial on all of her claims. Plaintiff incorporates herein, by reference, all arguments
made in each of those motions. The present motion is integrally related to her Motion for Judgment on her
Sexual Harassment Claim. Since the jury determined that the harassment that Plaintiff endured in her
workplace and which Howard University failed to reasonably remedy, was not sexual in nature, or based on
sex, the jury determined that Plaintiff was not engaged in “protected activity” within the meaning of Title VII of
the Civil Rights Act of 1964 or the D.C. Human Rights Act. The jury found no retaliation for protected activity
because it found no protected activity.
As Plaintiff has set forth in her accompanying Motion for Judgment on her Sexual Harassment Claim, the jury’
s conclusion that Plaintiff was did not engage in protected activity was based on a misunderstanding of law
and should be set aside. Since engaging in protected activity – or a good faith belief that one is engaging in a
protected activity -- is a pre-requisite to establishing a prima facie case of retaliation, Plaintiff respectfully
requests that the present motion be considered after her accompanying Motion for Judgment on her Sexual
Harassment Claim is decided.
II. Legal Standard
A. Rule 50(B)
When assessing a Rule 50(b) motion for judgment after a jury verdict, the issue is whether there was
sufficient evidence upon which the jury could base its verdict. Scott v. District of Columbia, 101 F.3d 748, 752-
753 (D.C. Cir. 1996). Although the court cannot substitute its view for that of the jury, and can assess neither
the credibility nor weight of the evidence, the jury's verdict can only stand if the evidence in support of it is
"significantly probative" and "more than merely colorable." Scott at 752-753, citing Mackey v. United States,
303 U.S. App. D.C. 422, 8 F.3d 826, 829 (D.C. Cir. 1993), (citing McNeal v. Hi-Lo Powered Scaffolding, Inc., 826
F.2d 637, 640-41 (D.C. Cir. 1988); Ferguson v. F.R. Winkler GMBH & Co., 79 F.3d 1221, 1224 (D.C. Cir.), cert.
denied, 136 L. Ed. 2d 252, 117 S. Ct. 360 (1996); see also Siegel v. Mazda Motor Corp., 878 F.2d 435, 437 (D.
C. Cir. 1989). The D.C. Circuit’s analysis is consistent with that of the U.S. Supreme Court. Gasperini v.
Center for Humanities, 518 U.S. 415 (1996); Weisgram v. Marley Co., 528 U.S. 440 (2000).
The Court may grant judgment as a matter of law, after trial, where the facts are undisputed and/or no
reasonable juror could find for the opposing party. This standard is the same standard used in the context of
motions for summary judgment. Summary judgment is also appropriate where “no reasonable juror” could
determine the facts in favor of the opposing party, in light of the evidence presented. Adickes v. S.H. Kress and
Co., 398 U.S. 144 (1970); Woodfield v. Providence Hospital, 779A.2d 933, 936 (D.C. 2001). As the U.S. Court
of Appeals for the D.C. Circuit has recently reaffirmed, where there is no genuine dispute as to material facts,
there are no facts for a jury to determine and this case can be decided as a matter of law. Holcomb v. Powell,
433 F.3d 889 (D.C. C. 2006).
B. Rule 59(a) and (e)
Pursuant to Fed. R. Civ. P. 59(a) and (e), motions for new trials, and/or to alter or amend judgment, must be
filed within ten days of the Court’s judgment or jury verdict. New trials granted under Rule 59 are based on
errors of law, evidentiary errors, and/or error may have influenced the jury’s decision. Ashcraft and Gerel v.
Coady, 244 F.3d 948 (D.C. Cir. 2001). The standard for whether a new trial should be granted, pursuant to
Rule 59, is whether there was “a clear miscarriage of justice.” Warren v. Thompson, 224 F.R.D. 236, 238 (D.D.
C. 2004), citing Webb v. Hyman, 861 F. Supp. 1094, 1109-110 (D.D.C. 1994); Nyman v. FDIC, 967 F. Supp
1562, 1569 (D.D.C. 1997), quoting Federal Deposit Ins. Corp v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)..
C. Rule 60(b)(3)
Pursuant to Fed. R. Civ. P. 60(b), a party may file a motion for a new trial based upon the adverse party’s
commission of fraud, misrepresentation or other misconduct. Any such misrepresentation to the Court
simultaneously constitutes a violation of Fed. Civ. R. P. 11 (b)(1), which prohibits a party from:
1) making representations to the court “for any improper purpose, such as to harass or to cause unnecessary
delay, or needless increase in the cost of litigation;” 2) asserting “claims and defenses and other legal
contentions” that are not “warranted by existing law” or are frivolous; 3) asserting “allegations and other factual
contentions” that have no “evidentiary support;” and 4) denying “factual contentions” that are not “warranted on
the evidence.”
III. Legal Precedent Set by Chief Judge Hogan’s 1999 Decision
The case at bar is significant for all working women and for all employers employing women, In Martin v.
Howard University, 1999 U.S. Dist. LEXIS 19516; 81 Fair Empl. Prac. Cas. (BNA) 964; 15 I.E.R. Cas. (BNA)
1587 (D.D.C. 1999), Chief Judge Hogan, following the consistent law of all jurisdictions and EEOC
regulations addressing the issue of sexual harassment in the workplace by non-employees, set precedent for
this Court by holding, as a matter of law, that:
an employer may be held liable for a hostile work environment that is created by a non-employee, including
those non-employees who were invited or permitted to remain on an employer's premises, citing Henson v.
City of Dundee, 682 F.2d 897 (11th Cir. 1992) ("the environment in which an employee works can be rendered
offensive in an equal degree by the acts of supervisors, coworkers, or even strangers in the workplace") and
29 C.F.R. § 1604.11(e) (EEOC Guidelines) ("An employer may also be responsible for the acts of non-
employees with respect to sexual harassment of employees in the workplace").
1999 U.S. Dist. LEXIS 19516 at *7.
Plaintiff, Dawn V. Martin, began with Howard University as a Visiting Associate Professor at of law in July of
1996. Beginning in November of 1997, Professor Martin was stalked in her workplace by Leonard Harrison, a
homeless stranger with a criminal record, a history of violence and a pattern of targeting African-American
female professors and attorneys, pursuing them as his “wife.” Prof. Martin immediately reported the stalking
to the law school administration, Howard security and the D.C. Metropolitan Police Department. She
repeatedly asked the administration, particularly the Dean, Alice Gresham-Bullock, to bar the stalker from
campus, but the University took no reasonable steps to keep the stalker out of the workplace, despite the
availability of barring procedures already set in place by Howard University campus security. Plaintiff endured
a hostile work environment, pervaded by sexual harassment by the stalker, from November 20, 1997 until the
end of her employment with Howard University, in June of 1998.
Plaintiff continued to perform all of her teaching duties, taking certain precautions to protect her students, her
teenage daughter and herself from the stalker. Despite thirteen years of outstanding civil rights legal
practice/policy-making, four years of teaching equal employment law and torts, recognized scholarship in the
area of equal employment law, excellent student evaluations and student petitions and letters in support of
her renewal, Plaintiff was not selected for a permanent position or even a renewed visitorship. Plaintiff had left
a permanent, tenure-track teaching position in Cleveland to return to the Washington, D.C. area, based on
representations that the visiting position would be converted to a permanent, tenure-track position at Howard.
This decision, made after the academic “hiring season,” left Plaintiff without a job, severely damaged her
reputation and tremendously limited her career opportunities. Plaintiff seeks to be restored to the place that
she would have been absent the retaliation. She seeks reinstatement, as a full professor at Howard
University, with tenure, compensatory and punitive damages, as well as attorneys’ fees.
After eight years of litigation, a jury determined that Harrison did harass Prof. Martin in her workplace and that
Howard University failed to take reasonable measures to stop it; however, oddly, the jury also determined that
this harassment was not sexual in nature or based on Prof. Martin’s sex/gender – even though he pursued
her to be his “wife.” The jury’s conclusion reflects a misunderstanding of the law regarding sexual
harassment that resulted, in part, from inadequate jury instructions. As a result of this ruling, Plaintiff’s
retaliation claims were also denied, as having no statutory basis.
In addition to the legal implications of this case, it has strong social implications for women – and particularly
African-American women. Despite the jury’s specific finding that Prof. Martin was harassed by the delusional,
homeless stranger in her workplace, in closing argument, Howard’s outside counsel, a partner in the
employment discrimination defense firm of Venable, told jurors that Prof. Martin “played the sexual
harassment card.” The stalking of women in their workplaces should never be so trivialized – nor should the
woman stalked be so denigrated for asking that basic safety procedures actually be implemented to keep a
serial, delusional, homeless stalker with a criminal record out of the workplaces. The outcome of this case
will contribute to the standard set for employers in stalking workplace violence cases and merits the attention
of the Bar, as well as advocates for women’s rights and civil rights.
IV. Facts as Set Forth in Chief Judge Hogan’s 1999 Decision
Chief Judge Hogan denied Howard’s Motion to Dismiss, or in the Alternative, for Summary Judgment, Martin v.
Howard University, 1999 U.S. Dist. LEXIS 19516; 81 Fair Empl. Prac. Cas. (BNA) 964; 15 I.E.R. Cas. (BNA)
1587 (D.D.C. 1999). Judge Hogan summarized the facts, as alleged in Plaintiff’s Complaint, as follows.
Plaintiff Dawn Martin was a Visiting Associate Professor at Howard University School of Law from July 1996
through May 1998.
….
Plaintiff alleges that she has been the victim of hostile work environment sexual harassment as a result of the
conduct of Mr. Leonard Harrison, a homeless person who resided in a shelter and was neither an employee
nor a student of the University but who regularly used Howard University's Law School library. Specifically,
Plaintiff claims that Defendants knowingly allowed Mr. Harrison, a man characterized by the D.C. Metropolitan
Police Department as a "stalker" with a criminal record and history of violence, free access to the law school
campus and buildings, thereby facilitating his sexual harassment of Plaintiff in her workplace. Due to this
alleged inaction, Plaintiff claims that Defendants have violated both Title VII and the DCHRA as well as caused
her intentional infliction of emotional distress. Plaintiff also claims that due to her complaints, Defendant
Bullock took retaliatory measures, on five different occasions, to ensure that Plaintiff was not offered a
permanent professorship or a renewed visitorship at the Law School. Furthermore, Plaintiff alleges that
Defendants Howard University and Howard University School of Law breached their contract with Plaintiff in
failing to renew her contract or selecting her for a tenure-track position in violation of Professor Taslitz's
alleged oral promise to Plaintiff that she would placed into a tenure track position as soon as one became
available. And finally, Plaintiff claims that she was forcefully and prematurely evicted from her office in
retaliation for her filing of a charge with the U.S. Equal Employment Opportunity Commission ("EEOC").
