UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____ ______
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/JMF
)
)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff respectfully moves this Court for Summary Judgment on her claims of sexual harassment/hostile
work environment and retaliation, in violation of Title VII and the District of Columbia Human Rights Act
(DCHRA), and breach of contract. The Chief Judge set precedent in the District of Columbia when he denied
Defendant’s Motion to Dismiss in Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516, 81 FEP Cases
(BNA) 964; 15 IER Cases 1587 (BNA) (D.C. D.C. 1999)
MEMORANDUM IN SUPPORT OF MOTION
FACTS
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 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.”
Plaintiff immediately reported the stalking to the law school administration, Howard security and the D.C.
Metropolitan Police Department. Plaintiff 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, noteworthy 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.
ARGUMENT
I. STANDARD OF REVIEW FOR MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Fed. R. Civ. P. provides that summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Adickes
v. S.H. Kress and Co., 398 U.S. 144 (1970). 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. Woodfield v.
Providence Hospital, 779A.2d 933, 936 (D.C. 2001).
II. HOWARD SUBJECTED PLAINRIFF TO A HOSTILE WORK ENVIRONMENT BASED ON SEXUAL
HARASSMENT
On December 15, 1999, this Court set forth the legal analysis in this case, holding: “although Mr. Harrison
was not a University employee, the University is liable for the harassment if it knew or should have known that
Mr. Harrison's actions created a hostile work environment for the Plaintiff and failed to take corrective action.”
Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516. It is well documented that Defendant knew that
Harrison was harassing Plaintiff in her workplace. Howard’s own officials and employees corroborated
Plaintiff’s claims that: 1) she was harassed by Leonard Harrison in her workplace; 2) the harassment by
Harrison was sexual in nature and/or based on sex; 3) Plaintiff’s fear of Harrison was reasonable; 4) Plaintiff’
s specific requests to the administration to take action to stop Harrison were reasonable; 5) Howard’s
administration never took the steps that it acknowledged were reasonable to stop the harassment; and 6)
since Harrison was never apprehended or barred from campus, Plaintiff worked in reasonable fear of
Harrison from November of 1997 through the spring of 1998.
A. Harrison’s Harassment of Plaintiff was Both Sexual and Based on Sex
Again, in its December 15, 1999 opinion, this Court set the legal analysis for this case, holding:
A hostile work environment may be established if the harassment is "because of sex," even if not sexual in
nature. Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1999); Hicks v. Gates Rubber Co., 928 F.2d 966, 971 (10th Cir.
1991); Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir. 1988). 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" even if they were not inherently sexual in nature.
1999 U.S. Dist. LEXIS 19516. Harrison's pursuit of Plaintiff as his "wife" was inherently sexual, since the
relationship between a husband and a wife is expected to include sex. In addition, Harrison’s description of
Plaintiff expresses that sexual interest:
Verily, it appeared that this Valerie Edwards look-alike was actually a taller, more youthful, prettier and (forgive
me for saying) more voluptuous woman than the Valerie Edwards whom I had met and known at Lakeside. . . .
The truth is, I had never looked at Valerie Edwards full in the face, on account of painful bashfulness -- while
enamored by her person and both distracted and infatuated with her legs -- and so was not aware of her
exact features.
Harrison’s harassment of Plaintiff, therefore, was both sexual and based on sex.
B. Harrison’s Harassment of Plaintiff was Severe and Pervasive
In its December 15, 1999 opinion, this Court applied the legal standard for determining a hostile or abusive
work environment Harris v. Forklift Systems, Inc., 510 U.S. 17. 23 (1993). 1999 U.S. Dist. LEXIS 19516.
A court must consider: (1) the frequency of the discriminatory conduct, (2) whether it was physically
threatening or humiliating or a mere offensive utterance; and (3) whether it unreasonably interferes with an
employee's work performance. The severity or seriousness of the alleged conduct varies inversely with the
pervasiveness or frequency of the conduct; in other words, "one act may be sufficient if it is particularly severe
while less intense incidents may be sufficient if numerous." The Court must consider both the victim's
subjective impressions and whether the alleged actions would constitute sexual harassment from the
perspective of a reasonable victim. (Id)
1. Harrison’s Harassment of Plaintiff was Frequent and Unpredictable
Harrison’s known, specific acts of sexual harassment of Plaintiff are characterized as follows: 1) slipping two
letters under the door of Plaintiff’s office; 2) leaving a first voice mail message on Plaintiff’s office telephone
line, requesting to audit a class that she did not teach at Howard, but had taught in Cleveland; 2) leaving a
second voice mail message, weeks later, professing his desire for Plaintiff, calling her a name that was not
her own, but a mispronunciation of her unusual middle name; 3) indicating that he had been watching her,
although she had been completely unaware of his presence; 4) leaving a third voice mail message, angry
that he had been escorted out of the law school library, asking her to get the
“f---ing cops” off his back so that he could come to see her at her office; 5) going to Plaintiff’s office to confront
her, at least once, when she was in her office and was chased off campus and into the woods; 6) going to
Plaintiff’s office when she was not there, looking for her, as evidenced by his letters under her door and his
voicemail messages stating his intent to visit her; and 7) frequenting campus buildings, including an incident
when he was escorted out of the library instead of being held for MPD.
Since Harrison was never barred from the campus and “notices of alert” were never posted anywhere or
otherwise distributed on campus regarding Harrison, he freely entered the law school buildings. The most
severe and pervasive aspect of Harrison’s harassment was that the threat that he would show up hung over
her head, like the “sword of Damocles.” Plaintiff worked in fear of other visits from Harrison, at all times from
November 20, 1997 through June of 1998, when her employment at Howard University ended.
C. The Harassment was Physically Threatening and Humiliating
Plaintiff’s fear of physical harm by Harrison was imminently reasonable. MPD officers and the Assistant
Director of the homeless shelter told Plaintiff that she should be afraid of Harrison. (Facts, 36, 40) Dean
Bullock, Associate Dean Newsom, Mrs. Bruner, professors and all of Defendant security personnel deposed
on this issue have consistently testified that Plaintiff had good cause to be afraid of Harrison. (Facts, 60-61,
65-67, 85, 99) Even former Dean Bullock specifically conceded that anyone in Plaintiff’s position would feel
“mental anguish,” being pursued by Harrison. (Facts, 65)
Plaintiff later learned that Harrison’s search around the country (Facts, 62, 66, 67) and beyond (Facts, 66) for
more than a decade had included a visit to NYU Prof. Derrick Bell, in 1990, when he was a law professor at
Harvard University. (Facts, 66, 67) Harrison detailed to Bell his plans for a racial revolution. (Facts, 67)
According to Prof. Bell, Harrison threatened to “first kill all the token Blacks in high places,” promising Bell that
he would return, after finding Geneva and starting a racial revolution. (Facts, 67) One message indicated that
Harrison frequents the Library of Congress, as well as universities, to conduct his “research” on “revolution.”
Harrison told Bell, “I’m coming back to blow your head off.” (Facts, 67) Harrison is also reputed to have
targeted and/or approached other African-American female professors such as Prof. Lani Guinier, when she
at the University of Pennsylvania, Prof. Adrienne Wing, at the University of Iowa, and a political science
professor at Harvard. (Facts, 67) In addition, Prof. Jim McPherson, at the University of Iowa, Harrison’s
former writing professor, stated that Harrison threatened him after being displeased with McPherson’s
assessment of his writing. (Facts, 67)
In addition to the physical threat, rumors had circulated within the law school that Plaintiff had either been
married to Harrison or was somehow acquainted with him and had attracted him to campus. (Facts, 69)
Plaintiff had heard these rumors and was humiliated by them. Plaintiff sometimes asked a guard on duty to
walk her to her office to get books for class, or to walk with her from class. (Facts, 70) Plaintiff was further
humiliated by having students see her escorted by campus police officers and by holding office hours in the
cafeteria, rather than in her office. She was embarrassed asking Mrs. Bruner to watch the ladies’ room door
while she was inside. Any reasonable person in Plaintiff’s position would feel threatened and humiliated by
Harrison’s behavior.
D. Harrison’s Harassment of Plaintiff Unreasonably Interfered
with her Work Performance
From December 2, 1997, when Harrison was chased from Plaintiff’s office, until June 1998, when her
employment with Howard was terminated, Plaintiff carried mace on her key chain, carrying it everywhere that
she went within the law school. (Facts, 71) Plaintiff held office hours in the cafeteria to avoid confronting
Harrison in her office. (Facts, 71) Plaintiff was afraid to stay in her own office, walk through the law school
building, library, or even to the ladies room alone. (Facts, 99) Plaintiff disguised herself, in her teenage
daughter’s hooded parka, walking from the parking lot, to attend faculty meetings in the evening. (Facts, 99)
Plaintiff “hid” in a colleague’s office while a security guard chased Harrison from her office, through the
premises, off campus, and into the woods. (Facts, 53) It cannot be disputed that Harrison’s harassment of
Plaintiff severely altered her work environment and her working conditions.
F. Howard University had a Duty to Take Measures Reasonably Calculated
to End the Harassment
In its December 15, 1999 opinion, this Court set precedent in the District of Columbia by adopting the
precedent set in other jurisdictions having considered the issue of employer liability for a third-party harasser,
as well as the standard set forth in EEOC Guidelines. 1999 U.S. Dist. LEXIS 19516. EEOC Guidelines on
Discrimination because of sex, 29 C.F.R. § 1604.11(e), provides that:
an employer may also be responsible for the acts of non-employees, with respect to sexual harassment of
employees in the workplace, where the employer (or its agents or supervisory employees) knows or should
have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these
cases, the Commission will consider the extent of the employer's control and any other legal responsibility,
which the employer may have with respect to the conduct of such non-employees.
The Tenth, First, and Eighth Circuits have specifically adopted EEOC Regulation 29 CFR 104.11(e) for
evaluating employer liability for sexual harassment of employees by non-employees. In Lockard v. Pizza Hut,
162 F.3d 1062 (10th Cir.1998), a restaurant was held liable for failing to prevent the sexual harassment of a
waitress by a customer. Lockard held that the standard of liability applies to both co-worker and non-
employee harassment, such that “employers may be held liable in these circumstances if they “fail to remedy
or prevent a hostile or offensive work environment of which management-level employees knew, or in the
exercise of reasonable care, should have known.” 162 F.3d at 1073. “An employer who condones or tolerates
the creation of such an environment should be held liable regardless of whether the environment was
created by a co-employee or a non-employee, since the employer ultimately controls the conditions of the
work environment.” Id..
In this case, the University had a separate duty, under the law of negligence, to take reasonable measures to
protect Plaintiff and others on campus from the threat of physical harm by Harrison. The University even a
campus security force for the specific purpose of protecting faculty, staff, students and visitors from physical
harm. (Facts, 78, 81) The University had a duty to use these resources to take reasonable measures to
protect Plaintiff and others on campus from both physical harm and sexual harassment.
2. Campus Security Procedures and Protocol Required Dean Bullock to Take Specific Actions to Protect
Plaintiff and Other Women on Campus from Harrison
The first step in addressing the stalking problem should have been to meet with the Director of Security,
Lawrence Dawson, to obtain the expertise of Howard’s own law enforcement force trained to protect persons
and property on the University’s property. Dawson met with Newsom and Dean of Students, Denise Purdie,
to discuss security matters at the law school at least twice per year, and the stalking was never mentioned in
the visits. (Facts, 81) Dawson does not recall ever receiving any memo from Newsom regarding Plaintiff,
Harrison or stalking, including the December 22, 1997 memorandum attaching a notice about a Harrison to
be posted. (Facts, 81, 87)
Although Dean Bullock indicated to Plaintiff, in her December 1, 1997 memo, that she would address the
stalking with Director Dawson, she never did. (Facts, 55, 58) Plaintiff relied on Bullock’s acknowledgment
that it was her responsibility to handle the matter. Dawson testified that behavior characterized as stalking is
actually common at Howard University, but that, the stalking exhibited by Harrison’s letters, Sgt. Sirleaf’s
campus police report, Plaintiff’s memoranda to Dean Bullock and Harrison’s criminal record, were not at all
the common type of stalking experienced on campus. (Facts, 76) Dawson characterized the stalking of
Plaintiff by Harrison as “serious.” (Facts, 77)
Based on Howard University’s own campus security procedures, the University should have taken the
following actions: 1) Harrison should have been barred from campus, using a bar notice, pursuant to Howard’
s policies and procedures, so that if he appeared on campus after the bar notice was administered, he would
be arrested, at least, for trespassing (Facts, 78) 2) notices should have been posted throughout the “West
Campus” (law school campus, including the library, faculty offices, classrooms and clinic) that Harrison was
barred from campus, with instructions to call campus security and MPD if anyone saw him on campus
(Facts, 78); 3) campus security should have conducted an investigation, coordinating with MPD (Facts, 78);
4) when Harrison announced his arrival, security officers should have been placed at the entrances of the
law school, at the time of his announced arrival, to apprehend him (Facts, 78); and 5) when Harrison
announced his arrival, MPD should have been notified. (Facts, 78)
G. Dean Bullock Refused to Take Measures Reasonably Calculated
to End the Harassment
An employer is required to take measures “reasonably calculated to end the harassment.” Ellison v. Brady,
924 F.2d at 881. In Wilson v. Tulsa Junior College, 164 F. 3d 534 (10th Cir. 1998), a custodial employee of
the University was harassed by her supervisor on the University’s campus, while on duty. The plaintiff was
awarded $100,000 in compensatory damages because the University failed to take “prompt and appropriate
corrective action” to eliminate the sexual harassment. 164 F.3d at 539. Once University management (in the
form of campus police) became aware of the first reported incident of conduct constituting harassment, “the
response of the campus police was grossly inadequate.” 164 F.3d at 540. The supervisor of Campus
Security “did nothing for eight hours, neither reporting the incident to Personnel nor taking action to prevent
(the harasser) from repeating his threatening sexual behavior.” Id.
The incident of sexual harassment in Wilson occurred on only one occasion -- Plaintiff’s supervisor exposed
himself to her and asked for oral sex. The University was held liable, even though it permitted a police
undercover investigation on its premises, suspended the alleged sexual harasser while conducting an
investigation, and reassigned the alleged harasser to a post where the plaintiff had no interaction with him.
The University’s actions were held not to be immediate and appropriate. 164 F.3d at 539. Howard’s
administration did absolutely nothing on November 20, 1997, when Plaintiff first asked for assistance in
addressing Harrison’s harassment of her in the workplace. Plaintiff had to enlist the assistance of Officer
Sirleaf, on her own, and call MPD with his assistance. (Facts, 34, 35) Associate Dean Newsom did not call
the police or campus security (Facts, 36, 37), but had to be convinced to attend even a portion of the meeting
with MPD and security and then, was no assistance, but a hindrance, yelling at Plaintiff while she was asking
the practical consequences of prosecuting someone for stalking on the facts assessed at that time. (Facts,
38)
On November 25, 1997, Harrison was escorted out of the library instead of being held for MPD. No bar notice
had been issued to keep him off campus and the officer called to the scene was unaware that Harrison had
been stalking Plaintiff Martin or that he was to barred from campus and held for MPD. (Facts, 31, 42) Plaintiff
specifically related the incidents to Dean Alice Gresham Bullock in a memorandum delivered on the same
day. (Facts, 43,-45) Plaintiff did not receive any acknowledgment of her November 25, 1997 memo until
December 3, 1997. (Facts, 55) Dean Bullock ignored Plaintiff’s November 25, 1997 memo -- not for eight
hours, as in Wilson -- but for eight days! Even then, Dean Bullock’s memorandum was not responsive to
Plaintiff’s concerns or predicament, but merely stated, “I am discussing the matter of security generally with
Mr. Dawson, Director of Security.” (Facts, 55) In fact, she did not speak to Dawson generally, or specifically,
about Harrison’s stalking of Plaintiff --ever. (Facts, 57, 58)
On December 1, 1997, after receiving an ominous message from Harrison announcing that he would come
to her office at 1:30 that afternoon, warning her to call the “f—king cops” “off of” him (Facts, 46), Plaintiff stood
shaking in Dean Bullock’s office and refused to return to her office or go to her classroom without protection.
(Facts, 48) Dean Bullock instructed a subordinate to call campus security and arrange to have a guard
placed in Plaintiff’s Office for the day. (Facts, 49) Bullock did not call security herself, nor did she even convey
to her assistant or anyone in security, the history of Harrison that she had at her fingertips, provided to her in
Professor Martin’s November 25, 1997 memo. (Facts, 49, 82, 94) Had she done so, the campus security
force could have taken the actions appropriate to address delusional stalking by a violent criminal, pursuant
to Howard’s own campus security policies, in cooperation with MPD. (Facts, 78) Without that information,
however, campus security was at a severe disadvantage for understanding the situation or how to address it
and assumed that Harrison would not be armed or dangerous. (Facts, 92-94)
Bullock only made the gesture of directing her assistant to call security, with the limited instruction of having
an officer assigned to her classroom at 12:00, to placate Prof> Martin to get her out of her office. Bullock
never took further action, although she was specifically informed, that, on that very day, Officer Dowdy chased
Harrison out of the building, off campus and into the woods and Plaintiff notified her of these facts in writing.
(Facts, 53) Harrison was delusional, obsessed with Plaintiff, had a criminal record, and a history of
violence -- including armed robbery and assault. (Facts, 39-94) Harrison reached Plaintiff’s office door,
within approximately four feet of her. (Facts, 53, 95) Howard’s own campus police Deputy Chief Armstrong
acknowledged that Harrison was close enough to Professor Martin to shoot her with a gun or to cut her with a
knife. (Facts, 95)
There are only two entrances to the law school building. (Facts, 79) A “mug shot” was easily accessible and
campus police already had a description from MPD and the homeless shelter. (Facts, 39, 41) Officer Dowdy
had seen Harrison up close and talked to him when he previously escorted Harrison off campus. Having
been put on specific notice that Harrison was planning to go to Plaintiff’s office, that day, at approximately 1:30
p.m., Harrison should have been stopped at the door. MPD was already looking for Harrison with respect to
the stalking and should have been called to assist.
Howard’s actions were not “reasonably likely to prevent the misconduct from recurring.” See Wilson, 164 F.3d
at 540 (defining “appropriate” employer action to eliminate sexual harassment). The present case is more
egregious than the situation faced by the plaintiffs in Wilson and Ellison. In both Wilson and Ellison, the
sexual harassers were known to the victims and the employers. Harrison would understandably be more
frightening than an employee whose job depended upon his behavior and whom the employer has had the
opportunity to observe and even investigate. As in Wilson, Howard’s refusal to take reasonable measures to
stop the sexual harassment “aggravated the threat” to Plaintiff. In Wilson, the Defendants informed the sexual
harasser of Wilson’s complaint. In the present case, Plaintiff had repeatedly expressed her concern that
improper handling of Harrison would make him angry and thus, a greater threat to her and her daughter (if he
discovered where she lived), and that precautions should be designed to apprehend him rather than simply
anger him and leave him at large. (Facts, 37)
When Harrison was found in the library, the University escorted him off campus rather than hold him for MPD
officers, and did not even bar him from campus. (Facts, 41, 96) Harrison was chased from the premises on
December 1, 1997 only because he had announced his arrival time and a security officer were waiting for
him. (Facts, 50, 51) Even then, Harrison walked freely into the law school building and took the elevator or
walked up five floors to Plaintiff’s office, undetected and unfettered. (Facts, 50, 51) He was chased off
campus by one guard, with no posting of additional guards or even notice to the guard at the front desk.
(Facts, 50, 51) As in Wilson, Defendant “never evinced an intention of protecting (Plaintiff)” or “preventing the
reoccurrence of the (sexual harasser’s) conduct.” 164 F.3d at 540. No reasonable juror could conclude
otherwise.
2. Dean Bullock Refused to Take even the Most Basic Steps to Eliminate the Hostile Work Environment
Assistant Dean Newsom testified that he wrote the memorandum to Dawson, on December 22, 1997 – more
than a month after the stalking began and 21 days after Harrison was chased from Plaintiff’s office. (Facts,
85) The memo, however, addressed the stalking only as one of the three unrelated “security concerns” –
including a missing printer and vagrants in the student lounge. (Facts, 85) Newsom attached the Security
Notice written by Plaintiff, because it was “the right thing to do” (Facts, 85) and because he was worried about
Plaintiff’s safety, as well as the safety of other women on campus (Facts, 85) Even then, however, he
acknowledged that the notice was never posted and he did not follow up to ensure that it be posted. (Facts,
85) Newsom and Bullock could have had the notices posted in the law school and library and distributed in
faculty and student mailboxes, but they simply did not do so. (Facts, 86)
This option was so available, obvious and reasonable that, when Deputy Chief Armstrong read Newsom’s
memo, purportedly for the first time, in his deposition, he interpreted the memo to indicate that Newsom had
already posted the notice at the law school. (Facts, 85) Newsom’s December 22, 1997 memo was not
produced as part of the campus security production (Facts, 87) and there is no evidence that the memo was
ever received by anyone in campus security. The only document produced as part of Howard University
campus security records, after a purportedly “exhaustive search” by Howard University through its campus
security files, after three Court Orders and a Contempt finding against Howard for failing to produce discovery,
was Officer Sirleaf’s initial November 20, 1997 report and the desk blotter entry recording Officer Sirleaf’s
report. (Facts, 88) Although Dowdy testified that he was certain that he had completed and submitted to his
superiors and Incident Report, on December 1, 1997, after he chased Harrison from Plaintiff’s office, off
campus and into the woods, Howard claims that it could find no such report in its records. (Facts, 89)
Associate Dean Newsom specifically testified that all of the measures that Plaintiff asked be taken to protect
her from Harrison in her workplace were “reasonable” (Facts, 90) – to bar Harrison from campus, to notify
faculty, staff and students that Harrison was barred, to call the police if he were seen on campus, and to post
officers at the door if Harrison announced his arrival. Newsom then admitted that none of these measures
was ever taken. (Facts, 90) It is undisputed that Howard failed to fulfill its legal obligations to take
measures “reasonably calculated to end the harassment.”
