As discussed under MartinvHowardU, trial was finally held from April 3-28, 2006. The jury found that Prof.
Martin was harassed by the homeless, delusional stalker in her workplace, but oddly, and contradicting
Judge Hogan's finding of law in his 1999 decision, found that the found that the harassment was not based
on her sex The is set for was not "sexual" or on the basis of her sex. This conclusion led to a jury verdict for
the defendant, since Title VII jurisdiction only applies if the harassment is based on race, sex, color, national
origin or religion. Ms. Martin has filed motions for judgment on all of her claims, as a matter of law, asking the
Court to set aside the jury verdict. See Plaintiff's Motion for Judgment on her Sexual Harassment Claim, and
Reply; Plaintiff's Motion for Judgment on her Retaliation Claims 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. age Title
Martin was harassed by the homeless, delusional stalker in her workplace, but oddly, and contradicting
Judge Hogan's finding of law in his 1999 decision, found that the found that the harassment was not based
on her sex The is set for was not "sexual" or on the basis of her sex. This conclusion led to a jury verdict for
the defendant, since Title VII jurisdiction only applies if the harassment is based on race, sex, color, national
origin or religion. Ms. Martin has filed motions for judgment on all of her claims, as a matter of law, asking the
Court to set aside the jury verdict. See Plaintiff's Motion for Judgment on her Sexual Harassment Claim, and
Reply; Plaintiff's Motion for Judgment on her Retaliation Claims 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. age Title
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 REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON HER
BREACH OF CONTRACT CLAIM, OR IN THE ALTERNATIVE, FOR A NEW TRIAL, PURSUANT TO RULES 59
AND 60
I. Overview of Howard’s Opposition
It is no wonder that Howard University sought repeated extensions of time to oppose Plaintiff’s Motions for
Judgment, procrastinating for nearly a month to respond. Even after Howard was permitted 28 days to
respond to Plaintiff’s motion for judgment, or for a new trial, on her breach of contract claim, Howard has done
nothing more than repeated, without supporting evidence or law, the same misrepresentations of the record,
and added a few new ones, once again, in violation of Rule 11. Howard has not responded to Plaintiff’s
arguments or her evidence and has completely failed to offer any evidence to rebut the facts that she has
asserted in her motion. Howard has made misrepresentations that extend beyond its usual Rule 11
violations and branch out into the morally reprehensible (a place where Howard has previously frequented in
this case).
Howard has asserted legal theories with absolutely no authority. In blatant violation of Fed. R. 11, Howard has
blatantly misrepresented Taslitz’s testimony, recorded in his deposition transcript, as Plaintiff cited in her
Motion for Judgment. Other than Howard’s introductory section stating the standards of review for motions for
judgment, Howard has cited only one case and for a point not even in dispute. Howard’s Opposition is so
completely without merit or support in law or fact, that it would not have been prejudiced at all if this Court had
denied its repeated motions for large extensions of time to file these oppositions. Howard may have even
hoped that this Court would deny the extensions to avoid the risk to reputation and sanctions of filing
additional misrepresentations of the record and ignoring Howard’s own previous admissions. In fact, Howard
never filed Replies to Plaintiff’s Oppositions to Howard’s Motions for Judgment on her Retaliation (May 30,
2006) and Breach of Contract (June 2, 2006) Claims, nor did Howard ever request a motion for an
enlargement of time to respond to them; accordingly, Howard has long since waived its right to file any such
replies. Presumably, Howard’s attorneys decided not to file replies because every one of its filings subjects
Howard and/or its attorneys personally, to Rule 11 sanctions.
II. In Violation of Rule 11, Howard Continues to Ignore its own Binding Admissions that Prof. Taslitz had
the Authority to Bind Howard University in his Negotiations with Prof. Martin
On page 5 of her motion, Plaintiff clearly stated:
The issue of whether Prof. Taslitz had the authority, or the apparent authority, to bind the University should not
have even been litigated during this trial. Howard had already admitted that Taslitz had the authority to bind the
University. Def.’s July 11, 2001 Answers to Interrogatories, 18 (MSJ Ex. B; PLAINTIFF’S EXHIBIT 26B; see
also Taslitz deposition at 68-69, 75, 87. Howard wasted the Court’s, jury’s and Plaintiff’s time and energy on
this issue at trial and confused the jury by asserting this defense.