(Emphasis added)
1999 U.S. Dist. LEXIS 19516 at 2-4.
Judge Hogan elaborated on the facts setting forth Plaintiff’s specific claims of retaliation.
Title VII makes it illegal for an employer to take adverse employment actions against an employee for
engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3. In order to establish a prima facie case
of retaliation, Plaintiff must show that: (1) she was engaged in protected activity under Title VII, (2) she was
subjected to adverse employment action, (3) and a causal connection exists between the protected activity
and the adverse action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 67 L. Ed.
2d 207, 101 S. Ct. 1089 (1973); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973); Barnes v. Small, 268 U.S. App. D.C. 265, 840 F.2d 972, 976 (D.C. Cir. 1988).
Plaintiff asserts that Dean Bullock took five separate actions against her because she complained about a
hostile work environment and requested protection from Mr. Harrison. Specifically, Plaintiff alleges that Dean
Bullock retaliated against her by: (1) denying her application for a permanent EEO position at the Law School
on December 18, 1997; (2) failing to authorize the Appointment Promotion and Tenure ("APT") Committee to
fill vacant positions in January, 1998, because she believed the ATP Committee would recommend Plaintiff for
one of these positions; (3) converting a Constitutional Law/Civil Rights position into a Tax/Trusts and Estates
position in April 1998 so that the APT Committee could not consider her for the position; (4) leaving a tenure-
track position vacant in the Spring of 1998, so that the APT Committee would not consider Plaintiff for the
position; (5) ordering Plaintiff on May 26, 1998, to vacate her office by Friday, May 29, 1998, and actually
"forcing" her out of the office in early June 1998. (Emphasis added)
With respect to the other four alleged adverse actions, this Court does not read Title VII to suggest that the
protections afforded by this statute against retaliation are only available against individuals who have filed
formal charges with the EEOC. See Brandau v. State of Kansas, 968 F. Supp. 1416, 1421-22 (D. Kansas
1997) (holding that it was undisputed that plaintiff had engaged in protected opposition to discrimination
because she spoke directly with the alleged harasser and reported his conduct to her supervisors); Powell v.
Las Vegas Hilton Corp., 841 F. Supp. 1024, 1025 (D. Nev. 1992) (holding that where the harasser is a non-
employee, protected opposition under Title VII includes the statement to the employee, "I don't have to take
this," or a simple request to the employer to "do something."). Moreover, whether or not Plaintiff's letter was
sufficiently detailed to put Dean Bullock on notice that she believed she had been the victim of a hostile work
environment is a question of fact for the jury. See Howard U. v. Green, 652 A.2d 41, 46 (D.C. App., 1994)
(holding that there are no "magic words" which must be chanted in order to invoke Title VII protection), citing
EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-1013 (9th Cir. 1983). Since an EEOC complaint is not
a legal prerequisite for a retaliation claim and since the Court cannot find that no reasonable juror could
decide that Plaintiff had engaged in "protected activity" under Title VII when she informed Dean Bullock of Mr.
Harrison's activities and complained about what she felt was the inadequacy of campus security, Defendants'
motion for summary judgment on the other four retaliation claims must also be denied. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 To the extent that the causal connection is in dispute, the Court finds that since the Plaintiff's complaints
about Mr. Harrison and campus security were closely followed by the alleged adverse actions, a sufficient
causal connection has been established to create a triable issue of material fact with regard to Plaintiff's
retaliation claims. See Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994)
(adverse action a month and a half after protected activity constituted circumstantial evidence of retaliation).
1999 U.S. Dist. LEXIS 19516 at *14-18.
V. Plaintiff Engaged in “Protected Activity”
A. Plaintiff’s Complaints Constituted Protected Activity
The jury form first asked whether Plaintiff was engaged in “protected activity.” This answer depended upon the
jury’s answer to the first series of questions, regarding whether the conduct that Plaintiff reported, Harrison
stalking her in her workplace, constituted sexual harassment or harassment on the basis of her sex/gender,
in order to bring her into the protections against retaliation provided by Title VII of the Civil Rights Act of 1964
and/or the D.C. Human Rights Act. Since the jury determined that Harrison’s harassment of Prof. Martin, was
not sexual in nature or based on her sex/gender, even though he pursued her to be his “wife,” the jury’s inquiry
did not proceed to examine whether the purported legitimate non-discriminatory reasons offered by Howard
for Plaintiff’s non-selection and non-renewal were false or pre-textual.
The jury’s conclusion, that Plaintiff had not engaged in protected activity prior to the adverse actions taken
against her, was an error of law and contradicted by all relevant evidence of record. See Plaintiff’s
Accompanying Motion for Judgment on her Sexual Harassment Claim, incorporated herein, by reference. The
following discussion, then, proceeds from a reversal of that finding and judgment or a new trial for Plaintiff on
her sexual harassment claim.
B. Plaintiff’s Complaints Regarding Harrison’s Stalking in her Workplace Constituted Protected Activity, as
a “Good Faith” Complaint
Even if a jury had reasonably determined Harrison’s harassment of Prof. Martin was not sexual in nature or
based on her sex or gender, Plaintiff engaged in protected activity by reporting harassment that she perceived
was based on her sex. An employee is protected against retaliation for opposing perceived discrimination, if
s/he had a reasonable and good faith belief that the opposed practices were unlawful. Little v. United
Technologies, 103 F.3d 956, 960 (11th Cir. 1997); Trent v. Valley Electric Association, Inc., 41 F.3d 524, 526
(9th Cir. 1994).
Plaintiff does not need to prove the underlying sexual harassment that she opposed in order to establish a
case of retaliation based on her complaint about what she believed was sexual harassment or harassment
on the basis of sex. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.1978). See also Payne v.
McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A Sept. 1981); cert. denied, 455 U.
S. 1000, 102 S. Ct. 1630, 71 L.Ed.2d 866 (1982).
Plaintiff and Officer Sirleaf both testified that Plaintiff complained to him that Harrison was harassing her and
pursuing her as his wife. She testified that viewed Harrison’s pursuit as sexual in nature and because of her
sex. In fact, she and Mrs. Bruner both testified that she had Mrs. Bruner watch the Ladies room because she
feared an attack by Harrison in her workplace. Plaintiff testified that she feared that such an attach by Harrison
could include a sexual assault, in light of his obsession with her and the fictional character in Prof. Bell’s
book, as his “natural wife.” Plaintiff perceived Harrison’s conduct as sexual or based on her sex, even if the
jury did not; accordingly, Plaintiff’s good faith belief brought her within the protections of Title VII and the D.C.
Human Rights Act.
C. Plaintiff’s EEOC Charge Constituted Protected Activity
Howard acknowledged, as did the Court, that Plaintiff’s May 14, 1998 EEOC charge constituted protected
activity within the meaning of Title VII and the D.C. Human Rights Act; 1999 U.S. Dist. LEXIS 19516 at *16-17.
Plaintiff clearly engaged in protected activity before Dean Newsom ordered her to vacate her office by May 29,
1998, even before her EEO class grades were due.
VI. The Jury Verdict Form Improperly Restricted Plaintiff’s Retaliation Claims
A. Content of the Verdict Form
The jury form restricted the jurors to the decision that the APT Committee made, on December 18, 1997,
selecting Visiting Assistant Professor Cunningham, over Plaintiff, Visiting Associate Professor Martin, to fill the
newly allotted EEO/Labor law position, teaching the EEO course that Plaintiff had been teaching at Howard for
the previous two years and had taught at Cleveland-Marshall College of Law for two years prior to joining
Howard’s faculty.
B. In 1999, Judge Hogan Held all of Plaintiff’s Alleged Adverse Actions to be Adverse Actions, as a Matter
of Law
In his 1999 decision, Judge Hogan specifically identified the adverse actions that were being upheld in this
case, to proceed to a jury trial.
Plaintiff also claims that due to her complaints, Defendant Bullock took retaliatory measures, on five different
occasions, to ensure that Plaintiff was not offered a permanent professorship or a renewed visitorship at the
Law School. (Emphasis added)
1999 U.S. Dist. LEXIS 19516 at 4.
Specifically, Plaintiff alleges that Dean Bullock retaliated against her by: (1) denying her application for a
permanent EEO position at the Law School on December 18, 1997; (2) failing to authorize the Appointment
Promotion and Tenure ("APT") Committee to fill vacant positions in January, 1998, because she believed the
ATP Committee would recommend Plaintiff for one of these positions; (3) converting a Constitutional Law/Civil
Rights position into a Tax/Trusts and Estates position in April 1998 so that the APT Committee could not
consider her for the position; (4) leaving a tenure-track position vacant in the Spring of 1998, so that the APT
Committee would not consider Plaintiff for the position; (5) ordering Plaintiff on May 26, 1998, to vacate her
office by Friday, May 29, 1998, and actually "forcing" her out of the office in early June 1998. (Emphasis added)
With respect to the other four alleged adverse actions ….Defendants' motion for summary judgment on the
other four retaliation claims must also be denied.
1999 U.S. Dist. LEXIS 19516 at 15-16.
Chief Judge Hogan’s 1999 decision correctly summarized the allegations in Plaintiff’s First Amended
Complaint generally, and specifically, 147, 258, 300, 242, 263, 268, 298, 313, and 316. All applications
produced as exhibits demonstrated that Plaintiff applied for “any” tenure-track position and never restricted her
application to the EEO/Labor position. There was never any valid basis, therefore, to restrict the jury verdict
form to Plaintiff’s rejection for this one position. The law of the case and res judicata therefore prohibited the
dismissal of the retaliation claims specifically identified in Judge Hogan’s 1999 decision – particularly since
the decision was based on sound law at the time and was reaffirmed as sound law by recent cases decided
by the U.S. Court of Appeals for the D.C. Circuit.
