See also Plaintiff's Reply to Defendant's Opposition to Motion for Judgment on Plaintiff's Claim of Sexual
Harassment
As discussed under MartinvHowardU, trial was finally held from April 3-28, 2006. The jury found that Prof.
Martin was harassed by the homeless, delusional stalker in her workplace, but oddly, and contradicting
Judge Hogan's finding of law in his 1999 decision, found that the harassment was not based on her sex and
was not "sexual" in nature. This conclusion led to a jury verdict for the defendant, since Title VII jurisdiction
only applies if the harassment is based on race, sex, color, national origin or religion. Ms. Martin has filed
motions for judgment on all of her claims, as a matter of law, asking the Court to set aside the jury verdict.
See Plaintiff's Motion for Judgment on her Sexual Harassment Claim, and Reply; Plaintiff's Motion for
Judgment on her Retaliation Claims and Reply; Plaintiff's Motion for Judgment on her Breach of Contract
Claim and Reply. Howard has also filed motions for judgment on all claims, even though the jury verdict
was in its favor. See Plaintiff's Opposition to Defendant's Motion for Judgment on Plaintiff's Sexual
Harassment Claim; Plaintiff's Opposition to Defendant's Motion for Judgment on her Retaliation Claims;
Plaintiff's Opposition to Defendant's Motion for Judgment on her Breach of Contract Claim.
If Chief Judge Hogan does not set aside the jury verdict, Ms. Martin will appeal this decision. The verdict
clearly reflects a misunderstanding by the jury as to what constitutes sexual harassment or harassment on
the basis of sex. Judge Hogan held, in 1999 "It is clear from Mr. Harrison's own description of his search for
'Geneva Crenshaw" or 'Valerie Edwards' that he targeted women other than Plaintiff. Plaintiff argues that Mr.
Harrison's pursuit of her as his 'wife' was inherently sexual in nature since it was clear that she would not
have been sought by Mr. Harrison as his wife if she were a man. Moreover, Plaintiff claims that she was
being stalked by Harrison and that stalking is primarily a crime against women, with sexual connotations ....
In this case, it is clear that Plaintiff was only the object of Mr. Harrison's attention because she was a female;
therefore, the alleged stalking activities do appear to have been "because of sex" eve if they were not
inherently sexual in nature." For Chief Judge Hogan's precedent-setting 1999 decision, see
Martin_v_HU_1999 and MartinvHUPressRelease.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/AK
)
)
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON HER RETALIATION CLAIMS,
AFTER VERDICT
Plaintiff incorporates into this Opposition, her April 25, 2006 Motions for Judgment on Her Sexual Harassment,
Retaliation and Breach of Contract Claims as well as her Oppositions to Defendant’s pending Motions for Judgment on
Plaintiff’s Sexual Harassment, Retaliation and Breach of Contract Claims and incorporates this Opposition into the
aforementioned motions.
I. Relationship of Present Motion to Pending Motions
The jury in this case determined that Prof. Martin endured severe and pervasive harassment in her workplace when she
was stalked by Leonard Harrison, a homeless, delusional stranger with a criminal record and a history of violence. The jury
further found that Howard failed to take reasonable steps to eliminate this hostile work environment; however, the jury
then determined that Harrison’s pursuit of Prof. Martin, to be his “wife,” was not sexual in nature, or based on her gender.
The jury therefore concluded that Plaintiff was not engaged in “protected activity” within the meaning of Title VII of the
Civil Rights Act of 1964 or the D.C. Human Rights Act. As fully discussed in Plaintiff’s Motion for Judgment on Her
Sexual Harassment Claim and her Opposition to Defendant’s Motions for Judgment on Plaintiff’s Sexual Harassment, the
jury’s conclusion was based on a misunderstanding of law and should be set aside.
If the jury had proceeded to the remaining questions on the verdict form regarding retaliation, it would have been compelled
to find that Howard’s ever-changing, purported reasons for Plaintiff’s non-renewal are false and based, in part, on perjury
by former Dean Alice Gresham Bullock. In addition, Bullock made statements constituting direct evidence of retaliatory
animus. Finally, Bullock left faculty positions vacant, for which she admits Martin was well qualified. Bullock actually
lied to her colleagues on the APT Committee about these vacancies in order to prevent the Committee from selecting
Martin for one of these positions. The undisputed evidence of record compels judgment for Plaintiff, not Defendant.
II. Plaintiff’s Complaints Constituted “Protected Activity” within the Meaning of Title VII
A. Dean Bullock Expressly Recognized that Harrison’s Harassment was Based on Sex and that
Harrison Posed a Threat to Plaintiff and “Other Women” on Campus
At trial, Bullock perjured herself by testifying that she did not perceive Harrison’s pursuit of Martin as based on her
gender. As fully discussed in Plaintiff’s Motion for Judgment on her Sexual Harassment Claim and Opposition to
Defendant’s Motion for Judgment on Plaintiff’s Sexual Harassment Claim, Deans Bullock and Newsom, as well as
Howard’s additional agents, University Campus Officer Sirleaf and Prof. Taslitz, always understood Harrison’ harassment
of Martin to be based on her gender, or status as a woman. Plaintiff will not repeat the facts, but highlights Howard’s
most glaring fraud below.
In her July 1, 1998 memorandum to Howard’s General Counsel, provided as an attachment to Howard’s Position
Statement to the EEOC, responding to Plaintiff’s charges of sexual harassment/hostile work environment and retaliation,
Dean Bullock admitted that she was aware, by no later than December 1, 1997, that Harrison posed a threat of stalking and
harassment to Prof. Martin and “other women” on campus.
Associate Dean Newsom advised me that he thought that MPD should be called in to provide more manpower in tracking
down the individual not only to benefit Professor Martin, but also to prevent harm to other women whom this person
might stalk or otherwise harass. (Emphasis added)
Ex. A; Pl.’s Trial Ex. 8B; Ex. KKK-1 of Pl.’s October 9, 2002 Motion for Summary Judgment (MSJ), re-filed
electronically on November 1, 2005, Docket # 330. In addition, in her March 6, 1998 memo to Bullock, Martin
specifically referred to Harrison targeting her and “other African-American women.” (Ex. B; MSJ Ex. XX, page 2, fn. 1)
For eight years, Howard has fraudulently argued, in violation of Fed. R. Civ. P. 11, and in direct contradiction to the
documented evidence of record, that neither Deans Bullock nor Newsom understood Prof. Martin’s complaints to indicate
that she was being “harassed” or that such harassment was sexual in nature or based on her gender. Pursuant to Fed. R.
Civ. P. 60(B)(3), this fraud should end here and now.
B. Plaintiff’s Complaints Constituted Protected Activity, as “Good Faith” EEO Complaints
An employee is protected against retaliation for opposing perceived discrimination, if s/he had a reasonable and good faith
belief that the opposed practices were unlawful. Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997); Trent
v. Valley Electric Association, Inc., 41 F.3d 524, 526 (9th Cir. 1994). The plaintiff does not need to prove the underlying
sexual harassment in order to establish a case of retaliation. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th
Cir.1978). See also Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981); cert. denied,
455 U.S. 1000 (1982).
Plaintiff testified that she feared a sexual attack by Harrison. Plaintiff’s fear was reasonable. On November 20, 1997,
when Martin showed Prof. Taslitz Harrison’s letters and told him of Harrison’s phone message, he advised Martin to call
the police immediately, saying, “Howard’s Security is for shit. You’ll be raped and killed right in front of that security
booth.” Martin described Harrison as targeting her and “other African-American women.” Ex. B, page 2, fn. 1. Martin
reasonably perceived Harrison’s conduct as based on her sex and is protected by Title VII and the D.C. Human Rights
Act.
C. Plaintiff’s EEOC Charge Constituted Protected Activity
Howard acknowledged, as did the Court, that Plaintiff’s May 14, 1998 EEOC charge constituted protected activity within
the meaning of Title VII and the D.C. Human Rights Act; 1999 U.S. Dist. LEXIS 19516 at *16-17. Plaintiff clearly
engaged in protected activity before Dean Newsom ordered her to vacate her office by May 29, 1998, even before her EEO
class grades were due. To the extent that there was any question of whether Deans Bullock or Newsom knew of Plaintiff’s
EEOC charge before Newsom ordered her to vacate her office, there can be no question that Howard knew that Plaintiff
filed an internal grievance with the Howard University Grievance Committee within one day of filing her EEOC charge (Ex.
C; Pl. Trial Ex. 39). Although Howard represented, at trial, that the Grievance Committee had no jurisdiction over sexual
harassment of other EEO claims, the Grievance Committee’s cited its authority sex discrimination claims. Ex. C, at 1.
III. Howard’s Purported Legitimate Reasons for Plaintiff’s Non-Renewal are False and Pre-Textual
A. Martin Reasonably Expected, and Earned, Renewal on Howard’s Faculty
In the fall of 1997, Prof. Martin had every reason to believe that she would be placed in a tenure-track position and that
she would obtain tenure in her fifth year of teaching, which would have been the 1998-1999 academic year. As discussed
in Pl. MSJ at 29, 35-36, Prof. Martin graduated from an Ivy League college, Columbia University (Ex. D), and a top ten
law school, NYU (Ex. E), in 1981. She had seventeen years of exceptional experience as a civil rights attorney, including as
a Trial Attorney for the United States Department of Justice, Civil Rights Division, Education Section, hired through the
Honors’ Program, from 1981-1985, litigating school desegregation cases. She was a Trial Attorney for the New York State
Office of the Attorney General, Civil Rights Bureau, and for the Legal Aid Society of New York. Martin was recognized
as a national expert in EEO law, based on her work experience, particularly her 6 years of national policy-making
experience with the U.S. Equal Employment Opportunity Commission (EEOC) and her contributions to a Treatise on
EEO law, as well as writing the Introduction to a Symposium on the Americans with Disabilities Act. Pl. MSJ at 37.
Martin had been a law professor for four years, teaching EEO law, in addition to Torts I and II, Evidence and Race as a
Factor in American Law. Pl. MSJ at 2, 38, 43. At Howard, she was the incumbent teaching EEO law, Torts and
Evidence, with excellent teaching evaluations and exceptional student support. Pl. MSJ at 2, 19.
The scholarship requirement for tenure was two articles, or one book, within six years of teaching. (Howard Handbook,
pages 2-3, Section III; Ex. H; MSJ Ex. CCC,) Martin had already met that requirement, within the first semester of her
fourth year of teaching. She was already exceeding that requirement with her two works in progress. Only a few months
earlier, Bullock had awarded Martin a 1997 summer grant, demonstrating her approval of Martin’s scholarship progress.
MSJ at 25 and Bullock’s trial testimony. Taslitz told Martin that she could get “two or three” articles out of “911…” and
had even suggested that she make it a book; thus, “911…” alone could have qualified her for tenure, even without her
previous publications or works in progress. Martin had every reason to anticipate that her teaching career would continue
to flourish; however, “on the heels” of her complaints of being stalked in her workplace, Martin’s career was derailed and
destroyed.
B. Howard Violated Civ. R. P. 8(c) and 26(h) by Asserting Untimely Defenses not Raised in its Answer to the
Complaint or Timely Answers to Interrogatories
As fully discussed in Plaintiff’s May 8, 2006 Motion for Judgment on her Retaliation Claims, pages 32-33, pursuant to
Fed. R. Civ. P. 8(c), Howard was required to raise all enumerated defenses in its Answer to the Complaint or its Motion to
Dismiss, filed before its Answer. Harris v. Sec. of U.S. Dept. of Veteran’s Affairs, 126 F.3d 339, 343 (D.C. Cir. 1997)
Since Howard did not raise a defense of “non-collegiality” or “bad judgment” in its Answer, or in its Motion to Dismiss, it
waived its right to raise this defense three years later.