On pages 7-8, Howard continues to contradict its own admissions and argue that Taslitz did not have authority
– or even apparent authority – to bind the University. Howard failed to even acknowledge Plaintiff’s citations to
Howard’s admissions in the very motion to which Howard filed its “response.” Howard’s Opposition, then, is
essentially “a non-responsive response” that fails to address Plaintiff’s arguments or the evidence of record.
Plaintiff should not be required to make the same arguments, over and over again, and remind the Court and
Howard of Howard’s own admissions, combing the record to cite the documents in which she previously
addressed those arguments and./or where Howard made admissions negating its own arguments. These
issues should have long been deemed resolved. What is the point of Interrogatories if the answers provided
are not binding on the party asserting the answer? What is the point of a deposition of a binding witness of
the Defendant if his statements can be whimsically withdrawn or ignored?
The jury may well have determined that Prof. Taslitz did not have authority to bind the University, confused by
Defendant’s bad faith argument presentation, in violation of Rule 11. Again, Howard should not prevail based
on its misconduct and flagrant violation of the Court’s Rules.
It is precisely this type of re-hashing of the same arguments, over and over, that has caused this case to be
“over-litigated.” Plaintiff has to waste her limited time and limited financial resources – without compensation
-- identifying the evidence of record, over and over again, that disputes these blatant misrepresentations – and
still, Howard suffers no penalty. Plaintiff once again implores this Court to hold Howard accountable, hold it to
its own admissions and grant Plaintiff judgment, as a matter of law.
III. In Violation of Rule 11, Howard Misrepresents the Law with Respect to Oral Representations Made
during Contract Negotiations
On pages 4-5 of its Opposition, Howard argues that, since there was no written document that incorporated
the terms that Martin alleges Taslitz promised her, that Tazlitz did not promise any such terms; however, this is
simply a circular way of rearguing the argument that Howard lost on December 15, 1999, when Judge Hogan
specifically held, that oral representations during the contract negotiation are enforceable, relying on
controlling case law in this jurisdiction. Hodge v. Evans Financial Corporation, 823 F.2d 559, 561 (D.C. Cir.
1987).
IV. In Violation of Rule 11, Howard Ignores the Undisputed Evidence that the Contract Could have been
Fulfilled within one Year, in Accordance with the Statute of Frauds
Consistent with controlling case law, Judge Hogan held that oral representations made during the negotiation
process are enforceable, unless they violate the Statute of Frauds.
The District of Columbia Statute of Frauds reads as follows:
An action may not be brought. . . upon an agreement that is not to be performed within one year from the
making thereof, unless the agreement upon which the action is brought, or a memorandum or note thereof, is
in writing. . . and signed by the party to be charged therewith or a person authorized by him.
D.C. Code § 28-3502. However, the Statute of Frauds has been interpreted in this Circuit to apply only to those
contracts whose performance could not possibly or conceivably be completed within one year. Hodge v. Evans
Financial Corporation, 262 U.S. App. D.C. 151, 823 F.2d 559, 561 (D.C. Cir. 1987) (holding that "the
enforceability of a contract under the statute does not depend on the actual course of subsequent events or on
the expectations of the parties" but rather "applies only to those contracts whose performance could not
possibly be conceivably be completed within one year.")
The question in this case is whether the tenure-track position which Professor Taslitz allegedly promised
Plaintiff could have become available within one year of Plaintiff's acceptance of Defendant's offer of
employment.
1999 U.S. Dist. LEXIS 19516 at *22-21 (D.D.C. 1999).
As discussed in Plaintiff’s June 2, 2006 Opposition to Defendant’s Motion for Judgment on Plaintiff’s Breach of
Contract Claim, page 10, incorporated herein, Plaintiff has consistently asserted, unchallenged, that a tenure-
track could have become available at any moment, based on the resignation of a tenured or tenure-track
faculty member, or the allocation of additional funds for faculty hiring. At trial, Plaintiff testified that both Prof.
Taslitz and Dean Ramsey represented to her that if Prof. Argrett did not return from sabbatical, but
relinquished her tenure-track slot on the faculty, that this was an example of a “slot” that Plaintiff could fill.
Neither Taslitz nor Ramsey could “guarantee” if or when Prof. Argrett would resign, but agreed that she could
resign at any moment, freeing up a faculty slot that Plaintiff could fill.