III. Dean Bullock Retaliated against Plaintiff by Denying her a Permanent, or Renewed,
Faculty Appointment
On December 15, 1999, this Court held that, since Plaintiff's complaints about Mr. Harrison and campus
security were closely followed by the adverse actions, Plaintiff has demonstrated a sufficient causal
connection to establish a prima facie case of retaliation. Martin v. Howard University, 1999 U.S. Dist. LEXIS
19516, citing 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). 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
I.S. 248, 252-253 (1973).
A. Plaintiff has Established a Prima Facie Case of Retaliation Since Howard Took Adverse Actions
against Plaintiff “on the Heels” of her Complaints of Conduct Constituting Sexual Harassment
As this Court held on December 15, 1999, Plaintiff’s November 20, 1997 and November 25, 1997 complaints
of conduct constituting sexual harassment is protected activity. The victim of sexual harassment need not
specifically say the words “sexual harassment” to be protected. Martin v. Howard University, 1999 U.S. Dist.
LEXIS 19516. See also Powel v. Las Vegas Hilton Corp, 841 F. Supp. 1024, 1025 (D. Nev. 1992) (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"); Howard University v. Green,
652 A.2d 31, 46 (D.C. App., 1994) (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). Plaintiff
reported to Deans Bullock and Newsom conduct that constituted a hostile work environment and asked them
to take reasonable measures to eliminate the hostile work environment.
Almost immediately after Plaintiff wrote the November 25, 1997 memorandum to Dean Bullock requesting
protection from Harrison, Deans Bullock and Newsom began a campaign of retaliation against her, including:
1) Dean Newsom’s November 30, 1997 demand that Plaintiff reduce the number of journals to which she
could sent her articles from 180 to 30 – despite the norm of approximately 200 (Facts, 107-111); 2) Dean
Bullock’s December 2, 1997 personal call to Plaintiff to demand that she immediately pick up the “very
important” letter (the form letter sent to all professors whose contracts were terminating at the end of the year,
pending the APT Committee’s decisions on new contracts) while failing to provide any personal response to
Plaintiff’s complaints about being stalked on campus (Facts, 112-113); and 3) Dean Newsom’s December
10, 1997 memo demanding that Prof. Martin provide the office with office hours, reminding her of the
“seriousness” of keeping office hours, when: a) the semester was over; b) Plaintiff had actually provided the
hours months earlier; and c) before the semester ended, Plaintiff was holding office hours in the cafeteria to
avoid the stalker. (Facts, 113-114) So, at the same time that Deans Bullock and Newsom were doing
absolutely nothing to protect Plaintiff from the campus stalker, they sent her a memo implying that she was in
“serious” violation of a requirement of her job by not sitting in her office during posted office hours, waiting,
like a “sitting duck” for Harrison!
The burning question is, why Deans Bullock and/or Newsom would not have taken the obvious and
appropriate steps to protect one of their own professors, as well as the rest of the Howard Law School
community, by utilizing the procedures already set in place by campus security. Both Deans admitted that
they did not take the obvious actions, but neither Dean has explained why. One can only surmise, then,
based on the facts. Prior to January 12, 1998, neither Plaintiff nor Howard’s administrators knew that
Harrison was a serial campus stalker. (Facts, 62) They only knew that Harrison professed a belief that Prof.
Martin was his “wife.” Perhaps they never saw Harrison as a threat to anyone but Plaintiff and believed that if
they eliminated Plaintiff from Howard’s campus, they would eliminate the need to take any action to keep
Harrison off campus. Perhaps they did not want to post notices, distribute flyers, or make an announcement
during a faculty meeting, because did not want faculty, staff and students to “panic,” or for students to be
dissuaded from coming to Howard by news of a stalker of women on campus.
Deans Bullock and Newsom may well have intended to cause Prof. Martin’s constructive discharge. At least
one student, friends and numerous people in Plaintiff’s family, including her distraught fourteen-year old
daughter, advised and/or begged Plaintiff not to return to Howard for fear of Harrison, however, Plaintiff is not
a person who neglects her obligations. In addition, she was not financially able to simply “walk away” from
her job – and in essence, her career as a law professor, since it would surely have been held against her at
other Universities.
Despite the hostile work environment, Prof. Martin continued to perform her teaching duties, continued her
extra exam-taking sessions for her students and made herself available to them, even if in the cafeteria.
(Facts, 71, 98, 142, 174) She exercised self-help, through prayer, carrying mace and staying in open areas
as much as possible (Facts, 71, 98) while Deans Bullock and Newsom harassed her with contrived, petty
accusations about the performance of her job duties.
As part of an overall plan to ensure that Prof. Martin did not return to Howard’s faculty for the academic year of
1998-1999, Deans Bullock and/or Newsom took numerous actions against Prof. Martin because she
complained about a hostile work environment and requested protection from Leonard Harrison. Dean Bullock
retaliated against Prof. Martin by: (1) influencing the APT Committee, through APT Committee Vice Chair Prof.
Andrews Taslitz, to deny Plaintiff’s application for a permanent position on December 18, 1997 (Facts, 187,
188, 159, 160); (2) failing to authorize the APT Committee to fill vacant positions in the spring of 1998,
because she believed the ATP Committee would recommend Plaintiff for one of these positions (Facts, 236,
253); (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 (Facts, 237, 238, 257); (4) ordering
Plaintiff on May 26, 1998, to vacate her office by Friday, May 29, 1998, immediately after receiving notice of
Plaintiff’s EEOC charge (Facts, 261-264). So, for her dedication and bravery, Plaintiff was “rewarded” with
Dean Bullock’s animosity, callousness and the demise of her previously outstanding 17-year legal career.
B. Dean Bullock’s Hostility Toward Plaintiff for Requesting Protection from the Stalker
Dean Bullock’s animosity toward Plaintiff for her requests for protection against the stalker are expressed in
Dean Bullock’s March 8, 1999 Statement to EEOC investigators. The investigator recorded the statements in
the business records of 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.
(Facts, 187) Of course, Plaintiff never asked Dean Alice Gresham Bullock to “wrestle” with the stalker. Dean
Bullock’s sarcastic, callous and hostile response to the issue, even by the time the issue reached the EEOC,
demonstrates the hostile attitude of Bullock toward Plaintiff for her complaints of being stalked in her
workplace.
While Plaintiff was being stalked on campus, Prof. Taslitz asked Bullock how she was doing. (Facts, 190)
Bullock replied, “Did you hear about Dawn’s stalking incident?" (Facts, 190) Taslitz replied, “Yes, she has
told me about it.” (Facts, 190) Bullock then stated that she was having a bad day because she had “a lot to
do in response to that.” (Facts, 190) Bullock did not do “a lot” to protect Plaintiff from the stalker, but rather,
she began to retaliate against Plaintiff, as described above; consequently, these words can only represent
Bullock’s “feeling” that she was being “put upon” by Plaintiff to focus the administrations’ and faculty’s
attention on her.
C. Relationship between Dean and APT Committee
From the early 1980s through 2001, the APT Committee at Howard Law School was “terminal Committee”
that included only five members. (Facts, 125) Howard’s full faculty did not vote on APT Committee
decisions. (Facts, 125) The five Committee members made the hiring recommendations to the Dean.
(Facts, 125) The Dean then made an independent recommendation, sent to the Provost, along with the
Committee’s recommendation. (Facts, 125)
Where the APT Committee and the Dean had different judgments on a candidate, the Dean would likely
“come to the Committee” with concerns, rather than oppose the Committee’s recommendation because of
the “collegiality” aspect that is at stake there.” (Facts, 126) APT Committee member Prof. J. Clay Smith, a
former Dean of Howard School of Law, and a former General Counsel and Acting Chairman of the EEOC, has
been a professor at Howard Law for many years, indicated that he is not aware of any time that a dean has
told the APT Committee that he/she disagreed with its judgment, and that the Committee views its
recommendation as final. (Facts, 126)
Prof. Smith testified that:
The Dean who comes around committee can get into an awful lot of trouble in the context, you know, criticism,
you know, because you’re not dealing with the Committee at large. So, you don’t lobby, I don’t think any dean
– to my knowledge – who’s lobbied an individual because you have a full faculty who has been around and it’
s a very dangerous thing. So, it’s not something that is routine, as far as I know, with the deans that we’ve
had.
(Facts, 126) Despite this backdrop, Dean Bullock did reveal, to her Associate Dean, that she had made an
independent decision to recommend that Plaintiff not be hired for a permanent faculty position. (Facts, 208)
She also repeatedly disparaged Prof. Martin to the Vice Chair of the APT Committee, Prof. Andrew Taslitz.
(Facts, 191)
Dean Bullock always had the veto power; however, based on “the collegiality aspect of it,” and not to offend
the APT Committee’s sense of independence, Bullock did not share with the entire APT Committee her
decision regarding Prof. Martin. To do so may well have incited the Committee to assert its independence
and/or to examine the credibility of a colleague who misrepresented Plaintiff’s qualifications and/or those of
Plaintiff’s “competition.” In a faculty already divided, a split decision sent to the Provost would not send a
favorable message regarding the relationship of the dean to her faculty. Bullock therefore carefully selected
only one APT Committee member – Taslitz – to influence, and dared not discuss her animosity toward
Plaintiff with any other Committee members.
D. Bullock Retaliated against Plaintiff by “Poisoning” the APT Committee through Prof. Andrew Taslitz
1. Dean Bullock’s Derogatory Comments about Plaintiff
to APT Vice Chair Taslitz
Dean Bullock repeatedly told Prof. Taslitz that Plaintiff had “bad judgment” (Facts, 191) Taslitz said that, even
though he asked, Bullock never gave him even one example of this purportedly “bad judgment.” (Facts, 191)
Taslitz claimed that Bullock and Newsom made these disparaging remarks about Plaintiff beginning in her
first year of teaching (August 1996 through June of 1997) – before the stalking began; however, Taslitz was
admittedly unclear on the timing of events (Facts, 191) and could not even recall when he took his own
sabbatical to write his Evidence casebook. (Facts, 191)
Taslitz said that he “assumed” that Dean Bullock was referring to a faculty meeting in which Plaintiff
advocated the requirement that professors place, on reserve in the library, sample exams and answers for
students to study before they took exams. (Facts, 192) This meeting took place on or about December 2,
1997. Taslitz’ reference to a faculty meeting that took place in December of 1997 reveals that the time that he
recalls Dean Bullock disparaging Plaintiff’s “judgment” was in early December of 1997 – during Ms. Martin’s
second year of teaching at Howard, and, most importantly, within days after Prof. Martin reported the to
Bullock – not, as Taslitz reported, during Prof. Martin’s first year of teaching at Howard.
Taslitz’ own involvement in the occurrences related to the retaliation and breach of contract claims provide
motivation for him to “recall” events and timing in ways that lessen the University’s liability. Bullock’s
admissions regarding her disparaging comments about Plaintiff are quite a revelation, since, for the past four
and a half years, she claimed that she had no part in the APT Committee’s decision, that she exerted no
influence over anyone on the APT Committee with respect to Plaintiff’s non-selection and non-renewal. To
the contrary, Dean Bullock told the EEOC investigator: “There is no particular reason that I would not want
Martin to teach at Howard University School of Law.” (Facts, 207) Bullock’s constantly changing sworn (and
unsworn) uncorroborated statements make her completely unworthy of belief. See also Plaintiff’s August 3,
2001 Motion for a Default Judgment Due to Howard University’s Production of Late, Incomplete and
Falsified/Tainted Evidence.
In her Answer to the First Amended Complaint, Bullock admitted that Prof. Martin was good professor who
was very well liked by her students. (Facts, 179) Indeed, in the face of two student petitions (Facts, 178), a
formal student protest (Facts, 178), the Dean’s meeting(s) with Student Bar Association President Gerald
Smalls (Facts, 178) and the many student letters protesting Prof. Martin’s non-renewal, Dean Bullock would
have to make this admission. In her Answer to the First Amended Complaint, Dean Bullock admitted that
Plaintiff’s student evaluations were above average. (Facts, 178) In her interview with the EEOC in 1999,
Dean Bullock never indicated that Plaintiff had “bad judgment” or that she otherwise did not like her
personally. (Facts, 179)
Taslitz also testified that Associate Dean Newsom told him that Plaintiff was making problems for his office;
however, Newsom testified that he does not recall discussing Plaintiff with Taslitz at all (Facts, 208) All four
of the remaining members of the APT Committee, as well as three additional senior faculty members
deposed, testified that they had never heard such accusations about Plaintiff , and, to the contrary, found her
to be quite collegial and pleasant. (Facts, 185, 209, 211)
Dean Newsom claimed that Plaintiff was on a “short list” of people causing problems for the University
(Facts, 208) and that Dean Bullock had shared with him that she had decided not to select Plaintiff for a
permanent position. (Facts, 208) The “troublemaker” and “complainer” description provided by Dean Bullock
and her closest assistant, is consistent with Plaintiff’s claims of retaliation. Dean Bullock considered Plaintiff
a “troublemaker” for requesting protection against the homeless stranger, with a criminal record of violence,
who was roaming the law school halls stalking her. Bullock’s deposition makes it abundantly clear that she
harbors intense animosity for Plaintiff. Prior to this deposition nearly five years after the APT Committee’s
December 18, 1997 decision, Bullock appears to only have shared these “views” about Plaintiff in some
clandestine meetings with Tastlitz and Newsom.
C. Dean Bullock Used Taslitz to Misrepresent Plaintiff to the APT Committee
Profs. Nolan, Smith, Leggett and LaRue may well have believed that they were making a good faith decision,
in the best interests of Howard, based on what they believed were the objective qualifications of the
candidates; however, their testimony demonstrates that they were misinformed when they made their
decision. These four of the five members of the APT Committee appear to be completely oblivious to the
apparently clandestine conversations between Dean Bullock and Prof. Taslitz. The recent deposition
testimony of Bullock and Taslitz reveal an entirely different thought process than expressed by Profs. Smith,
Nolan, Leggett and LaRue.
Members of the APT Committee “present” candidates for discussion. How a candidate is presented, or the
credentials summarized, influences the remaining APT Committee members, who reasonably rely on what
they believe are the good faith representations of their colleagues. Although any member of the Committee
could challenge another with respect to alleged facts or opinions, each Committee member cannot read
each publication by each candidate, sit in on the classes of each candidate, or even recall, during the
discussion of the candidate, all aspects of their resume/application.
From 1996-1998, Prof. Taslitz held the title of Vice Chair of the APT Committee; however, he performed the
duties of the Chair. He wrote the memoranda for the Committee, for Prof. Leggett’s signature. (Facts, 127)
He recruited candidates. (Facts, 127) He checked references. (Facts, 127) He extended offers to
selectees. (Facts, 127) He negotiated contracts with selectees and negotiated with the Dean/Associate
Dean for terms to offer the candidate. (Facts, 127) He made judgments as to whose work was “scholarly”
and whose was “non-scholarly.” (Facts, 127) He sat in candidates’ classes, took notes and wrote up
evaluations of those classes to present to the APT Committee. (Facts, 127) He is a compulsive note-taker.
(Facts, 127) Taslitz was the key to the APT Committee.
Taslitz was especially important to Plaintiff’s candidacy. He had recruited Plaintiff, negotiated with her,
extended the oral and written offers to her, and described himself as her “mentor” and “friend.” (Facts, 17,
186) He had been a strong advocate of Plaintiff when she was hired in 1996. (Facts, 17 -20) He had, at
least, read her January 1996 version of 911.. (Facts, 157) He had sat in on her classes. (Facts, 127)
Taslitz’ support was the touchtone of success with the APT Committee.
After Taslitz received Plaintiff’s March 31, 1997 letter, asking for his help, telling him that she was aware that
there were two to three faculty positions being left vacant by the Dean, 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. (Facts, 220) Taslitz never asked Dean Bullock whether the positions were
vacant. (Facts, 220) He knew that, no matter how many positions became available, Bullock would ensure
that none of them went to Plaintiff.
Prof. Nolan did ask Dean Bullock, in the spring of 1998, whether there were any vacant faculty positions, and
whether Plaintiff could be hired by the law school or elsewhere in the University. (Facts, 221) Bullock told her
that there were no positions available. (Facts, 221) Bullock added that she had referred Plaintiff for another
position and was trying to help her get another job. (Facts, 221) Bullock did not say that she did not want
Plaintiff on the faculty because she had bad judgment, or that she would not refer her for a job because of this
“bad judgment.” Bullock’s hostile gratuitously insulting deposition testimony and marginalization of Plaintiff
reveals Bullock’s intense animosity toward Plaintiff, and demonstrates that she would not have
recommended or “helped” Plaintiff in any way.
Taslitz went to Plaintiff’s office, in late September of 1997, specifically to remind her that she needed to
formally apply for a permanent position and/or renewed visitorship, advising her to just write a sentence or
two in a memo to Leggett to make it clear that she was formally applying for a position. (Facts, 124) The
Committee had already circulated the memo to all faculty members advising them to formally apply, prior to
October 2, 1997, for any positions or promotions for which they wanted to be considered for the 1998-1999
academic year, but Taslitz said that he just wanted to be sure that she knew and did not miss the deadline.
(Facts, 124)
In late October of 1997, Taslitz even asked Plaintiff to allow him to review her completed memorandum
application to the Committee regarding her first year at Howard, to provide her with feedback prior to
submission. (Facts, 124) He advised her to discuss fully the reasons for the delay in the 911… article.
(Facts, 124) Taslitz did not indicate, in any way, that he did not understand the reasons for the delay, but
conveyed to Plaintiff that he wanted the entire Committee to understand the reasons. (Facts, 124) Plaintiff
did give him the November 5, 1997 memo to review, prior to submission, and Taslitz advised her that it
“looked great.” (Facts, 124) Plaintiff had every reason to believe that Taslitz was still acting as her mentor
and advocate, even as of late October of 1997.
Prior to the fall of 1997, Taslitz had advised Cunningham to participate in the AALS recruiting conference
because he could not assure her that her visitorship could be renewed. (Facts, 123) If Tasltiz had
misgivings about Plaintiff’s employment at Howard, he certainly could have given her the same advisc and
“warning” that he gave Cunningham, especially since he knew that Plaintiff was the primary support for her
daughter and that job stability was of utmost importance to her when she accepted the position. (Facts, 21)
Had Plaintiff been notified, at any point before August of 1997, she could have participated in the AALS
Conference, as did Cunningham.
On December 18, 1997, Taslitz entered Plaintiff’s office and told her simply: “Offers have been extended and
there are no visitorships available.” (Facts, 119) It took Plaintiff a minute to realize that she was unemployed.
In his September 6, 2002 deposition, totally contrary to the impressions that he had conveyed to Plaintiff prior
to December 18, 1997, Taslitz opined that he was “disappointed” in and “aggravated” and even “angry” with
Plaintiff by January of 1997 – after only one semester at Howard -- because she did not publish her 911…
article within her first semester at Howard. (Facts, 160) These harsh words and personalized emotions
toward a colleague, purportedly for not publishing an article, are, simply put, not within the realm of normal.
Taslitz’ “anger,” “disappointment” and “irritation” are even more peculiar since Plaintiff had, in fact, been
working on the article and had discussed it with him. Even during that first semester, despite being
noticeably injured in a car accident, and being the only law professor who was not provided a computer with
internet or legal research capability, Plaintiff received excellent teaching evaluations, expended extra time and
extra energy to provide exam taking classes for the students to increase the Howard bar passage rate, and
had, in fact, expanded and “deepened” 911: How Will Police and Fire Departments Respond to Public Safety
Needs and the Americans with Disabilities Act? She had begun a second article since arriving at Howard. At
one point, Taslitz went so far as to say that Plaintiff should have published her article while she was still in
Cleveland; however, this would have deprived Howard of the “credit” for the article that it actually received in its
ABA accreditation assessment.
Taslitz’ overdone expression of “disappointment” with Plaintiff, searching for a reason to be disappointed in
her, prior to the stalking, is simply devoid of any credibility. Taslitz admitted that he never told Prof. Martin that
he was “disappointed” or “angry” with her in her in any way, nor did he indicate to her that he would not be an
advocate for her for a permanent position. (Facts, 160) Of course, if Bullock did not express to Taslitz her
animosity toward Plaintiff until after November 20, 1997, when the stalking began, this would explain Taslitz’
apparent support for Plaintiff up until that date. After the stalking began, Dean Bullock “poisoned” the APT
Committee with her retaliatory comments to Taslitz. The APT Committee decision was, then, “the fruit of the
poisoned tree,” even though four of the five members of the Committee may have been completely unaware
of it.
IV. Defendant Has not Put Forth a Legitimate, Non-Retaliatory Reason for its Non-Selection/Non-Renewal
of Plaintiff, and, to the Extent that it has, Such Reasons are Indisputably False and Pre-Textual
A. The Decision-Makers Disclaim Howard’s Purported “Legitimate, Non-Retaliatory Reasons” for Plaintiff’
s Non-Selection/Non-Renewal
Because the adverse action occurred “on the heels of” Prof. Martin’s requests that the administration take
reasonable measures to stop Leonard Harrison from harassing her in her workplace, Plaintiff has
established a prima facie case of retaliation. The burden now shifts to Howard to articulate a legitimate, non-
retaliatory reason for the adverse action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1973).
Defendant has, at various times over the past four years, stated various purported reasons for Plaintiff’s non-
renewal; however, when the decision-makers were actually deposed, the APT Committee members seemed
oblivious to the very reasons asserted by their employer. Howard has, therefore, not even carried its burden
of asserting a legitimate, non-discriminatory reason for its non-selection/non-renewal of Plaintiff. Defendant’
s Answer to the Interrogatories changed from October 17, 2000 to July 11, 2001, while Howard was in
Contempt proceedings for its failure to adequately respond to discovery.