If any of the reasons that Howard asserted in 2001 had actually been the reasons for Martin’s 1997-1998 non-renewal,
surely, Howard would have known it in 1999, when it responded to the EEOC and answered the Complaint filed in this
Court. Howard’s purported defenses, in its 1999 Answer to the Complaint, its 2000 Answers to Interrogatories and its
2001 “Supplemental” Answers to Interrogatories were all filed in bad faith, in violation of Fed. R. Cic. P. 26(h), with no
evidence to support even one of Howard’s allegations. See also Plaintiff’s August 2, 2001 Motion for a Default Judgment
for Defendant's Production of Late, Incomplete and Falsified/Tainted Evidence (Docket # 143) Even Howard’s July 13,
2001 articulated reasons for failing to renew Plaintiff were completely contradicted by the APT Committee members, as
well as the actual resumes and applications of Plaintiff and the selectees, Profs. Cunningham and Mtima. In fact, all APT
Committee members -- except Andrew Taslitz -- seemed oblivious to any the purported reasons for Martin’s non-renewal
asserted by Howard, other than scholarship, in both sets of Answers to Interrogatories. Pl. MSJ at 24-29; Leggett
deposition at 223, line 10 through 224, line 16. A party should not prevail in a case based on such fraudulent
representations. Fed. R. Civ. P. 60(B)(3).
C. Howard’s Purported Reasons are Ever-Changing, Inconsistent, False and Pretextual
The undisputable evidence of record demonstrates that all of Howard’s ever-changing “reasons” for Prof. Martin’s non-
renewal are blatantly false. Howard could not produce evidence to support even one of its untimely, improperly admitted,
ever-changing defenses. See Ex. I, Chart of Howard’s Changing Defenses.
First, in their meeting on January of 1998, Bullock claimed that the APT Committee rejected Prof. Martin because she
“had not completed an article as of December 18, 1997.” During the meeting, Martin corrected Bullock by informing her
that her article was not only completed, but accepted for publication prior to the Committee’s December 18, 1997
decision. Martin again corrected Bullock, in writing, in her March 6, 1998 memo (Ex. J, MSJ Ex. XX), page 1. Bullock
modified this false statement in her April 8, 1997 memorandum to Martin, stating: “I am also advised by the Committee
that you had no article accepted for publication as of December 18, 1997, the date on which the Committee made the
decision on your application – not even the article which served as a major justification for the Associate Professor rank.”
(Ex. K, MSJ Ex. NNN). Bullock repeated this assertion in her April 10, 1998 (Ex. L, MSJ Ex. PPP), despite Martin’s
immediate and repeated correction of Bullock’s statement, in writing. (Ex. M, MSJ Ex. PPPP) Since all of the APT
Committee members admitted that they knew that Martin’s article was accepted for publication by December 18, 1997,
Dean Bullock clearly lied in her memos regarding the reason for Martin’s non-renewal/non-selection.
Second, in Bullock’s April 10, 1998 (Ex. L, MSJ Ex. PPP) in “responded” to Martin’s April 10, 1998 memo (Ex. M, MSJ
Ex. PPPP, page 3), observing that course needs would be best met by allowing her, as well as Profs. Cunningham or
Worthy, to continue teaching what they were all teaching, and assign the newly hired Prof. Mtima to teach what he asked
to teach – property, not Torts. Bullock again lied, in writing, by saying that she had executed contracts with the “new
hires” (Cunningham and Mtima) “several months” earlier that confirmed their teaching assignments. Bullock later
admitted, in her deposition, that no such contracts were ever signed and that she never offered Cunningham or Mtima the
option of teaching the courses in which they were most experienced or requested. MSJ at 43. Instead, Bullock reassigned
the new hires Martin’s courses and then claimed that there were no courses left that Martin could teach.
Third, in its July 11, 2001 Supplemental Response to Interrogatory # 46, its Motion for Summary Judgment, its Motion
in Limine for an Order Clarifying that Plaintiff's Retaliation Claim is Limited to Decision not to Hire Plaintiff for
EEO/Labor Law Position, and some other filings, Defendant claimed that Martin was rejected for a position on October 31,
1997, before she was stalked; however, in its October 17, 2000 Answer to Interrogatory # 30, its Opposition to Plaintiff’s
Motion for Summary Judgment, page 9, as well as in other filings, Howard states that the Committee did not make its
decision whether to renew Plaintiff’s contract until December 18, 1997 – nearly a month after the stalking began. Howard
has admitted that the October 31, 1997 letter was a form letter, sent to all professors whose contracts were ending,
irrespective of non-renewal, and that Cunningham received the same letter. The November 3, 1997 memo itself clearly
stated that the APT Committee had not yet met or made decisions. See Plaintiff’s December 19, 2006 Opposition to
Defendant’s Motion in Limine for an Order Clarifying that Plaintiff's Retaliation Claim is Limited to Decision not to Hire
Plaintiff for EEO/Labor Law Position, pages 13-15, and Plaintiff’s March 14, 2006 Opposition to Defendant’s Motion for
Leave to File Motion to Conduct Discovery to determine whether Plaintiff had a “Good Faith Basis” for her January 17,
2006 Motion for a Trial Continuance, Due to Illness, pages 11-13, particularly fn. 17. Again, Howard’s second purported
reason was revealed as a blatant lie, by its own admission.
Fourth, in its December 7, 1999 Statement to the EEOC (Ex. N), pages 7-8, Howard claimed that “the decision not to
reappoint Complainant was based entirely on the fact that the APT Committee was in need of a faculty member to teach
courses in Taxation, Wills, Trusts and Estates and Real Property.” Discovery confirmed, as Prof. Martin alleged, that
Howard did not advertise for teaching positions for these courses, but did advertise for EEO/Labor Law, Constitutional
Law and Commercial Law; moreover, Bullock assigned the new professor hired to teach Commercial Law, Prof. Mtima, to
teach Torts, which Prof. Martin taught, leaving a gap in Property Law, which Prof. Mtima actually requested to teach. In
addition, Bullock claimed that there were needs in these course areas because she and Dean Newsom were administrators
and not teaching; however, Bullock had not taught for at least three years and Dean Newsom had not taught any of these
courses for at least two years; accordingly, there was no new or sudden need in these areas in the spring of 1998, when
Bullock converted the advertised Constitutional Law position to a tax position in direct response to Prof. Martin’s March
6, 1998 renewed application for the Constitutional Law position after she learned, from an outside source, that the original
selectee had declined the position.
Fifth, in its October 17, 2000 and July 11, 2001 Answers and Supplemental Answers to Interrogatories, Howard repeated
its false claim that Martin “did not complete an article for publication by December 18, 1998”– despite its knowledge that
the article was accepted for publication on December 18, 1997, and was published in the fall of 1998, as was Cunningham’
s article.
Sixth, in its July 11, 2001 Supplemental Answers to Interrogatories, produced after several Court orders for Howard to
produce requested discovery, for the first time in the three years the case had been litigated, Howard claimed that: 1) there
were no positions available that Prof. Martin was qualified to fill – directly contradicting Bullock’s Answer to the
Complaint, 326, admitting that Howard Law School had at least three tenure track positions left available, in the spring of
1998, for which Prof. Martin was well qualified (MSJ at 42-43); 2) Prof. Martin’s performance in law school was not as
stellar as her competition – supported by absolutely nothing, particularly since Prof. Martin graduated from a top ten law
school, into the Honors Program of the U.S. Department of Justice in 1981, and Howard never requested a transcript or
asked her about her grades, in any case; 3) Prof. Martin’s work experience was not as stellar as her competition –
contradicted by Prof. Martin’s 17 years of legal experience, working for this nation’s top civil rights agencies, leaving
government with “outstanding” evaluations, publishing as a recognized national expert in EEO law, and teaching for four
years with excellent performance evaluations; 4) Cunningham was more qualified for the EEO position than was Martin –
contradicted by their resumes and applications, as well as the fact that Howard itself had deemed Martin more qualified for
the position than Cunningham less than two years earlier, when it hired them both and selected Martin over Cunningham
to teach EEO law (this assertion incorporates, by inference, education and work experience, already listed as #s 2 and 3);
and 5) that Prof. Martin’s colleagues did not find her “collegial” – a claim contradicted by all Committee members except
for Taslitz – an alleged retaliating official – as well as by three additional professors, Boyer, Jones and Rogers. MSJ at 40-
41.
D. The December 9/19, 1997 Memo Fails to even Acknowledge Martin as a Candidate
Perhaps most telling is the Committee’s purported December 9/19, 1997 Memorandum (Ex. O; MSJ Ex. BBB), discussed
in Plaintiff’s MSJ at 29-38. The December 9/19, 1997 memo does not even mention Martin – the incumbent -- as a
candidate! The memo reads as if Martin did not exist. The only reference to a candidate for the EEO/Labor position, other
than Cunningham, was to an outside candidate who specialized in Labor Law (Martin specialized in EEO law). MSJ at
36. The December 18, 1997 vote was a retaliatory vote to remove Martin from the faculty – whether she was replaced by
Cunningham or someone else.
The “retaliation road” began with Bullock, proceeded to Newsom and then to Tazlitz. From that point on, “all roads lead
to Andrew Taslitz.” Taslitz is the only member of the APT Committee who made any negative claims about plaintiff’s
teaching, collegiality, or service to the law school. Taslitz is directly contradicted on all of these points by all four of the
remaining members of the APT Committee. These four members, Profs. Leggett, Smith, Nolan and LaRue, praised
Professor Martin with respect to all of these criteria. See Ex. D, Chart of Committee Members’ Assessment of Martin.
Even the committee's official statement, three years into this litigation, contradicts Taslitz’ statements alleging problems
with Martin in these areas.
The remaining criterion, “scholarship,” is the only criterion that any Committee member – other than Taslitz -- claimed
was the reason for Cunningham's selection for the EEO/Labor position that Martin had held at Howard for the previous
two years; however, all committee members -- other than Taslitz -- testified that, during their deliberations, an APT
committee member represented that: 1) Cunningham's article was “in print;" 2) Cunningham had the “superior record of
scholarship;" 3) that Cunningham made substantial progress toward completing two additional articles since joining
Howard's faculty; and 4) Martin had just completed the article that she had begun more than two years earlier and had no
drafts of other articles or works in progress. Each and every one of these representations was blatantly false.
As discussed more fully below, each of these misrepresentations is readily disproved by simply examining the resumes
(Ex. P, Martin resume, MSJ Ex. E; Ex. Q, Cunningham resume, MSJ Ex. F;) and Martin and Cunningham 1997
applications (Ex. R, Martin, MSJ Ex. YY; Ex. S, Cunningham, Joint Tr. Ex.50); however the “Unsuspecting 4” Committee
members had no reason to know that Taslitz would lie about their mutual colleagues -- particularly since Taslitz presented
himself as Martin's “friend” and mentor.
Taslitz admitted that he took the lead in presenting Martin and Cunningham as candidates. Taslitz depo at 141-142. The
“Unsuspecting 4” had been led by Bullock to believe that there was only one position to fill -- the EEO labor position.
Forced to choose between two “terrific” colleagues, the “Unsuspecting 4” voted for Cunningham, mistakenly believing
that she was the candidate with “a proven record of scholarship,” and therefore the better candidate to help Howard
maintained its accreditation status for scholarship over the long term. The “Unsuspecting 4” did not realize that it was
Martin, not Cunningham, who had the “proven record of scholarship” until confronted with the candidates’ résumés during
their 2002 depositions and/or at trial in 2006. They were completely unaware of Taslitz's private meetings with Bullock
regarding Martin and that Bullock told Taslitz, Newsom that she did not want Martin on the faculty. The source of all
negative comments about Martin was Taslitz. See Ex. T, Chart of APT Committee’s Assessment of Martin. Martin non-
renewal was engineered by Taslitz -- and Taslitz took his orders from Bullock.
E. Comparison of the Credentials of Martin and Cunningham
When Prof. Martin and Ms. Cunningham were hired in 1996, both sought to teach EEO law and Torts. In the spring of
1996, Howard selected Prof. Martin as the superior candidate to teach both of these courses. In fact, in order to entice
Prof. Martin to leave her tenure track position at Cleveland State, and from pursuing other tenure-track positions for which
she was interviewing, Howard guaranteed, in writing, at least a two year visitorship, at the promoted rank of “Associate
Professor,” while waiting for a tenure-track position to become available at Howard. Ms. Cunningham was only
guaranteed a one year visitorship, at the beginning rank of “Assistant Professor.” See Ex. U (Ex. KKKK of MSJ), Chart
comparing Martin and Cunningham in 1996.