No one disputed Plaintiff’s testimony on these facts. In fact, when Prof. Argrett ultimately did resign, in the
spring of 1998, after the “hiring season” had ended, Dean Bullock did immediately authorize filling the slot,
and, in fact, instructed the APT Committee to fill it with adjunct Prof. Angela Vallario – who, until that time, was
not even a candidate for a full time position. Prof. Argrett’s “slot” could have been filled with Martin, as Taslitz
and Ramsey represented to her could happen, at any time, when she was hired. Similarly, the resignation of
any other faculty member, or new funding, would have allowed Howard to offer the tenure-track slot to Prof.
Martin at any time. There was absolutely no reason that she or Howard would have to wait two years before
Howard could offer her a tenure-track position, nor is there any evidence of such a ridiculous contention.
Under these undisputed facts, there is no question that the contract could have been fulfilled in less than a
year. Prof. Argrett – or any other faculty member -- could have resigned, retired or even passed away at any
time after Plaintiff joined Howard’s faculty. Howard could have made an offer to Plaintiff immediately, based
upon that vacancy. The Statute of Frauds defense therefore does not apply to the facts of this case.
Howard has misrepresented the significance of the APT Committee’s September 19, 1996 memorandum.
On page 9 of its opposition, Howard argues that Prof. Martin had admitted that she could not have been
offered a tenure-track position during her first year at Howard by not applying for one in response to the
September 19, 1996 memorandum requesting that faculty members supply the Committee with a brief
memorandum stating any changes in status they sought for that year – including promotions, tenure, changes
in rank, and appointment to a tenure-track position; however, it is undisputed that there were no tenure-track
positions available at that time.
Prof. Martin had just been hired and just joined Howard, starting in August of 1996. Howard had clearly told
her that there were no tenure-track positions available, and had there been, it would have offered her one. No
tenure-track positions were advertised and none were filled that year. In fact, there were no new hires at all –
not even visitorships. The one year visitorships of Profs. Even if Prof. Martin did receive the September 19,
1996, it would have been completely illogical for her to apply for a change in status after being at Howard for
only one month, where there was no indication that any vacancies had arisen during that first month.
Again, Howard has wasted the Court’s, jury’s and Plaintiff’s time and energy on this issue and should not
waste further time by re-arguing its own admission in motions.
V. In Violation of Rule 11, Howard’s Argument that Plaintiff was Required to Prove her Salary, Benefits and
Teaching Terms after 1998
On pages 8-9 of its Opposition, Howard argues that, in order to prove a meeting of the minds, Martin was
required to prove what her salary, benefits, teaching responsibilities and any other terms of her contract would
be after 1998. Howard cites no case law or other authority for this proposition, nor can it do so. In fact, there
was no such question on the jury’s verdict form. Judge Hogan specifically rejected Howard’s argument in pre-
trial motions and at trial; yet, Howard continues to assert that this is the legal requirement, as if it had prevailed
on this issues.
Salaries are increased due to cost of living allowances, merit raises, administrative decisions, etc. Prof.
Martin’s salary increased from $83,000 per year to $86,000 (not including her $3,000 summer grant) from
1996-1997, during her two-year visitorship. There was nothing any of Howard’s written offers, or partial offers,
to Martin about this raise – yet, she received it. There was nothing in Plaintiff’s written two year contract that set
forth her health or life insurance options, yet she did receive such options and did select health and life
insurance plans.
No document discusses “benefits,” even for the two year visitorship, yet Prof. Martin was eligible for, and did
receive, health, life insurance, retirement fund and other benefits offered to tenure-track professors –
consistent with Prof. Taslitz’ oral representations, though documented nowhere. No professor, whether
tenure track, tenured or visiting, is guaranteed the right to teach any particular course. Rank, such as
Assistant Professor, Associate Professor and Full Professor, cannot be determined or promised two years in
advance – nor can merit pay increases. Howard’s argument that Martin was required to prove that she
negotiated all of the terms of her projected contract with Howard in 1998 and thereafter, is therefore,
ludicrous.
The essential elements of the oral contract were that Martin would either be “slid” into a tenure-track position
at some time between her commencement with Howard in August of 1996 and the expiration of the two year
visitorship she was guaranteed in writing, or her two year visitorship would be renewed until a tenure-track
position became available. The Faculty Handbook and all personnel policies, mandated by main campus and
applied or modified by the law school, would control tenure-track positions, promotions, tenure, salary and
benefits. This was a simple concept. Martin had no burden to prove any terms of her projected employment
beyond 1998, any more than a tenure track professor would have to prove – or could ever prove --such
projections to establish an employment contract.
Again, Howard has wasted the Court’s, jury’s and Plaintiff’s time on a baseless argument.