Howard’s own officials – the decision-makers in this case – have contradicted Howard’s defense! Their
depositions read as it they had never seen the Answers to Interrogatories. Howard’s purported (and
changing) “legitimate, non-discriminatory reasons” for Plaintiff’s non-selection/non-renewal have, by
implication, been withdrawn, and Howard has not carried its burden of production to offer a legitimate non-
retaliatory reason for its actions. To the extent that they are not withdrawn, they are pre-textual.
In its October 17, 2000 Answers to Interrogatories, 30 (Facts, 129) filed after Plaintiff filed a Motion to Compel
Discovery, after Defendant was more than four months late in responding to discovery requested on April 7,
2000, Defendant stated:
Plaintiff’s contract was not renewed because the law school was in need of a faculty member with the
expertise to teach courses in Taxation, Property, Wills, Trusts and Estates at that time. In addition, the APT
Committee did not recommend that plaintiff continue to teach employment law classes… for the following
reasons:
1) as of December 18, 1997 (the date on which he AP Committee made its decision concerning plaintiff(‘s)
application, plaintiff had no scholarship articles accepted for publication, not even the article she claimed was
in progress when she was offered the two-year Visiting Professorship at the School of Law.
2) During the fall 1995, plaintiff was offered employment as a visiting Professor with a two-year appointment
beginning in Fall, 1996, at the level of Associate Professor, based on the factors that (a) plaintiff provided
evidence of a law review article substantially in progress and near completion; (b) thee was an expectation
that the law review article would be completed before or immediately after plaintiff’s two –year contract began
and that plaintiff would complete an additional published scholarship during this two-year contract period; (c)
plaintiff’s teaching performance would be an acceptable level of an Associate Professor; (d) there was an
expectation of law school, university and/or professional service.
Defendant has repeatedly claimed that Plaintiff’s article, 911…, was not accepted for publication by
December 18, 1997. Plaintiff repeatedly asserted that Howard’s statement was false, in violation of Rules 26
and 37, specifying the APT Committee members who knew that it was false, even while she was still at
Howard. Four of the five Committee members, including Nolan, Taslitz, LaRue and Leggett all testified that
they knew, at the time that they selected Cunningham over Plaintiff to fill the EEO/labor law position, that
Plaintiff’s 911… article had been accepted for publication. (Facts, 130) This deposition testimony clearly
established that Howard’s purported reason for Plaintiff’s non-selection/non-renewal was not only pre-textual,
but simply, false, in violation of Federal Rules of Procedures 26 and 37, regarding the obligation to conduct a
reasonable inquiry in responding to discovery and to respond truthfully. See Plaintiff’s August 3, 2001 Motion
for a Default Judgment Due to Howard University’s Production of Late, Incomplete and Falsified/Tainted
Evidence.
As Howard saw its pre-textual defense regarding Plaintiff’s scholarship eroding, it invented a “kitchen sink” of
“eleventh hour” defenses that contradicted evidence and admissions that it had already entered into the
record. After changing its defense repeatedly over the past four years, Defendant now claims that, although
Plaintiff’s article was accepted for publication at the time of the decision, Plaintiff’s article should have been
published the previous year. (Facts, 180) If this were the case, arguably, Plaintiff non-selection/non-renewal
was a “done deal” at the end of her first year and someone should have warned her so that she could seek
other employment. No one did. In fact, Dean Bullock awarded Plaintiff a 1997 summer grant, indicating that
she was on schedule with her scholarship and that her progress was, at least, satisfactory. (Facts, 132) As
part of her application for a summer grant, Plaintiff submitted drafts of her works in progress, which included
911… and Lights Camera, Discrimination! “Playing” the Victim under Title VII, and discussed her preliminary
research and thesis for a third article, Still Racist After all these Years—and Covered by the Americans with
Disabilities Act? Obviously, then, Dean Bullock was well aware of the progress of Plaintiff’s scholarship and
determined that it was satisfactory.
On July 11, 2001, after two Court Orders (April 11, 2001 and May 30, 2001) to produce discovery and answer
interrogatories insufficiently answered, and in the midst of Contempt proceedings against Howard and its
counsel, Defendant submitted Supplemental Answers to Interrogatories (Facts, 135). In response to
Interrogatory # 31, Howard stated that the following criteria were considered in the decision not to renew
Plaintiff’s contract:
Collegiality; scholarship; teaching potential; comparison to internal and external candidates; credentials;
academic needs; research contributions; growth potential; service to profession, community and university;
publication.
In its July 11, 2001 Supplemental Answers to Interrogatories # 34 (Facts, 135), Defendant claimed that:
HU officials concluded that plaintiff’s scholarship and potential for future research and scholarly endeavors
were less substantive than the research and publication record of her colleagues and /or competitors. … HU
also concluded that plaintiff’s potential as a teacher was not as high as her colleagues and/or competitors for
a tenure track teaching position covering EEO/labor law and other assigned courses.
In its July 11, 2001 Supplemental Answers to Interrogatories # 55 (Facts, 137)
Defendant claimed:
… while Plaintiff may have met the minimum qualifications for the position covering EEO/labor law position,
she was not the best qualified applicant for a tenure-track position covering EEO/labor and other assigned
courses. In determining whether to hire plaintiff after the termination of her two year term, HU’s hiring officials
concluded that plaintiff’s scholarship was less substantive than the research and record of her competition.
Moreover, plaintiff’s colleagues did not find plaintiff collegial as well. … Moreover, plaintiff’s performance in
law school aw well as her legal experience was not as stellar as her competition.
Finally, in its July 11, 2001 Supplemental Answers to Interrogatories # 56 (Facts, 138).
Defendant stated:
The APT Committee unanimously recommended E. Christi Cunningham for the EEO/Labor Law position for
the 1998-1999 academic year for the following
reasons. Plaintiff’s academic and scholarly production was viewed by the faculty and members of the APT
Committee to be less substantive than Professor Cunningham, who graduated Summa Cum Laude from
Southern Methodist University (1989). Prof. Cunningham had published an article, and she clerked and did
extensive legal research in the employment law area for U.S. District Court Judge Constance Baker Motley,
well known civil rights attorney. Plaintiff’ law school record was not as stellar as Cunningham’s law school
record. After law school, Professor Cunningham was a litigation associate at an internationally
reknown(ed) law firm, Debevoise & Plimpton in New York, New York.
Also, Prof. Cunningham published an article within one year of joining the faculty at HU School of law, she
impressed the APT committee with the volume of work she was able to produce while actively involved in
academic activities at the law school (law journal) and the community. Prof. Martin struggled to complete a
publication while at HU School of Law after two years as a visiting professor. In fact, when Prof. Martin
interviewed with the APT Committee in November 1997, she had not published an article while at the law
school. Prof. Cunningham also began to work on a second article after completing her first article and
presented a paper at Yale University in October, 1977, which was also scheduled for publication.
Finally, Prof. Cunningham was dynamic, and displayed he greatest potential as a law school professor as a
teacher, scholar and for service to the law school community, and HU officials concluded that she was the
best qualified for appointment. She received excellent teaching evaluation from students.
C. Howard’s Collegiality Defense Discredited by Decision-Makers
Howard’s new “non-collegiality” defense is completely irrelevant to any defense that Howard can make with
respect to the decisions made by the APT Committee in 1997-1998. Four of the five Committee members
were oblivious to any claim of “non-collegiality” or “bad judgment” by Plaintiff. They have expressed their own
perceptions of Plaintiff as collegial and pleasant, testifying that they had never heard any other faculty member
claim that Plaintiff was not collegial. The only APT Committee member who raised the collegiality issue is
Taslitz, and he never raised it during any APT meeting. Instead, Taslitz concealed his true reason for elevating
Cunningham as a candidate over Plaintiff – the knowledge that Dean Bullock did not want Plaintiff – and
shrouded it with misrepresentations about Plaintiff’s and Cunningham’s scholarship to mislead the
remaining Committee members into believing that Plaintiff had not been productive and was not likely to
produce the scholarship expected of Cunningham.
Defendant added the “collegiality” defense, never previously raised in the three years since Plaintiff filed her
EEOC charge. Defendant only raised this defense as it saw its scholarship argument being destroyed by the
documents and statements being produced by Mrs. Bruner, who confirmed that Plaintiff had given her the
911… article for distribution in October of 1996, but that a computer error that occurred in her office corrupted
the document and delayed its distribution by approximately one month. (Facts 130) The collegiality
argument is vague and subjective. Absent deposing the entire faculty, it would be difficult to prove or disprove
this claim conclusively; however, the focus is on the APT Committee. This “defense” is nothing more than a
desperate, eleventh hour “witch-hunt” for anyone willing to defame Plaintiff’s character in the name of “loyalty”
to Howard, to protect an ally on the faculty, or for something in exchange for this attempt at character
assassination.
D. The Decision-Makers Never Considered Plaintiff’s Service to Law School,
Community or Profession
Howard discussed Cunningham’s service to the law school, but not Plaintiff’s contributions to the law school,
her community or the legal profession overall. Plaintiff’s service to the law school included: 1) giving exam
review sessions, with her own practice exams and answers, to assist students in learning the skill of exam
taking for law school and to increase the bar passage rate at Howard (Facts, 142); 2) bringing in an Assistant
Maryland Bar examiner each year, to give a class on how to take the Maryland Bar (Facts, 142), particularly
since Howard students had gained a national reputation for its low Maryland Bar passage rate (Facts, 142) ;
3) teaching exam-taking sessions at the Regional BALSA conference held at Howard (Facts, 142); 4) acting
as a judge for the Trial Advocacy Clinic (Facts, 142) and 4) participating in “Close Up,” a mentoring program
for teenagers (Facts, 142). Plaintiff also diligently served on all committees to which she was assigned.
(Facts, 142)
Plaintiff’s community service included active membership in “Jack and Jill of America,” focusing on the needs
of African-American youth; the JEB Stuart High School Parent-Teachers’ Association, mentoring teenagers
and finding them internships; and assisting young people and the elderly in her community. (Facts, 143).
Prof. Martin also supported her daughter’s efforts to change the name of her high school, which was named
for a Confederate General. (Facts, 143). Plaintiff had also taken on one case, for purposes of filing an EEOC
charge, for a local television news reporter who was alleging discrimination on the basis of a combination of
race and sex. (Facts, 144). This charge involved developing issues of inter-sectionality in EEO law. (Facts,
144). Plaintiff submitted this supplement based on the Committee’s interest in this work during her
November 7, 1997 interview. (Facts, 144).
Howard discussed Cunningham’s clerkship and law firm associate experience, but there is no discussion or
acknowledgment of Plaintiff’s 17 years of dedicated service to civil rights work, including 6 years of policy
development at the EEOC; five years at the United States Department of Justice, Civil Rights Division,
litigating school desegregation cases; her work for the Legal Aid Society of New York; her employment,
housing and credit discrimination cases at the New York Office of the Attorney General, Civil Rights Bureau; or
her development of the policy on pregnancy at the D.C. Metropolitan Police Department. Plaintiff’s 17 years of
public service reflects her dedication to civil rights, assisting the poor, fostering equal opportunity and
eliminating prohibited discrimination and using her credentials and training to help eradicate injustice. For a
law school depicting itself as the vanguard of social engineers, and the bastion of civil rights, it would seem
that Howard would hold such service in high regard, particularly when public service was Plaintiff’s choice,
since she had the credentials to choose more lucrative employment at a prestigious law firm. Clearly, then,
no comparison was made between the candidates with respect to law school service, community service or
service to the profession.
E. The Taslitz December 9/19, 1997 Memorandum
The key to the December 18, 1997 decision is, again, Andrew Taslitz. On July 19, 2002, Defendant produced,
for the first time, an unsigned memorandum to Dean Bullock from APT Chair, Prof. Isaiah Leggett, dated
December 9, 1997, but admittedly written by Prof. Taslitz, as was the custom with most of the memoranda
written by the APT Committee. (Facts, 146) Since it was unsigned, it was probably a draft, prepared for
discussion and approval, and that was never sent to the Dean. (Facts, 153) Since it was not produced for
more than four years, although contemporaneous records, and/or any record of the APT Committee records
were requested as part of Plaintiff’s discovery requests in April of 2000, and ordered produced no less than
three times (April 11, 2001, May 30, 2001, June 25, 2002), there is reason to believe that the memo was never
submitted to the Dean’s office or a part of the Dean’s office records. No one can authenticate this document
as to time, date or transmission (Facts, 146); therefore, it may well be only an “experimental” document that
Taslitz drafted and kept to himself, or that he -- or someone else -- recently created solely for the purposes of
this litigation.
Since the memorandum begins by stating that the APT Committee voted on its candidates “yesterday,” and
the decisions were actually made on December 18, 1997, the memo might reflect a typographical error and
perhaps, should read “December 19, 1997” -- or the December 9, 1997 date might actually reflect when he
wrote the draft, for discussion at the December 18, 1997 APT Committee meeting. (Facts, 146) No member
of the APT Committee remembered seeing the memorandum in 1997 and some said they were certain that
they never saw it before their depositions in August/September of 2002. (Facts, 146) No APT member could
explain where it had been for the past four years or why it was not produced prior to July 19, 2002.
The December 9/19th, 1997 memorandum states that the Committee had the option of recommending one
candidate, or more than one candidate, ranked in order of preference, for each of the three positions,
EEO/Labor law, Constitutional Law/civil rights and Commercial Law. (Facts, 147) The Committee did
nominate two persons, ranked in order of preference, for the Commercial Law position. (Facts, 147) For the
EEO/Labor law and Constitutional Law positions, however, only one candidate was recommended for each
position. (Facts, 148)
On page 2 of the December 9/19th, 1997 memorandum, under the heading, “Equal Employment Opportunity
Labor Law” (Facts, 147), the memo reads:
Our sole recommendation is to hire Visiting Assistant Professor Christi Cunningham as a tenure-track
Associate Professor. Although one other candidate had practice experience in labor law, which Christi does
not, Christi has a strong interest in teaching and writing about labor law and has practice experience in the
area of equal employment opportunity. Several factors elevated Christi far above other candidates. First, she
is the only candidate with a proven record of scholarship in the field. In just one year, at Howard, she
completed a substantial article on equal employment opportunity and most of the research for two follow-up
articles. She also gave a talk at a major Critical Race Theory Conference at Yale, a talk that will be published
as part of an anthology growing out of that conference.
… finally, she has credentials that far exceed those of other candidates. Besides being an editor on both the
Yale Law Journal and the Yale Journal of Law and Feminism, she clerked for the Honorable Constance
Baker Motley, where she authored a leading opinion on equal employment opportunity law. Furthermore, she
worked for one of the leading law firms in the country, where she focused on equal employment opportunity
law. (Emphasis added)
1. The “Taslitz Memo” Claim that Cunningham’s Qualifications “Far Exceed” those of Plaintiff is Disputed
by Howard’s own APT Committee
None of the APT Committee members -- except for Taslitz -- has expressed assessments of Cunningham’s
and Plaintiff’s qualifications that are consistent with the “Taslitz memo” of December 9/19th, 1997. No one
else has expressed the view that Cunningham’s credentials “far exceed” those of Plaintiff. To the contrary,
Prof. J. Clay Smith testified that that Plaintiff and Cunningham were “very close,” in his mind and that he was
trying to balance the credentials of the two candidates. (Facts, 155) He said that he thought that Plaintiff
was “terrific” (Facts, 155) and he admired her both as an individual and a professional. (Facts, 155)
Prof. Nolan testified that, after the Committee had voted to recommend Cunningham for the EEO/Labor
position, she recommended that Plaintiff also be recommended, and ranked as the number 2 candidate.
(Facts, 147) This gesture contradicts the notion that Cunningham’s credentials were so far superior to
Plaintiff’s that hers should be the only name submitted. APT Chair Isaiah Leggett testified that both Plaintiff
and Cunningham were qualified for the position and viewed favorably by the faculty. (Facts, 155) He said that
he did not make his decision between the candidates until after the discussion and that, during the
discussion, he was “confused” as to what scholarship Plaintiff had produced, or was working on, since at
Howard. (Facts, 164) When confronted with the resumes, Leggett admitted that Plaintiff had more
publications, overall, than Cunningham. (Facts, 165) Homer LaRue testified that he has no recollection of
any of the deliberations of the Committee, but that everything he had heard about Plaintiff’s teaching was
positive (Facts, 156), that 911... was “a good piece of scholarship (Facts, 156) and that Plaintiff was
collegial. (Facts, 156)
2. The “Taslitz Memo” Claim that Cunningham was the Only Candidate with a Proven Record of
Scholarship is Blatantly False and Pre-textual
HU’s own 1996 hiring recommendation memorandum for Plaintiff and its own website and credit Plaintiff with
having published four articles before she began teaching – all of it in the area of EEO law. Plaintiff published
an additional law review article during her first year of teaching, at Cleveland-Marshall College of Law,
bringing the count up to five. During her year and four months at Howard, Plaintiff had re-written 911… to
include the developing case law, extending it by approximately 75 pages – more than the entire length of
Cunningham’s article. The final article, 911: How Will Police and Fire Departments Respond to Public Safety
Needs and the Americans with Disabilities Act? was 141 pages in print – more than twice as long as
Cunningham’s 60 page article. (Facts, 160) The publication of 911… brought the number of Plaintiff’s
publications up to six. During the same year, Prof. Martin had completed all of her research for, and
produced a 27-page draft of a seventh article, Lights, Camera, Discrimination! “Playing” the Victim under Title
VII, as well as having conducted research on and developed a thesis and title for an eighth article, Still Racist
after all these Years – and Protected by the Americans with Disabilities Act? (Facts, 176)
Bullock admitted that the American Bar Association, in certifying Howard for accreditation, credited Plaintiff’s
911… article to Howard and that it received “a wonderful accreditation review.” (Facts, 132) During her first
year at Howard, Plaintiff “changed it” and “deepened the analysis,” resulting in “a good piece of scholarship.”
(Facts, 133) Plaintiff’s colleagues assessed 911… as “excellent,” “covered the universe of the topic,” and
“was very lengthy and very detailed.” (Facts, 133) It was “deemed to be quite substantial.” (Facts, 133) In
addition, Plaintiff had a 27 page draft of a third article, with all research complete, as well as a title, thesis, and
some research done on a fourth article. (Facts, 133)
To qualify for tenure, a professor is expected to publish, or have accepted for publication, three articles within
a five-year teaching period. (Facts, 169) The only publication requirement expressed to Plaintiff by Prof.
Taslitz or anyone else at Howard, was that the professor was required to publish, or have accepted for
publication, three articles, by his/her fifth year of teaching. (Facts, 170) Plaintiff was in her first semester of
her fourth year of teaching when the December 18th, 1997 decision was made. (Facts, 171) She had been
employed at Howard for one year and four months. At that time, she had two articles published/accepted for
publication, since she had begun teaching. (Facts, 172) Had she been selected for a tenure-track position
in the 1997-1998 academic year, Plaintiff would have been considered for tenure in the 1998-1999 academic
year – her fifth year of teaching. (Facts, 172)
In comparing the scholarship of the two candidates, J. Clay Smith acknowledged that it was Plaintiff, not
Cunningham, who had the proven record of scholarship, stating:
on the basis of weight, obviously, you (Plaintiff) had more articles, but that was not my judgment. My judgment
went to a variety of things, listening to the debate. It went to other things I can or cannot remember, but I know
I left the meeting with the feeling that I had made the right decision, even though both of you, I thought, were in
my own mind, as opposed to what others might have thought, I thought you were very close.
Prof. Smith further testified that he had read some of Plaintiff’s prior publications and thought that they were
“good pieces.” (Facts, 132) Since Prof. Smith was a Chairman, as well as a General Counsel, of the EEOC,
his opinion of Prof. Martin’s publications for a candidate for an EEO law teaching position, is particularly
significant. Had Plaintiff remained at Howard, she would have been able to complete Lights… in the spring of
1998 and Still Racist… by the summer of 1998, which would have provided Howard with an even more
“wonderful” evaluation. Instead, Bullock chose to exclude Plaintiff and her scholarship from Howard’s ABA
review. Clearly, this exclusion did not benefit Howard or its students.
Despite the alleged emphasis on scholarship and the Committee’s determination that Cunningham was a
more promising “scholar” than Plaintiff because 911… was not published “sooner” – whatever that means –
the Committee members admit that they did not read either article! (Facts, 157) At the time of the December
18, 1997, no one on the APT Committee actually read Plaintiff’s article, 911: How Will Police and Fire
Departments Respond to Public Safety Needs and the Americans with Disabilities Act? (Facts, 157) Even
Taslitz admits that he only skimmed the expanded and re-written 911… article submitted to the APT
Committee in November of 1997. At the time of the December 18, 1997 decision, at least three members of
the five admitted that they had not actually read Cunningham’s article, The Rise of Identity Politics I: The Myth
of the Protected Class under Title VII. (Facts, 156) Of the five APT Committee members, only Taslitz claimed
that he had read the article prior to the December 18, 1997 decision (Facts, 157)
In addition, when asked about Cunningham’s thesis in her article, “The Rise of Identity Politics I: The Myth of
the Protected Class in Title VII Disparate Treatment Cases,” Committee members with expertise and/or
knowledge of Title VII law did not understand Cunningham’s theory of “wholism” or agree her with her
proposition that Title VII can be interpreted to cover classes of people that are not specified in the statute.
(Facts, 156)
Howard’s claim that Cunningham was the only candidate with a “proven record of scholarship” is easily
proven false and pre-textual by simply “stacking” Plaintiff’s scholarship against that of Cunningham.