A year and a half later, Howard claimed that the junior Visiting Assistant Prof. Cunningham was a “far superior” candidate
than was Visiting Associate Prof. Martin to teach the very EEO course that Martin had been teaching at Howard for two
years and in Cleveland for an additional two years, whereas Prof. Cunningham had never taught it at all. See Ex. V (Ex.
LLLL of MSJ, Chart comparing Martin and Cunningham in 1997.
The logical question is: “What happened less than two years later that destroyed Prof. Martin’s career and ability to even
support herself and her daughter?” What changed the positions and qualifications of these two professors, Martin and
Cunningham? The answer is that Martin was stalked in her workplace by a homeless stranger and Cunningham was not.
There is no explanation that rebuts the prima facie case of retaliation.
F. Howard’s Purported Hiring Criteria Examined and Applied
At trial, Howard stated that it used four criteria to select Cunningham over Martin. Each will be examined below to
determine whether Howard has produced any credible evidence to support its claim.
1. Teaching
In a May 11, 2001 memorandum (Ex. X, page 2; Pl.’s Trial Ex. 33), the APT Committee, via its Chair, Prof. Isaiah Leggett,
stated:
Professor Martin and Professor Cunningham (sic) were among the four candidates applying for the second tenure track
position covering labor law, collective bargaining and other general course subjects. …. All of the four candidates … were
found to be quite competent as teachers and capable of fulfilling the Law School’s instructional needs in this area….
Students participating in the process appeared to be mixed in their preference of Professor Martin and Cunningham. The
Committee did receive a petition from a number of students asking that we select Professor Martin for the position.
Howard’s admission, – made even three years into this litigation, precludes any conclusion that Prof. Martin’s non-
renewal was due to any question of teaching ability. In fact, Howard’s admissions are consistent with Dean Bullock’s
admission, in her Answer to the Complaint, that Prof. Martin was a very good teacher, with above average teaching
evaluations, as well as the deposition testimony of APT Committee members, Profs. Nolan, Leggett, Smith and LaRue.
See Pl.’s MSJ at 19, 23, 32. In addition, students wrote letters to Dean Bullock and/or University President Swygart,
protesting Prof. Martin’s non-renewal and praising her for her teaching ability, exam-taking workshops, sample exams and
answers and extensive availability. See Pl.’s MSJ at 19; Ex. W, also in record as Ex. VV of Pl.’s MSJ.
One student, Mika Dorsey, referred to Prof. Martin as “phenomenal woman,” for her own professional accomplishments
and contributions and for her willingness to give her time to help others. Ms. Dorsey explained that Martin had arranged
classes to be taped for her and met with her regularly to review all materials covered in class while she was obtaining
medical treatment for a life-threatening illness. Ex. W, second letter.
Bullock told Dean Samuel Thompson, of the University of Miami, that the only reason that Martin was not being renewed
was that she needed a teacher to teach tax, but that Martin was regarded as a very good teacher. Pl. Facts 227; Bullock
depo at 150. Even in 1999, in response to Plaintiff’s EEOC charge, Bullock told the EEOC investigator interviewing her:
“There is no particular reason that I would not want Martin to teach at Howard University School of Law.” Pl. MSJ at
19. Howard's admissions that Prof. Martin was a very good teacher preclude any purported defense that Professor Martin
was not renewed because of her teaching.
2. Scholarship
a) The APT Committee’s Official Position Statement
MJ Facciola noted some of Howard’s glaringly false statements regarding Prof. Martin’s scholarship.
In Howard's Answers to Interrogatories dated October 17, 2000, Howard stated that Martin was refused tenure in part
because as of December 18, 1997 Martin had "no scholarship articles accepted for publication." Plains. Mot. at 25. In fact,
HU was aware that Martin's 911 article had been accepted for publication on December 17, 1997, that she had
substantially completed work on a second article (Lights), and that she was in the process of researching a third. Taslitz
Dep. at 159:12-162:13. Significantly, four of the five APT Committee members testified that they knew of the article's
publication. Plains. Statement of Facts at 27. Taslitz even testified that he had informed the other members that Martin's
article was recently accepted for publication. Taslitz Dep. at 141:7-16.
Leggett testified that not only was he made aware that the 911 article had been approved by the time of the December 18
meeting, but that he was even considering giving Martin credit for two different articles. Leggett Dep. at 117:15-121:8.
2003 U.S. Dist. LEXIS 1850 the 1 at * 22-24.
Nine months after producing its October 17, 2000 Answers, Howard produced July 11, 2001 Supplemental Answers to
Interrogatories, including a Memorandum signed by Prof. Leggett, as the official position of the APT Committee, page 2-3
(Ex. X; Pl.’s Trial Ex. 33). The memo stated:
Individual faculty members who participated in the process clearly favored Professor Cunningham, primarily for her
academic vigor, research and publication abilities and potential for growth as a scholar…. Although Professor Martin had
been involved in the legal profession longer, the quality of her academic and scholarly production was viewed by the
members of the faculty and the APT Committee to be less substantive than Professor cunningham’s research and
publication potential…. She had already published one article and did extensive legal research in her position as a clerk for
a U.S. District Court Judge, Constance Baker Motley…. During her initial visit to Howard, she was able to actually
publish another article, and she made a very favorable impression on the Committee with the vast amount of work she had
accomplished on a variety of other research and publication projects in process. Prof. Martin did not complete a
publication during the same visitation period at Howard. (Emphasis added.)
Profs. Martin’s and Cunningham’s own resumes and applications demonstrate that Taslitz’ representations regarding their
scholarship were blatantly false. Pl. MSJ at 31-35. By December 18, 1997, Cunningham’s 67 page article (published
pages) was not yet in print, but was scheduled for publication in the spring of 1998 – the same status as Plaintiff’s article.
Pl. MSJ at 34-35. Both Plaintiff’s and Cunningham’s articles were actually published in the Winter of 1998 (Ex. Y, first
page of Trial Ex. 133, internet version of Cunningham article; and Ex. Z, first page of internet version of Plaintiff’s article –
a full year after the APT Committee’s December 18, 1997 decision. The Committee's statement is blatantly false and
pretextual.
Although MJ Facciola recognized Howard’s false statements to deny Howard’s Motion for Summary Judgment, he did
not consider that Howard’s fabrications justified granting Plaintiff’s Motion for Summary Judgment. As APT members
were well aware, both from Prof. Martin’s application memo and from her conversations with them, that the article had
been completed for months. As her November 5, 1997 application memo stated, during her first year at Howard, Martin
had not only expanded “911…,” but had a draft of a second article, “Lights Camera, Discrimination! ‘Playing’ the Victim
under Title VII” (Ex. R, page 5; MSJ Ex. YY), which she had submitted to Dean Bullock as part of her application for a
summer grant, which she had been awarded, based on the progress of her scholarship. She also had a thesis, title, and
preliminary research conducted for a third article, “Still Racist after all these Years – and Covered by the Americans with
Disabilities Act?” Id. In contrast to Cunningham’s purported planned articles expanding the same topic, all of Plaintiff’s
articles, since joining Howard, had different theses and relied on different research.
The resumes and applications clearly show that it was Prof. Martin, by far, who had the superior record of scholarship to
Cunningham, in the fall of 1997. When Cunningham was hired, two years earlier, Bullock’s memo justifying Cunningham’s
salary, did not represent her as anyone with a “record of scholarship,” but as:
…a young lawyer … who has already demonstrated interest in and potential for research and writing. While still a law
student she published Unmaddening: A Response to Professor Angela Harris, 4 Yale J.I., & Feminism 155 (1991).
During her two years at Howard, Cunningham had only produced the one article, 67 pages long, not yet published, as of
December 18, 1997; yet, Taslitz falsely touted Cunningham, as compared to Martin, as being the “only candidate” with a
“proven record of scholarship.” Pl. MSJ at 34-35. Cunningham had no previous publications, except for a “student
note,” which is normally not counted at all or is counted with little weight, when considering a faculty member for a
promotion, raise, tenure or re-appointment. Plaintiff’s MJS at 34. Martin had published five articles since law school, and
had been credited with at least four by Howard when she joined Howard’s faculty. Pl. MSJ at 34-35. The undisputed
documented evidence of record demonstrates that Howard’s asserted reason for Cunningham’s selection over Martin was
blatantly false and pretextual.
b) Taslitz Deliberately Misrepresented the Scholarship of Martin and Cunningham to Convince the “Unsuspecting 4”
to Vote against Martin
Taslitz admitted that he was the APT Committee member who presented the candidates to the other four members of the
Committee, summarizing their qualifications. Pl. MSJ at 36. Tazlitz deliberately misled Profs. Nolan, Smith, Leggett and
LaRue into believing that it was Cunningham, rather than Martin, who had the “superior record of scholarship,” when, in
fact, the opposite was true.
Nolan testified that she voted in favor of Cunningham, over Martin, because “someone on the Committee” had represented
that Cunningham’s article was actually in print, rather than just accepted for publication and that Cunningham had
demonstrated more potential for scholarship than had Martin. Pl. MSJ at 32-36. Smith also testified that “someone on
the Committee” represented that Cunningham’s scholarship achievements were superior to that of Martin and that she had
produced more scholarship than had Martin since joining Howard’s faculty. Pl. MSJ at 35-36. Leggett testified that he
was “confused” about the status of Martin's article and as to whether she was working on a second article since joining
Howard's faculty. MSJ at 31-32. The statements of professors Leggett, Nolan and Smith all demonstrate that the
Committee members did not rely on their own review of the resumes or applications, but instead, relied on Taslitz’
presentation.
MJ Facciola recognized that Prof. Leggett, the named Chair of the Committee, relied on another Committee member’s
representations regarding the candidates’ publications, rather than read them himself.
Nevertheless, when asked why he chose Cunningham, Leggett testified that Cunningham had not only published during her
time at Howard but had also presented "sufficient information" to suggest that she would publish again and was in the
process of doing so. Id. at 160:6-19. Although Leggett testified that publication was a "crucial" factor in his decision, he
admitted to not even having read Cunningham's article. Id. at 170:19-20.
Again, all roads lead to Taslitz. Taslitz improperly credited Cunningham with two additional articles in progress, when, in
fact, Cunningham did not have any drafts or new research for a second or third article; Cunninhgam had merely stated her
intention to expand the article she had just written into two more articles, “The Rise of Identity Politics II” and “The Rise
of Identity Politics III,” relying on the same research and thesis she had already used for her first article. Pl. MSJ at 34.
Taslitz misrepresented the facts to his colleagues when he told them that Cunningham’s article was “in print,” on
December 18, 1997 and that she had the “superior record of scholarship,” as compared to Martin. Once the APT members
were deposed, there was no way that Howard could continue to conceal Taslitz’ improper conduct. If the “Unsuspecting
4” had actually picked up the resumes and or applications, no one would have been “confused” about the status of
Martin's “911:…” article, the fact that she had a draft of a second article, “Lights, Camera, Discrimination!...,” or that she
had a title, thesis and preliminary research conducted on a third article since joining Howard's faculty, “Still Racist After all
these Years….” This information was clearly stated in Martin's application. Similarly, if “Unsuspecting 4” had picked up
Cunningham's résumé and/or application, they would have readily seen that her first article had just been accepted for
publication, that Cunningham had no drafts of additional articles; rather, the only evidence that she would publish again
was her own statement that she intended to expand her first article into two more articles.
Howard’s main trial strategy was to confuse the jury into believing that Prof. Martin’s scholarship was deficient, and that
she made “11 excuses” in her November 5, 1997 memorandum for her delayed publication of her “911….” article as a
desperate attempt to save her job; however, this memo is 6 pages long, single spaced (Ex. R) – the same approximate length
of Cunningham’s application memo (Ex. S) Martin’s memo stated her extreme pride in her “911…” article, as well as her
teaching, scholarship in progress, service to the law school and other accomplishments. She reviewed her first year at
Howard, making observations and recommendations for the future, clearly assuming that she would remain on the faculty.
There is nothing in the memo that indicates any fear of non-renewal, as Shwalb argued on behalf of Howard.
Martin testified that she added the 11 reasons that extensive “911..” article took as long to send out as it did because
Taslitz instructed her to do so, after he reviewed her first draft, which did not include any such “reasons” for the delay.