C. Howard Obtained a Limited Jury Verdict Form Based on Fraud and Misrepresentation
In its Motion in Limine to Clarify that Plaintiff’s Retaliation Claim is Limited to Her Rejection for The EEO/Labor
Position, Howard argued, for the first time, that MJ Facciola’s Report limited Plaintiff’s retaliation claim to the
EEO position and excluded events occurring after December 18, 1997. Howard claimed that MJ Facciola
limited Plaintiff’s retaliation claims to her December 18, 1997 rejection for the EEO/Labor position and that no
evidence pertaining to retaliation, retaliatory animus or vacant positions after December 18, 1997, should be
admitted into the record. In fact, MJ Facciola’s Report expressly included Plaintiff’s claims of non-renewal
beyond December 18, 1997, including her April 8, 1998 rejection for a permanent position. Martin v. Howard
University, 2003 U.S. Dist. LEXIS 18501 at * 31-32. MJ Facciola never even mentioned the December 18,
1997 date, nor did he limit the claim to the EEO/Labor position.
Only HU's Decisions Not to Reappoint Martin or Offer Her Another Position Are Cognizable
It is settled in this circuit that an act, claimed to be retaliatory, must constitute an adverse employment action.
An adverse action is one that has materially adverse consequences affecting the terms, conditions, or
privileges of her employment such that a reasonable finder of fact could conclude that the plaintiff has suffered
objectively tangible harm. Brown v. Brody, 339 U.S. App. D.C. 233, 199 F.3d 446, 457 (D.C. Cir. 1999). Two of
Martin's retaliation claims easily meet this criterion: 1) the decision, formalized in Bullock's letter of November
3, 1997, not to reappoint her as Visiting Associate Professor, and 2) the decision, formalized in Bullock's letter
of April 8, 1998, rejecting Martin's application for any position on the HU faculty. Combined, they led to Martin's
dismissal and the loss of her job. (Emphasis added.)
Martin v. Howard University, 2003 U.S. Dist. LEXIS 18501 at * 31-32.
Howard has not retracted its misrepresentation, despite Plaintiff’s January 17, 2006 Motion for
Reconsideration, quoting from MJ Facciola’s Report clearly exposing Howard’s misrepresentations. Howard’
s misconduct is sanctionable, under Fed. R. Civ. P. 11. Certainly, no court order should stand where it was
based on the false representations of a party.
VII. Recent, Controlling Case Law Requires Reversal of MJ Facciola’s Partial Grant of Summary Judgment
to Defendant with respect to Plaintiff’s Most Compelling Retaliation Claims
A. MJ Facciola’s Reversal, in part, of Judge Hogan’s 1999 Decision
Although MJ Facciola did not limit Plaintiff’s retaliation claims to her December 18, 1997 rejection for the
EEO/Labor position, he did conclude, sua sponte, contrary to Judge Hogan’s 199 decision, that two of Plaintiff’
s retaliation claims were not based on adverse actions.
1) Dean Bullock’s withholding of vacant positions from the APT Committee to prevent the Committee from
recommending that Plaintiff be retained to fill one of those positions; and
2) Dean Bullock’s March 6, 1997 conversion of an advertised Constitutional Law/Civil Rights position, to a tax
position, to prevent the APT Committee from considering Plaintiff for the Constitutional Law position, or any
other position, for which she qualified.
MJ Facciola determined that:
It is … clear that the other acts of which she complains, the conversion of the Constitutional Law/Civil Rights
position into a Visiting Tax, Trust position and the decision to leave certain faculty positions vacant, do not
qualify as adverse actions. They lack a direct and immediate impact upon Martin that would permit them to be
characterized as causing objectively tangible harm. While these acts ultimately led, in Martin's view, to her
departure from HU despite her desire to stay in any faculty position, they did not in themselves cause her any
harm cognizable as retaliatory.
….
Title VII applies only to ultimate employment decisions such as hiring or discharging…. (Emphasis added)
Martin v. Howard University, 2003 U.S. Dist. LEXIS 18501 at * 31-32.
B. Current Case Law Requires Restoration of Plaintiff’s Retaliation Claims
It is now clear that, in this Circuit, adverse actions are not restricted to ultimate, tangible employment actions
such as firing, hiring or promotion.
[a]dverse employment actions are not confined to hirings, firings promotions or other discrete incidents…. So
long as a plaintiff meets the statutory requirement of being “aggrieved” by an employer’s action, 42 U.S. C. §
2000(e-16(c) (2000), we do not categorically reject a particular personnel action as nonadverse simply
because it does not fall into a cognizable type…. Although “purely subjective injuries” such as dissatisfaction
with a reassignment, public humiliation, or loss of reputation, are not adverse actions, the threshold is met
when an employee “experiences materially adverse consequences affecting the terms, conditions, or
privileges of employment of future employment such that a reasonable trier of fact could find objectively
tangible harm.” (Emphasis added)
Holcomb v. Powell, 433 F.3d 889 at 902.
The recent stream of cases flowing from the D.C. Circuit clarifying, expanding and re-evaluating the definition
of “adverse action” within the meaning of Title VII, demonstrates that Plaintiff’s repeated warnings that MJ
Facciola’s grant of summary judgment on these claims constituted reversible error were based on sound
legal principles. This trend began with Holcomb v. Powell, 2006 U.S. App. LEXIS 520 at *30-31 (D.C. Cir.
2006) (Jan.10, 2006), holding that adverse actions included acts that affected future employment
opportunities. Next, it decided Rochon v. Gonzales, 2006 U.S. App. LEXIS 5028 (D.C. Cir. 2006), holding that
Title VII makes unlawful any act of retaliation by an employer that might dissuade a reasonable employee from
making or supporting a charge of discrimination pursuant to Title VII – whether it is related to current
employment opportunities, future employment opportunities, or even potentially adverse consequences
completely unrelated to employment.
The D.C. Circuit’s most recent holding on the issue is Chappelle-Johnson v. Powell, 2006 U.S. App. LEXIS
6600 (D.C. Cir. 2006) (March 17, 2006), holding that an adverse action includes the denial of an opportunity to
compete for a vacant position. These holdings, independently, and together, demonstrate that Dean Bullock’s
conversation (or feigned conversion) of a position and withholding of vacant positions, for which Plaintiff
qualified, constituted an adverse action within the meaning of Title VII, as defined by the U.S. Court of Appeals
for the D.C. Circuit.
Dean Bullock denied Prof. Martin the opportunity to compete for a vacant position when she left positions
vacant and converted the Constitutional Law/Civil Rights position, rather than permit the APT Committee to fill
the needed positions, for fear that the Committee would fill one of the positions with Prof. Martin. The
consequences for Prof. Martin were certainly “significant” and “material,” since they resulted in her removal
from the faculty and left her unemployed.
Holcomb held that the defendant’s reassignment of the plaintiff’s duties, to tasks far below her grade level,
constituted an adverse action, although she experienced no reduction in pay, grade or title. The court held that
the plaintiff experienced tangible harm because the reduction in the quality of her assignments could affect
future employment opportunities. Prof. Martin’s non-renewal had both immediate and future tangible effects
on her employment. It immediately left her unemployed. In addition, her non-renewal indicated to potential
employers that she had not met the requirements for tenure or had failed to fulfill her duties as a law
professor, particularly after she had left a tenure-track position in Cleveland and forfeited opportunities with
other schools to join Howard’s faculty.
Rochon v. Gonzales, 2006 U.S. App. LEXIS 5028 (D.C. Cir. 2006), expressly expanded the definition of
“adverse action” to include any action taken by the employer to deter or punish protected activity under Title VII
-- even to retaliatory acts that are not related to the employment at all.
We hold Title VII makes unlawful any act of retaliation by an employer that well might dissuade a reasonable
employee from making or supporting a charge of discrimination pursuant to Title VII.
2006 U.S. App. LEXIS 5028 at *24-25. See also 2006 U.S. App. LEXIS 5028 at *2, 15-18, 22.
In Rochon, the plaintiff, an FBI agent alleged that, in retaliation for his EEO complaint against his employer, the
FBI, the FBI violated its own policy and failed to investigate a death threat that a federal prisoner made against
him and his wife. The Court of Appeals expressly rejected the defendant government’s argument that the
plaintiff did not suffer an “adverse personnel action” and was therefore not the victim of retaliation cognizable
under Title VII. 2006 U.S. App. LEXIS 5028 at *12.
The Court of Appeals specifically adopted, for Title VII, the definition of adverse action that it had set forth in
Passer v. American Chemical Society, 935 F. 2d 322 (D.C. Cir. 1991), an Age Discrimination in Employment
Act (ADEA) case. Rochon, 2006 U.S. App. LEXIS 5028 at *16. Passer held that an employer had illegally
retaliated against the plaintiff, under the ADEA, when it cancelled a symposium that was to be held in the
plaintiff’s honor. Id. Although there was no loss of a material, tangible job benefit, the symposium
cancellation was prohibited because it was based on a retaliatory motive and it might reasonably deter other
employees from engaging in protected activity.
Certainly, if the cancellation of an honorary symposium constitutes and adverse action under Title VII, the
cancellation, withholding and/or a conversation of a faculty position to prevent Plaintiff’s selection for it, must
constitute an adverse action – particularly when it actually results in the loss of the very job that Plaintiff holds
at the time of the conversion or withholding. Even ordering Plaintiff to vacate her office, while she is using it to
grade exams, and while the similarly situated exiting Visiting Professor who had not protested sexual
harassment was not required to vacate her office, constitutes an adverse action based on the analysis set
forth in Rochon and Passer. The jury was not properly instructed on this issue, despite Plaintiff’s requests
that adverse action be re-defined and the jury verdict form reflect the current definition. In the present case,
Plaintiff alleged retaliatory non-renewal of her teaching contract, as a law professor, at Howard University, for
the 1998-1999 academic year and beyond.