Cunningham’s record of scholarship since graduation from law school, included one article, not yet
published, but accepted for publication, entitled “The Rise of Identity Politics I: The Myth of the Protected Class
in Title VII Disparate Treatment Cases.” The article was 60 pages long, in published print. Cunningham’s
two credited “works in progress,” for which she did not indicate having drafts, were, based on her own titles
and descriptions, both extensions of her first article. (Facts, 159) In fact, Cunningham listed them on her
resume, under “Works in Progress” as “The Myth of the Protected Class II” and “The Myth of the Protected
Class III.” (Facts, 159) Cunningham was, then, working on her second and third articles on the day that she
began working on her first – but that would not indicate that she should be credited with nearly completing the
research for three separate articles. To credit Cunningham’s planned continuation of her first article as three
articles, while ignoring Plaintiff’s additional two articles in progress, particularly when each of Plaintiff’s
articles involved completely different topics and research, is simply dishonest. Cunningham’s resume
indicated that her second and third articles were intended to “to finish the idea” that she began in her first, 60
page article. (Facts, 159) Purportedly, Cunningham knew enough about what those thoughts were to
project that it would take three articles – the minimum required for tenure. Plaintiff, however, wrote a 141
page article that completed all of her “ideas” and suggestions on the topic.
Plaintiff’s “proven record of scholarship,” before she began teaching, while she was teaching in Cleveland,
and once she began at Howard, was active, “substantial,” and specifically, much more substantial than that of
Cunningham.
3. Taslitz Misled APT Committee Members Regarding the Status of Plaintiff’s and Cunningham’s Articles
Four of the five members of the APT Committee mistakenly believed that Cunningham had actually published
an article while at Howard. (Facts, 163-165) In fact, Cunningham’s article was in the same status as was
Plaintiff’s – accepted for publication, but not yet published. (Facts, 163-165) Nolan said:
Christi, in fact, had come in, had been able to publish an article and – publish, not just draft and send it out,
publish the article and was working on others and for my own self, taking my personal feelings out of the
selection, and just seeing what would be the best fit with the University at this time, I think that the discussion
was in favor of Christi.
J. Clay Smith recalls that:
I kind of thought that perhaps a member of the Committee might have thought that you (Plaintiff) would have
gotten some research done prior to this particular point. I think it was raised. I do not recall who raised the
issue at all, but I think it was an issue. Did that affect me? That’s different because that wasn’t a glowing
thing for me at all.
(Facts, 163) The member who “raised” it was clearly not Smith or Nolan. It was not Leggett, who also
testified that “someone” kept stressing, during the meeting, that Plaintiff had not yet published her 911…
article, in response to his desire to give Plaintiff “credit” for a second article. (Facts, 164). Leggett, described
the APT Committee discussion as presenting Cunningham as someone “who had published” and “was in
the process of publishing again,” as compared to “someone who had not published at the scholarship
journal level that we thought when the hire was first made” -- referring to Plaintiff (Facts, 165) Prof. LaRue
recalls virtually nothing of the deliberations (Facts, 155) and it does not appear that he had any strong
opinions about the matter. Taslitz took the lead in representing the status of both Plaintiff’s and Cunningham’
s articles. (Facts, 159)
Any APT member could have checked the information presented during the discussion by simply looking at
the resumes and/or applications; however, the expectation is that a colleague would not deliberately
misrepresent the credentials of a candidate. In the midst of the busy December season, with exams,
grading, and the pressure to make APT meeting decisions and timely inform people of those decisions
(Facts, 148, 154), it is reasonable that Committee members relied on summaries of candidate’s
qualifications without checking “the record” for errors and omissions throughout the discussion.
3. The “Taslitz Memo” Conspicuously Ignores Plaintiff’s Existence
Taslitz’ December 9/19th, 1997 unsigned memo reads as if Plaintiff never existed, although
all members of the Committee agreed that Plaintiff and Cunningham were the two finalists. Oddly, the memo
makes a reference to the consideration of an outside candidate with specific experience in labor law, as
distinguished, in the memo, from EEO law (Facts, 152) The Taslitz memo does not give any indication that
Plaintiff was even considered to keep the position that she had held for the previous two years – even though
she had left a tenure track position in Cleveland to teach at Howard.
Defendant’s claim that Plaintiff’s work experience was not as “stellar” as that of Cunningham is disputed by
the APT Committee members’ admissions that Plaintiff had many more years of legal experience than did
Cunningham, and specifically, much more experience in EEO law than did Cunningham, with 17 years of
legal experience, as compared to Cunningham’s five and three and a half years of teaching experience, as
compared to Cunningham’s year and a half of teaching.
Plaintiff worked for this nation’s top civil rights agencies, for thirteen years, prior to her four years of teaching
(including EEO law each year). Plaintiff litigated for the U.S. Department of Justice, Civil Rights Division and
the New York State Office of the Attorney General, Office of Civil Rights, and helped develop national policy in
employment law at the EEOC. Plaintiff attended New York University, a top-ten law school, and graduated to
join the U.S. Department of Justice’s prestigious and highly competitive Honors Program -- eleven years
before Cunningham graduated law school. Prior to law school, Plaintiff graduated cum laude from the Ivy
League Barnard College, Columbia University, in 1978. Plaintiff’s 17 years of prior experience will not be
reiterated herein, but Plaintiff’s position description immediately preceding teaching is as follows:
Office of Commissioner Joyce Tucker, Special Assistant
Analyzed and recommended approval, disapproval of proposed litigation, regulations, Commissions
decisions, commissions charges, amicus briefs, and other documents requiring commissioners votes or
reviews, drafted edited speeches, drafted memorandum on behalf of commissioner, briefed commissioner
for commission meetings, media appearances and speeches, conducted seminars on behalf of
Commission, hired, trained and supervised legal interns, office of the legal counsel, attorney -- senior
attorney advisor, developed national policy on Title VII issues, wrote policy guidance EEOC decisions,
memoranda. Wrote policy guidance, EEOC decisions, memoranda, and citizens response letters, special
areas of research included the use of testers and employment discrimination cases, EEOC jurisdiction
abroad and the use of arrest records in employment decisions.
EEOC Commissioner Joyce E. Tucker, in rating Plaintiff “outstanding” in her performance as her Special
Assistant, wrote:
Ms. Martin's interactions with coworkers, other commissioned staff and the public are highly professional and
highly effective. Her ability to communicate well with others has been instrumental in developing significant
Commission policy, -- retroactivity of the civil rights act, and resolving litigation questions with the office of
general counsel. Ms. Martin is published in her personal capacity in a major textbook on employment
discrimination. Ms. Martin's publication in Professor Merrick Rossein's, textbook 'Employment Discrimination
Litigation' gives national recognition to her knowledge and expertise in the area of the use of textbooks on
employment discrimination. Ms. Martin's coordination with staff of other Commissioners and Commission
divisions consistently reflects careful consideration of cross cutting organizational responsibilities and her
recommendation often result in improvement in agency policy.
Plaintiff’s legal experience, particularly her background in EEO law, were far superior to the work experience
of Cunningham, who was in the early states of her career, according to five of the eight Howard professors
deposed on the subject, including two APT Committee members. (Facts, 152, 149, 150) The remaining
three members of the Committee “could not recall” any APT Committee discussion comparing the work
experience of Plaintiff and Cunningham and would not make the comparison in their depositions. (Facts,
152) No APT Committee member claimed that the legal experience of Cunningham was superior to, or more
“stellar” than that of Plaintiff
In 1996, when Plaintiff and Cunningham were hired as visitors, Plaintiff was hired at a higher rank (Associate
vs. Assistant Professor), higher salary and longer term contract (two years as opposed to one year), than was
Cunningham. (See Exhibit KKKK , Chart of Qualifications of Plaintiff as compared to Cunningham in 1996
and Exhibit LLLL, Chart of Qualifications in 1998) In addition, Plaintiff was assigned EEO and Torts, courses
that both candidates sought to teach. The 1998 decision not to renew Prof. Martin’s contract cannot credibly
be presented as a choice between two candidates, Martin and Cunningham; this was simply a deliberate
exclusion of Plaintiff from the faculty. The only way that the APT Committee could justify hiring Cunningham
over Plaintiff, was to omit any discussion of her credentials at all.
4. The “Taslitz Memo” Grossly Exaggerates Cunningham’s Credentials
The Taslitz memo presents Cunningham’s credentials in a way that is not honest, but grossly exaggerated.
In addition to misrepresenting her scholarship, the memo exaggerates Cunningham’s job experience. It is
certainly an honor to be selected as a law clerk to the Honorable Constance Baker Motley; however, the
accomplishments of Constance Baker Motley cannot be superimposed upon Cunningham simply because
she clerked for her for a year. The description of Cunningham as having “authored” a judicial decision is also
inappropriate. To imply that Constance Baker Motley allows new graduates from law school to “author” her
judicial opinions devalues the Honorable Constance Baker Motley. Furthermore, Cunningham’s resume
does not indicate that she “focused” on equal opportunity law during her two years and nine months with the
New York law firm. Cunningham’s law firm experience is described on her resume as follows:
Insurance class action and litigation settlement; litigated contract and fraud claims in small claims court;
employment discrimination; unemployment compensation litigation, including appellate brief; negotiated and
drafted settlement in employment dispute, drafted employment termination agreements; drafted deposition
outlines and attended depositions; supervised large staff of attorneys and legal assistants in large document
production; drafted appellate brief in Florida state court; represented victim of domestic violence in
uncontested divorce.
The “overdone” endorsement of Christi Cunningham, the misrepresentations of her credentials and EEO
experience, and the complete exclusion of any reference to Plaintiff – leaves the Taslitz “draft,” unsigned
memo devoid of any credibility. Its significance, however, is to demonstrate that Taslitz was willing to
misrepresent the candidates’ qualifications to disadvantage Plaintiff. Taslitz, again, was the only APT
Committee member privy to Dean Bullock’s animosity toward Plaintiff.
B. Defendant’s Claims that Plaintiff was not Collegial and had “Bad Judgment” are False and Pre-textual
1. The APT Committee had not heard or Discussed any Allegations that Plaintiff was not “Collegial” or
Exercised “Bad Judgment”
Howard cannot argue that Plaintiff was not selected for a permanent position due to lack of “collegiality” or
“bad judgment,” since the Committee never discussed any alleged “bad judgment” by Plaintiff or questioned
her collegiality. (Facts, 185) The collegiality allegation, put forth by Dean Bullock and Taslitz, is, however, the
key to understanding the APT Committee’s decision on December 18, 1997, and the Dean’s withholding of
vacant positions from the Committee’s consideration through the spring of 1998. Nolan, Smith, Leggett and
LaRue all testified that they found Plaintiff to be collegial and that they had never heard any member of the
faculty question her collegiality or judgment. Nolan even acknowledged that she may have hugged Plaintiff
after the decision and said, “I wish I had a job for you. I am praying for you.” (Facts, 185) The allegations
against Plaintiff of “non-collegiality” and “bad judgment” were apparently “a little secret” between Bullock and
Taslitz for the past five years.
2. Dean Bullock’s Accusations against Plaintiff are Contradicted by all Credible Evidence
a. Defendant Refuses to Produce Faculty Minutes
Most revealing is that when repeatedly asked about examples of Plaintiff’s “bad judgment,” Bullock testified
that Plaintiff “talked a lot” during faculty meetings and did not listen to her senior colleagues (Facts, 212); yet,
when Plaintiff requested copies of the faculty meeting minutes, Howard refused to produce them. (Facts,
121) Faculty meetings are generally held once per month, during the school year, for total of 9 times per year,
for a total of 18 sets of minutes, each being a few pages long and all of them filed in the Dean’s office
“forever,” according to the Dean’s secretary. (Facts, 213) These minutes are at the fingertips of the Dean, but
Howard is clearly afraid to produce them because they will reveal that Plaintiff did not speak at all during many
meetings, and when she did speak, did so respectfully and in the spirit of contributing to the law school. Any
comments recorded by Plaintiff should reveal that when Plaintiff did speak at faculty meetings, it was with
respect for her colleagues.
b. The Testimony of Plaintiff’s Former Colleagues Contradicts Dean Bullock’s Accusations
In addition to the five members of the APT Committee, Profs. Boyer, Jones and Rogers were deposed
regarding Plaintiff’s collegiality. All of them praised Plaintiff as a person who was respectful and considerate
of her colleagues, and quite collegial. (Facts, 218) All testified that they had never heard Dean Bullock, Dean
Newsom, or any other member of the faculty indicate that Plaintiff as not collegial or that she caused
problems for the University. (Facts, 218) In fact, Prof. Boyer testified that he and the other most senior
members of the faculty believe Prof. Martin should be reinstated at Howard. (Facts, 218) In fact, Prof. Boyer
testified that these most senior faculty members have read pleadings in this case and believe that Plaintiff
will prevail in this lawsuit! (Facts, 218)
Prof. Boyer was not only one of Plaintiff’s “senior colleagues,” he is the most senior faculty member at the law
school. (Facts, 213) Prof. Boyer, with whom Plaintiff debated, at least once, testified that even when he and
Plaintiff disagreed, it was always with respect. (Facts, 213) Prof. Jones is the next senior member of the
faculty, and he testified that Plaintiff was one of the most collegial members of the faculty, since there were
others who demonstrated disrespect for their colleagues. (Facts, 213) Prof. Boyer wrote a memo to the
faculty, posted on his Howard website, discussing the lack of collegiality at Howard. (Facts, 215) Bullock
has discussed this matter in a magazine article attached to Plaintiff’s August 3, 2001 Motion for a Default
Judgment Due to Defendant’s Production of Late, Incomplete, and Falsified/Tainted Evidence.
IV. DEAN BULLOCK LEFT FACULTY POSITIONS VACANT TO PREVENT THE APT COMMITTEE FROM
SELECTING PLAINTIFF, BASED ON HER RETALIATORY MOTIVE
Even if a jury could be convinced that the APT Committee acted without the retaliatory poison of Dean Bullock’
s influence when choosing Cunningham over Plaintiff on December 18, 1997, Bullock’s withholding of vacant
positions, in the spring of 1998, demonstrates irrefutably that Dean Bullock was the force forcing Plaintiff off of
Howard’s faculty. In her Answer to the First Amended Complaint, Bullock admitted that, in the spring of 1998,
there were several faculty positions available, for which Plaintiff was qualified, but for which she was not
selected and that the positions remained vacant. (Facts, 236)
In January of 1998, the American Association of Law Schools (AALS) held its annual conference. (Facts,
226) Plaintiff attended the conference to seek other teaching positions, even though the hiring season had
ended. (Facts, 226) Bullock testified that she believed that Plaintiff was saying “negative things” about
Howard. (Facts, 226) In an apparent attempt to appease Plaintiff and deter Plaintiff from telling other law
professors at the conference what had happened at Howard, Bullock told Plaintiff that she expected new
positions to become vacant during the spring, and that if one did, she would seriously consider her and
recommend her for it. (Facts, 227)
Plaintiff learned, from a friend at the Department of Justice, that the APT Committee’s selectee, Reginald
Robinson (II), had declined Howard’s offer to fill the advertised Constitutional law/civil rights position. (Facts,
237) Prof. Martin immediately applied for the position by memorandum to Dean Bullock, dated March 6, 1998,
with copies to all members of the APT Committee. (Facts, 237) Bullock never authorized the Committee to
make another recommendation for the position, but, by memorandum dated April 6, 1998, authorized the
Committee to hire a visiting professor to teach tax and trusts and estates, with a specific recommendation
that the Committee hire Angela Vallario, who had been teaching tax and related courses at Howard as an
adjunct professor. (Facts, 238)
Bullock testified that the need in tax arose in the spring because a tenured tax professor, Prof. Argrett, was
extending her leave with Howard for another year, continuing her position with the Department of Justice.
(Facts, 239) When professors are on leave, visitors are often hired, from the funds reserved for the professor
on leave, to teach the courses taught by the professor on leave (Facts, 239); consequently, whether the funds
to hire Vallario were taken from the unfilled ConLaw/Civil Rights position or the funds reserved for the salary
of Argrett, at least one faculty position was vacant as a result of Robinson II’s rejection of Howard’s offer and
Argrett’s extended leave. (Facts, 241)
In addition to the ConLaw/Civil Rights slot/Argrett slot, a property professor unexpectedly retired during the
spring semester. (Facts, 240) This retirement left an additional faculty vacancy for the 1998-1999 academic
year (Facts, 240) Bullock did not authorize the Committee to fill this position. (Facts, 240) Finally, former
Dean Ramey was still technically on the faculty at Howard during the 1997-1998 academic year. (Facts,
240) Bullock admitted to Plaintiff, on March 27, 1998, that the slot reserved for Dean Ramsey was available,”
allowing her to fill the position, so that three faculty positions were vacant, after counting the EEO/labor law
and Commercial law positions as “filled.” (Facts, 241)
Whether there was one vacancy, two or three, Plaintiff only needed one. Plaintiff suggested that these new
vacancies would allow both Christi Cunningham and her to remain at Howard and continue to teach the
courses that they had taught for the previous two years (Facts, 243) while Lateef Mtima filled the gap in
commercial law and the new need in property. Plaintiff’s suggestion would have allowed Prof. Worthy to
continue teaching Ethics, since the reassignment of Cunningham to teach EEO and Labor law required Prof.
Worthy (now Interim Dean) to relinquish her Ethics class to cover a course relinquished by Cunningham.
In her April 8, 1998 Reply Memo to Prof. Martin, Bullock replied that “contracts” and been “executed” with the
“new hires,” Cunningham and Mtima, “months ago,” and that she had “no basis for rescinding those
contracts.” (Facts, 244) In fact, no contracts had been executed with Cunningham or Mtima. (Facts, 244)
Bullock certified, as part of Howard’s July 19, 2002 discovery request, produced after two Court Orders and a
contempt finding against Howard for non-production of discovery, that there are no written contracts with
faculty members. (Facts, 244) Dean Bullock simply lied in her memoranda to Plaintiff.
Bullock admitted that no professor is guaranteed to teach any particular course and that courses are
reassigned in accordance with the school’s needs (Facts, 245) yet, she never asked Cunningham whether
she would prefer to continue teaching the four courses that she had been teaching, rather than pick up EEO
and Labor law. (Facts, 246) Similarly, Bullock never asked Mtima whether he would prefer to teach property
related courses rather than Torts I and II, even though he had not indicated any preference for Torts and had
published on property issues. (Facts, 247) Plaintiff’s EEO class was a seminar with limited enrollment.
(Facts, 248) The demand for that class exceeded enrollment by at least three times; consequently, two
seminars in EEO law could have been offered, one per semester, to better serve the students. (Facts, 249)
In addition, there was no survey class in EEO law offered, so that students did not have a good background
for the seminar to write research papers. (Facts, 249) Plaintiff had raised this issue previously with Dean
Newsom and recommended that a survey course be offered and made a pre-requisite to the seminar.
Plaintiff was also qualified to teach an array of courses, including various civil rights courses and employment
law courses and any “core” course. (Facts, 249, 250) Instead of meeting student needs and
accommodating faculty by leaving/placing them in classes with which they were most familiar, Bullock
manipulated courses and withheld vacancies to exclude Plaintiff from consideration for any position on the
faculty.
V. BREACH OF CONTRACT
In its December 15, 1999 decision, this Court rejected Defendant’s argument that parole evidence could not
be considered, due to the statute of frauds. The law in the District of Columbia permits parole evidence
where the oral contract could have been performed within a year of the contract. In this case, a tenure-track
position could have become available at any time, including during the first year of Plaintiff’s employment with
Howard, as evidenced by the unexpected vacancies in the spring of 1998. The departure of any tenure-track
member of the faculty would have allowed Plaintiff to apply for, and be selected for, a tenure-track position
during her first year.
This Court denied Defendant’s Motion to Dismiss or for Summary Judgment in order to allow the jury to
decide: 1) whether Professor Taslitz had the authority to bind the University; and 2) whether Taslitz actually led
Plaintiff to believe that the Visiting Associate Professor position that she was being offered was expected to
become a tenure-track position. Howard has admitted that Taslitz had the authority to bind the University.
(Facts, 15-16) Taslitz negotiated with candidates, including Plaintiff, wrote letters making offers and orally
made offers, with the approval of Howard officials. (Facts, 16-17)
Plaintiff alleges that Prof. Taslitz made representations to her, at the time of her hire in early 1996, that: 1) if a
tenure track position had been available at the time of the offer, Howard would have offered it to Plaintiff
(Facts, 17); 2) Howard was offering her a visiting position only because no tenure-track positions were
available (Facts, 17); 3) Howard generally has visitorships available and has renewed visitors for many
years, including Prof. Patricia Worthy and others (Facts, 17); 4) Howard could offer her a multiple year
contract, if that would make her more inclined to accept the offer (Facts, 17); 5) Howard would just keep
renewing Plaintiff as a visitor until a tenure-track position opened up and then they would “slide” her into a
permanent faculty position (Facts, 6, 17); 6) the visitorship being offered to her was a “visitorship only in
name,” and “for all practical purposes, a tenure-track position.” (Facts, 17) Plaintiff also alleged that she told
Taslitz that her daughter was starting high school that year and that she would not move her back to D.C. from
Ohio, then “rip her out of high school” to move somewhere else. (Facts, 17)
Taslitz has admitted making the representations numbered 1, 2, 3 and 4 (Facts, 17). Taslitz also admitted
that Plaintiff told him that she did not want to start her daughter in school and then move her after only on
year. (Facts, 17) Taslitz testified that he could not recall his “exact words,” but that he intended to convey the
message that, if Plaintiff accepted the visitorship, she would be “well placed” for a permanent position when
one opened up. (Facts, 18) The differences between Plaintiff’s allegations and Taslitz’ admissions are
ones of degree, rather than substance. Taslitz was clearly giving Plaintiff a “sales pitch” to convince her to
teach at Howard. As part of its enticement and an indication that its representations regarding job stability
were made in good faith, Taslitz offered Plaintiff a two-year visitorship, as part of her written offer. (Facts, 19)
Multiple year contracts were not offered to ei
FOR THE DISTRICT OF COLUMBIA
____ ______
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/JMF
)
)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff respectfully moves this Court for Summary Judgment on her claims of sexual harassment/hostile
work environment and retaliation, in violation of Title VII and the District of Columbia Human Rights Act
(DCHRA), and breach of contract. The Chief Judge set precedent in the District of Columbia when he denied
Defendant’s Motion to Dismiss in Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516, 81 FEP Cases
(BNA) 964; 15 IER Cases 1587 (BNA) (D.C. D.C. 1999)
MEMORANDUM IN SUPPORT OF MOTION
FACTS
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 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.”