Although Mr. Shwalb led the jury to believe that Martin was lying about this issue, Martin’s testimony is corroborated by
Taslitz. Taslitz testified that he reviewed Plaintiff’s first draft and that he advised her to add the paragraph listing the
reasons for the delays in publishing “911...” MSJ Ex. 22, Taslitz depo, at 230-231. Taslitz admitted that he told Martin
that her application looked “very good.” Id. He did not indicate to her that she was in danger of rejection by the
Committee. This conversation took place in early November of 1997 – before the stalking began. Everything changed
after the stalking began.
Howard never had an iota of evidence to support its articulated purported reason(s) for Martin’s non-selection. Howard
lied in Court filings for three years was because the truth was completely unconscionable, unethical, “non-collegial” and
illegal under Title VII and the D. C. Human Rights Act. Howard should not be permitted to survive judgment, as a matter
of law, based on a blatantly false assertion, contradicted by its own witnesses. Such violations of Fed. R. Civ. P. 11 and 26
(h) and should be severely sanctioned, not rewarded.
3. Service to the Law School
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Ex. 33), stated:
Martin and cunningham (sic) were both viewed favorably regarding service to the legal profession, the community and the
University.
Howard’s own admission precludes any defense that Prof. Martin was not renewed because she did not contribute
sufficiently to the University, the community or the legal profession. As Martin documented in her application (Ex. R,
page 5, MSJ Ex. YY), she provided Howard students with extra bar preparation classes, on Saturdays and other non-class
days, including recruiting an Assistant Maryland Bar Examiner participate, to help students maximize success in law
school exams and the bar exam. Howard Law School passage rate for Maryland had become a major concern and even
attracted national publicity. (MSJ at 29; Facts 142) Even Dean Bullock testified that she was aware that Prof. Martin
gave extra exam-taking workshops and prepared extensive sample exams and answers for students. (MSJ at 29; Facts
142)
Prof. Martin also acted as a judge, on a Saturday, for Howard’s Trial Advocacy Program, volunteered and participated in
Howard’s mentoring program, “Close Up,” and taught exam taking for the Regional BALSA (Black Allied Law Students
Association) conference at Howard. (MSJ at 29; Facts 142) Profs. Boyer and Nolan testified that Plaintiff spent a great
deal of time meeting with students. (MSJ at 29)
4. Collegiality
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Ex. 33), stated:
Martin and cunningham were both viewed favorably regarding service to the legal profession, the community and the
University.
These statements are admissions of a party-opponent – made three years into this litigation, and do not in imply that
Martin was not collegial, as alleged by Taslitz – once again, the only Committee member who had private conversations
with Bullock about Martin’s candidacy.
MJ Facciola acknowledged that Taslitz is contradicted by his fellow Committee members.
The third suggestion of pretext is rooted in the Committee's assessment of Martin's judgment. Leggett testified, contrary to
Taslitz' assertion, that he found Cunningham and Martin "basically both qualified . . . judgment-wise." Leggett Dep. at 194:
22-195:3. Leggett also testified inconsistently with Taslitz on the issue of faculty comments about Martin. … In fact,
according to Leggett, faculty members generally had "good things [to say] about [Martin's] .. . work," Leggett Dep. at 249:
7-12, and there was "no faculty concern brought to [Leggett's] attention regarding Martin's appointment." Id. at 251:13-15.
Leggett himself admitted that he found Martin "to be collegial" based on his personal contact with her. Id. at 258:20-259:7.
… the articulated reasons for firing Martin are contradicted by the potential testimony of members of the ATP committee
who have voiced positive views of Martin.. …contrary to HU's contention that Martin displayed poor judgment, there is
evidence that certain faculty members had positive impressions of Martin and that both she and Cunningham were viewed
as equally qualified in terms of their exercise of judgment.
2003 U.S. Dist. LEXIS 18501 at *24-26.
All APT Committee members -- except Taslitz -- deny that there were any allegations of “non-collegiality” or “bad
judgment” in its deliberations regarding Martin. In fact, all APT Committee members – including Taslitz -- testified that
they found Martin to be very collegial and that they all liked and respected her. MSJ at 27-29, 39-41; Pl. Facts 185-186.
Smith testified that he found the Martin to be “terrific” and someone whom he “admired, both professionally and
personally.” MSJ at 31. Nolan, hugged Martin after the decision and said, “I wish I had a job for you. I am praying for
you.” (Pl.’s Facts 185) Nolan even asked Bullock if there were any vacant positions for which Martin could be
considered, but Bullock told her that there no more vacant positions. Pl. MSJ at 40. Even Taslitz described Martin as a
“warm” person and testified that he considered himself her friend! MSJ at 21; Pl. Facts 17, 186.
The most senior faculty members, Profs. Spencer Boyer and Henry Jones, part of the civil rights legacy of which Howard
boasted during trial, testified that they found Plaintiff to be one of the most collegial members of the faculty on a divided
faculty with some non-collegial members. Pl. MSJ at 40-41. Howard has produced absolutely no evidence that the APT
Committee ever considered any allegations of “non-collegiality” or “bad judgment” in its deliberations. The only
decision-maker making this allegation is Taslitz – and he is contradicted by every other member of the Committee! As an
accused retaliating official, Taslitz has reason to fabricate to conceal his improper role in Bullock’s retaliatory plan to
remove Martin from the faculty.
Howard fabricated the “non-collegiality” “bad judgment” defense three years into this litigation, after the Court forced
Howard to produce documents and witnesses for depositions. This evidence demonstrated that Howard’s previous
“scholarship” defense was completely frivilous. When Plaintiff survived Howard’s years of improperly evading and
delaying discovery, Howard resorted to fabricating a list of additional lies, all of which were easily disproved, except for
the nebulous claim of “non-collegiality” and “bad judgment,” which amounts to a self-serving mudslinging campaign by
Andrew Taslitz and his close friend, Andrew Gavil.
Taslitz’ credibility has already been destroyed since he lied to fellow Committee members about the status of the
scholarship of the candidates, Martin and Cunningham. Taslitz’ word, then, cannot be enough to create a genuine dispute
of fact, where all other evidence contradicts his word. Based on the evidence, no reasonable juror could possibly conclude
that the Committee rejected Martin for a permanent position because they found her not to be collegial or because they
determined that she had “bad judgment.”
IV. Howard’s Misrepresentations of the Candidates’ Credentials is Evidence of Retaliation
Holcomb held that an employer’s substantive misrepresentations regarding a candidate’s qualifications constitutes evidence
of discrimination. Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006), citing Aka v. Washington Hospital Ctr., 156 F.3d
1284, 1289 (D.C. Circ. 1998). As discussed in Pl. MSJ at 31-39, Taslitz grossly exaggerated the qualifications of
Cunningham and grossly under-representing Martin’s qualifications.
V. Defendant’s “Discriminatory Statements” and “Attitudes” are Evidence of Discrimination
As discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, pages 33-37, where the alleged discriminating
official has made statements indicating discriminatory animus, or other “attitudes” suggesting that the alleged discriminator
harbors discriminatory attitudes toward the plaintiff for a prohibited reason, these statements constitute evidence of
discriminatory motive. Holcomb, 433 F.3d 889, citing Dunaway v. International Brotherhood of Teamsters, 310 F.3d 758
(D.C. Circ. 2002).
Bullock told Taslitz that she was having a “bad day” because of Prof. Martin’s “bad judgment” and that she had “a lot to
do” with respect to Martin’s complaints about being stalked by Harrison at the law school (Pl. MSJ at 16-17; Taslitz
deposition at 131-132). Newsom also testified that Bullock had told him that she intended to take action to exclude
Martin from the faculty and that Martin was on a “short list” of people causing problems for Howard, although he could
not explain why. MSJ at 19-20. Bullock’s secret conversations with Taslitz and Newsom demonstrate that she
recognized that her motives for removing Martin from the faculty were improper and illegal. Bullock even lied to Nolan,
telling her that she was trying to find another job for Martin since there were no positions left at Howard. Pl. MSJ at 21.
As discussed in Pl. MSJ at 16, Bullock made specific statements exhibiting extreme hostility toward Plaintiff in response
to her requests to bar the stalker from the law school. Bullock told the EEOC:
Martin did not seem satisfied with my response. I was left with the impression that she wanted me to wrestle the stalker
down. (Emphasis added)
As discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, page 36, within days after the stalking began,
Bullock enlisted Newsom in a campaign of retaliation against Martin. Bullock and Newsom’s actions were clearly designed
to create additional emotional distress for Prof. Martin, to cause her to worry about her employment, knowing that the
Dean’s office was trying to build a written record against her to get rid of her. At a time when she was afraid to be in her
office, the Dean’s office was conveying to her that if she did not stay in her office (even during the semester break),
waiting, like a “sitting duck” for Harrison, she could lose her job. The actions of the Dean’s office clearly demonstrate a
callous disregard for Martin’s very life, reflecting hostility, retaliatory animus and discriminatory “attitude,” as defined by
Holcomb.
VI. The Jury Verdict Form Improperly Restricted Plaintiff’s Retaliation Claims
A. Bullock’s Withholding of Positions and “Con Law Conversion” Constituted Adverse Actions
As fully discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, pages 10-22, the jury form improperly
restricted the jurors to the decision that the APT Committee made, on December 18, 1997, selecting Cunningham over
Martin, to fill the advertised EEO/Labor law position. The Court’s restriction of the retaliation claim was based on
Howard’s misrepresentation that MJ Facciola’s October 20, 2003 Report and Recommendation restricted Plaintiff’s
retaliation claim to the December 18, 1997 decision not to hire Plaintiff to fill the advertised EEO/Labor position. Howard’
s misconduct is sanctionable, under Fed. R. Civ. P. 11. Certainly, no court order should stand where it was based on
fraud. Fed. R. Civ. P. 60(B)(3).
As discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, pages 14-21, recent conrolling case law
Holcomb v. Powell, 433 F.3d 889, Rochon v. Gonzales, 438 F.3d 1211(D.C. Cir. 2006) and Chappelle-Johnson v. Powell,
440 F.3d 484 (D.C. Cir. 2006), require reversal of this limited interpretation of “adverse actions” under Title VII.
Chappelle-Johnson held that an adverse action includes the denial of an opportunity to compete for a vacant position.
Bullock denied Martin the opportunity to compete for a vacant position when she left positions vacant and pretended to
convert the Constitutional Law/Civil Rights position, for fear that the Committee would fill one of the positions with
Martin. No reasonable juror could conclude that, Martin was not more qualified to teach at Howard than an “empty chair”
-- particularly while students were protesting both her non-renewal and the shortage of courses and faculty members,
Martin had expertise and teaching experience in needed course areas and Howard’s accreditation was in jeopardy.
B. Howard’s Premature Order that Plaintiff Vacate her Office was an Adverse Action
As discussed on pages 15-16 of Plaintiff’s Motion for Judgment on her Retaliation Claims,
Rochon v. Gonzales, 2006 U.S. App. LEXIS 5028 (D.C. Cir. 2006), adopted, for Title VII, the definition of adverse action
that it had set forth in Passer v. American Chemical Society, 935 F. 2d 322 (D.C. Cir. 1991), an Age Discrimination in
Employment Act (ADEA) case. 2006 U.S. App. LEXIS 5028 at *16. Passer held that an employer had retaliated against
the retired plaintiff when it cancelled a symposium that was to be held in the plaintiff’s honor. Id. If the jury had
understood that the cancellation of a symposium to honor a former, employee, retired, constituted an adverse action, it
would have been compelled to find that Howard’s premature order to Martin that vacate her office by May 29, 1997, on
three days’ notice, while she was still grading EEO exams, not due until June 16, 1998, also constituted an adverse action –
particularly when the other exiting visiting professor, Betsy Levin, was not ordered to vacate at any time and stayed
through July of 1998.
CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment should be denied.
Respectfully submitted,
Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
1090 Vermont Avenue, N.W, Suite 800
Washington, D.C. 20005
(202) 408-7040 telephone
(703) 642-0208 facsimile
Harassment
As discussed under MartinvHowardU, trial was finally held from April 3-28, 2006. The jury found that Prof.