MJ Facciola’s October 20, 2003 Report and Recommendation changed the course of this litigation by
dismissing the retaliation claims that Chief Judge Hogan had left intact in his 1999 decision. Martin v. Howard
University, 1999 U.S. Dist. LEXIS 19516 (D.C.D. 1999), reversed in part by Report and Recommendation of
Magistrate Judge Facciola, 2003 U.S. Dist. LEXIS 18501 (D.D.C. 2003), adopted as Court Order, September
24, 2005, reversed in part, November 21, 2005, reversed in part January 10, 2006 , Motion for
Reconsideration, based on Holcomb v. Powell, denied, March 6, 2006.
In Chappelle-Johnson, the district court granted summary judgment to the defendant agency, holding that the
plaintiff had failed to prove a prima facie case, under McDonnell Douglas v. Green, 411 U.S. 792 (1973),
because she did not assert that the position that she sought was actually filled by someone outside of her
protected class(es). 2006 U.S. App. LEXIS 6600 at *6. The Appellate Court reversed and restored plaintiff’s
retaliation claim, holding:
Here, Chappell-Johnson does not attempt to show that the position remained open and that the employer
continued to seek applicants (the McDonnell Douglas formulation). Rather, she attempts to demonstrate that
the FDIC denied her an opportunity for advancement that it gave to non-African American and younger
employees, namely, the opportunity to compete for a vacant position with a grade for which she would
otherwise be ineligible. This is a perfectly acceptable way to try to satisfy her prima facie burden, which, under
Brown, she may do by producing any evidence that gives rise to an "inference of discrimination" (along with
evidence sufficient to satisfy Brown's other two elements, see infra pp. 8-9). (Emphasis added)
2006 U.S. App. LEXIS 6600 at *9-10.
Chappell-Johnson alleged that her supervisor facilitated promotions for non-African-American and younger
employees, but not for her. 2006 U.S. App. LEXIS 6600 at *1. Her supervisor refused to reduce an advertised
Grade 13 position to a Grade 11 to facilitate plaintiff’s ability to apply for it. The plaintiff had previously held a
GS-11 position and was qualified for the position but for the advertised grade. The plaintiff alleged that
advertised grades had been lowered, in the past, to allow non-African-American, younger employees to apply
for positions listed at grades above their eligibility levels.
Ms. Chappelle-Johnson did not meet the exact factual test of McDonell-Douglas, but she did meet it in the
flexible terms intended by the Supreme Court. The Court of Appeals held that it is not necessary that the
plaintiff "show that the position remained open and that the employer continued to seek applicants." It was
enough that the plaintiff alleged that the employer "denied her an opportunity for advancement." In Chappelle-
Johnson, the adverse action was the denial of "the opportunity to compete for a vacant position with a grade
for which she would otherwise be ineligible." Plaintiff Martin was also denied “the opportunity to compete for
a vacant position.” As discussed below, Martin’s claims are far stronger than the adverse action sustained in
Chappelle-Johnson.
1. Bullock’s Conversion (or Feigned Conversion) of the Advertised Constitutional Law/Civil Rights Position
Constituted an Adverse Action because it Deprived Prof. Martin of the Opportunity to Compete for a Vacant
Position
On March 6, 1998, Plaintiff, Prof. Martin, wrote to Dean Bullock, with copies to all APT Committee members,
specifically requesting that she be considered for the advertised Constitutional Law/Civil Rights position. Prof.
Martin noted that she had just learned, from a friend at the U.S. Department of Justice, that the original
selectee, a Justice Department employee, had declined Howard’s offer and accepted a teaching position
elsewhere. APT Committee members declared that, up until they received Plaintiff’s memorandum, they
believed that the position had been filled because the original selectee had accepted Howard’s offer. In
immediate response to Plaintiff’s application, on the very same day, March 6, 1998, Bullock wrote to the APT
Committee stating that she was converting the funds from the Constitutional Law/Civil Rights position to fund
a tax position. In the same March 6, 1998 memo, Bullock instructed the APT Committee to hire Adjunct
Professor Angela Vallario to fill the position.
Bullock’s conduct, in conjunction with other evidence of retaliatory motive, is precisely the type of “evidence that
gives rise to an 'inference of discrimination’” that the D.C. Circuit held could be used to establish or expand
upon the prima facie case.
2. Bullock’s Withholding of Vacant Positions Constituted an Adverse Action, Depriving Prof. Martin of the
Opportunity to be Considered for a Position
Even after Bullock purportedly used the funds allocated for the advertised Constitutional Law/Civil Rights
position, there were admittedly at least three additional vacant faculty positions for which funding was already
authorized. Bullock withheld this knowledge and information from the Appointments (APT) Committee. Prof.
Martin was highly qualified for any of the three vacant, undesignated positions. Prof. Martin only sought
renewal of the contract she already held. She was already performing the duties of the precise job for which
she applied. Plaintiff was the only candidate for a faculty position at the time that Bullock was withholding the
vacant positions. Students were protesting Prof. Martin’s reappointment and the lack of courses, as well as
the shortage of professors. At least one APT Committee member, Prof. Laurence Nolan, specifically asked
Dean Bullock whether there were any available positions for which Prof. Martin could be considered. Dean
Bullock lied to her own colleague, APT Committee member, Prof. Nolan, stating that there were no faculty
vacancies, but that she (Bullock) was trying to help Prof. Martin obtain employment elsewhere (another false
statement).
By granting summary judgment to Howard on Plaintiff’s retaliation claims of retaliatory withholding and
conversion of positions that Plaintiff was highly qualified to fill, MJ Facciola removed from this case the most
compelling instances of retaliation. With the restoration of these claims, Plaintiff’s motion for summary
judgment must be now reconsidered, including these claims, since MJ Facciola never considered them.
Accordingly, Plaintiff renews her motion for summary judgment.
VIII. Under Current Controlling Law, Plaintiff is Entitled to Judgment, a Matter of Law
As discussed in Pl. MSJ, at 24-44, in order to shift the burden of production back to Plaintiff, Howard was
obligated to produce credible evidence that the APT Committee members not only believed that Prof. Martin
was less qualified for the EEO position than was Prof. Cunningham, but that Martin was less qualified than no
one at all. In effect, Howard would have to prove that Martin was qualified for a faculty position than an empty
chair. Even if Howard could convince a jury that it was a “close call” between Profs. Martin and Cunningham,
all doubt of retaliation is removed by Bullock’s actions in the spring of 1998. Bullock withheld vacant positions
and converted (or pretended to convert) a Constitutional Law/Civil Rights position to a tax position to prevent
the APT Committee from considering Prof. Martin for these positions, even when some Committee members
were specifically asking whether there was a vacant position to which Prof. Martin could be appointed. Pl. MSJ
at 21. Although Howard has represented that Bullock converted the position, both Profs. Nolan and Smith
testified that the Constitutional Law/Civil Rights position advertised in 1997-1998 was not cancelled, but
remained open and vacant for several years. Nolan depo at 326; Smith depo at165-169.
In her Answer to the Complaint, Dean Bullock admitted that, in the spring of 1998, after two of the advertised
positions were filled, the law school had three vacant tenure-track positions that Prof. Martin was qualified to
fill. Pl. MSJ at 42; Facts 236; Bullock’s Answer to First Amended Complaint 313, 326. Plaintiff’s applications
– including her applications in the fall of 1997 -- were consistently for any faculty position, including any tenure-
track position and/or, in the alternative, a renewed visitorship. See Plaintiff’s October 2, 1997 and November
5, 1997 application memoranda, Exs. PP and YY, respectively, of Plaintiff’s Motion for Summary Judgment.
Never, at any time, did Plaintiff limit her application to the EEO/Labor position or exclude herself from
consideration for the Constitutional Law/Civil Rights position. This Constitutional Law/Civil Rights position is
the same position that was advertised in 1997-1998, and again in 1999-2000, and additional years, but which
Dean Bullock pretended to convert to a tax position, in March of 1998, to prevent the APT Committee from
considering Prof. Martin for it. Pl. MSJ at 42. In the 1999-2000 AALS Newsletter, Howard re-listed the position,
but changed the requirements to exclude experienced professors from applying from a tenure track position:
“The positions would be tenure track or, for experienced teachers, look-see visitorships.” August 5, 1999
AALS Newsletter; Nolan depo at 305. The vacancy remained an “empty chair” for years, although Martin
applied for it for several consecutive years. 2000 AALS Newsletter; Nolan depo at 317-326.
Visiting Prof. Betsy Levin was leaving at the end of the spring 1998 semester, after two years at Howard. Pl.
MSJ at 41-42. Prof. Levin was hired to teach Constitutional Law and related civil rights courses, as stated in
Dean Bullock’s August 5, 1996 memo from then Associate Dean Bullock to Howard’s Vice President of
Academic Affairs, regarding salary justifications for Appointments of Visiting Professors Levin and
Cunningham. Prof. Levin also had expertise in EEO law and school desegregation law, which Dean Bullock
deemed a special addition to Howard’s faculty.
With Prof. Levin leaving Howard, this left a need for teaching in these areas – which were also areas of
expertise for Prof. Martin. As discussed in Pl. MSJ at 29, 35-36, Prof. Martin had seventeen years of
exceptional experience as a civil rights attorney, including as a Trial Attorney for the United States Department
of Justice, Civil Rights Division, Education Section, hired through the Honors’ Program, from 1981-1985,
litigation school desegregation cases. Martin had been a law professor for four years, teaching EEO law, in
addition to Torts I and II, Evidence and Race as a Factor in American Law. Pl. MSJ at 2, 38, 43. She had
excellent teaching evaluations and exceptional student support. Pl. MSJ at 2, 19. Martin was recognized as a
national expert in EEO law, based, in part, on her national policy-making experience with the EEOC and her
contributions to a Treatise on EEO law, as well as writing the Introduction to a Symposium on the Americans
with Disabilities Act. Pl. MSJ at 37.
No reasonable juror could conclude that, absent retaliatory motive, Prof. Martin was not more qualified to teach
at Howard than an “empty chair” -- particularly while students were protesting both the shortage of courses
and faculty members and Prof. Martin’s non-renewal and there were specific teaching needs in Martin’s area
of expertise; accordingly, Plaintiff is entitled to summary judgment on her claims of retaliatory removal from the
faculty, through the rejection of her applications for any tenure-track position and/or a renewed visitorship.