Plaintiff immediately reported the stalking to the law school administration, Howard security and the D.C.
Metropolitan Police Department. Plaintiff 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, noteworthy 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.
ARGUMENT
I. STANDARD OF REVIEW FOR MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Fed. R. Civ. P. provides that summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Adickes
v. S.H. Kress and Co., 398 U.S. 144 (1970). 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. Woodfield v.
Providence Hospital, 779A.2d 933, 936 (D.C. 2001).
II. HOWARD SUBJECTED PLAINRIFF TO A HOSTILE WORK ENVIRONMENT BASED ON SEXUAL
HARASSMENT
On December 15, 1999, this Court set forth the legal analysis in this case, holding: “although Mr. Harrison
was not a University employee, the University is liable for the harassment if it knew or should have known that
Mr. Harrison's actions created a hostile work environment for the Plaintiff and failed to take corrective action.”
Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516. It is well documented that Defendant knew that
Harrison was harassing Plaintiff in her workplace. Howard’s own officials and employees corroborated
Plaintiff’s claims that: 1) she was harassed by Leonard Harrison in her workplace; 2) the harassment by
Harrison was sexual in nature and/or based on sex; 3) Plaintiff’s fear of Harrison was reasonable; 4) Plaintiff’
s specific requests to the administration to take action to stop Harrison were reasonable; 5) Howard’s
administration never took the steps that it acknowledged were reasonable to stop the harassment; and 6)
since Harrison was never apprehended or barred from campus, Plaintiff worked in reasonable fear of
Harrison from November of 1997 through the spring of 1998.
A. Harrison’s Harassment of Plaintiff was Both Sexual and Based on Sex
Again, in its December 15, 1999 opinion, this Court set the legal analysis for this case, holding:
A hostile work environment may be established if the harassment is "because of sex," even if not sexual in
nature. Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1999); Hicks v. Gates Rubber Co., 928 F.2d 966, 971 (10th Cir.
1991); Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir. 1988). 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" even if they were not inherently sexual in nature.
1999 U.S. Dist. LEXIS 19516. Harrison's pursuit of Plaintiff as his "wife" was inherently sexual, since the
relationship between a husband and a wife is expected to include sex. In addition, Harrison’s description of
Plaintiff expresses that sexual interest:
Verily, it appeared that this Valerie Edwards look-alike was actually a taller, more youthful, prettier and (forgive
me for saying) more voluptuous woman than the Valerie Edwards whom I had met and known at Lakeside. . . .
The truth is, I had never looked at Valerie Edwards full in the face, on account of painful bashfulness -- while
enamored by her person and both distracted and infatuated with her legs -- and so was not aware of her
exact features.
Harrison’s harassment of Plaintiff, therefore, was both sexual and based on sex.
B. Harrison’s Harassment of Plaintiff was Severe and Pervasive
In its December 15, 1999 opinion, this Court applied the legal standard for determining a hostile or abusive
work environment Harris v. Forklift Systems, Inc., 510 U.S. 17. 23 (1993). 1999 U.S. Dist. LEXIS 19516.
A court must consider: (1) the frequency of the discriminatory conduct, (2) whether it was physically
threatening or humiliating or a mere offensive utterance; and (3) whether it unreasonably interferes with an
employee's work performance. The severity or seriousness of the alleged conduct varies inversely with the
pervasiveness or frequency of the conduct; in other words, "one act may be sufficient if it is particularly severe
while less intense incidents may be sufficient if numerous." The Court must consider both the victim's
subjective impressions and whether the alleged actions would constitute sexual harassment from the
perspective of a reasonable victim. (Id)
1. Harrison’s Harassment of Plaintiff was Frequent and Unpredictable
Harrison’s known, specific acts of sexual harassment of Plaintiff are characterized as follows: 1) slipping two
letters under the door of Plaintiff’s office; 2) leaving a first voice mail message on Plaintiff’s office telephone
line, requesting to audit a class that she did not teach at Howard, but had taught in Cleveland; 2) leaving a
second voice mail message, weeks later, professing his desire for Plaintiff, calling her a name that was not
her own, but a mispronunciation of her unusual middle name; 3) indicating that he had been watching her,
although she had been completely unaware of his presence; 4) leaving a third voice mail message, angry
that he had been escorted out of the law school library, asking her to get the
“f---ing cops” off his back so that he could come to see her at her office; 5) going to Plaintiff’s office to confront
her, at least once, when she was in her office and was chased off campus and into the woods; 6) going to
Plaintiff’s office when she was not there, looking for her, as evidenced by his letters under her door and his
voicemail messages stating his intent to visit her; and 7) frequenting campus buildings, including an incident
when he was escorted out of the library instead of being held for MPD.
Since Harrison was never barred from the campus and “notices of alert” were never posted anywhere or
otherwise distributed on campus regarding Harrison, he freely entered the law school buildings. The most
severe and pervasive aspect of Harrison’s harassment was that the threat that he would show up hung over
her head, like the “sword of Damocles.” Plaintiff worked in fear of other visits from Harrison, at all times from
November 20, 1997 through June of 1998, when her employment at Howard University ended.
C. The Harassment was Physically Threatening and Humiliating
Plaintiff’s fear of physical harm by Harrison was imminently reasonable. MPD officers and the Assistant
Director of the homeless shelter told Plaintiff that she should be afraid of Harrison. (Facts, 36, 40) Dean
Bullock, Associate Dean Newsom, Mrs. Bruner, professors and all of Defendant security personnel deposed
on this issue have consistently testified that Plaintiff had good cause to be afraid of Harrison. (Facts, 60-61,
65-67, 85, 99) Even former Dean Bullock specifically conceded that anyone in Plaintiff’s position would feel
“mental anguish,” being pursued by Harrison. (Facts, 65)
Plaintiff later learned that Harrison’s search around the country (Facts, 62, 66, 67) and beyond (Facts, 66) for
more than a decade had included a visit to NYU Prof. Derrick Bell, in 1990, when he was a law professor at
Harvard University. (Facts, 66, 67) Harrison detailed to Bell his plans for a racial revolution. (Facts, 67)
According to Prof. Bell, Harrison threatened to “first kill all the token Blacks in high places,” promising Bell that
he would return, after finding Geneva and starting a racial revolution. (Facts, 67) One message indicated that
Harrison frequents the Library of Congress, as well as universities, to conduct his “research” on “revolution.”
Harrison told Bell, “I’m coming back to blow your head off.” (Facts, 67) Harrison is also reputed to have
targeted and/or approached other African-American female professors such as Prof. Lani Guinier, when she
at the University of Pennsylvania, Prof. Adrienne Wing, at the University of Iowa, and a political science
professor at Harvard. (Facts, 67) In addition, Prof. Jim McPherson, at the University of Iowa, Harrison’s
former writing professor, stated that Harrison threatened him after being displeased with McPherson’s
assessment of his writing. (Facts, 67)
In addition to the physical threat, rumors had circulated within the law school that Plaintiff had either been
married to Harrison or was somehow acquainted with him and had attracted him to campus. (Facts, 69)
Plaintiff had heard these rumors and was humiliated by them. Plaintiff sometimes asked a guard on duty to
walk her to her office to get books for class, or to walk with her from class. (Facts, 70) Plaintiff was further
humiliated by having students see her escorted by campus police officers and by holding office hours in the
cafeteria, rather than in her office. She was embarrassed asking Mrs. Bruner to watch the ladies’ room door
while she was inside. Any reasonable person in Plaintiff’s position would feel threatened and humiliated by
Harrison’s behavior.
D. Harrison’s Harassment of Plaintiff Unreasonably Interfered
with her Work Performance
From December 2, 1997, when Harrison was chased from Plaintiff’s office, until June 1998, when her
employment with Howard was terminated, Plaintiff carried mace on her key chain, carrying it everywhere that
she went within the law school. (Facts, 71) Plaintiff held office hours in the cafeteria to avoid confronting
Harrison in her office. (Facts, 71) Plaintiff was afraid to stay in her own office, walk through the law school
building, library, or even to the ladies room alone. (Facts, 99) Plaintiff disguised herself, in her teenage
daughter’s hooded parka, walking from the parking lot, to attend faculty meetings in the evening. (Facts, 99)
Plaintiff “hid” in a colleague’s office while a security guard chased Harrison from her office, through the
premises, off campus, and into the woods. (Facts, 53) It cannot be disputed that Harrison’s harassment of
Plaintiff severely altered her work environment and her working conditions.
F. Howard University had a Duty to Take Measures Reasonably Calculated
to End the Harassment
In its December 15, 1999 opinion, this Court set precedent in the District of Columbia by adopting the
precedent set in other jurisdictions having considered the issue of employer liability for a third-party harasser,
as well as the standard set forth in EEOC Guidelines. 1999 U.S. Dist. LEXIS 19516. EEOC Guidelines on
Discrimination because of sex, 29 C.F.R. § 1604.11(e), provides that:
an employer may also be responsible for the acts of non-employees, with respect to sexual harassment of
employees in the workplace, where the employer (or its agents or supervisory employees) knows or should
have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these
cases, the Commission will consider the extent of the employer's control and any other legal responsibility,
which the employer may have with respect to the conduct of such non-employees.
The Tenth, First, and Eighth Circuits have specifically adopted EEOC Regulation 29 CFR 104.11(e) for
evaluating employer liability for sexual harassment of employees by non-employees. In Lockard v. Pizza Hut,
162 F.3d 1062 (10th Cir.1998), a restaurant was held liable for failing to prevent the sexual harassment of a
waitress by a customer. Lockard held that the standard of liability applies to both co-worker and non-
employee harassment, such that “employers may be held liable in these circumstances if they “fail to remedy
or prevent a hostile or offensive work environment of which management-level employees knew, or in the
exercise of reasonable care, should have known.” 162 F.3d at 1073. “An employer who condones or tolerates
the creation of such an environment should be held liable regardless of whether the environment was
created by a co-employee or a non-employee, since the employer ultimately controls the conditions of the
work environment.” Id..
In this case, the University had a separate duty, under the law of negligence, to take reasonable measures to
protect Plaintiff and others on campus from the threat of physical harm by Harrison. The University even a
campus security force for the specific purpose of protecting faculty, staff, students and visitors from physical
harm. (Facts, 78, 81) The University had a duty to use these resources to take reasonable measures to
protect Plaintiff and others on campus from both physical harm and sexual harassment.
2. Campus Security Procedures and Protocol Required Dean Bullock to Take Specific Actions to Protect
Plaintiff and Other Women on Campus from Harrison
The first step in addressing the stalking problem should have been to meet with the Director of Security,
Lawrence Dawson, to obtain the expertise of Howard’s own law enforcement force trained to protect persons
and property on the University’s property. Dawson met with Newsom and Dean of Students, Denise Purdie,
to discuss security matters at the law school at least twice per year, and the stalking was never mentioned in
the visits. (Facts, 81) Dawson does not recall ever receiving any memo from Newsom regarding Plaintiff,
Harrison or stalking, including the December 22, 1997 memorandum attaching a notice about a Harrison to
be posted. (Facts, 81, 87)
Although Dean Bullock indicated to Plaintiff, in her December 1, 1997 memo, that she would address the
stalking with Director Dawson, she never did. (Facts, 55, 58) Plaintiff relied on Bullock’s acknowledgment
that it was her responsibility to handle the matter. Dawson testified that behavior characterized as stalking is
actually common at Howard University, but that, the stalking exhibited by Harrison’s letters, Sgt. Sirleaf’s
campus police report, Plaintiff’s memoranda to Dean Bullock and Harrison’s criminal record, were not at all
the common type of stalking experienced on campus. (Facts, 76) Dawson characterized the stalking of
Plaintiff by Harrison as “serious.” (Facts, 77)
Based on Howard University’s own campus security procedures, the University should have taken the
following actions: 1) Harrison should have been barred from campus, using a bar notice, pursuant to Howard’
s policies and procedures, so that if he appeared on campus after the bar notice was administered, he would
be arrested, at least, for trespassing (Facts, 78) 2) notices should have been posted throughout the “West
Campus” (law school campus, including the library, faculty offices, classrooms and clinic) that Harrison was
barred from campus, with instructions to call campus security and MPD if anyone saw him on campus
(Facts, 78); 3) campus security should have conducted an investigation, coordinating with MPD (Facts, 78);
4) when Harrison announced his arrival, security officers should have been placed at the entrances of the
law school, at the time of his announced arrival, to apprehend him (Facts, 78); and 5) when Harrison
announced his arrival, MPD should have been notified. (Facts, 78)
G. Dean Bullock Refused to Take Measures Reasonably Calculated
to End the Harassment
An employer is required to take measures “reasonably calculated to end the harassment.” Ellison v. Brady,
924 F.2d at 881. In Wilson v. Tulsa Junior College, 164 F. 3d 534 (10th Cir. 1998), a custodial employee of
the University was harassed by her supervisor on the University’s campus, while on duty. The plaintiff was
awarded $100,000 in compensatory damages because the University failed to take “prompt and appropriate
corrective action” to eliminate the sexual harassment. 164 F.3d at 539. Once University management (in the
form of campus police) became aware of the first reported incident of conduct constituting harassment, “the
response of the campus police was grossly inadequate.” 164 F.3d at 540. The supervisor of Campus
Security “did nothing for eight hours, neither reporting the incident to Personnel nor taking action to prevent
(the harasser) from repeating his threatening sexual behavior.” Id.
The incident of sexual harassment in Wilson occurred on only one occasion -- Plaintiff’s supervisor exposed
himself to her and asked for oral sex. The University was held liable, even though it permitted a police
undercover investigation on its premises, suspended the alleged sexual harasser while conducting an
investigation, and reassigned the alleged harasser to a post where the plaintiff had no interaction with him.
The University’s actions were held not to be immediate and appropriate. 164 F.3d at 539. Howard’s
administration did absolutely nothing on November 20, 1997, when Plaintiff first asked for assistance in
addressing Harrison’s harassment of her in the workplace. Plaintiff had to enlist the assistance of Officer
Sirleaf, on her own, and call MPD with his assistance. (Facts, 34, 35) Associate Dean Newsom did not call
the police or campus security (Facts, 36, 37), but had to be convinced to attend even a portion of the meeting
with MPD and security and then, was no assistance, but a hindrance, yelling at Plaintiff while she was asking
the practical consequences of prosecuting someone for stalking on the facts assessed at that time. (Facts,
38)
On November 25, 1997, Harrison was escorted out of the library instead of being held for MPD. No bar notice
had been issued to keep him off campus and the officer called to the scene was unaware that Harrison had
been stalking Plaintiff Martin or that he was to barred from campus and held for MPD. (Facts, 31, 42) Plaintiff
specifically related the incidents to Dean Alice Gresham Bullock in a memorandum delivered on the same
day. (Facts, 43,-45) Plaintiff did not receive any acknowledgment of her November 25, 1997 memo until
December 3, 1997. (Facts, 55) Dean Bullock ignored Plaintiff’s November 25, 1997 memo -- not for eight
hours, as in Wilson -- but for eight days! Even then, Dean Bullock’s memorandum was not responsive to
Plaintiff’s concerns or predicament, but merely stated, “I am discussing the matter of security generally with
Mr. Dawson, Director of Security.” (Facts, 55) In fact, she did not speak to Dawson generally, or specifically,
about Harrison’s stalking of Plaintiff --ever. (Facts, 57, 58)
On December 1, 1997, after receiving an ominous message from Harrison announcing that he would come
to her office at 1:30 that afternoon, warning her to call the “f—king cops” “off of” him (Facts, 46), Plaintiff stood
shaking in Dean Bullock’s office and refused to return to her office or go to her classroom without protection.
(Facts, 48) Dean Bullock instructed a subordinate to call campus security and arrange to have a guard
placed in Plaintiff’s Office for the day. (Facts, 49) Bullock did not call security herself, nor did she even convey
to her assistant or anyone in security, the history of Harrison that she had at her fingertips, provided to her in
Professor Martin’s November 25, 1997 memo. (Facts, 49, 82, 94) Had she done so, the campus security
force could have taken the actions appropriate to address delusional stalking by a violent criminal, pursuant
to Howard’s own campus security policies, in cooperation with MPD. (Facts, 78) Without that information,
however, campus security was at a severe disadvantage for understanding the situation or how to address it
and assumed that Harrison would not be armed or dangerous. (Facts, 92-94)
Bullock only made the gesture of directing her assistant to call security, with the limited instruction of having
an officer assigned to her classroom at 12:00, to placate Prof> Martin to get her out of her office. Bullock
never took further action, although she was specifically informed, that, on that very day, Officer Dowdy chased
Harrison out of the building, off campus and into the woods and Plaintiff notified her of these facts in writing.
(Facts, 53) Harrison was delusional, obsessed with Plaintiff, had a criminal record, and a history of
violence -- including armed robbery and assault. (Facts, 39-94) Harrison reached Plaintiff’s office door,
within approximately four feet of her. (Facts, 53, 95) Howard’s own campus police Deputy Chief Armstrong
acknowledged that Harrison was close enough to Professor Martin to shoot her with a gun or to cut her with a
knife. (Facts, 95)
There are only two entrances to the law school building. (Facts, 79) A “mug shot” was easily accessible and
campus police already had a description from MPD and the homeless shelter. (Facts, 39, 41) Officer Dowdy
had seen Harrison up close and talked to him when he previously escorted Harrison off campus. Having
been put on specific notice that Harrison was planning to go to Plaintiff’s office, that day, at approximately 1:30
p.m., Harrison should have been stopped at the door. MPD was already looking for Harrison with respect to
the stalking and should have been called to assist.
Howard’s actions were not “reasonably likely to prevent the misconduct from recurring.” See Wilson, 164 F.3d
at 540 (defining “appropriate” employer action to eliminate sexual harassment). The present case is more
egregious than the situation faced by the plaintiffs in Wilson and Ellison. In both Wilson and Ellison, the
sexual harassers were known to the victims and the employers. Harrison would understandably be more
frightening than an employee whose job depended upon his behavior and whom the employer has had the
opportunity to observe and even investigate. As in Wilson, Howard’s refusal to take reasonable measures to
stop the sexual harassment “aggravated the threat” to Plaintiff. In Wilson, the Defendants informed the sexual
harasser of Wilson’s complaint. In the present case, Plaintiff had repeatedly expressed her concern that
improper handling of Harrison would make him angry and thus, a greater threat to her and her daughter (if he
discovered where she lived), and that precautions should be designed to apprehend him rather than simply
anger him and leave him at large. (Facts, 37)
When Harrison was found in the library, the University escorted him off campus rather than hold him for MPD
officers, and did not even bar him from campus. (Facts, 41, 96) Harrison was chased from the premises on
December 1, 1997 only because he had announced his arrival time and a security officer were waiting for
him. (Facts, 50, 51) Even then, Harrison walked freely into the law school building and took the elevator or
walked up five floors to Plaintiff’s office, undetected and unfettered. (Facts, 50, 51) He was chased off
campus by one guard, with no posting of additional guards or even notice to the guard at the front desk.
(Facts, 50, 51) As in Wilson, Defendant “never evinced an intention of protecting (Plaintiff)” or “preventing the
reoccurrence of the (sexual harasser’s) conduct.” 164 F.3d at 540. No reasonable juror could conclude
otherwise.
2. Dean Bullock Refused to Take even the Most Basic Steps to Eliminate the Hostile Work Environment
Assistant Dean Newsom testified that he wrote the memorandum to Dawson, on December 22, 1997 – more
than a month after the stalking began and 21 days after Harrison was chased from Plaintiff’s office. (Facts,
85) The memo, however, addressed the stalking only as one of the three unrelated “security concerns” –
including a missing printer and vagrants in the student lounge. (Facts, 85) Newsom attached the Security
Notice written by Plaintiff, because it was “the right thing to do” (Facts, 85) and because he was worried about
Plaintiff’s safety, as well as the safety of other women on campus (Facts, 85) Even then, however, he
acknowledged that the notice was never posted and he did not follow up to ensure that it be posted. (Facts,
85) Newsom and Bullock could have had the notices posted in the law school and library and distributed in
faculty and student mailboxes, but they simply did not do so. (Facts, 86)
This option was so available, obvious and reasonable that, when Deputy Chief Armstrong read Newsom’s
memo, purportedly for the first time, in his deposition, he interpreted the memo to indicate that Newsom had
already posted the notice at the law school. (Facts, 85) Newsom’s December 22, 1997 memo was not
produced as part of the campus security production (Facts, 87) and there is no evidence that the memo was
ever received by anyone in campus security. The only document produced as part of Howard University
campus security records, after a purportedly “exhaustive search” by Howard University through its campus
security files, after three Court Orders and a Contempt finding against Howard for failing to produce discovery,
was Officer Sirleaf’s initial November 20, 1997 report and the desk blotter entry recording Officer Sirleaf’s
report. (Facts, 88) Although Dowdy testified that he was certain that he had completed and submitted to his
superiors and Incident Report, on December 1, 1997, after he chased Harrison from Plaintiff’s office, off
campus and into the woods, Howard claims that it could find no such report in its records. (Facts, 89)
Associate Dean Newsom specifically testified that all of the measures that Plaintiff asked be taken to protect
her from Harrison in her workplace were “reasonable” (Facts, 90) – to bar Harrison from campus, to notify
faculty, staff and students that Harrison was barred, to call the police if he were seen on campus, and to post
officers at the door if Harrison announced his arrival. Newsom then admitted that none of these measures
was ever taken. (Facts, 90) It is undisputed that Howard failed to fulfill its legal obligations to take
measures “reasonably calculated to end the harassment.”