Martin was harassed by the homeless, delusional stalker in her workplace, but oddly, and contradicting
Judge Hogan's finding of law in his 1999 decision, found that the harassment was not based on her sex and
was not "sexual" in nature. This conclusion led to a jury verdict for the defendant, since Title VII jurisdiction
only applies if the harassment is based on race, sex, color, national origin or religion. Ms. Martin has filed
motions for judgment on all of her claims, as a matter of law, asking the Court to set aside the jury verdict.
See Plaintiff's Motion for Judgment on her Sexual Harassment Claim, and Reply; Plaintiff's Motion for
Judgment on her Retaliation Claims and Reply; Plaintiff's Motion for Judgment on her Breach of Contract
Claim and Reply. Howard has also filed motions for judgment on all claims, even though the jury verdict
was in its favor. See Plaintiff's Opposition to Defendant's Motion for Judgment on Plaintiff's Sexual
Harassment Claim; Plaintiff's Opposition to Defendant's Motion for Judgment on her Retaliation Claims;
Plaintiff's Opposition to Defendant's Motion for Judgment on her Breach of Contract Claim.
If Chief Judge Hogan does not set aside the jury verdict, Ms. Martin will appeal this decision. The verdict
clearly reflects a misunderstanding by the jury as to what constitutes sexual harassment or harassment on
the basis of sex. Judge Hogan held, in 1999 "It is clear from Mr. Harrison's own description of his search for
'Geneva Crenshaw" or 'Valerie Edwards' that he targeted women other than Plaintiff. Plaintiff argues that Mr.
Harrison's pursuit of her as his 'wife' was inherently sexual in nature since it was clear that she would not
have been sought by Mr. Harrison as his wife if she were a man. Moreover, Plaintiff claims that she was
being stalked by Harrison and that stalking is primarily a crime against women, with sexual connotations ....
In this case, it is clear that Plaintiff was only the object of Mr. Harrison's attention because she was a female;
therefore, the alleged stalking activities do appear to have been "because of sex" eve if they were not
inherently sexual in nature." For Chief Judge Hogan's precedent-setting 1999 decision, see
Martin_v_HU_1999 and MartinvHUPressRelease.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/AK
)
)
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON HER RETALIATION CLAIMS,
AFTER VERDICT
Plaintiff incorporates into this Opposition, her April 25, 2006 Motions for Judgment on Her Sexual Harassment,
Retaliation and Breach of Contract Claims as well as her Oppositions to Defendant’s pending Motions for Judgment on
Plaintiff’s Sexual Harassment, Retaliation and Breach of Contract Claims and incorporates this Opposition into the
aforementioned motions.
I. Relationship of Present Motion to Pending Motions
The jury in this case determined that Prof. Martin endured severe and pervasive harassment in her workplace when she
was stalked by Leonard Harrison, a homeless, delusional stranger with a criminal record and a history of violence. The jury
further found that Howard failed to take reasonable steps to eliminate this hostile work environment; however, the jury
then determined that Harrison’s pursuit of Prof. Martin, to be his “wife,” was not sexual in nature, or based on her gender.
The jury therefore concluded that Plaintiff was not engaged in “protected activity” within the meaning of Title VII of the
Civil Rights Act of 1964 or the D.C. Human Rights Act. As fully discussed in Plaintiff’s Motion for Judgment on Her
Sexual Harassment Claim and her Opposition to Defendant’s Motions for Judgment on Plaintiff’s Sexual Harassment, the
jury’s conclusion was based on a misunderstanding of law and should be set aside.
If the jury had proceeded to the remaining questions on the verdict form regarding retaliation, it would have been compelled
to find that Howard’s ever-changing, purported reasons for Plaintiff’s non-renewal are false and based, in part, on perjury
by former Dean Alice Gresham Bullock. In addition, Bullock made statements constituting direct evidence of retaliatory
animus. Finally, Bullock left faculty positions vacant, for which she admits Martin was well qualified. Bullock actually
lied to her colleagues on the APT Committee about these vacancies in order to prevent the Committee from selecting
Martin for one of these positions. The undisputed evidence of record compels judgment for Plaintiff, not Defendant.
II. Plaintiff’s Complaints Constituted “Protected Activity” within the Meaning of Title VII
A. Dean Bullock Expressly Recognized that Harrison’s Harassment was Based on Sex and that
Harrison Posed a Threat to Plaintiff and “Other Women” on Campus
At trial, Bullock perjured herself by testifying that she did not perceive Harrison’s pursuit of Martin as based on her
gender. As fully discussed in Plaintiff’s Motion for Judgment on her Sexual Harassment Claim and Opposition to
Defendant’s Motion for Judgment on Plaintiff’s Sexual Harassment Claim, Deans Bullock and Newsom, as well as
Howard’s additional agents, University Campus Officer Sirleaf and Prof. Taslitz, always understood Harrison’ harassment
of Martin to be based on her gender, or status as a woman. Plaintiff will not repeat the facts, but highlights Howard’s
most glaring fraud below.
In her July 1, 1998 memorandum to Howard’s General Counsel, provided as an attachment to Howard’s Position
Statement to the EEOC, responding to Plaintiff’s charges of sexual harassment/hostile work environment and retaliation,
Dean Bullock admitted that she was aware, by no later than December 1, 1997, that Harrison posed a threat of stalking and
harassment to Prof. Martin and “other women” on campus.
Associate Dean Newsom advised me that he thought that MPD should be called in to provide more manpower in tracking
down the individual not only to benefit Professor Martin, but also to prevent harm to other women whom this person
might stalk or otherwise harass. (Emphasis added)
Ex. A; Pl.’s Trial Ex. 8B; Ex. KKK-1 of Pl.’s October 9, 2002 Motion for Summary Judgment (MSJ), re-filed
electronically on November 1, 2005, Docket # 330. In addition, in her March 6, 1998 memo to Bullock, Martin
specifically referred to Harrison targeting her and “other African-American women.” (Ex. B; MSJ Ex. XX, page 2, fn. 1)
For eight years, Howard has fraudulently argued, in violation of Fed. R. Civ. P. 11, and in direct contradiction to the
documented evidence of record, that neither Deans Bullock nor Newsom understood Prof. Martin’s complaints to indicate
that she was being “harassed” or that such harassment was sexual in nature or based on her gender. Pursuant to Fed. R.
Civ. P. 60(B)(3), this fraud should end here and now.
B. Plaintiff’s Complaints Constituted Protected Activity, as “Good Faith” EEO Complaints
An employee is protected against retaliation for opposing perceived discrimination, if s/he had a reasonable and good faith
belief that the opposed practices were unlawful. Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997); Trent
v. Valley Electric Association, Inc., 41 F.3d 524, 526 (9th Cir. 1994). The plaintiff does not need to prove the underlying
sexual harassment in order to establish a case of retaliation. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th
Cir.1978). See also Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981); cert. denied,
455 U.S. 1000 (1982).
Plaintiff testified that she feared a sexual attack by Harrison. Plaintiff’s fear was reasonable. On November 20, 1997,
when Martin showed Prof. Taslitz Harrison’s letters and told him of Harrison’s phone message, he advised Martin to call
the police immediately, saying, “Howard’s Security is for shit. You’ll be raped and killed right in front of that security
booth.” Martin described Harrison as targeting her and “other African-American women.” Ex. B, page 2, fn. 1. Martin
reasonably perceived Harrison’s conduct as based on her sex and is protected by Title VII and the D.C. Human Rights
Act.
C. Plaintiff’s EEOC Charge Constituted Protected Activity
Howard acknowledged, as did the Court, that Plaintiff’s May 14, 1998 EEOC charge constituted protected activity within
the meaning of Title VII and the D.C. Human Rights Act; 1999 U.S. Dist. LEXIS 19516 at *16-17. Plaintiff clearly
engaged in protected activity before Dean Newsom ordered her to vacate her office by May 29, 1998, even before her EEO
class grades were due. To the extent that there was any question of whether Deans Bullock or Newsom knew of Plaintiff’s
EEOC charge before Newsom ordered her to vacate her office, there can be no question that Howard knew that Plaintiff
filed an internal grievance with the Howard University Grievance Committee within one day of filing her EEOC charge (Ex.
C; Pl. Trial Ex. 39). Although Howard represented, at trial, that the Grievance Committee had no jurisdiction over sexual
harassment of other EEO claims, the Grievance Committee’s cited its authority sex discrimination claims. Ex. C, at 1.
III. Howard’s Purported Legitimate Reasons for Plaintiff’s Non-Renewal are False and Pre-Textual
A. Martin Reasonably Expected, and Earned, Renewal on Howard’s Faculty
In the fall of 1997, Prof. Martin had every reason to believe that she would be placed in a tenure-track position and that
she would obtain tenure in her fifth year of teaching, which would have been the 1998-1999 academic year. As discussed
in Pl. MSJ at 29, 35-36, Prof. Martin graduated from an Ivy League college, Columbia University (Ex. D), and a top ten
law school, NYU (Ex. E), in 1981. She had seventeen years of exceptional experience as a civil rights attorney, including as
a Trial Attorney for the United States Department of Justice, Civil Rights Division, Education Section, hired through the
Honors’ Program, from 1981-1985, litigating school desegregation cases. She was a Trial Attorney for the New York State
Office of the Attorney General, Civil Rights Bureau, and for the Legal Aid Society of New York. Martin was recognized
as a national expert in EEO law, based on her work experience, particularly her 6 years of national policy-making
experience with the U.S. Equal Employment Opportunity Commission (EEOC) and her contributions to a Treatise on
EEO law, as well as writing the Introduction to a Symposium on the Americans with Disabilities Act. Pl. MSJ at 37.
Martin had been a law professor for four years, teaching EEO law, in addition to Torts I and II, Evidence and Race as a
Factor in American Law. Pl. MSJ at 2, 38, 43. At Howard, she was the incumbent teaching EEO law, Torts and
Evidence, with excellent teaching evaluations and exceptional student support. Pl. MSJ at 2, 19.
The scholarship requirement for tenure was two articles, or one book, within six years of teaching. (Howard Handbook,
pages 2-3, Section III; Ex. H; MSJ Ex. CCC,) Martin had already met that requirement, within the first semester of her
fourth year of teaching. She was already exceeding that requirement with her two works in progress. Only a few months
earlier, Bullock had awarded Martin a 1997 summer grant, demonstrating her approval of Martin’s scholarship progress.
MSJ at 25 and Bullock’s trial testimony. Taslitz told Martin that she could get “two or three” articles out of “911…” and
had even suggested that she make it a book; thus, “911…” alone could have qualified her for tenure, even without her
previous publications or works in progress. Martin had every reason to anticipate that her teaching career would continue
to flourish; however, “on the heels” of her complaints of being stalked in her workplace, Martin’s career was derailed and
destroyed.
B. Howard Violated Civ. R. P. 8(c) and 26(h) by Asserting Untimely Defenses not Raised in its Answer to the
Complaint or Timely Answers to Interrogatories
As fully discussed in Plaintiff’s May 8, 2006 Motion for Judgment on her Retaliation Claims, pages 32-33, pursuant to
Fed. R. Civ. P. 8(c), Howard was required to raise all enumerated defenses in its Answer to the Complaint or its Motion to
Dismiss, filed before its Answer. Harris v. Sec. of U.S. Dept. of Veteran’s Affairs, 126 F.3d 339, 343 (D.C. Cir. 1997)
Since Howard did not raise a defense of “non-collegiality” or “bad judgment” in its Answer, or in its Motion to Dismiss, it
waived its right to raise this defense three years later.