VI. In Violation of Rule 11, Howard has Blatantly Misrepresented Taslitz’ Testimony
On page 2 of its Opposition, Howard states, with absolutely no reference to the record:
the evidence adduced at trial clearly revealed that no one at the University orally promised Plaintiff an extended
visitorship beyond 1998, or to slip her into a tenure track position at the University’s law school upon the
completion of her visitorship.
The “evidence of record” did not “clearly” so reveal. The only people who know what was said during these
negotiations are Plaintiff and Taslitz. Contrary to Howard’s assertions, and as discussed in Plaintiff’s Motion,
pages 6-8, Taslitz actually made numerous admissions that support Martin’s version of events and
description of her conversations with Taslitz.
On page 3 of its Opposition, Howard falsely claimed:
Professor Taslitz did not inform Plaintiff that she would be “well placed” to obtain a tenure track position at the
conclusion of any Vistorship. (Emphasis added)
In his 2002 deposition, page 84, lines 6-15, Taslitz testified:
What I recall is that either I or Professor Gavil in my presence or both
of us told you that you would have an opportunity -- because our visitors were given substantial
responsibilities, you would have the opportunity to show your best and if you were well liked and performed
well and if a tenure track position became available that you would be well placed to compete for that position
and that there were a number of people on the faculty for whom that had worked out in the past. (Emphasis
added)
Once again, Howard simply ignores the record and flagrantly violates Rule 11. In her instant Motion for
Judgment, pages 7 and 9, her Motion for Summary Judgment, at 45 and her accompanying Statement of
Undisputed Material Facts, 18, Plaintiff clearly referred the Court and the parties to the Taslitz’ deposition
testimony; yet Howard chose to ignore it and to simply “make up” a denial, in the face of Taslitz’ documented
deposition testimony. It is precisely this type of misrepresentation after misrepresentation that has caused
this case to be “over-litigated.” To the extent that Taslitz may have attempted to deny his own deposition
testimony at trial, Taslitz, like Dean Bullock, has committed perjury, making conflicting sworn statements in his
2002 and 2006 testimony.
Plaintiff has to waste her precious time and limited financial resources – without compensation -- identifying
the evidence of record, over and over again, that disputes these blatant misrepresentations – and still, Howard
suffers no penalty.
VII. Howard has Misrepresented Prof. Martin’s Correspondence to Former Dean Ramsey
Martin’s letter to Ramsey (Ex. A) expressly states her understanding that she will be joining Howard’s faculty
permanently. In violation of Rule 11, on page 8 of its Opposition, Howard falsely states that Prof. Martin:
recognized in that document that Professor Taslitz “could not” and “did not” guarantee her a tenure-track
position or an extended Visitorship. JEX 29, p. 2.
First of all, neither the phrases “could not” or “did not” appears anywhere on page 2 of the letter (Ex. A);
consequently, even the limited words that Howard placed in quotation marks are fictitious. The word
“guaranteeing” does appear on page 2, in following context:
I made it clear, both in November and January, that I was not interested in a visitor position …. Taz understood
and said the he would advocate a contract guaranteeing at least a two-year visitorship, expecting, though not
guaranteeing that, thereafter, permanent positions would “open up.”
At trial, Martin explained that she recognized that Howard “could not guarantee” a particular date by which a
tenure-track position would become available. Of course, it could make no such guarantee because it could
not predict when a faculty member would resign, retire or even pass away, nor could Howard predict when
funds would be increased to expand the faculty. Martin recognized that this could leave her in a position of
having to have a visitorship renewed for several years, without the security of an “official” tenure track position
or tenure and she had resigned herself to taking that risk; however, Taslitz had assured her that she was not
taking the risk of having no job at all in two years. That was not a risk that Martin was willing to take. The plain
language of the letter, as well as the context of the entire letter, clearly convey that Martin saw the offer from
Howard and her acceptance of it as meaning that she would permanently join Howard’s faculty.
In any case, numerous tenure-track positions did open up before Martin’s two year written guaranteed
visitorship expired; consequently, Howard was obligated to abide by its in 1997-1998, for the 1998-1999
academic year, as both Taslitz and Ramsey
Still on page 8, Howard again misrepresents the letter, by taking a word out of context, claiming:
Plaintiff wrote that she “hoped’ that her Visitorship would turn into a permanent position. JEX 29, p. 5.
That is absolutely not what the letter says. The letter, page 5, ends:
Let me stress again that I am extremely anxious to get to Howard and back to D.C. I look forward to working
with all of the Howard faculty members whom I met. I hope and expect that Howard will become my
permanent new professional “home.” I simply need to get there.