IX. Howard’s Purported Legitimate Reasons for Plaintiff’s Non-Renewal are False and Pre-Textual
Had the jury properly found that Plaintiff had participated in protected activity, it would have proceeded to the
next jury question, which was whether Howard’s purported legitimate, non-retaliatory reasons for her non-
renewal were false and/or pre-textual. The undisputable evidence of record demonstrates that all of Howard’s
ever-changing purported reasons for Prof. Martin’s non-renewal are false and/or pretextual. Howard could not
produce evidence to support even its untimely, improperly admitted, ever-changing defenses. Even Howard’s
July 13, 2001 articulated reasons for failing to renew Plaintiff were completely contradicted by the APT
Committee members, as well as the actual resumes and applications of Plaintiff and the selectees, Profs.
Cunningham and Mtima.
When Prof. Martin and Ms. Cunningham were hired in 1996, both sought to teach EEO law and Torts. In the
spring of 1996, Howard selected Prof. Martin as the superior candidate to teach both of these courses. Two
years later, Howard claimed that the junior Visiting Assistant Professor Cunningham was a “far superior”
candidate than was Visiting Associate Prof. Martin to teach the very EEO course that Professor Martin had
been teaching at Howard for two years and in Cleveland for an additional two years, whereas Prof.
Cunningham had never taught it at all. The logical question is, what happened within two years that so
changed the positions of these two professors? The answer is that Prof. Martin was stalked in her workplace
by a homeless stranger and Prof. Cunningham was not. There is no explanation that rebuts the prima facie
case of retaliation against Howard.
On the heels of Prof. Martin’s stalking complaint, the “retaliation road” began with Bullock, proceeded to
Newsom and then to Tazlitz. From that point on, “all roads lead to Taslitz.”
At trial, Howard stated that it used four criteria to select Prof. Cunningham over Prof. Martin. Each will be
examined below to determine whether Howard has produced any credible evidence to support its claim or
whether its assertions are clearly false and/or pretextual.
A. Teaching
In response to discovery request, in a May 11, 2001 memorandum, page 2 (Pl.’s Trial Exhibit 33), the APT
Committee, via its Chair, Isaiah Leggett, stated:
Professor Martin and Professor Cunningham (sic) were among the four candidates applying for the second
tenure track position covering labor law, collective bargaining and other general course subjects. …. All of
the four candidates … were found to be quite competent as teachers and capable of fulfilling the Law School’s
instructional needs in this area…. Students participating in the process appeared to be mixed in their
preference of Professor Martin and Cunningham. The Committee did receive a petition from a number of
students asking that we select Professor Martin for the position.
Howard’s admission, – made even three years into this litigation, precludes any conclusion that Prof. Martin’s
non-renewal was due to any question of teaching ability. In fact, Howard’s admissions are consistent with
Dean Bullock’s admission, in her Answer to the Complaint, that Prof. Martin was a very good teacher, with
above average teaching evaluations, as well as the deposition testimony of APT Committee members, Profs.
Nolan, Leggett, Smith and LaRue. See Pl.’s MSJ at ___. In addition, students wrote letters to Dean Bullock
and/or University President Swygart, protesting Prof. Martin’s non-renewal and praising her for her teaching
ability, exam-taking classes and materials and extensive t availability for assistance and her overall dedication
to her students. See Pl.’s MSJ at ___.
B. Scholarship
The APT Committee May 11, 2001 memorandum, page 2-3 (Pl.’s Trial Exhibit 33), stated:
Individual faculty members who participated in the process clearly favored Professor Cunningham, primarily
for her academic vigor, research and publication abilities and potential for growth s a scholar…. Although
Professor Martin had been involved in the legal profession longer, the quality of her academic and scholarly
production was viewed by the members of the faculty and the APT Committee to be less substantive than
Professor cunningham’s research and publication potential…. She had already published one article and did
extensive legal research in her position as a clerk for a U.S. District Court Judge, Constance Baker Motley….
During her initial visit to Howard, she was able to actually publish another article, and she made a very
favorable impression on the Committee with the vast amount of work she had accomplished on a variety of
other research and publication projects in process. Prof. Martin did not complete a publication during the
same visitation period at Howard. (Emphasis added.)
The Committee’s statement is blatantly false and proven to be so by simply reading the resumes and
applications of both Profs. Martin and Cunningham from the fall of 1997. In their 2002 depositions, and again
at trial, all of the APT Committee members admitted that they knew that Prof. Martin’s extensive 141 page
(typeset, rather than manuscript pages) article, “911: How Will Police and Fire Departments Respond to
Public Safety Needs and the Americans with Disabilities Act?” was not only “complete[d]” by the beginning of
the fall, 1997 semester, and in the typing pool, where it had been corrupted and had to be retyped (due to no
fault of Prof. Martin), but also that the article had been sent out to Journals on December 1, 1997 and accepted
for publication on December 17, 1997.
By the same date, as Cunningham’s own resume and application clearly state, her 67 page article (published
pages) was not yet in print, but was accepted for publication in the spring of 1998 – the same status as
Plaintiff’s article. Pl. MSJ at 34-35. Profs. Martin’s and Cunningham’s own resumes and applications
demonstrate that Taslitz’ representations regarding their scholarship were false. Pl. MSJ at 31-35. In fact,
both Plaintiff’s and Cunningham’s articles were published in the Winter of 1998 (first page of Trial Exhibit 133,
internet version of Cunningham article with copyright date and Exhibit __, first page of internet version of
Plaintiff’s article (offered as a rebuttal exhibit at trial, but excluded by Court) – a full year after the APT
Committee’s December 18, 1997 decision.
The resumes and applications clearly show that it was Prof. Martin, by far, who had the superior record of
scholarship to Cunningham, in the fall of 1997. Prof. Cunningham’s pending article was to be her first
publication since law school, “The Rise of Identity Politics I: The Myth of the Protected Class in Title VII
Disparate Treatment Cases.” Prof. Martin had published five articles since law school, and had been credited
with at least four by Howard when she joined Howard’s faculty in 1996. Pl. MSJ at 34-35.
Taslitz credited Cunningham with two additional articles in progress, when, in fact, she had merely stated her
intention to expand the article she had just written into two more articles, “The Rise of Identity Politics II” and
“The Rise of Identity Politics III,” relying on the same research and thesis she had already used for her first
article. Pl. MSJ at 34. In sharp contrast, since joining Howard’s faculty, Prof. Martin had not only expanded her
previously completed article, “911: How Will Police and Fire Departments Respond to Public Safety Needs
and the Americans with Disabilities Act?” by 70 manuscript pages, but had also completed a draft of a second
article, “Lights, Camera, Discrimination! ‘Playing’ the Victim under Title VII,” and had a title, thesis and
preliminary research for a third article, “Still Racist after all these Years – and Protected by the Americans with
Disabilities Act?” All three articles involved completely different theses and research. Taslitz did not raise
Prof. Martin’s articles in progress when he presented the candidates’ qualifications to the Committee. Pl. MSJ
at 25-26.
Contrasted with Prof. Martin’s five previous publications, Prof. Cunningham had no previous publications,
except for a “student note,” which is normally not counted at all or is counted with little weight, when
considering a faculty member for a promotion, raise, tenure or re-appointment. Plaintiff’s MJS at 34. When
Cunningham was hired, two years earlier, Bullock’s memo justifying Cunningham’s requested salary did not
represent her as anyone with a “record of scholarship,” but rather as:
…a young lawyer … who has already demonstrated interest in and potential for research and writing. While
still a law student she published Unmaddening: A Response to Professor Angela Harris, 4 Yale J.I., &
Feminism 155 (1991).
During her two years at Howard, she had only produced the one article, not yet published, as of December 18,
1997; yet, Taslitz touted Cunningham, as compared to Martin, as being the “only candidate as with a “record of
scholarship.” Pl. MSJ at 34-35.
MJ Facciola specifically acknowledged that Prof. Leggett, the named Chair of the APT Committed, relied on
another Committee member’s representations regarding the candidates’ publications, rather than read them
himself.
Nevertheless, when asked why he chose Cunningham, Leggett testified that Cunningham had not only
published during her time at Howard but had also presented "sufficient information" to suggest that she would
publish again and was in the process of doing so. Id. at 160:6-19. Although Leggett testified that publication
was a "crucial" factor in his decision, he admitted to not even having read Cunningham's article. Id. at 170:19-
20.
Prof. Nolan specifically testified that she voted in favor of Prof. Cunningham, over Plaintiff, because “someone
on the Committee” had represented that Cunningham’s article was actually in print, rather than just accepted
for publication and that Cunningham had demonstrated more potential for than had Prof. Martin. Pl. MSJ at
32-36.
Prof. Smith also testified that “someone on the Committee” represented that Prof. Cunningham’s scholarship
achievements were superior to that of Prof. Martin and that Cunningham had produced more scholarship than
had Prof. Martin since joining Howard’s faculty. Pl. MSJ at 35-36. Taslitz admitted that he was the APT
Committee member who presented the candidates to the other four members of the Committee,
summarizing their qualifications. Pl. MSJ at 36. Tazlitz misled Profs. Nolan, Legget and LaRue into believing
that it was Cunningham, rather than Martin, who had the “superior record of scholarship” and had
demonstrated greater potential for scholarship, when, in fact, the opposite was true.
Taslitz misrepresented the facts to his colleagues on the APT Committee when he told them that
Cunningham’s article was “in print,” on December 18, 1997 and that she had the “superior record of
scholarship,” as compared to Martin. Once the APT members were deposed, there was no way that Howard
could continue to conceal Taslitz’ improper conduct. Again, all roads lead to Taslitz. The reason that Howard
lied in Court filings for three years was because the truth was completely unconscionable, unethical, “non-
collegial” and illegal under Title VII and the D. C. Human Rights Act.
C. Service to the Law School
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Exhibit 33), stated:
Martin and cunningham were both viewed favorably regarding service to the legal profession, the community
and the University.