If any of the reasons that Howard asserted in 2001 had actually been the reasons for Martin’s 1997-1998 non-renewal,
surely, Howard would have known it in 1999, when it responded to the EEOC and answered the Complaint filed in this
Court. Howard’s purported defenses, in its 1999 Answer to the Complaint, its 2000 Answers to Interrogatories and its
2001 “Supplemental” Answers to Interrogatories were all filed in bad faith, in violation of Fed. R. Cic. P. 26(h), with no
evidence to support even one of Howard’s allegations. See also Plaintiff’s August 2, 2001 Motion for a Default Judgment
for Defendant's Production of Late, Incomplete and Falsified/Tainted Evidence (Docket # 143) Even Howard’s July 13,
2001 articulated reasons for failing to renew Plaintiff were completely contradicted by the APT Committee members, as
well as the actual resumes and applications of Plaintiff and the selectees, Profs. Cunningham and Mtima. In fact, all APT
Committee members -- except Andrew Taslitz -- seemed oblivious to any the purported reasons for Martin’s non-renewal
asserted by Howard, other than scholarship, in both sets of Answers to Interrogatories. Pl. MSJ at 24-29; Leggett
deposition at 223, line 10 through 224, line 16. A party should not prevail in a case based on such fraudulent
representations. Fed. R. Civ. P. 60(B)(3).
C. Howard’s Purported Reasons are Ever-Changing, Inconsistent, False and Pretextual
The undisputable evidence of record demonstrates that all of Howard’s ever-changing “reasons” for Prof. Martin’s non-
renewal are blatantly false. Howard could not produce evidence to support even one of its untimely, improperly admitted,
ever-changing defenses. See Ex. I, Chart of Howard’s Changing Defenses.
First, in their meeting on January of 1998, Bullock claimed that the APT Committee rejected Prof. Martin because she
“had not completed an article as of December 18, 1997.” During the meeting, Martin corrected Bullock by informing her
that her article was not only completed, but accepted for publication prior to the Committee’s December 18, 1997
decision. Martin again corrected Bullock, in writing, in her March 6, 1998 memo (Ex. J, MSJ Ex. XX), page 1. Bullock
modified this false statement in her April 8, 1997 memorandum to Martin, stating: “I am also advised by the Committee
that you had no article accepted for publication as of December 18, 1997, the date on which the Committee made the
decision on your application – not even the article which served as a major justification for the Associate Professor rank.”
(Ex. K, MSJ Ex. NNN). Bullock repeated this assertion in her April 10, 1998 (Ex. L, MSJ Ex. PPP), despite Martin’s
immediate and repeated correction of Bullock’s statement, in writing. (Ex. M, MSJ Ex. PPPP) Since all of the APT
Committee members admitted that they knew that Martin’s article was accepted for publication by December 18, 1997,
Dean Bullock clearly lied in her memos regarding the reason for Martin’s non-renewal/non-selection.
Second, in Bullock’s April 10, 1998 (Ex. L, MSJ Ex. PPP) in “responded” to Martin’s April 10, 1998 memo (Ex. M, MSJ
Ex. PPPP, page 3), observing that course needs would be best met by allowing her, as well as Profs. Cunningham or
Worthy, to continue teaching what they were all teaching, and assign the newly hired Prof. Mtima to teach what he asked
to teach – property, not Torts. Bullock again lied, in writing, by saying that she had executed contracts with the “new
hires” (Cunningham and Mtima) “several months” earlier that confirmed their teaching assignments. Bullock later
admitted, in her deposition, that no such contracts were ever signed and that she never offered Cunningham or Mtima the
option of teaching the courses in which they were most experienced or requested. MSJ at 43. Instead, Bullock reassigned
the new hires Martin’s courses and then claimed that there were no courses left that Martin could teach.
Third, in its July 11, 2001 Supplemental Response to Interrogatory # 46, its Motion for Summary Judgment, its Motion
in Limine for an Order Clarifying that Plaintiff's Retaliation Claim is Limited to Decision not to Hire Plaintiff for
EEO/Labor Law Position, and some other filings, Defendant claimed that Martin was rejected for a position on October 31,
1997, before she was stalked; however, in its October 17, 2000 Answer to Interrogatory # 30, its Opposition to Plaintiff’s
Motion for Summary Judgment, page 9, as well as in other filings, Howard states that the Committee did not make its
decision whether to renew Plaintiff’s contract until December 18, 1997 – nearly a month after the stalking began. Howard
has admitted that the October 31, 1997 letter was a form letter, sent to all professors whose contracts were ending,
irrespective of non-renewal, and that Cunningham received the same letter. The November 3, 1997 memo itself clearly
stated that the APT Committee had not yet met or made decisions. See Plaintiff’s December 19, 2006 Opposition to
Defendant’s Motion in Limine for an Order Clarifying that Plaintiff's Retaliation Claim is Limited to Decision not to Hire
Plaintiff for EEO/Labor Law Position, pages 13-15, and Plaintiff’s March 14, 2006 Opposition to Defendant’s Motion for
Leave to File Motion to Conduct Discovery to determine whether Plaintiff had a “Good Faith Basis” for her January 17,
2006 Motion for a Trial Continuance, Due to Illness, pages 11-13, particularly fn. 17. Again, Howard’s second purported
reason was revealed as a blatant lie, by its own admission.
Fourth, in its December 7, 1999 Statement to the EEOC (Ex. N), pages 7-8, Howard claimed that “the decision not to
reappoint Complainant was based entirely on the fact that the APT Committee was in need of a faculty member to teach
courses in Taxation, Wills, Trusts and Estates and Real Property.” Discovery confirmed, as Prof. Martin alleged, that
Howard did not advertise for teaching positions for these courses, but did advertise for EEO/Labor Law, Constitutional
Law and Commercial Law; moreover, Bullock assigned the new professor hired to teach Commercial Law, Prof. Mtima, to
teach Torts, which Prof. Martin taught, leaving a gap in Property Law, which Prof. Mtima actually requested to teach. In
addition, Bullock claimed that there were needs in these course areas because she and Dean Newsom were administrators
and not teaching; however, Bullock had not taught for at least three years and Dean Newsom had not taught any of these
courses for at least two years; accordingly, there was no new or sudden need in these areas in the spring of 1998, when
Bullock converted the advertised Constitutional Law position to a tax position in direct response to Prof. Martin’s March
6, 1998 renewed application for the Constitutional Law position after she learned, from an outside source, that the original
selectee had declined the position.
Fifth, in its October 17, 2000 and July 11, 2001 Answers and Supplemental Answers to Interrogatories, Howard repeated
its false claim that Martin “did not complete an article for publication by December 18, 1998”– despite its knowledge that
the article was accepted for publication on December 18, 1997, and was published in the fall of 1998, as was Cunningham’
s article.
Sixth, in its July 11, 2001 Supplemental Answers to Interrogatories, produced after several Court orders for Howard to
produce requested discovery, for the first time in the three years the case had been litigated, Howard claimed that: 1) there
were no positions available that Prof. Martin was qualified to fill – directly contradicting Bullock’s Answer to the
Complaint, 326, admitting that Howard Law School had at least three tenure track positions left available, in the spring of
1998, for which Prof. Martin was well qualified (MSJ at 42-43); 2) Prof. Martin’s performance in law school was not as
stellar as her competition – supported by absolutely nothing, particularly since Prof. Martin graduated from a top ten law
school, into the Honors Program of the U.S. Department of Justice in 1981, and Howard never requested a transcript or
asked her about her grades, in any case; 3) Prof. Martin’s work experience was not as stellar as her competition –
contradicted by Prof. Martin’s 17 years of legal experience, working for this nation’s top civil rights agencies, leaving
government with “outstanding” evaluations, publishing as a recognized national expert in EEO law, and teaching for four
years with excellent performance evaluations; 4) Cunningham was more qualified for the EEO position than was Martin –
contradicted by their resumes and applications, as well as the fact that Howard itself had deemed Martin more qualified for
the position than Cunningham less than two years earlier, when it hired them both and selected Martin over Cunningham
to teach EEO law (this assertion incorporates, by inference, education and work experience, already listed as #s 2 and 3);
and 5) that Prof. Martin’s colleagues did not find her “collegial” – a claim contradicted by all Committee members except
for Taslitz – an alleged retaliating official – as well as by three additional professors, Boyer, Jones and Rogers. MSJ at 40-
41.
D. The December 9/19, 1997 Memo Fails to even Acknowledge Martin as a Candidate
Perhaps most telling is the Committee’s purported December 9/19, 1997 Memorandum (Ex. O; MSJ Ex. BBB), discussed
in Plaintiff’s MSJ at 29-38. The December 9/19, 1997 memo does not even mention Martin – the incumbent -- as a
candidate! The memo reads as if Martin did not exist. The only reference to a candidate for the EEO/Labor position, other
than Cunningham, was to an outside candidate who specialized in Labor Law (Martin specialized in EEO law). MSJ at
36. The December 18, 1997 vote was a retaliatory vote to remove Martin from the faculty – whether she was replaced by
Cunningham or someone else.
The “retaliation road” began with Bullock, proceeded to Newsom and then to Tazlitz. From that point on, “all roads lead
to Andrew Taslitz.” Taslitz is the only member of the APT Committee who made any negative claims about plaintiff’s
teaching, collegiality, or service to the law school. Taslitz is directly contradicted on all of these points by all four of the
remaining members of the APT Committee. These four members, Profs. Leggett, Smith, Nolan and LaRue, praised
Professor Martin with respect to all of these criteria. See Ex. D, Chart of Committee Members’ Assessment of Martin.
Even the committee's official statement, three years into this litigation, contradicts Taslitz’ statements alleging problems
with Martin in these areas.
The remaining criterion, “scholarship,” is the only criterion that any Committee member – other than Taslitz -- claimed
was the reason for Cunningham's selection for the EEO/Labor position that Martin had held at Howard for the previous
two years; however, all committee members -- other than Taslitz -- testified that, during their deliberations, an APT
committee member represented that: 1) Cunningham's article was “in print;" 2) Cunningham had the “superior record of
scholarship;" 3) that Cunningham made substantial progress toward completing two additional articles since joining
Howard's faculty; and 4) Martin had just completed the article that she had begun more than two years earlier and had no
drafts of other articles or works in progress. Each and every one of these representations was blatantly false.
As discussed more fully below, each of these misrepresentations is readily disproved by simply examining the resumes
(Ex. P, Martin resume, MSJ Ex. E; Ex. Q, Cunningham resume, MSJ Ex. F;) and Martin and Cunningham 1997
applications (Ex. R, Martin, MSJ Ex. YY; Ex. S, Cunningham, Joint Tr. Ex.50); however the “Unsuspecting 4” Committee
members had no reason to know that Taslitz would lie about their mutual colleagues -- particularly since Taslitz presented
himself as Martin's “friend” and mentor.
Taslitz admitted that he took the lead in presenting Martin and Cunningham as candidates. Taslitz depo at 141-142. The
“Unsuspecting 4” had been led by Bullock to believe that there was only one position to fill -- the EEO labor position.
Forced to choose between two “terrific” colleagues, the “Unsuspecting 4” voted for Cunningham, mistakenly believing
that she was the candidate with “a proven record of scholarship,” and therefore the better candidate to help Howard
maintained its accreditation status for scholarship over the long term. The “Unsuspecting 4” did not realize that it was
Martin, not Cunningham, who had the “proven record of scholarship” until confronted with the candidates’ résumés during
their 2002 depositions and/or at trial in 2006. They were completely unaware of Taslitz's private meetings with Bullock
regarding Martin and that Bullock told Taslitz, Newsom that she did not want Martin on the faculty. The source of all
negative comments about Martin was Taslitz. See Ex. T, Chart of APT Committee’s Assessment of Martin. Martin non-
renewal was engineered by Taslitz -- and Taslitz took his orders from Bullock.
E. Comparison of the Credentials of Martin and Cunningham
When Prof. Martin and Ms. Cunningham were hired in 1996, both sought to teach EEO law and Torts. In the spring of
1996, Howard selected Prof. Martin as the superior candidate to teach both of these courses. In fact, in order to entice
Prof. Martin to leave her tenure track position at Cleveland State, and from pursuing other tenure-track positions for which
she was interviewing, Howard guaranteed, in writing, at least a two year visitorship, at the promoted rank of “Associate
Professor,” while waiting for a tenure-track position to become available at Howard. Ms. Cunningham was only
guaranteed a one year visitorship, at the beginning rank of “Assistant Professor.” See Ex. U (Ex. KKKK of MSJ), Chart
comparing Martin and Cunningham in 1996.
A year and a half later, Howard claimed that the junior Visiting Assistant Prof. Cunningham was a “far superior” candidate
than was Visiting Associate Prof. Martin to teach the very EEO course that Martin had been teaching at Howard for two
years and in Cleveland for an additional two years, whereas Prof. Cunningham had never taught it at all. See Ex. V (Ex.