III. Dean Bullock Retaliated against Plaintiff by Denying her a Permanent, or Renewed,
Faculty Appointment
On December 15, 1999, this Court held that, since Plaintiff's complaints about Mr. Harrison and campus
security were closely followed by the adverse actions, Plaintiff has demonstrated a sufficient causal
connection to establish a prima facie case of retaliation. Martin v. Howard University, 1999 U.S. Dist. LEXIS
19516, citing 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). 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
I.S. 248, 252-253 (1973).
A. Plaintiff has Established a Prima Facie Case of Retaliation Since Howard Took Adverse Actions
against Plaintiff “on the Heels” of her Complaints of Conduct Constituting Sexual Harassment
As this Court held on December 15, 1999, Plaintiff’s November 20, 1997 and November 25, 1997 complaints
of conduct constituting sexual harassment is protected activity. The victim of sexual harassment need not
specifically say the words “sexual harassment” to be protected. Martin v. Howard University, 1999 U.S. Dist.
LEXIS 19516. See also Powel v. Las Vegas Hilton Corp, 841 F. Supp. 1024, 1025 (D. Nev. 1992) (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"); Howard University v. Green,
652 A.2d 31, 46 (D.C. App., 1994) (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). Plaintiff
reported to Deans Bullock and Newsom conduct that constituted a hostile work environment and asked them
to take reasonable measures to eliminate the hostile work environment.
Almost immediately after Plaintiff wrote the November 25, 1997 memorandum to Dean Bullock requesting
protection from Harrison, Deans Bullock and Newsom began a campaign of retaliation against her, including:
1) Dean Newsom’s November 30, 1997 demand that Plaintiff reduce the number of journals to which she
could sent her articles from 180 to 30 – despite the norm of approximately 200 (Facts, 107-111); 2) Dean
Bullock’s December 2, 1997 personal call to Plaintiff to demand that she immediately pick up the “very
important” letter (the form letter sent to all professors whose contracts were terminating at the end of the year,
pending the APT Committee’s decisions on new contracts) while failing to provide any personal response to
Plaintiff’s complaints about being stalked on campus (Facts, 112-113); and 3) Dean Newsom’s December
10, 1997 memo demanding that Prof. Martin provide the office with office hours, reminding her of the
“seriousness” of keeping office hours, when: a) the semester was over; b) Plaintiff had actually provided the
hours months earlier; and c) before the semester ended, Plaintiff was holding office hours in the cafeteria to
avoid the stalker. (Facts, 113-114) So, at the same time that Deans Bullock and Newsom were doing
absolutely nothing to protect Plaintiff from the campus stalker, they sent her a memo implying that she was in
“serious” violation of a requirement of her job by not sitting in her office during posted office hours, waiting,
like a “sitting duck” for Harrison!
The burning question is, why Deans Bullock and/or Newsom would not have taken the obvious and
appropriate steps to protect one of their own professors, as well as the rest of the Howard Law School
community, by utilizing the procedures already set in place by campus security. Both Deans admitted that
they did not take the obvious actions, but neither Dean has explained why. One can only surmise, then,
based on the facts. Prior to January 12, 1998, neither Plaintiff nor Howard’s administrators knew that
Harrison was a serial campus stalker. (Facts, 62) They only knew that Harrison professed a belief that Prof.
Martin was his “wife.” Perhaps they never saw Harrison as a threat to anyone but Plaintiff and believed that if
they eliminated Plaintiff from Howard’s campus, they would eliminate the need to take any action to keep
Harrison off campus. Perhaps they did not want to post notices, distribute flyers, or make an announcement
during a faculty meeting, because did not want faculty, staff and students to “panic,” or for students to be
dissuaded from coming to Howard by news of a stalker of women on campus.
Deans Bullock and Newsom may well have intended to cause Prof. Martin’s constructive discharge. At least
one student, friends and numerous people in Plaintiff’s family, including her distraught fourteen-year old
daughter, advised and/or begged Plaintiff not to return to Howard for fear of Harrison, however, Plaintiff is not
a person who neglects her obligations. In addition, she was not financially able to simply “walk away” from
her job – and in essence, her career as a law professor, since it would surely have been held against her at
other Universities.
Despite the hostile work environment, Prof. Martin continued to perform her teaching duties, continued her
extra exam-taking sessions for her students and made herself available to them, even if in the cafeteria.
(Facts, 71, 98, 142, 174) She exercised self-help, through prayer, carrying mace and staying in open areas
as much as possible (Facts, 71, 98) while Deans Bullock and Newsom harassed her with contrived, petty
accusations about the performance of her job duties.
As part of an overall plan to ensure that Prof. Martin did not return to Howard’s faculty for the academic year of
1998-1999, Deans Bullock and/or Newsom took numerous actions against Prof. Martin because she
complained about a hostile work environment and requested protection from Leonard Harrison. Dean Bullock
retaliated against Prof. Martin by: (1) influencing the APT Committee, through APT Committee Vice Chair Prof.
Andrews Taslitz, to deny Plaintiff’s application for a permanent position on December 18, 1997 (Facts, 187,
188, 159, 160); (2) failing to authorize the APT Committee to fill vacant positions in the spring of 1998,
because she believed the ATP Committee would recommend Plaintiff for one of these positions (Facts, 236,
253); (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 (Facts, 237, 238, 257); (4) ordering
Plaintiff on May 26, 1998, to vacate her office by Friday, May 29, 1998, immediately after receiving notice of
Plaintiff’s EEOC charge (Facts, 261-264). So, for her dedication and bravery, Plaintiff was “rewarded” with
Dean Bullock’s animosity, callousness and the demise of her previously outstanding 17-year legal career.
B. Dean Bullock’s Hostility Toward Plaintiff for Requesting Protection from the Stalker
Dean Bullock’s animosity toward Plaintiff for her requests for protection against the stalker are expressed in
Dean Bullock’s March 8, 1999 Statement to EEOC investigators. The investigator recorded the statements in
the business records of 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.
(Facts, 187) Of course, Plaintiff never asked Dean Alice Gresham Bullock to “wrestle” with the stalker. Dean
Bullock’s sarcastic, callous and hostile response to the issue, even by the time the issue reached the EEOC,
demonstrates the hostile attitude of Bullock toward Plaintiff for her complaints of being stalked in her
workplace.
While Plaintiff was being stalked on campus, Prof. Taslitz asked Bullock how she was doing. (Facts, 190)
Bullock replied, “Did you hear about Dawn’s stalking incident?" (Facts, 190) Taslitz replied, “Yes, she has
told me about it.” (Facts, 190) Bullock then stated that she was having a bad day because she had “a lot to
do in response to that.” (Facts, 190) Bullock did not do “a lot” to protect Plaintiff from the stalker, but rather,
she began to retaliate against Plaintiff, as described above; consequently, these words can only represent
Bullock’s “feeling” that she was being “put upon” by Plaintiff to focus the administrations’ and faculty’s
attention on her.
C. Relationship between Dean and APT Committee
From the early 1980s through 2001, the APT Committee at Howard Law School was “terminal Committee”
that included only five members. (Facts, 125) Howard’s full faculty did not vote on APT Committee
decisions. (Facts, 125) The five Committee members made the hiring recommendations to the Dean.
(Facts, 125) The Dean then made an independent recommendation, sent to the Provost, along with the
Committee’s recommendation. (Facts, 125)
Where the APT Committee and the Dean had different judgments on a candidate, the Dean would likely
“come to the Committee” with concerns, rather than oppose the Committee’s recommendation because of
the “collegiality” aspect that is at stake there.” (Facts, 126) APT Committee member Prof. J. Clay Smith, a
former Dean of Howard School of Law, and a former General Counsel and Acting Chairman of the EEOC, has
been a professor at Howard Law for many years, indicated that he is not aware of any time that a dean has
told the APT Committee that he/she disagreed with its judgment, and that the Committee views its
recommendation as final. (Facts, 126)
Prof. Smith testified that:
The Dean who comes around committee can get into an awful lot of trouble in the context, you know, criticism,
you know, because you’re not dealing with the Committee at large. So, you don’t lobby, I don’t think any dean
– to my knowledge – who’s lobbied an individual because you have a full faculty who has been around and it’
s a very dangerous thing. So, it’s not something that is routine, as far as I know, with the deans that we’ve
had.
(Facts, 126) Despite this backdrop, Dean Bullock did reveal, to her Associate Dean, that she had made an
independent decision to recommend that Plaintiff not be hired for a permanent faculty position. (Facts, 208)
She also repeatedly disparaged Prof. Martin to the Vice Chair of the APT Committee, Prof. Andrew Taslitz.
(Facts, 191)
Dean Bullock always had the veto power; however, based on “the collegiality aspect of it,” and not to offend
the APT Committee’s sense of independence, Bullock did not share with the entire APT Committee her
decision regarding Prof. Martin. To do so may well have incited the Committee to assert its independence
and/or to examine the credibility of a colleague who misrepresented Plaintiff’s qualifications and/or those of
Plaintiff’s “competition.” In a faculty already divided, a split decision sent to the Provost would not send a
favorable message regarding the relationship of the dean to her faculty. Bullock therefore carefully selected
only one APT Committee member – Taslitz – to influence, and dared not discuss her animosity toward
Plaintiff with any other Committee members.
D. Bullock Retaliated against Plaintiff by “Poisoning” the APT Committee through Prof. Andrew Taslitz
1. Dean Bullock’s Derogatory Comments about Plaintiff
to APT Vice Chair Taslitz
Dean Bullock repeatedly told Prof. Taslitz that Plaintiff had “bad judgment” (Facts, 191) Taslitz said that, even
though he asked, Bullock never gave him even one example of this purportedly “bad judgment.” (Facts, 191)
Taslitz claimed that Bullock and Newsom made these disparaging remarks about Plaintiff beginning in her
first year of teaching (August 1996 through June of 1997) – before the stalking began; however, Taslitz was
admittedly unclear on the timing of events (Facts, 191) and could not even recall when he took his own
sabbatical to write his Evidence casebook. (Facts, 191)
Taslitz said that he “assumed” that Dean Bullock was referring to a faculty meeting in which Plaintiff
advocated the requirement that professors place, on reserve in the library, sample exams and answers for
students to study before they took exams. (Facts, 192) This meeting took place on or about December 2,
1997. Taslitz’ reference to a faculty meeting that took place in December of 1997 reveals that the time that he
recalls Dean Bullock disparaging Plaintiff’s “judgment” was in early December of 1997 – during Ms. Martin’s
second year of teaching at Howard, and, most importantly, within days after Prof. Martin reported the to
Bullock – not, as Taslitz reported, during Prof. Martin’s first year of teaching at Howard.
Taslitz’ own involvement in the occurrences related to the retaliation and breach of contract claims provide
motivation for him to “recall” events and timing in ways that lessen the University’s liability. Bullock’s
admissions regarding her disparaging comments about Plaintiff are quite a revelation, since, for the past four
and a half years, she claimed that she had no part in the APT Committee’s decision, that she exerted no
influence over anyone on the APT Committee with respect to Plaintiff’s non-selection and non-renewal. To
the contrary, Dean Bullock told the EEOC investigator: “There is no particular reason that I would not want
Martin to teach at Howard University School of Law.” (Facts, 207) Bullock’s constantly changing sworn (and
unsworn) uncorroborated statements make her completely unworthy of belief. See also Plaintiff’s August 3,
2001 Motion for a Default Judgment Due to Howard University’s Production of Late, Incomplete and
Falsified/Tainted Evidence.
In her Answer to the First Amended Complaint, Bullock admitted that Prof. Martin was good professor who
was very well liked by her students. (Facts, 179) Indeed, in the face of two student petitions (Facts, 178), a
formal student protest (Facts, 178), the Dean’s meeting(s) with Student Bar Association President Gerald
Smalls (Facts, 178) and the many student letters protesting Prof. Martin’s non-renewal, Dean Bullock would
have to make this admission. In her Answer to the First Amended Complaint, Dean Bullock admitted that
Plaintiff’s student evaluations were above average. (Facts, 178) In her interview with the EEOC in 1999,
Dean Bullock never indicated that Plaintiff had “bad judgment” or that she otherwise did not like her
personally. (Facts, 179)
Taslitz also testified that Associate Dean Newsom told him that Plaintiff was making problems for his office;
however, Newsom testified that he does not recall discussing Plaintiff with Taslitz at all (Facts, 208) All four
of the remaining members of the APT Committee, as well as three additional senior faculty members
deposed, testified that they had never heard such accusations about Plaintiff , and, to the contrary, found her
to be quite collegial and pleasant. (Facts, 185, 209, 211)
Dean Newsom claimed that Plaintiff was on a “short list” of people causing problems for the University
(Facts, 208) and that Dean Bullock had shared with him that she had decided not to select Plaintiff for a
permanent position. (Facts, 208) The “troublemaker” and “complainer” description provided by Dean Bullock
and her closest assistant, is consistent with Plaintiff’s claims of retaliation. Dean Bullock considered Plaintiff
a “troublemaker” for requesting protection against the homeless stranger, with a criminal record of violence,
who was roaming the law school halls stalking her. Bullock’s deposition makes it abundantly clear that she
harbors intense animosity for Plaintiff. Prior to this deposition nearly five years after the APT Committee’s
December 18, 1997 decision, Bullock appears to only have shared these “views” about Plaintiff in some
clandestine meetings with Tastlitz and Newsom.
C. Dean Bullock Used Taslitz to Misrepresent Plaintiff to the APT Committee
Profs. Nolan, Smith, Leggett and LaRue may well have believed that they were making a good faith decision,
in the best interests of Howard, based on what they believed were the objective qualifications of the
candidates; however, their testimony demonstrates that they were misinformed when they made their
decision. These four of the five members of the APT Committee appear to be completely oblivious to the
apparently clandestine conversations between Dean Bullock and Prof. Taslitz. The recent deposition
testimony of Bullock and Taslitz reveal an entirely different thought process than expressed by Profs. Smith,
Nolan, Leggett and LaRue.
Members of the APT Committee “present” candidates for discussion. How a candidate is presented, or the
credentials summarized, influences the remaining APT Committee members, who reasonably rely on what
they believe are the good faith representations of their colleagues. Although any member of the Committee
could challenge another with respect to alleged facts or opinions, each Committee member cannot read
each publication by each candidate, sit in on the classes of each candidate, or even recall, during the
discussion of the candidate, all aspects of their resume/application.
From 1996-1998, Prof. Taslitz held the title of Vice Chair of the APT Committee; however, he performed the
duties of the Chair. He wrote the memoranda for the Committee, for Prof. Leggett’s signature. (Facts, 127)
He recruited candidates. (Facts, 127) He checked references. (Facts, 127) He extended offers to
selectees. (Facts, 127) He negotiated contracts with selectees and negotiated with the Dean/Associate
Dean for terms to offer the candidate. (Facts, 127) He made judgments as to whose work was “scholarly”
and whose was “non-scholarly.” (Facts, 127) He sat in candidates’ classes, took notes and wrote up
evaluations of those classes to present to the APT Committee. (Facts, 127) He is a compulsive note-taker.
(Facts, 127) Taslitz was the key to the APT Committee.
Taslitz was especially important to Plaintiff’s candidacy. He had recruited Plaintiff, negotiated with her,
extended the oral and written offers to her, and described himself as her “mentor” and “friend.” (Facts, 17,
186) He had been a strong advocate of Plaintiff when she was hired in 1996. (Facts, 17 -20) He had, at
least, read her January 1996 version of 911.. (Facts, 157) He had sat in on her classes. (Facts, 127)
Taslitz’ support was the touchtone of success with the APT Committee.
After Taslitz received Plaintiff’s March 31, 1997 letter, asking for his help, telling him that she was aware that
there were two to three faculty positions being left vacant by the Dean, 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. (Facts, 220) Taslitz never asked Dean Bullock whether the positions were
vacant. (Facts, 220) He knew that, no matter how many positions became available, Bullock would ensure
that none of them went to Plaintiff.
Prof. Nolan did ask Dean Bullock, in the spring of 1998, whether there were any vacant faculty positions, and
whether Plaintiff could be hired by the law school or elsewhere in the University. (Facts, 221) Bullock told her
that there were no positions available. (Facts, 221) Bullock added that she had referred Plaintiff for another
position and was trying to help her get another job. (Facts, 221) Bullock did not say that she did not want
Plaintiff on the faculty because she had bad judgment, or that she would not refer her for a job because of this
“bad judgment.” Bullock’s hostile gratuitously insulting deposition testimony and marginalization of Plaintiff
reveals Bullock’s intense animosity toward Plaintiff, and demonstrates that she would not have
recommended or “helped” Plaintiff in any way.
Taslitz went to Plaintiff’s office, in late September of 1997, specifically to remind her that she needed to
formally apply for a permanent position and/or renewed visitorship, advising her to just write a sentence or
two in a memo to Leggett to make it clear that she was formally applying for a position. (Facts, 124) The
Committee had already circulated the memo to all faculty members advising them to formally apply, prior to
October 2, 1997, for any positions or promotions for which they wanted to be considered for the 1998-1999
academic year, but Taslitz said that he just wanted to be sure that she knew and did not miss the deadline.
(Facts, 124)
In late October of 1997, Taslitz even asked Plaintiff to allow him to review her completed memorandum
application to the Committee regarding her first year at Howard, to provide her with feedback prior to
submission. (Facts, 124) He advised her to discuss fully the reasons for the delay in the 911… article.
(Facts, 124) Taslitz did not indicate, in any way, that he did not understand the reasons for the delay, but
conveyed to Plaintiff that he wanted the entire Committee to understand the reasons. (Facts, 124) Plaintiff
did give him the November 5, 1997 memo to review, prior to submission, and Taslitz advised her that it
“looked great.” (Facts, 124) Plaintiff had every reason to believe that Taslitz was still acting as her mentor
and advocate, even as of late October of 1997.
Prior to the fall of 1997, Taslitz had advised Cunningham to participate in the AALS recruiting conference
because he could not assure her that her visitorship could be renewed. (Facts, 123) If Tasltiz had
misgivings about Plaintiff’s employment at Howard, he certainly could have given her the same advisc and
“warning” that he gave Cunningham, especially since he knew that Plaintiff was the primary support for her
daughter and that job stability was of utmost importance to her when she accepted the position. (Facts, 21)
Had Plaintiff been notified, at any point before August of 1997, she could have participated in the AALS
Conference, as did Cunningham.
On December 18, 1997, Taslitz entered Plaintiff’s office and told her simply: “Offers have been extended and
there are no visitorships available.” (Facts, 119) It took Plaintiff a minute to realize that she was unemployed.
In his September 6, 2002 deposition, totally contrary to the impressions that he had conveyed to Plaintiff prior
to December 18, 1997, Taslitz opined that he was “disappointed” in and “aggravated” and even “angry” with
Plaintiff by January of 1997 – after only one semester at Howard -- because she did not publish her 911…
article within her first semester at Howard. (Facts, 160) These harsh words and personalized emotions
toward a colleague, purportedly for not publishing an article, are, simply put, not within the realm of normal.
Taslitz’ “anger,” “disappointment” and “irritation” are even more peculiar since Plaintiff had, in fact, been
working on the article and had discussed it with him. Even during that first semester, despite being
noticeably injured in a car accident, and being the only law professor who was not provided a computer with
internet or legal research capability, Plaintiff received excellent teaching evaluations, expended extra time and
extra energy to provide exam taking classes for the students to increase the Howard bar passage rate, and
had, in fact, expanded and “deepened” 911: How Will Police and Fire Departments Respond to Public Safety
Needs and the Americans with Disabilities Act? She had begun a second article since arriving at Howard. At
one point, Taslitz went so far as to say that Plaintiff should have published her article while she was still in
Cleveland; however, this would have deprived Howard of the “credit” for the article that it actually received in its
ABA accreditation assessment.
Taslitz’ overdone expression of “disappointment” with Plaintiff, searching for a reason to be disappointed in
her, prior to the stalking, is simply devoid of any credibility. Taslitz admitted that he never told Prof. Martin that
he was “disappointed” or “angry” with her in her in any way, nor did he indicate to her that he would not be an
advocate for her for a permanent position. (Facts, 160) Of course, if Bullock did not express to Taslitz her
animosity toward Plaintiff until after November 20, 1997, when the stalking began, this would explain Taslitz’
apparent support for Plaintiff up until that date. After the stalking began, Dean Bullock “poisoned” the APT
Committee with her retaliatory comments to Taslitz. The APT Committee decision was, then, “the fruit of the
poisoned tree,” even though four of the five members of the Committee may have been completely unaware
of it.
IV. Defendant Has not Put Forth a Legitimate, Non-Retaliatory Reason for its Non-Selection/Non-Renewal
of Plaintiff, and, to the Extent that it has, Such Reasons are Indisputably False and Pre-Textual
A. The Decision-Makers Disclaim Howard’s Purported “Legitimate, Non-Retaliatory Reasons” for Plaintiff’
s Non-Selection/Non-Renewal
Because the adverse action occurred “on the heels of” Prof. Martin’s requests that the administration take
reasonable measures to stop Leonard Harrison from harassing her in her workplace, Plaintiff has
established a prima facie case of retaliation. The burden now shifts to Howard to articulate a legitimate, non-
retaliatory reason for the adverse action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1973).
Defendant has, at various times over the past four years, stated various purported reasons for Plaintiff’s non-
renewal; however, when the decision-makers were actually deposed, the APT Committee members seemed
oblivious to the very reasons asserted by their employer. Howard has, therefore, not even carried its burden
of asserting a legitimate, non-discriminatory reason for its non-selection/non-renewal of Plaintiff. Defendant’
s Answer to the Interrogatories changed from October 17, 2000 to July 11, 2001, while Howard was in
Contempt proceedings for its failure to adequately respond to discovery.