This statement precludes any assertion that Prof. Martin did not contribute sufficiently to the University, the
community or the legal profession. As Prof. Martin set forth in her November 5, 1997 application for a tenure-
track position, or in the alternative, a renewed visitoship (Pl.’s Trial Exhibit 33), she provided Howard students
with extra bar preparation classes, on Saturdays and other non-class days, including recruiting an Assistant
Maryland Bar Examiner participate, to give help students achieve maximum success in law school exams and
the bar exam, particularly since the Howard Law School passage rate for Maryland had become a major
concern and even national publicity. (MSJ at 29; Facts 142) Even Dean Bullock testified that she was aware
that Plaintiff gave extra exam taking classes and prepared extensive sample exams and answers for
students. (MSJ at 29; Facts 142) Profs. Boyer and Nolan testified that Plaintiff spent a great deal of time
meeting with students. (MSJ at 29) Plaintiff acted as a judge, on a Saturday, for Howard’s Trial Advocacy
Program, volunteered and participated in Howard’s mentoring program, “Close Up,” and taught exam taking
for the Regional BALSA (Black Allied Law Students Association) conference at Howard. (MSJ at 29; Facts 142)
D. Collegiality
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Exhibit 33), stated:
Martin and cunningham were both viewed favorably regarding service to the legal profession, the community
and the University.
These statements are admissions of a party-opponent – made three years into this litigation, and do not in
any way imply that Prof. Martin was not collegial or viewed by the faculty as having any personality flaws, as
indicated by Taslitz – once again, the only APT Committee member who had private conversations with Dean
Bullock about Prof. Martin’s candidacy.
Howard’s own APT Committee members deny that there were any allegations of “non-collegiality” or “bad
judgment” in its deliberations regarding Prof. Martin. The undisputed evidence of record establishes that four
of the five Committee members had never heard any allegations of non-collegiality or bad judgment regarding
Prof. Martin. Pl. MSJ at 27-29. In fact, all five of the APT Committee members testified that the found Plaintiff to
be very collegial and that they all liked and respected her. Pl. Facts 185-186. Howard has produced no
evidence that the APT Committee ever considered any allegations of “non-collegiality” or “bad judgment” in its
deliberations. Plaintiff sought APT Committee notes in discovery, but Howard refused to produce them. Pl.
MSJ at 48-49.
Even MJ Facciola acknowledged that Taslitz is contradicted by his fellow Committee members.
The third suggestion of pretext is rooted in the Committee's assessment of Martin's judgment. Leggett
testified, contrary to Taslitz' assertion, that he found Cunningham and Martin "basically both qualified . . .
judgment-wise." Leggett Dep. at 194:22-195:3. Leggett also testified inconsistently with Taslitz on the issue of
faculty comments about Martin. Leggett received comments from faculty members about Martin that were not
negative. In fact, according to Leggett, faculty members generally had "good things [to say] about [Martin's] . . .
work," Leggett Dep. at 249:7-12, and there was "no faculty concern brought to [Leggett's] attention regarding
Martin's appointment." Id. at 251:13-15. Leggett himself admitted that he found Martin "to be collegial" based
on his personal contact with her. Id. at 258:20-259:7.
… the articulated reasons for firing Martin are contradicted by the potential testimony of members of the ATP
committee who have voiced positive views of Martin.. …contrary to HU's contention that Martin displayed poor
judgment, there is evidence that certain faculty members had positive impressions of Martin and that both she
and Cunningham were viewed as equally qualified in terms of their exercise of judgment.
Finally, that Martin's professional experience in EEO law was greater than Cunningham's undercuts the
argument that Cunningham was substantially more qualified than Martin. (Emphasis added)
2003 U.S. Dist. LEXIS 18501 at 25-26.2003 U.S. Dist. LEXIS 18501 at *24-26.
Prof. Nolan specifically asked Dean Bullock if there were any vacant positions for which Plaintiff could be
considered, and that Bullock told her that there no more vacant positions. Bullock’s statements to Nolan were
completely false. Pl. MSJ at 40.
X. Howard’s Misrepresentations of both Plaintiff’s and Cunningham’s Credentials are Evidence of
Discrimination/Retaliation
Holcomb held that an employer’s substantive misrepresentations regarding a candidate’s qualifications
constitutes evidence of discrimination. 2006 U.S. App. LEXIS 520 at *15-16, citing Aka v. Washington Hospital
Ctr., 156 F.3d 1284, 1289 (D.C. Circ. 1998). As discussed in Pl. MSJ at 31-39, Taslitz grossly exaggerated and
misrepresented the qualifications of Prof. Cunningham while under-representing, misrepresenting and
omitting Prof. Martin’s qualifications, both to the remaining four APT Committee members and to the Provost,
in the memorandum recommending the selected three professors for appointments, Cunningham, Mtima
and Robinson.
XI. Defendant Cannot Produce Evidence of a Legitimate, Non-Discriminatory Reason for Plaintiff’s Non-
Renewal and Cannot Defeat Plaintiff’s Motion for Summary Judgment Holcomb
Holcomb clarifies that, in order to defeat a MSJ, the non-moving party must not just articulate a defense, but
actually produce evidence that create a “genuine” issue of material fact that could arguably prove the facts
alleged and result in a verdict for the non-movant. 2006 U.S. App. LEXIS 520 at 8-9.*
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to produce evidence
that the plaintiff was rejected for a legitimate, non-discriminatory reason. (Emphasis added)
2006 U.S. App. LEXIS 520 at *11, citing Reeves v. Sanderson, 530 U.S. 133, 142 (2000) and Lathram v. Snow,
336 F.3d 1085, 1088 (D.C. Cir. 2003). If the employer produces such evidence, the presumption of
discrimination, established by the prima facie case, “drops out of the case. Id.
As Plaintiff argued in her MSJ, at 24-43, Howard never produced any evidence of a legitimate, non-
discriminatory reason for Prof. Martin’s non-renewal. MJ Facciola stated:
In Howard's Answers to Interrogatories dated October 17, 2000, Howard stated that Martin was refused tenure
in part because as of December 18, 1997 Martin had "no scholarship articles accepted for publication."
Plains. Mot. at 25. In fact, HU was aware that Martin's 911 article had been accepted for publication on
December 17, 1997, that she had substantially completed work on a second article (Lights), and that she was
in the process of researching a third. Taslitz Dep. at 159:12-162:13. Significantly, four of the five APT
Committee members testified that they knew of the article's publication. Plains. Statement of Facts at 27.
Taslitz even testified that he had informed the other members that Martin's article was recently accepted for
publication. Taslitz Dep. at 141:7-16.
Leggett testified that not only was he made aware that the 911 article had been approved by the time of the
December 18 meeting, but that he was even considering giving Martin credit for two different articles. Leggett
Dep. at 117:15-121:8.
2003 U.S. Dist. LEXIS 18501 at * 22-24.
MJ Facciola denied Howard’s MSJ since Plaintiff had produced evidence disputing Howard’s asserted
material facts, holding that the dispute must be resolved by a jury; however, MJ Facciola did not examine this
evidence to consider Plaintiff’s Motion for Summary Judgment. Once the APT members were deposed, it
was an undisputed fact that they were all well aware, by December 18, 1997, that Prof. Martin’s article, “911:
How will Police and Fire Departments Respond to Public Safety Needs and the Americans with Disabilities
Act?” had been accepted for publication for the spring of 1998.
Howard never had an iota of evidence to support its articulated purported legitimate, non-retaliatory reason for
Prof. Martin’s non-selection. Howard simply lied to this Court and to Plaintiff, in discovery, in blatant violation of
Fed. R. Civ. P. 11 and 26(h), for years. Howard should not be permitted to survive summary judgment based
on a blatantly false assertion, contradicted by its own witnesses. Such a result violates Fed. R. Civ. P. 11 and
26(h) and should be sanctioned, not rewarded.
XII. Howard Violated Civ. R. P. 8(c) by Asserting Untimely Defenses not Raised in its Answer to the
Complaint
Pursuant to Fed. R. Civ. P. 8(c), Howard was required to raise all enumerated defenses in its Answer to the
Complaint or its Motion to Dismiss, filed before its Answer. Harris v. Sec. of U.S. Dept. of Veteran’s Affairs,
126 F.3d 339, 343 (D.C. Cir. 1997) Three years in to this litigation, after Howard’s own witnesses and records
proved that Howard’s original reason was false and pre-textual, Howard asserted a litany of new purported
reasons for Plaintiff’s renewal. These new defenses included allegations that some of Prof. Martin’s
colleagues did not find her “collegial” and that she had “bad judgment.” Since Howard did not raise a defense
of “non-collegiality” or “bad judgment” in its Answer to the Complaint, or in its Motion to Dismiss, it waived its
right to raise this defense three years later. Howard never made any claims of collegiality of bad judgment
until 2001 and never mentioned it in its Answer to the Complaint or in responses to Plaintiff’s EEOC charge in
1998 or 1999.
Howard has not offered any reason why it should be permitted to violate Fed. R. Civ. P. 8(c). Defendant has
attempted to amend its Answer, at will and whim, without explanation, years into the litigation. It is now more
than six years into the litigation and Howard has never attempted to amend its Answer. In this case, that
includes the testimony of professors and clerical persons who have left Howard, as well as memories that
have faded. It should not now be permitted to do so. In order to amend pleadings to include untimely Rule 8
(c) defenses, pursuant to Fed. Civ. R. 15(a), the movant must prove that “justice so requires,” if there is no
undue prejudice to the opposing party and that the movant has not acted with bad faith or undue delay. Id.
Howard has not offered any reason for its three year delay and cannot do so. If any of the reasons that
Howard asserted in 2001 had actually been the reasons for Martin’s non-renewal in 1997 through 1998,
surely, Howard would have known it in 1999, when it responded to the EEOC and answered the Complaint in
this Court. Howard’s purported defenses, in its 1999 Answer to the Complaint, its 2000 Answers to
Interrogatories and its 2001 “Supplemental” Answers to Interrogatories were all filed in bad faith, with no
evidence to support even one of Howard’s allegations. In fact, all APT Committee members except Taslitz
seemed oblivious to any the purported reasons for Prof. Martin’s non-renewal asserted by Howard in either
set of its Answers to Interrogatories. Pl. MSJ at 24-29.