LLLL of MSJ, Chart comparing Martin and Cunningham in 1997.
The logical question is: “What happened less than two years later that destroyed Prof. Martin’s career and ability to even
support herself and her daughter?” What changed the positions and qualifications of these two professors, Martin and
Cunningham? The answer is that Martin was stalked in her workplace by a homeless stranger and Cunningham was not.
There is no explanation that rebuts the prima facie case of retaliation.
F. Howard’s Purported Hiring Criteria Examined and Applied
At trial, Howard stated that it used four criteria to select Cunningham over Martin. Each will be examined below to
determine whether Howard has produced any credible evidence to support its claim.
1. Teaching
In a May 11, 2001 memorandum (Ex. X, page 2; Pl.’s Trial Ex. 33), the APT Committee, via its Chair, Prof. Isaiah Leggett,
stated:
Professor Martin and Professor Cunningham (sic) were among the four candidates applying for the second tenure track
position covering labor law, collective bargaining and other general course subjects. …. All of the four candidates … were
found to be quite competent as teachers and capable of fulfilling the Law School’s instructional needs in this area….
Students participating in the process appeared to be mixed in their preference of Professor Martin and Cunningham. The
Committee did receive a petition from a number of students asking that we select Professor Martin for the position.
Howard’s admission, – made even three years into this litigation, precludes any conclusion that Prof. Martin’s non-
renewal was due to any question of teaching ability. In fact, Howard’s admissions are consistent with Dean Bullock’s
admission, in her Answer to the Complaint, that Prof. Martin was a very good teacher, with above average teaching
evaluations, as well as the deposition testimony of APT Committee members, Profs. Nolan, Leggett, Smith and LaRue.
See Pl.’s MSJ at 19, 23, 32. In addition, students wrote letters to Dean Bullock and/or University President Swygart,
protesting Prof. Martin’s non-renewal and praising her for her teaching ability, exam-taking workshops, sample exams and
answers and extensive availability. See Pl.’s MSJ at 19; Ex. W, also in record as Ex. VV of Pl.’s MSJ.
One student, Mika Dorsey, referred to Prof. Martin as “phenomenal woman,” for her own professional accomplishments
and contributions and for her willingness to give her time to help others. Ms. Dorsey explained that Martin had arranged
classes to be taped for her and met with her regularly to review all materials covered in class while she was obtaining
medical treatment for a life-threatening illness. Ex. W, second letter.
Bullock told Dean Samuel Thompson, of the University of Miami, that the only reason that Martin was not being renewed
was that she needed a teacher to teach tax, but that Martin was regarded as a very good teacher. Pl. Facts 227; Bullock
depo at 150. Even in 1999, in response to Plaintiff’s EEOC charge, Bullock told the EEOC investigator interviewing her:
“There is no particular reason that I would not want Martin to teach at Howard University School of Law.” Pl. MSJ at
19. Howard's admissions that Prof. Martin was a very good teacher preclude any purported defense that Professor Martin
was not renewed because of her teaching.
2. Scholarship
a) The APT Committee’s Official Position Statement
MJ Facciola noted some of Howard’s glaringly false statements regarding Prof. Martin’s scholarship.
In Howard's Answers to Interrogatories dated October 17, 2000, Howard stated that Martin was refused tenure in part
because as of December 18, 1997 Martin had "no scholarship articles accepted for publication." Plains. Mot. at 25. In fact,
HU was aware that Martin's 911 article had been accepted for publication on December 17, 1997, that she had
substantially completed work on a second article (Lights), and that she was in the process of researching a third. Taslitz
Dep. at 159:12-162:13. Significantly, four of the five APT Committee members testified that they knew of the article's
publication. Plains. Statement of Facts at 27. Taslitz even testified that he had informed the other members that Martin's
article was recently accepted for publication. Taslitz Dep. at 141:7-16.
Leggett testified that not only was he made aware that the 911 article had been approved by the time of the December 18
meeting, but that he was even considering giving Martin credit for two different articles. Leggett Dep. at 117:15-121:8.
2003 U.S. Dist. LEXIS 1850 the 1 at * 22-24.
Nine months after producing its October 17, 2000 Answers, Howard produced July 11, 2001 Supplemental Answers to
Interrogatories, including a Memorandum signed by Prof. Leggett, as the official position of the APT Committee, page 2-3
(Ex. X; Pl.’s Trial Ex. 33). The memo stated:
Individual faculty members who participated in the process clearly favored Professor Cunningham, primarily for her
academic vigor, research and publication abilities and potential for growth as a scholar…. Although Professor Martin had
been involved in the legal profession longer, the quality of her academic and scholarly production was viewed by the
members of the faculty and the APT Committee to be less substantive than Professor cunningham’s research and
publication potential…. She had already published one article and did extensive legal research in her position as a clerk for
a U.S. District Court Judge, Constance Baker Motley…. During her initial visit to Howard, she was able to actually
publish another article, and she made a very favorable impression on the Committee with the vast amount of work she had
accomplished on a variety of other research and publication projects in process. Prof. Martin did not complete a
publication during the same visitation period at Howard. (Emphasis added.)
Profs. Martin’s and Cunningham’s own resumes and applications demonstrate that Taslitz’ representations regarding their
scholarship were blatantly false. Pl. MSJ at 31-35. By December 18, 1997, Cunningham’s 67 page article (published
pages) was not yet in print, but was scheduled for publication in the spring of 1998 – the same status as Plaintiff’s article.
Pl. MSJ at 34-35. Both Plaintiff’s and Cunningham’s articles were actually published in the Winter of 1998 (Ex. Y, first
page of Trial Ex. 133, internet version of Cunningham article; and Ex. Z, first page of internet version of Plaintiff’s article –
a full year after the APT Committee’s December 18, 1997 decision. The Committee's statement is blatantly false and
pretextual.
Although MJ Facciola recognized Howard’s false statements to deny Howard’s Motion for Summary Judgment, he did
not consider that Howard’s fabrications justified granting Plaintiff’s Motion for Summary Judgment. As APT members
were well aware, both from Prof. Martin’s application memo and from her conversations with them, that the article had
been completed for months. As her November 5, 1997 application memo stated, during her first year at Howard, Martin
had not only expanded “911…,” but had a draft of a second article, “Lights Camera, Discrimination! ‘Playing’ the Victim
under Title VII” (Ex. R, page 5; MSJ Ex. YY), which she had submitted to Dean Bullock as part of her application for a
summer grant, which she had been awarded, based on the progress of her scholarship. She also had a thesis, title, and
preliminary research conducted for a third article, “Still Racist after all these Years – and Covered by the Americans with
Disabilities Act?” Id. In contrast to Cunningham’s purported planned articles expanding the same topic, all of Plaintiff’s
articles, since joining Howard, had different theses and relied on different research.
The resumes and applications clearly show that it was Prof. Martin, by far, who had the superior record of scholarship to
Cunningham, in the fall of 1997. When Cunningham was hired, two years earlier, Bullock’s memo justifying Cunningham’s
salary, did not represent her as anyone with a “record of scholarship,” but as:
…a young lawyer … who has already demonstrated interest in and potential for research and writing. While still a law
student she published Unmaddening: A Response to Professor Angela Harris, 4 Yale J.I., & Feminism 155 (1991).
During her two years at Howard, Cunningham had only produced the one article, 67 pages long, not yet published, as of
December 18, 1997; yet, Taslitz falsely touted Cunningham, as compared to Martin, as being the “only candidate” with a
“proven record of scholarship.” Pl. MSJ at 34-35. Cunningham had no previous publications, except for a “student
note,” which is normally not counted at all or is counted with little weight, when considering a faculty member for a
promotion, raise, tenure or re-appointment. Plaintiff’s MJS at 34. Martin had published five articles since law school, and
had been credited with at least four by Howard when she joined Howard’s faculty. Pl. MSJ at 34-35. The undisputed
documented evidence of record demonstrates that Howard’s asserted reason for Cunningham’s selection over Martin was
blatantly false and pretextual.
b) Taslitz Deliberately Misrepresented the Scholarship of Martin and Cunningham to Convince the “Unsuspecting 4”
to Vote against Martin
Taslitz admitted that he was the APT Committee member who presented the candidates to the other four members of the
Committee, summarizing their qualifications. Pl. MSJ at 36. Tazlitz deliberately misled Profs. Nolan, Smith, Leggett and
LaRue into believing that it was Cunningham, rather than Martin, who had the “superior record of scholarship,” when, in
fact, the opposite was true.
Nolan testified that she voted in favor of Cunningham, over Martin, because “someone on the Committee” had represented
that Cunningham’s article was actually in print, rather than just accepted for publication and that Cunningham had
demonstrated more potential for scholarship than had Martin. Pl. MSJ at 32-36. Smith also testified that “someone on
the Committee” represented that Cunningham’s scholarship achievements were superior to that of Martin and that she had
produced more scholarship than had Martin since joining Howard’s faculty. Pl. MSJ at 35-36. Leggett testified that he
was “confused” about the status of Martin's article and as to whether she was working on a second article since joining
Howard's faculty. MSJ at 31-32. The statements of professors Leggett, Nolan and Smith all demonstrate that the
Committee members did not rely on their own review of the resumes or applications, but instead, relied on Taslitz’
presentation.
MJ Facciola recognized that Prof. Leggett, the named Chair of the Committee, relied on another Committee member’s
representations regarding the candidates’ publications, rather than read them himself.
Nevertheless, when asked why he chose Cunningham, Leggett testified that Cunningham had not only published during her
time at Howard but had also presented "sufficient information" to suggest that she would publish again and was in the
process of doing so. Id. at 160:6-19. Although Leggett testified that publication was a "crucial" factor in his decision, he
admitted to not even having read Cunningham's article. Id. at 170:19-20.
Again, all roads lead to Taslitz. Taslitz improperly credited Cunningham with two additional articles in progress, when, in
fact, Cunningham did not have any drafts or new research for a second or third article; Cunninhgam had merely stated her
intention to expand the article she had just written into two more articles, “The Rise of Identity Politics II” and “The Rise
of Identity Politics III,” relying on the same research and thesis she had already used for her first article. Pl. MSJ at 34.
Taslitz misrepresented the facts to his colleagues when he told them that Cunningham’s article was “in print,” on
December 18, 1997 and that she had the “superior record of scholarship,” as compared to Martin. Once the APT members
were deposed, there was no way that Howard could continue to conceal Taslitz’ improper conduct. If the “Unsuspecting
4” had actually picked up the resumes and or applications, no one would have been “confused” about the status of
Martin's “911:…” article, the fact that she had a draft of a second article, “Lights, Camera, Discrimination!...,” or that she
had a title, thesis and preliminary research conducted on a third article since joining Howard's faculty, “Still Racist After all
these Years….” This information was clearly stated in Martin's application. Similarly, if “Unsuspecting 4” had picked up
Cunningham's résumé and/or application, they would have readily seen that her first article had just been accepted for
publication, that Cunningham had no drafts of additional articles; rather, the only evidence that she would publish again
was her own statement that she intended to expand her first article into two more articles.
Howard’s main trial strategy was to confuse the jury into believing that Prof. Martin’s scholarship was deficient, and that
she made “11 excuses” in her November 5, 1997 memorandum for her delayed publication of her “911….” article as a
desperate attempt to save her job; however, this memo is 6 pages long, single spaced (Ex. R) – the same approximate length
of Cunningham’s application memo (Ex. S) Martin’s memo stated her extreme pride in her “911…” article, as well as her
teaching, scholarship in progress, service to the law school and other accomplishments. She reviewed her first year at
Howard, making observations and recommendations for the future, clearly assuming that she would remain on the faculty.
There is nothing in the memo that indicates any fear of non-renewal, as Shwalb argued on behalf of Howard.
Martin testified that she added the 11 reasons that extensive “911..” article took as long to send out as it did because
Taslitz instructed her to do so, after he reviewed her first draft, which did not include any such “reasons” for the delay.