Howard’s own officials – the decision-makers in this case – have contradicted Howard’s defense! Their
depositions read as it they had never seen the Answers to Interrogatories. Howard’s purported (and
changing) “legitimate, non-discriminatory reasons” for Plaintiff’s non-selection/non-renewal have, by
implication, been withdrawn, and Howard has not carried its burden of production to offer a legitimate non-
retaliatory reason for its actions. To the extent that they are not withdrawn, they are pre-textual.
In its October 17, 2000 Answers to Interrogatories, 30 (Facts, 129) filed after Plaintiff filed a Motion to Compel
Discovery, after Defendant was more than four months late in responding to discovery requested on April 7,
2000, Defendant stated:
Plaintiff’s contract was not renewed because the law school was in need of a faculty member with the
expertise to teach courses in Taxation, Property, Wills, Trusts and Estates at that time. In addition, the APT
Committee did not recommend that plaintiff continue to teach employment law classes… for the following
reasons:
1) as of December 18, 1997 (the date on which he AP Committee made its decision concerning plaintiff(‘s)
application, plaintiff had no scholarship articles accepted for publication, not even the article she claimed was
in progress when she was offered the two-year Visiting Professorship at the School of Law.
2) During the fall 1995, plaintiff was offered employment as a visiting Professor with a two-year appointment
beginning in Fall, 1996, at the level of Associate Professor, based on the factors that (a) plaintiff provided
evidence of a law review article substantially in progress and near completion; (b) thee was an expectation
that the law review article would be completed before or immediately after plaintiff’s two –year contract began
and that plaintiff would complete an additional published scholarship during this two-year contract period; (c)
plaintiff’s teaching performance would be an acceptable level of an Associate Professor; (d) there was an
expectation of law school, university and/or professional service.
Defendant has repeatedly claimed that Plaintiff’s article, 911…, was not accepted for publication by
December 18, 1997. Plaintiff repeatedly asserted that Howard’s statement was false, in violation of Rules 26
and 37, specifying the APT Committee members who knew that it was false, even while she was still at
Howard. Four of the five Committee members, including Nolan, Taslitz, LaRue and Leggett all testified that
they knew, at the time that they selected Cunningham over Plaintiff to fill the EEO/labor law position, that
Plaintiff’s 911… article had been accepted for publication. (Facts, 130) This deposition testimony clearly
established that Howard’s purported reason for Plaintiff’s non-selection/non-renewal was not only pre-textual,
but simply, false, in violation of Federal Rules of Procedures 26 and 37, regarding the obligation to conduct a
reasonable inquiry in responding to discovery and to respond truthfully. See Plaintiff’s August 3, 2001 Motion
for a Default Judgment Due to Howard University’s Production of Late, Incomplete and Falsified/Tainted
Evidence.
As Howard saw its pre-textual defense regarding Plaintiff’s scholarship eroding, it invented a “kitchen sink” of
“eleventh hour” defenses that contradicted evidence and admissions that it had already entered into the
record. After changing its defense repeatedly over the past four years, Defendant now claims that, although
Plaintiff’s article was accepted for publication at the time of the decision, Plaintiff’s article should have been
published the previous year. (Facts, 180) If this were the case, arguably, Plaintiff non-selection/non-renewal
was a “done deal” at the end of her first year and someone should have warned her so that she could seek
other employment. No one did. In fact, Dean Bullock awarded Plaintiff a 1997 summer grant, indicating that
she was on schedule with her scholarship and that her progress was, at least, satisfactory. (Facts, 132) As
part of her application for a summer grant, Plaintiff submitted drafts of her works in progress, which included
911… and Lights Camera, Discrimination! “Playing” the Victim under Title VII, and discussed her preliminary
research and thesis for a third article, Still Racist After all these Years—and Covered by the Americans with
Disabilities Act? Obviously, then, Dean Bullock was well aware of the progress of Plaintiff’s scholarship and
determined that it was satisfactory.
On July 11, 2001, after two Court Orders (April 11, 2001 and May 30, 2001) to produce discovery and answer
interrogatories insufficiently answered, and in the midst of Contempt proceedings against Howard and its
counsel, Defendant submitted Supplemental Answers to Interrogatories (Facts, 135). In response to
Interrogatory # 31, Howard stated that the following criteria were considered in the decision not to renew
Plaintiff’s contract:
Collegiality; scholarship; teaching potential; comparison to internal and external candidates; credentials;
academic needs; research contributions; growth potential; service to profession, community and university;
publication.
In its July 11, 2001 Supplemental Answers to Interrogatories # 34 (Facts, 135), Defendant claimed that:
HU officials concluded that plaintiff’s scholarship and potential for future research and scholarly endeavors
were less substantive than the research and publication record of her colleagues and /or competitors. … HU
also concluded that plaintiff’s potential as a teacher was not as high as her colleagues and/or competitors for
a tenure track teaching position covering EEO/labor law and other assigned courses.
In its July 11, 2001 Supplemental Answers to Interrogatories # 55 (Facts, 137)
Defendant claimed:
… while Plaintiff may have met the minimum qualifications for the position covering EEO/labor law position,
she was not the best qualified applicant for a tenure-track position covering EEO/labor and other assigned
courses. In determining whether to hire plaintiff after the termination of her two year term, HU’s hiring officials
concluded that plaintiff’s scholarship was less substantive than the research and record of her competition.
Moreover, plaintiff’s colleagues did not find plaintiff collegial as well. … Moreover, plaintiff’s performance in
law school aw well as her legal experience was not as stellar as her competition.
Finally, in its July 11, 2001 Supplemental Answers to Interrogatories # 56 (Facts, 138).
Defendant stated:
The APT Committee unanimously recommended E. Christi Cunningham for the EEO/Labor Law position for
the 1998-1999 academic year for the following
reasons. Plaintiff’s academic and scholarly production was viewed by the faculty and members of the APT
Committee to be less substantive than Professor Cunningham, who graduated Summa Cum Laude from
Southern Methodist University (1989). Prof. Cunningham had published an article, and she clerked and did
extensive legal research in the employment law area for U.S. District Court Judge Constance Baker Motley,
well known civil rights attorney. Plaintiff’ law school record was not as stellar as Cunningham’s law school
record. After law school, Professor Cunningham was a litigation associate at an internationally
reknown(ed) law firm, Debevoise & Plimpton in New York, New York.
Also, Prof. Cunningham published an article within one year of joining the faculty at HU School of law, she
impressed the APT committee with the volume of work she was able to produce while actively involved in
academic activities at the law school (law journal) and the community. Prof. Martin struggled to complete a
publication while at HU School of Law after two years as a visiting professor. In fact, when Prof. Martin
interviewed with the APT Committee in November 1997, she had not published an article while at the law
school. Prof. Cunningham also began to work on a second article after completing her first article and
presented a paper at Yale University in October, 1977, which was also scheduled for publication.
Finally, Prof. Cunningham was dynamic, and displayed he greatest potential as a law school professor as a
teacher, scholar and for service to the law school community, and HU officials concluded that she was the
best qualified for appointment. She received excellent teaching evaluation from students.
C. Howard’s Collegiality Defense Discredited by Decision-Makers
Howard’s new “non-collegiality” defense is completely irrelevant to any defense that Howard can make with
respect to the decisions made by the APT Committee in 1997-1998. Four of the five Committee members
were oblivious to any claim of “non-collegiality” or “bad judgment” by Plaintiff. They have expressed their own
perceptions of Plaintiff as collegial and pleasant, testifying that they had never heard any other faculty member
claim that Plaintiff was not collegial. The only APT Committee member who raised the collegiality issue is
Taslitz, and he never raised it during any APT meeting. Instead, Taslitz concealed his true reason for elevating
Cunningham as a candidate over Plaintiff – the knowledge that Dean Bullock did not want Plaintiff – and
shrouded it with misrepresentations about Plaintiff’s and Cunningham’s scholarship to mislead the
remaining Committee members into believing that Plaintiff had not been productive and was not likely to
produce the scholarship expected of Cunningham.
Defendant added the “collegiality” defense, never previously raised in the three years since Plaintiff filed her
EEOC charge. Defendant only raised this defense as it saw its scholarship argument being destroyed by the
documents and statements being produced by Mrs. Bruner, who confirmed that Plaintiff had given her the
911… article for distribution in October of 1996, but that a computer error that occurred in her office corrupted
the document and delayed its distribution by approximately one month. (Facts 130) The collegiality
argument is vague and subjective. Absent deposing the entire faculty, it would be difficult to prove or disprove
this claim conclusively; however, the focus is on the APT Committee. This “defense” is nothing more than a
desperate, eleventh hour “witch-hunt” for anyone willing to defame Plaintiff’s character in the name of “loyalty”
to Howard, to protect an ally on the faculty, or for something in exchange for this attempt at character
assassination.
D. The Decision-Makers Never Considered Plaintiff’s Service to Law School,
Community or Profession
Howard discussed Cunningham’s service to the law school, but not Plaintiff’s contributions to the law school,
her community or the legal profession overall. Plaintiff’s service to the law school included: 1) giving exam
review sessions, with her own practice exams and answers, to assist students in learning the skill of exam
taking for law school and to increase the bar passage rate at Howard (Facts, 142); 2) bringing in an Assistant
Maryland Bar examiner each year, to give a class on how to take the Maryland Bar (Facts, 142), particularly
since Howard students had gained a national reputation for its low Maryland Bar passage rate (Facts, 142) ;
3) teaching exam-taking sessions at the Regional BALSA conference held at Howard (Facts, 142); 4) acting
as a judge for the Trial Advocacy Clinic (Facts, 142) and 4) participating in “Close Up,” a mentoring program
for teenagers (Facts, 142). Plaintiff also diligently served on all committees to which she was assigned.
(Facts, 142)
Plaintiff’s community service included active membership in “Jack and Jill of America,” focusing on the needs
of African-American youth; the JEB Stuart High School Parent-Teachers’ Association, mentoring teenagers
and finding them internships; and assisting young people and the elderly in her community. (Facts, 143).
Prof. Martin also supported her daughter’s efforts to change the name of her high school, which was named
for a Confederate General. (Facts, 143). Plaintiff had also taken on one case, for purposes of filing an EEOC
charge, for a local television news reporter who was alleging discrimination on the basis of a combination of
race and sex. (Facts, 144). This charge involved developing issues of inter-sectionality in EEO law. (Facts,
144). Plaintiff submitted this supplement based on the Committee’s interest in this work during her
November 7, 1997 interview. (Facts, 144).
Howard discussed Cunningham’s clerkship and law firm associate experience, but there is no discussion or
acknowledgment of Plaintiff’s 17 years of dedicated service to civil rights work, including 6 years of policy
development at the EEOC; five years at the United States Department of Justice, Civil Rights Division,
litigating school desegregation cases; her work for the Legal Aid Society of New York; her employment,
housing and credit discrimination cases at the New York Office of the Attorney General, Civil Rights Bureau; or
her development of the policy on pregnancy at the D.C. Metropolitan Police Department. Plaintiff’s 17 years of
public service reflects her dedication to civil rights, assisting the poor, fostering equal opportunity and
eliminating prohibited discrimination and using her credentials and training to help eradicate injustice. For a
law school depicting itself as the vanguard of social engineers, and the bastion of civil rights, it would seem
that Howard would hold such service in high regard, particularly when public service was Plaintiff’s choice,
since she had the credentials to choose more lucrative employment at a prestigious law firm. Clearly, then,
no comparison was made between the candidates with respect to law school service, community service or
service to the profession.
E. The Taslitz December 9/19, 1997 Memorandum
The key to the December 18, 1997 decision is, again, Andrew Taslitz. On July 19, 2002, Defendant produced,
for the first time, an unsigned memorandum to Dean Bullock from APT Chair, Prof. Isaiah Leggett, dated
December 9, 1997, but admittedly written by Prof. Taslitz, as was the custom with most of the memoranda
written by the APT Committee. (Facts, 146) Since it was unsigned, it was probably a draft, prepared for
discussion and approval, and that was never sent to the Dean. (Facts, 153) Since it was not produced for
more than four years, although contemporaneous records, and/or any record of the APT Committee records
were requested as part of Plaintiff’s discovery requests in April of 2000, and ordered produced no less than
three times (April 11, 2001, May 30, 2001, June 25, 2002), there is reason to believe that the memo was never
submitted to the Dean’s office or a part of the Dean’s office records. No one can authenticate this document
as to time, date or transmission (Facts, 146); therefore, it may well be only an “experimental” document that
Taslitz drafted and kept to himself, or that he -- or someone else -- recently created solely for the purposes of
this litigation.
Since the memorandum begins by stating that the APT Committee voted on its candidates “yesterday,” and
the decisions were actually made on December 18, 1997, the memo might reflect a typographical error and
perhaps, should read “December 19, 1997” -- or the December 9, 1997 date might actually reflect when he
wrote the draft, for discussion at the December 18, 1997 APT Committee meeting. (Facts, 146) No member
of the APT Committee remembered seeing the memorandum in 1997 and some said they were certain that
they never saw it before their depositions in August/September of 2002. (Facts, 146) No APT member could
explain where it had been for the past four years or why it was not produced prior to July 19, 2002.
The December 9/19th, 1997 memorandum states that the Committee had the option of recommending one
candidate, or more than one candidate, ranked in order of preference, for each of the three positions,
EEO/Labor law, Constitutional Law/civil rights and Commercial Law. (Facts, 147) The Committee did
nominate two persons, ranked in order of preference, for the Commercial Law position. (Facts, 147) For the
EEO/Labor law and Constitutional Law positions, however, only one candidate was recommended for each
position. (Facts, 148)
On page 2 of the December 9/19th, 1997 memorandum, under the heading, “Equal Employment Opportunity
Labor Law” (Facts, 147), the memo reads:
Our sole recommendation is to hire Visiting Assistant Professor Christi Cunningham as a tenure-track
Associate Professor. Although one other candidate had practice experience in labor law, which Christi does
not, Christi has a strong interest in teaching and writing about labor law and has practice experience in the
area of equal employment opportunity. Several factors elevated Christi far above other candidates. First, she
is the only candidate with a proven record of scholarship in the field. In just one year, at Howard, she
completed a substantial article on equal employment opportunity and most of the research for two follow-up
articles. She also gave a talk at a major Critical Race Theory Conference at Yale, a talk that will be published
as part of an anthology growing out of that conference.
… finally, she has credentials that far exceed those of other candidates. Besides being an editor on both the
Yale Law Journal and the Yale Journal of Law and Feminism, she clerked for the Honorable Constance
Baker Motley, where she authored a leading opinion on equal employment opportunity law. Furthermore, she
worked for one of the leading law firms in the country, where she focused on equal employment opportunity
law. (Emphasis added)
1. The “Taslitz Memo” Claim that Cunningham’s Qualifications “Far Exceed” those of Plaintiff is Disputed
by Howard’s own APT Committee
None of the APT Committee members -- except for Taslitz -- has expressed assessments of Cunningham’s
and Plaintiff’s qualifications that are consistent with the “Taslitz memo” of December 9/19th, 1997. No one
else has expressed the view that Cunningham’s credentials “far exceed” those of Plaintiff. To the contrary,
Prof. J. Clay Smith testified that that Plaintiff and Cunningham were “very close,” in his mind and that he was
trying to balance the credentials of the two candidates. (Facts, 155) He said that he thought that Plaintiff
was “terrific” (Facts, 155) and he admired her both as an individual and a professional. (Facts, 155)
Prof. Nolan testified that, after the Committee had voted to recommend Cunningham for the EEO/Labor
position, she recommended that Plaintiff also be recommended, and ranked as the number 2 candidate.
(Facts, 147) This gesture contradicts the notion that Cunningham’s credentials were so far superior to
Plaintiff’s that hers should be the only name submitted. APT Chair Isaiah Leggett testified that both Plaintiff
and Cunningham were qualified for the position and viewed favorably by the faculty. (Facts, 155) He said that
he did not make his decision between the candidates until after the discussion and that, during the
discussion, he was “confused” as to what scholarship Plaintiff had produced, or was working on, since at
Howard. (Facts, 164) When confronted with the resumes, Leggett admitted that Plaintiff had more
publications, overall, than Cunningham. (Facts, 165) Homer LaRue testified that he has no recollection of
any of the deliberations of the Committee, but that everything he had heard about Plaintiff’s teaching was
positive (Facts, 156), that 911... was “a good piece of scholarship (Facts, 156) and that Plaintiff was
collegial. (Facts, 156)
2. The “Taslitz Memo” Claim that Cunningham was the Only Candidate with a Proven Record of
Scholarship is Blatantly False and Pre-textual
HU’s own 1996 hiring recommendation memorandum for Plaintiff and its own website and credit Plaintiff with
having published four articles before she began teaching – all of it in the area of EEO law. Plaintiff published
an additional law review article during her first year of teaching, at Cleveland-Marshall College of Law,
bringing the count up to five. During her year and four months at Howard, Plaintiff had re-written 911… to
include the developing case law, extending it by approximately 75 pages – more than the entire length of
Cunningham’s article. The final article, 911: How Will Police and Fire Departments Respond to Public Safety
Needs and the Americans with Disabilities Act? was 141 pages in print – more than twice as long as
Cunningham’s 60 page article. (Facts, 160) The publication of 911… brought the number of Plaintiff’s
publications up to six. During the same year, Prof. Martin had completed all of her research for, and
produced a 27-page draft of a seventh article, Lights, Camera, Discrimination! “Playing” the Victim under Title
VII, as well as having conducted research on and developed a thesis and title for an eighth article, Still Racist
after all these Years – and Protected by the Americans with Disabilities Act? (Facts, 176)
Bullock admitted that the American Bar Association, in certifying Howard for accreditation, credited Plaintiff’s
911… article to Howard and that it received “a wonderful accreditation review.” (Facts, 132) During her first
year at Howard, Plaintiff “changed it” and “deepened the analysis,” resulting in “a good piece of scholarship.”
(Facts, 133) Plaintiff’s colleagues assessed 911… as “excellent,” “covered the universe of the topic,” and
“was very lengthy and very detailed.” (Facts, 133) It was “deemed to be quite substantial.” (Facts, 133) In
addition, Plaintiff had a 27 page draft of a third article, with all research complete, as well as a title, thesis, and
some research done on a fourth article. (Facts, 133)
To qualify for tenure, a professor is expected to publish, or have accepted for publication, three articles within
a five-year teaching period. (Facts, 169) The only publication requirement expressed to Plaintiff by Prof.
Taslitz or anyone else at Howard, was that the professor was required to publish, or have accepted for
publication, three articles, by his/her fifth year of teaching. (Facts, 170) Plaintiff was in her first semester of
her fourth year of teaching when the December 18th, 1997 decision was made. (Facts, 171) She had been
employed at Howard for one year and four months. At that time, she had two articles published/accepted for
publication, since she had begun teaching. (Facts, 172) Had she been selected for a tenure-track position
in the 1997-1998 academic year, Plaintiff would have been considered for tenure in the 1998-1999 academic
year – her fifth year of teaching. (Facts, 172)
In comparing the scholarship of the two candidates, J. Clay Smith acknowledged that it was Plaintiff, not
Cunningham, who had the proven record of scholarship, stating:
on the basis of weight, obviously, you (Plaintiff) had more articles, but that was not my judgment. My judgment
went to a variety of things, listening to the debate. It went to other things I can or cannot remember, but I know
I left the meeting with the feeling that I had made the right decision, even though both of you, I thought, were in
my own mind, as opposed to what others might have thought, I thought you were very close.
Prof. Smith further testified that he had read some of Plaintiff’s prior publications and thought that they were
“good pieces.” (Facts, 132) Since Prof. Smith was a Chairman, as well as a General Counsel, of the EEOC,
his opinion of Prof. Martin’s publications for a candidate for an EEO law teaching position, is particularly
significant. Had Plaintiff remained at Howard, she would have been able to complete Lights… in the spring of
1998 and Still Racist… by the summer of 1998, which would have provided Howard with an even more
“wonderful” evaluation. Instead, Bullock chose to exclude Plaintiff and her scholarship from Howard’s ABA
review. Clearly, this exclusion did not benefit Howard or its students.
Despite the alleged emphasis on scholarship and the Committee’s determination that Cunningham was a
more promising “scholar” than Plaintiff because 911… was not published “sooner” – whatever that means –
the Committee members admit that they did not read either article! (Facts, 157) At the time of the December
18, 1997, no one on the APT Committee actually read Plaintiff’s article, 911: How Will Police and Fire
Departments Respond to Public Safety Needs and the Americans with Disabilities Act? (Facts, 157) Even
Taslitz admits that he only skimmed the expanded and re-written 911… article submitted to the APT
Committee in November of 1997. At the time of the December 18, 1997 decision, at least three members of
the five admitted that they had not actually read Cunningham’s article, The Rise of Identity Politics I: The Myth
of the Protected Class under Title VII. (Facts, 156) Of the five APT Committee members, only Taslitz claimed
that he had read the article prior to the December 18, 1997 decision (Facts, 157)
In addition, when asked about Cunningham’s thesis in her article, “The Rise of Identity Politics I: The Myth of
the Protected Class in Title VII Disparate Treatment Cases,” Committee members with expertise and/or
knowledge of Title VII law did not understand Cunningham’s theory of “wholism” or agree her with her
proposition that Title VII can be interpreted to cover classes of people that are not specified in the statute.
(Facts, 156)
Howard’s claim that Cunningham was the only candidate with a “proven record of scholarship” is easily
proven false and pre-textual by simply “stacking” Plaintiff’s scholarship against that of Cunningham.