Justice certainly does not require that Howard be permitted to fabricate defenses three years into the litigation,
when Plaintiff no longer has available to her the evidence that would have been available three years earlier. A
defendant should not be permitted to make up a litany of new defenses after it has had the benefit of discovery
against the Plaintiff and after discovery by Plaintiff has revealed that its original defense was nothing more
than a baseless lie. Howard hoped to conceal this lie by making discovery so difficult and expensive that
Plaintiff would never be able to obtain the evidence to prove its defense false. When Plaintiff did survive his
ordeal, Howard resorted to fabricating a list of additional lies, all of which are easily disproved, except for the
nebulous claim of “non-collegiality” and “bad judgment,” which amounts to a self-serving mudslinging
campaign by Taslitz and his best friend, Gavil. Taslitz’ credibility has already been destroyed since he lied to
fellow APT Committee members about the status of the scholarship of the candidates, Profs. Martin and
Cunningham. Taslitz’ word, then, cannot be enough to create a genuine dispute of fact, where all other
evidence contradicts his word.
XIII. Howard Violated Civ. R. P. 26(h) by Untimely Changing its Answers to Interrogatories Three Years into
this Litigation
Plaintiff has repeatedly objected to the admission of the untimely evidence offered by Howard, in violation of
Fed. R. Civ. P. 26(h). Plaintiff’s August 8, 2001 Motion for a Default Judgment Based on Untimely, Incomplete
and Falsified Evidence, incorporated, by reference, into Plaintiff’s Motion for Summary Judgment. Plaintiff
incorporated her Motion for a Default Judgment, into her MSJ at 47, and incorporates them both herein, by
reference.
XIV. Holcomb Held that the Defendant’s “Discriminatory Statements” and “Attitudes” are Evidence of
Discrimination
Where the alleged discriminating official has made statements that indicate discriminatory or retaliatory
animus, or other “attitudes” suggesting that the alleged discriminator harbors discriminatory attitudes toward
the plaintiff for a prohibited reason, these statements constitute evidence of discriminatory motive. Holcomb,
2006 U.S. App. LEXIS 520 at * 21-22, 26-27, citing Dunaway v. International Brotherhood of Teamsters, 310 F.
3d 758 (D.C. Circ. 2002).
Despite the protocol at the law school that the Dean is not to interfere with the decision of the APT Committee,
Dean Bullock privately shared her animus against Prof. Martin to Taslitz, the Vice Chair of the APT Committee.
Pl. MSJ at 17. Bullock and Taslitz both admit that Bullock privately told him that she did not want Prof. Martin
on the faculty. Pl. MSJ at 18-19.
As set forth in Pl. MSJ at 16, Dean Bullock made specific statements exhibiting extreme hostility toward
Plaintiff in response to her requests that Howard take reasonable steps to bar a serial stalker, with a criminal
record, from the law school. Dean Bullock told the EEOC:
Martin did not seem satisfied with my response. I was left with the impression that she wanted me to wrestle
the stalker down. (Emphasis added)
Dean Bullock told Prof. Taslitz that she was having a “bad day” and had “a lot to do” with respect to Prof. Martin’
s complaints about being stalked by Harrison at the law school (Pl. MSJ at 16-17); yet, Bullock did not even
take the most basic steps to keep Harrison from Martin in her workplace. Dean Bullock told Taslitz that Prof.
Martin had “bad judgment,” but would not provide even one example of such alleged bad judgment, even
though Prof. Taslitz asked for one, several times. MSJ at 18. Dean Newsom also testified that Dean Bullock
had told him that she intended to take action to exclude Prof. Martin from the faculty and that Martin was on a
“short list” of people causing problems for Howard, although he could not explain why. MSJ at 19-20.
Despite private statements to Taslitz and Newsom that she wanted Prof. Martin removed from the faculty,
Dean Bullock told Prof. Nolan that she was trying to find another job for Prof. Martin since there were no
positions left at Howard. Pl. MSJ at 21. Dean Bullock told Dean Samuel Thompson, of the University of Miami,
that the only reason that Prof. Martin was not being renewed was that she needed a teacher to teach tax, but
that Martin was regarded as a very good teacher. Pl. Facts 227; Bullock depo at 150. Dean Bullock told the
EEOC: “There is no particular reason that I would not want Martin to teach at Howard University School of
Law.” Pl. MSJ at 19.
Dean Bullock’s secret conversations with Taslitz and Newsom demonstrate that she recognized that her
motives for removing Martin from the faculty were improper and illegal. Bullock concealed her retaliatory
animus toward Martin from everyone except the two people that she enlisted to effectuate her removal from the
faculty: 1) Prof. Taslitz, as the Vice Chair and controlling member of the APT Committee; and 2) Associate
Dean Newsom, who was her assistant.
On December 3, 1997, two days after Harrison stood in her office, before Officer Dowdy chased him out of the
building, off campus and into the woods, Dean Bullock called Prof. Martin personally; however, it was not the
call in response to her December 2, 1997 memorandum that Prof. Martin expected. Pl. MSJ at 14. Instead,
without any comment on the “chase” of Harrison, Dean Bullock ordered Prof. Martin to pick up a “very important
letter,” which had been returned by the Post Office.
This purportedly “very important letter” was simply the November 3, 1997 form letter sent to all visiting
professors (including Cunningham and Levin, both in 1996 and 1997), whose contracts were scheduled to
end at the close of the spring semester, irrespective of whether they would be renewed or reappointed by the
APT Committee. Pl. MSJ at 14. Normally, such clerical matters were handled by a secretary; however, Dean
Bullock chose to make this call personally. Pl. MSJ at 10. In sharp contrast, Dean Bullock did not regard
Harrison’s stalking of Prof. Martin in her workplace worthy of a personal call or any response – ever -- to her
December 2, 1997 memorandum, written or oral.
Within days after the stalking began, Dean Bullock enlisted Dean Newsom in a campaign of retaliation
against Prof. Martin. Pl. MSJ at 14. In addition to doing absolutely nothing to protect Prof. Martin from the
stalker, Dean Newsom drastically reduced the number of journals to which Prof. Martin could send her article,
“911: How Will Police and Fire Departments Respond to Public Safety Needs and the Americans with
Disabilities Act?” from 180 to 30 journals – despite the norm of approximately 200 journals, thus reducing her
chances of having it accepted for publication. Pl. MSJ at 14.
Then, on December 10, 1997, when classes had ended, professors were no longer keeping office hours, and
new hours would have to be established for the upcoming semester, Dean Newsom wrote Martin a
memorandum, falsely stating that she had not provided his office with a list of her office hours. Pl. MSJ at 14.
Newsom chastised Martin and cautioned her that if she did not keep office hours, she was in violation of her
duties as a law professor. Pl. MSJ at 14.
Prof. Martin responded that: 1) she had, in fact, provided Dean Newsom with her office hours months earlier;
2) she had always maintained office hours far beyond those required; 3) her office hours were posted on her
bulletin board outside her office door, with a student “sign up” sheet; 4) Dean Newsom had been to her office
many times and clearly saw her office hours posted; 5) Dean Newsom was aware that she had been holding
office hours in the cafeteria, and had a notice so stating, posted on her door; 6) in her memorandum to Dean
Bullock, with a copy to Newsom, Martin had clearly stated that the stalker obtained her office hour from the
notice posted outside her door; 7) that she was afraid to be in her office, for her students and herself, if the
stalker came to her office, since he was not being kept out of the building; and 8) office hours had ended with
the end of classes. Pl. MSJ at 14.
Dean Newsom’s memorandum, particularly when he had no response at all to the paramount matter at hand,
a stalker in the workplace, was clearly designed to create additional emotional distress for Prof. Martin, to
cause her to worry about her employment, knowing that the Dean’s office was trying to build a written record
against her to get rid of her. At a time when she was afraid to be in her office, the Dean’s office was conveying
to her that if she did not stay in her office (even during the semester break), waiting, like a “sitting duck” for
Harrison, she could lose her job. The actions of the Dean’s office clearly demonstrate a callous disregard for
Martin’s safety very life, reflecting hostility, retaliatory animus and discriminatory “attitude,” as defined by
Holcomb.
Since Howard did not carry its burden of producing evidence to support its articulated defense, Plaintiff’s
prima facie case of retaliation remained un-rebutted and the presumption of retaliation remains in the case.
Plaintiff’s prima facie case is further strengthened by undisputed evidence of retaliatory animus by Dean
Bullock. Pl. MSJ, at 24-43. Under Holcomb, Howard must produce evidence by which a reasonable jury could
conclude that its articulated reason for Martin’s non-renewal is true. Howard has not done so. Plaintiff is
therefore entitled to summary judgment.
XV. Taslitz Implemented Dean Bullock’s Retaliatory Removal of Prof. Martin from the Faculty
Taslitz’ self interest, as an accused discriminator, and proven lack of credibility, must be considered in
examining the competence and credibility of his testimony. Taslitz admitted that he never raised any
allegations of non collegiality” or “bad judgment” in any APT Committee meeting or in deliberations. In fact,
Taslitz testified that he did not share Gavil’s purported perception of Prof. Martin, but instead, found her to be
very collegial and “warm.” Pl. Facts 186. Taslitz even testified that he considered himself a “friend” of Prof.
Martin. Id.
Taslitz admitted that he never discussed Gavil’s November 10, 1996 story with her or otherwise indicated to
her, in any way, prior to the December 18, 1997 decision, that anyone was disappointed with her performance
or would not support her renewal. Pl. MSJ at_23. To the contrary, Taslitz purported to act as Prof. Martin’s
mentor, in October and early November of 1997, even asking to review her application before she submitted it
to the Committee, to make any suggestions for editing to ensure her renewal. Pl. MSJ at 21-22. All of that
changed after the stalking began, on November 20, 1997. Taslitz appears to be saying that he set aside his
own opinion of Prof. Martin’s personality and professionalism and voted in accordance with Gavil’s purported
views, based on a nebulous account of a trivial student complaint and Martin’s response to it. Even if this
were true, Taslitz’ had only one vote.