Although Mr. Shwalb led the jury to believe that Martin was lying about this issue, Martin’s testimony is corroborated by
Taslitz. Taslitz testified that he reviewed Plaintiff’s first draft and that he advised her to add the paragraph listing the
reasons for the delays in publishing “911...” MSJ Ex. 22, Taslitz depo, at 230-231. Taslitz admitted that he told Martin
that her application looked “very good.” Id. He did not indicate to her that she was in danger of rejection by the
Committee. This conversation took place in early November of 1997 – before the stalking began. Everything changed
after the stalking began.
Howard never had an iota of evidence to support its articulated purported reason(s) for Martin’s non-selection. Howard
lied in Court filings for three years was because the truth was completely unconscionable, unethical, “non-collegial” and
illegal under Title VII and the D. C. Human Rights Act. Howard should not be permitted to survive judgment, as a matter
of law, based on a blatantly false assertion, contradicted by its own witnesses. Such violations of Fed. R. Civ. P. 11 and 26
(h) and should be severely sanctioned, not rewarded.
3. Service to the Law School
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Ex. 33), stated:
Martin and cunningham (sic) were both viewed favorably regarding service to the legal profession, the community and the
University.
Howard’s own admission precludes any defense that Prof. Martin was not renewed because she did not contribute
sufficiently to the University, the community or the legal profession. As Martin documented in her application (Ex. R,
page 5, MSJ Ex. YY), she provided Howard students with extra bar preparation classes, on Saturdays and other non-class
days, including recruiting an Assistant Maryland Bar Examiner participate, to help students maximize success in law
school exams and the bar exam. Howard Law School passage rate for Maryland had become a major concern and even
attracted national publicity. (MSJ at 29; Facts 142) Even Dean Bullock testified that she was aware that Prof. Martin
gave extra exam-taking workshops and prepared extensive sample exams and answers for students. (MSJ at 29; Facts
142)
Prof. Martin also acted as a judge, on a Saturday, for Howard’s Trial Advocacy Program, volunteered and participated in
Howard’s mentoring program, “Close Up,” and taught exam taking for the Regional BALSA (Black Allied Law Students
Association) conference at Howard. (MSJ at 29; Facts 142) Profs. Boyer and Nolan testified that Plaintiff spent a great
deal of time meeting with students. (MSJ at 29)
4. Collegiality
The APT Committee May 11, 2001 memorandum, page 3 (Pl.’s Trial Ex. 33), stated:
Martin and cunningham were both viewed favorably regarding service to the legal profession, the community and the
University.
These statements are admissions of a party-opponent – made three years into this litigation, and do not in imply that
Martin was not collegial, as alleged by Taslitz – once again, the only Committee member who had private conversations
with Bullock about Martin’s candidacy.
MJ Facciola acknowledged that Taslitz is contradicted by his fellow Committee members.
The third suggestion of pretext is rooted in the Committee's assessment of Martin's judgment. Leggett testified, contrary to
Taslitz' assertion, that he found Cunningham and Martin "basically both qualified . . . judgment-wise." Leggett Dep. at 194:
22-195:3. Leggett also testified inconsistently with Taslitz on the issue of faculty comments about Martin. … In fact,
according to Leggett, faculty members generally had "good things [to say] about [Martin's] .. . work," Leggett Dep. at 249:
7-12, and there was "no faculty concern brought to [Leggett's] attention regarding Martin's appointment." Id. at 251:13-15.
Leggett himself admitted that he found Martin "to be collegial" based on his personal contact with her. Id. at 258:20-259:7.
… the articulated reasons for firing Martin are contradicted by the potential testimony of members of the ATP committee
who have voiced positive views of Martin.. …contrary to HU's contention that Martin displayed poor judgment, there is
evidence that certain faculty members had positive impressions of Martin and that both she and Cunningham were viewed
as equally qualified in terms of their exercise of judgment.
2003 U.S. Dist. LEXIS 18501 at *24-26.
All APT Committee members -- except Taslitz -- deny that there were any allegations of “non-collegiality” or “bad
judgment” in its deliberations regarding Martin. In fact, all APT Committee members – including Taslitz -- testified that
they found Martin to be very collegial and that they all liked and respected her. MSJ at 27-29, 39-41; Pl. Facts 185-186.
Smith testified that he found the Martin to be “terrific” and someone whom he “admired, both professionally and
personally.” MSJ at 31. Nolan, hugged Martin after the decision and said, “I wish I had a job for you. I am praying for
you.” (Pl.’s Facts 185) Nolan even asked Bullock if there were any vacant positions for which Martin could be
considered, but Bullock told her that there no more vacant positions. Pl. MSJ at 40. Even Taslitz described Martin as a
“warm” person and testified that he considered himself her friend! MSJ at 21; Pl. Facts 17, 186.
The most senior faculty members, Profs. Spencer Boyer and Henry Jones, part of the civil rights legacy of which Howard
boasted during trial, testified that they found Plaintiff to be one of the most collegial members of the faculty on a divided
faculty with some non-collegial members. Pl. MSJ at 40-41. Howard has produced absolutely no evidence that the APT
Committee ever considered any allegations of “non-collegiality” or “bad judgment” in its deliberations. The only
decision-maker making this allegation is Taslitz – and he is contradicted by every other member of the Committee! As an
accused retaliating official, Taslitz has reason to fabricate to conceal his improper role in Bullock’s retaliatory plan to
remove Martin from the faculty.
Howard fabricated the “non-collegiality” “bad judgment” defense three years into this litigation, after the Court forced
Howard to produce documents and witnesses for depositions. This evidence demonstrated that Howard’s previous
“scholarship” defense was completely frivilous. When Plaintiff survived Howard’s years of improperly evading and
delaying discovery, Howard resorted to fabricating a list of additional lies, all of which were easily disproved, except for
the nebulous claim of “non-collegiality” and “bad judgment,” which amounts to a self-serving mudslinging campaign by
Andrew Taslitz and his close friend, Andrew Gavil.
Taslitz’ credibility has already been destroyed since he lied to fellow Committee members about the status of the
scholarship of the candidates, Martin and Cunningham. Taslitz’ word, then, cannot be enough to create a genuine dispute
of fact, where all other evidence contradicts his word. Based on the evidence, no reasonable juror could possibly conclude
that the Committee rejected Martin for a permanent position because they found her not to be collegial or because they
determined that she had “bad judgment.”
IV. Howard’s Misrepresentations of the Candidates’ Credentials is Evidence of Retaliation
Holcomb held that an employer’s substantive misrepresentations regarding a candidate’s qualifications constitutes evidence
of discrimination. Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006), citing Aka v. Washington Hospital Ctr., 156 F.3d
1284, 1289 (D.C. Circ. 1998). As discussed in Pl. MSJ at 31-39, Taslitz grossly exaggerated the qualifications of
Cunningham and grossly under-representing Martin’s qualifications.
V. Defendant’s “Discriminatory Statements” and “Attitudes” are Evidence of Discrimination
As discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, pages 33-37, where the alleged discriminating
official has made statements indicating discriminatory animus, or other “attitudes” suggesting that the alleged discriminator
harbors discriminatory attitudes toward the plaintiff for a prohibited reason, these statements constitute evidence of
discriminatory motive. Holcomb, 433 F.3d 889, citing Dunaway v. International Brotherhood of Teamsters, 310 F.3d 758
(D.C. Circ. 2002).
Bullock told Taslitz that she was having a “bad day” because of Prof. Martin’s “bad judgment” and that she had “a lot to
do” with respect to Martin’s complaints about being stalked by Harrison at the law school (Pl. MSJ at 16-17; Taslitz
deposition at 131-132). Newsom also testified that Bullock had told him that she intended to take action to exclude
Martin from the faculty and that Martin was on a “short list” of people causing problems for Howard, although he could
not explain why. MSJ at 19-20. Bullock’s secret conversations with Taslitz and Newsom demonstrate that she
recognized that her motives for removing Martin from the faculty were improper and illegal. Bullock even lied to Nolan,
telling her that she was trying to find another job for Martin since there were no positions left at Howard. Pl. MSJ at 21.
As discussed in Pl. MSJ at 16, Bullock made specific statements exhibiting extreme hostility toward Plaintiff in response
to her requests to bar the stalker from the law school. Bullock told the EEOC:
Martin did not seem satisfied with my response. I was left with the impression that she wanted me to wrestle the stalker
down. (Emphasis added)
As discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, page 36, within days after the stalking began,
Bullock enlisted Newsom in a campaign of retaliation against Martin. Bullock and Newsom’s actions were clearly designed
to create additional emotional distress for Prof. Martin, to cause her to worry about her employment, knowing that the
Dean’s office was trying to build a written record against her to get rid of her. At a time when she was afraid to be in her
office, the Dean’s office was conveying to her that if she did not stay in her office (even during the semester break),
waiting, like a “sitting duck” for Harrison, she could lose her job. The actions of the Dean’s office clearly demonstrate a
callous disregard for Martin’s very life, reflecting hostility, retaliatory animus and discriminatory “attitude,” as defined by
Holcomb.
VI. The Jury Verdict Form Improperly Restricted Plaintiff’s Retaliation Claims
A. Bullock’s Withholding of Positions and “Con Law Conversion” Constituted Adverse Actions
As fully discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, pages 10-22, the jury form improperly
restricted the jurors to the decision that the APT Committee made, on December 18, 1997, selecting Cunningham over
Martin, to fill the advertised EEO/Labor law position. The Court’s restriction of the retaliation claim was based on
Howard’s misrepresentation that MJ Facciola’s October 20, 2003 Report and Recommendation restricted Plaintiff’s
retaliation claim to the December 18, 1997 decision not to hire Plaintiff to fill the advertised EEO/Labor position. Howard’
s misconduct is sanctionable, under Fed. R. Civ. P. 11. Certainly, no court order should stand where it was based on
fraud. Fed. R. Civ. P. 60(B)(3).
As discussed in Plaintiff’s Motion for Judgment on her Retaliation Claims, pages 14-21, recent conrolling case law
Holcomb v. Powell, 433 F.3d 889, Rochon v. Gonzales, 438 F.3d 1211(D.C. Cir. 2006) and Chappelle-Johnson v. Powell,
440 F.3d 484 (D.C. Cir. 2006), require reversal of this limited interpretation of “adverse actions” under Title VII.
Chappelle-Johnson held that an adverse action includes the denial of an opportunity to compete for a vacant position.
Bullock denied Martin the opportunity to compete for a vacant position when she left positions vacant and pretended to
convert the Constitutional Law/Civil Rights position, for fear that the Committee would fill one of the positions with
Martin. No reasonable juror could conclude that, Martin was not more qualified to teach at Howard than an “empty chair”
-- particularly while students were protesting both her non-renewal and the shortage of courses and faculty members,
Martin had expertise and teaching experience in needed course areas and Howard’s accreditation was in jeopardy.
B. Howard’s Premature Order that Plaintiff Vacate her Office was an Adverse Action
As discussed on pages 15-16 of Plaintiff’s Motion for Judgment on her Retaliation Claims,
Rochon v. Gonzales, 2006 U.S. App. LEXIS 5028 (D.C. Cir. 2006), adopted, for Title VII, the definition of adverse action
that it had set forth in Passer v. American Chemical Society, 935 F. 2d 322 (D.C. Cir. 1991), an Age Discrimination in
Employment Act (ADEA) case. 2006 U.S. App. LEXIS 5028 at *16. Passer held that an employer had retaliated against
the retired plaintiff when it cancelled a symposium that was to be held in the plaintiff’s honor. Id. If the jury had
understood that the cancellation of a symposium to honor a former, employee, retired, constituted an adverse action, it
would have been compelled to find that Howard’s premature order to Martin that vacate her office by May 29, 1997, on
three days’ notice, while she was still grading EEO exams, not due until June 16, 1998, also constituted an adverse action –
particularly when the other exiting visiting professor, Betsy Levin, was not ordered to vacate at any time and stayed
through July of 1998.
CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment should be denied.
Respectfully submitted,
Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
1090 Vermont Avenue, N.W, Suite 800
Washington, D.C. 20005
(202) 408-7040 telephone
(703) 642-0208 facsimile
| Martin v. Howard University Plaintiff's Opposition to Defendant's Motion for Judgment on her Retaliation Claim |
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