Cunningham’s record of scholarship since graduation from law school, included one article, not yet
published, but accepted for publication, entitled “The Rise of Identity Politics I: The Myth of the Protected Class
in Title VII Disparate Treatment Cases.” The article was 60 pages long, in published print. Cunningham’s
two credited “works in progress,” for which she did not indicate having drafts, were, based on her own titles
and descriptions, both extensions of her first article. (Facts, 159) In fact, Cunningham listed them on her
resume, under “Works in Progress” as “The Myth of the Protected Class II” and “The Myth of the Protected
Class III.” (Facts, 159) Cunningham was, then, working on her second and third articles on the day that she
began working on her first – but that would not indicate that she should be credited with nearly completing the
research for three separate articles. To credit Cunningham’s planned continuation of her first article as three
articles, while ignoring Plaintiff’s additional two articles in progress, particularly when each of Plaintiff’s
articles involved completely different topics and research, is simply dishonest. Cunningham’s resume
indicated that her second and third articles were intended to “to finish the idea” that she began in her first, 60
page article. (Facts, 159) Purportedly, Cunningham knew enough about what those thoughts were to
project that it would take three articles – the minimum required for tenure. Plaintiff, however, wrote a 141
page article that completed all of her “ideas” and suggestions on the topic.
Plaintiff’s “proven record of scholarship,” before she began teaching, while she was teaching in Cleveland,
and once she began at Howard, was active, “substantial,” and specifically, much more substantial than that of
Cunningham.
3. Taslitz Misled APT Committee Members Regarding the Status of Plaintiff’s and Cunningham’s Articles
Four of the five members of the APT Committee mistakenly believed that Cunningham had actually published
an article while at Howard. (Facts, 163-165) In fact, Cunningham’s article was in the same status as was
Plaintiff’s – accepted for publication, but not yet published. (Facts, 163-165) Nolan said:
Christi, in fact, had come in, had been able to publish an article and – publish, not just draft and send it out,
publish the article and was working on others and for my own self, taking my personal feelings out of the
selection, and just seeing what would be the best fit with the University at this time, I think that the discussion
was in favor of Christi.
J. Clay Smith recalls that:
I kind of thought that perhaps a member of the Committee might have thought that you (Plaintiff) would have
gotten some research done prior to this particular point. I think it was raised. I do not recall who raised the
issue at all, but I think it was an issue. Did that affect me? That’s different because that wasn’t a glowing
thing for me at all.
(Facts, 163) The member who “raised” it was clearly not Smith or Nolan. It was not Leggett, who also
testified that “someone” kept stressing, during the meeting, that Plaintiff had not yet published her 911…
article, in response to his desire to give Plaintiff “credit” for a second article. (Facts, 164). Leggett, described
the APT Committee discussion as presenting Cunningham as someone “who had published” and “was in
the process of publishing again,” as compared to “someone who had not published at the scholarship
journal level that we thought when the hire was first made” -- referring to Plaintiff (Facts, 165) Prof. LaRue
recalls virtually nothing of the deliberations (Facts, 155) and it does not appear that he had any strong
opinions about the matter. Taslitz took the lead in representing the status of both Plaintiff’s and Cunningham’
s articles. (Facts, 159)
Any APT member could have checked the information presented during the discussion by simply looking at
the resumes and/or applications; however, the expectation is that a colleague would not deliberately
misrepresent the credentials of a candidate. In the midst of the busy December season, with exams,
grading, and the pressure to make APT meeting decisions and timely inform people of those decisions
(Facts, 148, 154), it is reasonable that Committee members relied on summaries of candidate’s
qualifications without checking “the record” for errors and omissions throughout the discussion.
3. The “Taslitz Memo” Conspicuously Ignores Plaintiff’s Existence
Taslitz’ December 9/19th, 1997 unsigned memo reads as if Plaintiff never existed, although
all members of the Committee agreed that Plaintiff and Cunningham were the two finalists. Oddly, the memo
makes a reference to the consideration of an outside candidate with specific experience in labor law, as
distinguished, in the memo, from EEO law (Facts, 152) The Taslitz memo does not give any indication that
Plaintiff was even considered to keep the position that she had held for the previous two years – even though
she had left a tenure track position in Cleveland to teach at Howard.
Defendant’s claim that Plaintiff’s work experience was not as “stellar” as that of Cunningham is disputed by
the APT Committee members’ admissions that Plaintiff had many more years of legal experience than did
Cunningham, and specifically, much more experience in EEO law than did Cunningham, with 17 years of
legal experience, as compared to Cunningham’s five and three and a half years of teaching experience, as
compared to Cunningham’s year and a half of teaching.
Plaintiff worked for this nation’s top civil rights agencies, for thirteen years, prior to her four years of teaching
(including EEO law each year). Plaintiff litigated for the U.S. Department of Justice, Civil Rights Division and
the New York State Office of the Attorney General, Office of Civil Rights, and helped develop national policy in
employment law at the EEOC. Plaintiff attended New York University, a top-ten law school, and graduated to
join the U.S. Department of Justice’s prestigious and highly competitive Honors Program -- eleven years
before Cunningham graduated law school. Prior to law school, Plaintiff graduated cum laude from the Ivy
League Barnard College, Columbia University, in 1978. Plaintiff’s 17 years of prior experience will not be
reiterated herein, but Plaintiff’s position description immediately preceding teaching is as follows:
Office of Commissioner Joyce Tucker, Special Assistant
Analyzed and recommended approval, disapproval of proposed litigation, regulations, Commissions
decisions, commissions charges, amicus briefs, and other documents requiring commissioners votes or
reviews, drafted edited speeches, drafted memorandum on behalf of commissioner, briefed commissioner
for commission meetings, media appearances and speeches, conducted seminars on behalf of
Commission, hired, trained and supervised legal interns, office of the legal counsel, attorney -- senior
attorney advisor, developed national policy on Title VII issues, wrote policy guidance EEOC decisions,
memoranda. Wrote policy guidance, EEOC decisions, memoranda, and citizens response letters, special
areas of research included the use of testers and employment discrimination cases, EEOC jurisdiction
abroad and the use of arrest records in employment decisions.
EEOC Commissioner Joyce E. Tucker, in rating Plaintiff “outstanding” in her performance as her Special
Assistant, wrote:
Ms. Martin's interactions with coworkers, other commissioned staff and the public are highly professional and
highly effective. Her ability to communicate well with others has been instrumental in developing significant
Commission policy, -- retroactivity of the civil rights act, and resolving litigation questions with the office of
general counsel. Ms. Martin is published in her personal capacity in a major textbook on employment
discrimination. Ms. Martin's publication in Professor Merrick Rossein's, textbook 'Employment Discrimination
Litigation' gives national recognition to her knowledge and expertise in the area of the use of textbooks on
employment discrimination. Ms. Martin's coordination with staff of other Commissioners and Commission
divisions consistently reflects careful consideration of cross cutting organizational responsibilities and her
recommendation often result in improvement in agency policy.
Plaintiff’s legal experience, particularly her background in EEO law, were far superior to the work experience
of Cunningham, who was in the early states of her career, according to five of the eight Howard professors
deposed on the subject, including two APT Committee members. (Facts, 152, 149, 150) The remaining
three members of the Committee “could not recall” any APT Committee discussion comparing the work
experience of Plaintiff and Cunningham and would not make the comparison in their depositions. (Facts,
152) No APT Committee member claimed that the legal experience of Cunningham was superior to, or more
“stellar” than that of Plaintiff
In 1996, when Plaintiff and Cunningham were hired as visitors, Plaintiff was hired at a higher rank (Associate
vs. Assistant Professor), higher salary and longer term contract (two years as opposed to one year), than was
Cunningham. (See Exhibit KKKK , Chart of Qualifications of Plaintiff as compared to Cunningham in 1996
and Exhibit LLLL, Chart of Qualifications in 1998) In addition, Plaintiff was assigned EEO and Torts, courses
that both candidates sought to teach. The 1998 decision not to renew Prof. Martin’s contract cannot credibly
be presented as a choice between two candidates, Martin and Cunningham; this was simply a deliberate
exclusion of Plaintiff from the faculty. The only way that the APT Committee could justify hiring Cunningham
over Plaintiff, was to omit any discussion of her credentials at all.
4. The “Taslitz Memo” Grossly Exaggerates Cunningham’s Credentials
The Taslitz memo presents Cunningham’s credentials in a way that is not honest, but grossly exaggerated.
In addition to misrepresenting her scholarship, the memo exaggerates Cunningham’s job experience. It is
certainly an honor to be selected as a law clerk to the Honorable Constance Baker Motley; however, the
accomplishments of Constance Baker Motley cannot be superimposed upon Cunningham simply because
she clerked for her for a year. The description of Cunningham as having “authored” a judicial decision is also
inappropriate. To imply that Constance Baker Motley allows new graduates from law school to “author” her
judicial opinions devalues the Honorable Constance Baker Motley. Furthermore, Cunningham’s resume
does not indicate that she “focused” on equal opportunity law during her two years and nine months with the
New York law firm. Cunningham’s law firm experience is described on her resume as follows:
Insurance class action and litigation settlement; litigated contract and fraud claims in small claims court;
employment discrimination; unemployment compensation litigation, including appellate brief; negotiated and
drafted settlement in employment dispute, drafted employment termination agreements; drafted deposition
outlines and attended depositions; supervised large staff of attorneys and legal assistants in large document
production; drafted appellate brief in Florida state court; represented victim of domestic violence in
uncontested divorce.
The “overdone” endorsement of Christi Cunningham, the misrepresentations of her credentials and EEO
experience, and the complete exclusion of any reference to Plaintiff – leaves the Taslitz “draft,” unsigned
memo devoid of any credibility. Its significance, however, is to demonstrate that Taslitz was willing to
misrepresent the candidates’ qualifications to disadvantage Plaintiff. Taslitz, again, was the only APT
Committee member privy to Dean Bullock’s animosity toward Plaintiff.
B. Defendant’s Claims that Plaintiff was not Collegial and had “Bad Judgment” are False and Pre-textual
1. The APT Committee had not heard or Discussed any Allegations that Plaintiff was not “Collegial” or
Exercised “Bad Judgment”
Howard cannot argue that Plaintiff was not selected for a permanent position due to lack of “collegiality” or
“bad judgment,” since the Committee never discussed any alleged “bad judgment” by Plaintiff or questioned
her collegiality. (Facts, 185) The collegiality allegation, put forth by Dean Bullock and Taslitz, is, however, the
key to understanding the APT Committee’s decision on December 18, 1997, and the Dean’s withholding of
vacant positions from the Committee’s consideration through the spring of 1998. Nolan, Smith, Leggett and
LaRue all testified that they found Plaintiff to be collegial and that they had never heard any member of the
faculty question her collegiality or judgment. Nolan even acknowledged that she may have hugged Plaintiff
after the decision and said, “I wish I had a job for you. I am praying for you.” (Facts, 185) The allegations
against Plaintiff of “non-collegiality” and “bad judgment” were apparently “a little secret” between Bullock and
Taslitz for the past five years.
2. Dean Bullock’s Accusations against Plaintiff are Contradicted by all Credible Evidence
a. Defendant Refuses to Produce Faculty Minutes
Most revealing is that when repeatedly asked about examples of Plaintiff’s “bad judgment,” Bullock testified
that Plaintiff “talked a lot” during faculty meetings and did not listen to her senior colleagues (Facts, 212); yet,
when Plaintiff requested copies of the faculty meeting minutes, Howard refused to produce them. (Facts,
121) Faculty meetings are generally held once per month, during the school year, for total of 9 times per year,
for a total of 18 sets of minutes, each being a few pages long and all of them filed in the Dean’s office
“forever,” according to the Dean’s secretary. (Facts, 213) These minutes are at the fingertips of the Dean, but
Howard is clearly afraid to produce them because they will reveal that Plaintiff did not speak at all during many
meetings, and when she did speak, did so respectfully and in the spirit of contributing to the law school. Any
comments recorded by Plaintiff should reveal that when Plaintiff did speak at faculty meetings, it was with
respect for her colleagues.
b. The Testimony of Plaintiff’s Former Colleagues Contradicts Dean Bullock’s Accusations
In addition to the five members of the APT Committee, Profs. Boyer, Jones and Rogers were deposed
regarding Plaintiff’s collegiality. All of them praised Plaintiff as a person who was respectful and considerate
of her colleagues, and quite collegial. (Facts, 218) All testified that they had never heard Dean Bullock, Dean
Newsom, or any other member of the faculty indicate that Plaintiff as not collegial or that she caused
problems for the University. (Facts, 218) In fact, Prof. Boyer testified that he and the other most senior
members of the faculty believe Prof. Martin should be reinstated at Howard. (Facts, 218) In fact, Prof. Boyer
testified that these most senior faculty members have read pleadings in this case and believe that Plaintiff
will prevail in this lawsuit! (Facts, 218)
Prof. Boyer was not only one of Plaintiff’s “senior colleagues,” he is the most senior faculty member at the law
school. (Facts, 213) Prof. Boyer, with whom Plaintiff debated, at least once, testified that even when he and
Plaintiff disagreed, it was always with respect. (Facts, 213) Prof. Jones is the next senior member of the
faculty, and he testified that Plaintiff was one of the most collegial members of the faculty, since there were
others who demonstrated disrespect for their colleagues. (Facts, 213) Prof. Boyer wrote a memo to the
faculty, posted on his Howard website, discussing the lack of collegiality at Howard. (Facts, 215) Bullock
has discussed this matter in a magazine article attached to Plaintiff’s August 3, 2001 Motion for a Default
Judgment Due to Defendant’s Production of Late, Incomplete, and Falsified/Tainted Evidence.
IV. DEAN BULLOCK LEFT FACULTY POSITIONS VACANT TO PREVENT THE APT COMMITTEE FROM
SELECTING PLAINTIFF, BASED ON HER RETALIATORY MOTIVE
Even if a jury could be convinced that the APT Committee acted without the retaliatory poison of Dean Bullock’
s influence when choosing Cunningham over Plaintiff on December 18, 1997, Bullock’s withholding of vacant
positions, in the spring of 1998, demonstrates irrefutably that Dean Bullock was the force forcing Plaintiff off of
Howard’s faculty. In her Answer to the First Amended Complaint, Bullock admitted that, in the spring of 1998,
there were several faculty positions available, for which Plaintiff was qualified, but for which she was not
selected and that the positions remained vacant. (Facts, 236)
In January of 1998, the American Association of Law Schools (AALS) held its annual conference. (Facts,
226) Plaintiff attended the conference to seek other teaching positions, even though the hiring season had
ended. (Facts, 226) Bullock testified that she believed that Plaintiff was saying “negative things” about
Howard. (Facts, 226) In an apparent attempt to appease Plaintiff and deter Plaintiff from telling other law
professors at the conference what had happened at Howard, Bullock told Plaintiff that she expected new
positions to become vacant during the spring, and that if one did, she would seriously consider her and
recommend her for it. (Facts, 227)
Plaintiff learned, from a friend at the Department of Justice, that the APT Committee’s selectee, Reginald
Robinson (II), had declined Howard’s offer to fill the advertised Constitutional law/civil rights position. (Facts,
237) Prof. Martin immediately applied for the position by memorandum to Dean Bullock, dated March 6, 1998,
with copies to all members of the APT Committee. (Facts, 237) Bullock never authorized the Committee to
make another recommendation for the position, but, by memorandum dated April 6, 1998, authorized the
Committee to hire a visiting professor to teach tax and trusts and estates, with a specific recommendation
that the Committee hire Angela Vallario, who had been teaching tax and related courses at Howard as an
adjunct professor. (Facts, 238)
Bullock testified that the need in tax arose in the spring because a tenured tax professor, Prof. Argrett, was
extending her leave with Howard for another year, continuing her position with the Department of Justice.
(Facts, 239) When professors are on leave, visitors are often hired, from the funds reserved for the professor
on leave, to teach the courses taught by the professor on leave (Facts, 239); consequently, whether the funds
to hire Vallario were taken from the unfilled ConLaw/Civil Rights position or the funds reserved for the salary
of Argrett, at least one faculty position was vacant as a result of Robinson II’s rejection of Howard’s offer and
Argrett’s extended leave. (Facts, 241)
In addition to the ConLaw/Civil Rights slot/Argrett slot, a property professor unexpectedly retired during the
spring semester. (Facts, 240) This retirement left an additional faculty vacancy for the 1998-1999 academic
year (Facts, 240) Bullock did not authorize the Committee to fill this position. (Facts, 240) Finally, former
Dean Ramey was still technically on the faculty at Howard during the 1997-1998 academic year. (Facts,
240) Bullock admitted to Plaintiff, on March 27, 1998, that the slot reserved for Dean Ramsey was available,”
allowing her to fill the position, so that three faculty positions were vacant, after counting the EEO/labor law
and Commercial law positions as “filled.” (Facts, 241)
Whether there was one vacancy, two or three, Plaintiff only needed one. Plaintiff suggested that these new
vacancies would allow both Christi Cunningham and her to remain at Howard and continue to teach the
courses that they had taught for the previous two years (Facts, 243) while Lateef Mtima filled the gap in
commercial law and the new need in property. Plaintiff’s suggestion would have allowed Prof. Worthy to
continue teaching Ethics, since the reassignment of Cunningham to teach EEO and Labor law required Prof.
Worthy (now Interim Dean) to relinquish her Ethics class to cover a course relinquished by Cunningham.
In her April 8, 1998 Reply Memo to Prof. Martin, Bullock replied that “contracts” and been “executed” with the
“new hires,” Cunningham and Mtima, “months ago,” and that she had “no basis for rescinding those
contracts.” (Facts, 244) In fact, no contracts had been executed with Cunningham or Mtima. (Facts, 244)
Bullock certified, as part of Howard’s July 19, 2002 discovery request, produced after two Court Orders and a
contempt finding against Howard for non-production of discovery, that there are no written contracts with
faculty members. (Facts, 244) Dean Bullock simply lied in her memoranda to Plaintiff.
Bullock admitted that no professor is guaranteed to teach any particular course and that courses are
reassigned in accordance with the school’s needs (Facts, 245) yet, she never asked Cunningham whether
she would prefer to continue teaching the four courses that she had been teaching, rather than pick up EEO
and Labor law. (Facts, 246) Similarly, Bullock never asked Mtima whether he would prefer to teach property
related courses rather than Torts I and II, even though he had not indicated any preference for Torts and had
published on property issues. (Facts, 247) Plaintiff’s EEO class was a seminar with limited enrollment.
(Facts, 248) The demand for that class exceeded enrollment by at least three times; consequently, two
seminars in EEO law could have been offered, one per semester, to better serve the students. (Facts, 249)
In addition, there was no survey class in EEO law offered, so that students did not have a good background
for the seminar to write research papers. (Facts, 249) Plaintiff had raised this issue previously with Dean
Newsom and recommended that a survey course be offered and made a pre-requisite to the seminar.
Plaintiff was also qualified to teach an array of courses, including various civil rights courses and employment
law courses and any “core” course. (Facts, 249, 250) Instead of meeting student needs and
accommodating faculty by leaving/placing them in classes with which they were most familiar, Bullock
manipulated courses and withheld vacancies to exclude Plaintiff from consideration for any position on the
faculty.
V. BREACH OF CONTRACT
In its December 15, 1999 decision, this Court rejected Defendant’s argument that parole evidence could not
be considered, due to the statute of frauds. The law in the District of Columbia permits parole evidence
where the oral contract could have been performed within a year of the contract. In this case, a tenure-track
position could have become available at any time, including during the first year of Plaintiff’s employment with
Howard, as evidenced by the unexpected vacancies in the spring of 1998. The departure of any tenure-track
member of the faculty would have allowed Plaintiff to apply for, and be selected for, a tenure-track position
during her first year.
This Court denied Defendant’s Motion to Dismiss or for Summary Judgment in order to allow the jury to
decide: 1) whether Professor Taslitz had the authority to bind the University; and 2) whether Taslitz actually led
Plaintiff to believe that the Visiting Associate Professor position that she was being offered was expected to
become a tenure-track position. Howard has admitted that Taslitz had the authority to bind the University.
(Facts, 15-16) Taslitz negotiated with candidates, including Plaintiff, wrote letters making offers and orally
made offers, with the approval of Howard officials. (Facts, 16-17)
Plaintiff alleges that Prof. Taslitz made representations to her, at the time of her hire in early 1996, that: 1) if a
tenure track position had been available at the time of the offer, Howard would have offered it to Plaintiff
(Facts, 17); 2) Howard was offering her a visiting position only because no tenure-track positions were
available (Facts, 17); 3) Howard generally has visitorships available and has renewed visitors for many
years, including Prof. Patricia Worthy and others (Facts, 17); 4) Howard could offer her a multiple year
contract, if that would make her more inclined to accept the offer (Facts, 17); 5) Howard would just keep
renewing Plaintiff as a visitor until a tenure-track position opened up and then they would “slide” her into a
permanent faculty position (Facts, 6, 17); 6) the visitorship being offered to her was a “visitorship only in
name,” and “for all practical purposes, a tenure-track position.” (Facts, 17) Plaintiff also alleged that she told
Taslitz that her daughter was starting high school that year and that she would not move her back to D.C. from
Ohio, then “rip her out of high school” to move somewhere else. (Facts, 17)
Taslitz has admitted making the representations numbered 1, 2, 3 and 4 (Facts, 17). Taslitz also admitted
that Plaintiff told him that she did not want to start her daughter in school and then move her after only on
year. (Facts, 17) Taslitz testified that he could not recall his “exact words,” but that he intended to convey the
message that, if Plaintiff accepted the visitorship, she would be “well placed” for a permanent position when
one opened up. (Facts, 18) The differences between Plaintiff’s allegations and Taslitz’ admissions are
ones of degree, rather than substance. Taslitz was clearly giving Plaintiff a “sales pitch” to convince her to
teach at Howard. As part of its enticement and an indication that its representations regarding job stability
were made in good faith, Taslitz offered Plaintiff a two-year visitorship, as part of her written offer. (Facts, 19)
Multiple year contracts were not offered to ei