On March 31, 1997, Martin wrote to Taslitz, asking for his assistance in speaking to Dean Bullock, telling him
that she was aware that there were two to three vacant faculty positions. Pl. MSJ at 21. Taslitz immediately
turned this personal letter over to Dean Bullock, along with a cover letter asking for legal representation from
the University in case Plaintiff sued. Pl. MSJ at 21. Taslitz never asked Dean Bullock whether the positions
were vacant. Pl. MSJ at 21. He knew that, no matter how many positions became available, Bullock would
ensure that none of them went to Plaintiff.
Mrs. Bruner testified that Taslitz took minutes during the APT Committee meetings and that she typed them.
Pl. MSJ at 48; Pl. Facts 181. Prof. LaRue testified that he Prof. Taslitz took notes during the meetings and
distributed minutes of the meetings. Pl. MSJ at 48; Pl. Facts 181. Prof. Nolan testified that she took notes
during the meetings, but that she destroyed them. Pl. Facts 182. Considering that Plaintiff began contesting
her non-renewal immediately after the decision was made, continued to contest it throughout the spring of
1998, and filed an EEOC charge on May 14, 1998, Howard should have instructed all APT members to keep
and provide it with notes taken during these meetings.
Certainly, any law professor, including Taslitz and Nolan, realizes that such notes would be requested in
discovery. At a minimum, notes should have been maintained to assist the APT Committee members in
refreshing their recollection for later testimony. Plaintiff is entitled to an adverse inference that Taslitz’ minutes
and Nolan’s notes would have been incriminating to Howard. Pursuant to Fed. R. Ev. 1002, the Best Evidence
Rule, Taslitz should have been precluded from testifying that Prof. Martin was not renewed based on “non-
collegiality” or “bad judgment.”
XVI. Plaintiff Renews her Motion to Vacate MJ Facciola’s 2003 Report and Recommendation
Plaintiff has requested that MJ Facciola’s published Report be vacated and/or reconsidered based on
numerous, independent errors of law, including: 1) MJ Facciola’s erroneous definition of adverse action; 2) MJ
Facciola’s improper dismissal of claims, sua sponte, where Howard waived any possible right to raise such a
defense; 3) MJ Facciola’s inconsistent, confused and unsupported “findings” of fact; 4) Howard’s
misrepresentation of MJ Facciola’s decision as limiting Plaintiff’s retaliatory non-renewal claim to her
December 18, 1997 rejection for the EEO/Labor position, where the Report specifically includes an April 8,
1998 rejection and does not mention a December 18, 1997 rejection at all; and 5) case law decided by the U.
S. Court of Appeals for the D.C. Circuit since January 10, 2006 that directly and clearly conflicts with the
definition of adverse action adopted by MJ.
Despite MJ Facciola’s reference to Prof. Leggett’s view of Prof. Martin as “collegial,” he concluded that three
members of the APT Committee, constituting a majority of the five member Committee, questioned Plaintiff’s
judgment or collegiality. MJ Facciola erroneously concluded that “two other Committee members,” in addition
to Taslitz (2003 U.S. Dist. LEXIS 18501 *17), questioned Plaintiff’s judgment (2003 U.S. Dist. LEXIS 18501 at
*17, 20-23). In arriving at this conclusion, MJ Facciola made numerous material factual errors, which are
contradicted by the undisputed evidence.
1) Gavil was not a member of the 1997-1998 APT Committee and had no vote regarding Prof. Martin’s
applications for reappointment or renewal. Pursuant to Holcomb, Gavil’s testimony never raised an issue of
genuine disputed issue of material fact to be determined by a jury and should not have been a basis for
denying Plaintiff’s motion for summary judgment. Plaintiff has repeatedly pointed out that Gavil was not a
member of the 1997-1998 APT Committee, and cited references to the record demonstrating that it was
undisputed that the five members of the Committee were: 1) Isaiah Leggett; 2) J. Clay Smith; 3) Laurence
Nolan; 4) Homer LaRue; and 5) Andrew Taslitz.
This one material error of fact alone changes the basis of MJ Facciola’s conclusion that three members of the
APT Committee, a majority, either found Plaintiff not to be collegial or took into account the opinions of one or
more other faculty members that Plaintiff was not collegial. Since Gavil had no vote, his “opinion” of Prof.
Martin – whether real in 1997-1998 or fabricated four years later -- is irrelevant to the APT Committee’s
decision and his testimony should have been excluded at trial.
Summary judgment must also be based on competent and credible evidence of record. Although credibility
determinations are normally left to a jury, where no reasonable juror could believe a witness’ testimony, in
light of the contradictory evidence, such testimony cannot defeat a motion for summary judgment. Woodfield v.
Providence Hospital, 779 A.2d 933, 936 (D.C. 2001). In the present case, Taslitz is an alleged discriminator,
motivated to testify falsely to conceal his own illegal conduct. Three years into this litigation, Taslitz suddenly
claimed that his best friend, Andrew Gavil, told him of a discussion. Taslitz claimed that Gavil told him of that a
student in Prof. Martin’s class complained to him about her, that Gavil was “very upset” with her and thought
that she should have “sought advice from other faculty members before acting the way [she] did” and “thought
it was very bad judgment.” Taslitz depo at 248, lines 3-19. Despite these strong statements, Taslitz could not
provide any information about what the alleged “behavior” was that so “upset” Gavil or what type of advice she
should have sought.
The November 15, 1996 conversation between Profs. Martin and Gavil occurred less than three months after
she had joined the faculty, and more than a year prior to the December 18, 1997 decision. Gavil testified that
he could not recall the nature of the student’s complaint, the name of the student complaining, the
circumstances or location of the conversation about the student or the outcome of the complaint. Plaintiff’s
November 11, 2002 Motion to Strike Defendant’s Motion for Summary Judgment (“Mot. to Strike”) at 8-12.
Although Gavil claimed that he recalled nothing else of the conversation about this student, he insisted that he
was sure that during the conversation, Prof. Martin referred to the student as “that bitch” – a claim that Plaintiff
vehemently denies. Martin freely states that, she said that the student was a “brat” in this private conversation
with her colleague who suddenly confronted her with the trivial complaint that she did not call on the student
often enough in class. Martin used the word “brat” because the student’s behavior childish, disruptive, and
inappropriate for an adult law student. Gavil’s vague, subjective, unsubstantiated testimony is completely
irrelevant and immaterial to this case.
MJ Facciola ignored the sworn declaration of the student in question, now a local practicing attorney, filed as
Exhibit A of Plaintiff’s Motion to Strike. Motion to Strike at 8. This student apologized to Prof. Martin for her bad
behavior during her first semester of law school, took every course that Prof. Martin ever taught at Howard,
including four courses, praised Martin as one of her best professors, and not only signed, but helped circulate
a petition protesting Martin’s non-renewal. Pl. Mot. to Strike at 8.
Plaintiff wrote a November 16, 1996 memorandum to Dean of Students, Denise Purdie-Spriggs, with a cover
memo to Prof. Gavil, documenting their conversation about the student in question, including her name. Gavil
had reported the student’s complaint about Prof. Martin to Denise Purdie-Spriggs. Prof. Martin was extremely
perplexed at Gavil’s motives for reporting such a trivial student complaint. Dean Purdie-Spriggs expressed
agreement with Prof. Martin. Dean Purdie-Spriggs tried to return the memo to Prof. Martin, but Prof. Martin
insisted that she keep the memo in her files to ensure that these events would not be misrepresented at a
later date. Pl. Mot. to Strike 3-4; Pl. MSJ at 28-29, fn.10; Facts 225. MJ Facciola completely ignored Martin’s
memorandum to Purdie-Spriggs, (Exhibit ZZZ of Pl. MSJ), as well as Plaintiff’s sworn declaration about the
incident (Exhibit J of Pl. MSJ), which she recalled vividly, in sharp contrast to Gavil’s purported vague
recollection.
2) Nolan Never Questioned Prof. Martin’s Character, but Lobbied for her Retention MJ Facciola did not name
Prof. Nolan in his Report, but referred to Taslitz’ deposition testimony wherein Taslitz claimed that Prof. Nolan
questioned Prof. Martin’s veracity with respect to her representations about the status of her article. 2003 U.S.
Dist. LEXIS 18501 at *17. In fact, Prof. Nolan testified that she did not question Plaintiff’s statements or
disbelieve her. Pl. MSJ at 289. MJ Facciola’s factual conclusion was again based on his blanket acceptance
of Howard’s false representation of the record, based on the testimony of an alleged discriminator and proven
liar, Taslitz, ignoring Plaintiff’s citations to the record correcting this, as well as other, erroneous factual
assertions made by Howard. MJ Facciola’s conclusion that Prof. Nolan found some personality flaw in Prof.
Martin is a based on a complete misrepresentation of Prof. Nolan’s testimony.
With both Gavil and Nolan subtracted from the equation, MJ Facciola’s purported majority of three APT
Committee members questioning Prof. Martin’s judgment or collegiality then, is reduced to an exclusive
minority of one – Tasliz – the instrument of Dean Bullock’s retaliation. It is not possible, then, and no
reasonable juror could conclude, that despite Prof. Martin’s credentials, a majority of the Committee member
voted against her because of a perceived personality flaw.
3) MJ Facciola Relied Primarily on Taslitz’ Testimony, despite his Proven Lack of Credibility and
Competence. Despite the undisputable evidence that Taslitz lied to his colleagues about Martin’s and
Cunningham’s credentials, MJ Facciola’s Report relies heavily on Taslitz’ testimony, even where it conflicts
with that of other witnesses and documentation. See discussion in Section ___.
CONCLUSION
Plaintiff respectfully requests that this Court grant Plaintiff judgment, as a matter of law, set the case for a new
trial on damages, and direct the jury to determine compensatory and punitive damages. In the alternative,
Plaintiff reqeusts a new trial pursuant to Fed. R. Civ. P. 59(b) and 60(b)(3).
Respectfully submitted,
Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
1090 Vermont Avenue, N.W, Suite 800
Washington, D.C. 20005
(202) 408-7040 telephone; (703) 642-0208 facsimile
DVMARTINLAW@yahoo.com
www.firms.findlaw.com/dvmartinlaw
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| Martin v. Howard University Plaintiff's Motion for Judgment on her Retaliation Claim |