As Plaintiff explained, both in the letter and at trial, she “hoped” to make Howard her permanent home, but the
lack of moving expenses was the only impediment. The letter made clear that, without moving expenses, she
would not be able to join Howard’s faculty. She certainly did not say that she would be coming as a visitor and
hoped that it would last beyond two years. Indeed, she clearly stated that she had provided Cleveland State
University with notice of her resignation and that she had put her house on the market for sale. She clearly
stated that she had no intention of leaving D.C. once she moved to join Howard’s faculty.
Howard’s blatant misrepresentation of the contents of this letter, through taking only one of two words, out of
context and adding its own words around them to make sentences that Plaintiff never made, is a clear
violation of Rule 11. Plaintiff should not have had to waste her time properly quoting the letter to demonstrate
that Howard has, once again, misrepresented the evidence of record to the Court.
It is important to note that Howard never produced the Ramsey letter in discovery. Plaintiff found it in her
records, some years into this litigation, and produced it; however, Howard has officially known, through its
Dean, Alice Gresham Bullock, since at least January of 1998, that Prof. Martin alleged that Taslitz promised
her that she would be renewed until a tenure-track position opened up and then moved into it. Former Dean
Ramsey was still technically on Howard’s faculty at that time, and was receiving salary and benefits from
Howard, although he had relocated out of state. Dean Bullock could certainly have consulted with Dean
Ramsey – still a Howard employee -- on his recollection and understanding of the events surrounding Prof.
Martin’s hire. To date, Howard has never produced an affidavit from Dean Ramsey or presented him as a
potential witness.
The Ramsey letter was an exhibit to Plaintiff’s Motion for Summary Judgment and has been in the record, as
MSJ Ex. VVVV since October 9, 2002, offered as proof of Plaintiff’s understanding of her “visitorship” as not
being a conventional visitorship, but one being used as a temporary means to bring her onto the faculty on a
permanent basis. Martin wrote the letter as a request for moving expenses, but she states her intention to join
Howard’s faculty permanently, states that she resigned from her tenure-track position at Cleveland State to
accept Howard’s offer, states that she put her house up for sale in Cleveland, and that, due to her permanent
resignation from Cleveland, she was no longer entitled to a summer grant from Cleveland State and needed
some funds to move half way across the country, with her daughter. This letter, in the context of the
conversations and actions taken, does corroborate Martin’s testimony regarding Taslitz’ promises to her.
If Dean Ramsey had a contrary understanding of Martin’s letter, Howard had every opportunity, the last 8 years,
to obtain an affidavit or declaration from this former Dean and former Judge. The fact that Howard has
declined to do so leaves Martin’s testimony undisputed. In addition, Martin is entitled to an adverse inference
that former Dean Ramsey would support, rather than contradict, Martin’s version of events and the parties
understanding, in the spring of 1996, about Martin’s future at Howard and the representations about continued
employment that were made to her.
VIII. Martin’s Version of Events was Corroborated by the Totality of the Circumstances
As in most employment contracts, many of the terms of the employment relationship are expressed orally
rather than in writing, and even when there is a written contract, signed by both parties – which is not the case
herein – many terms of the employment relationship will not be covered in the written contract. After the 1999
decision, both sides conducted discovery, including document production and depositions. It has long been
undisputed that there was no single, all inclusive document that met the definition of a “contract” between Prof.
Martin and Howard, and that there are no such “contracts” for any Howard Law School faculty member.
The parties both testified, and the documents confirm, that Howard extended to Prof. Martin a piecemeal offer,
both in various letters and in oral representations, while Howard continued to work on terms of her
employment such as a 1996 summer grant, possible moving expenses. There is no document from Howard
that addresses these issues, but Howard did provide Martin with a partial summer grant, specifically to be
used for moving expenses, in direct response to her April 27, 1996 letter to Dean Ramsey explaining that she
needed moving expenses to move back to D.C. and to make Howard her “permanent home.”
As discussed in Plaintiff’s June 2, 2006 Opposition to Defendant’s Motion for Judgment on her Breach of
Contract Claim, at 11, at no time did Dean Ramsey, Prof. Taslitz (whom Plaintiff sent a copy of the letter), or
anyone at Howard write to Plaintiff or call her to advise her that she was not guaranteed a permanent position,
or a renewed visitorship, after the two year written guarantee expired. At no time did anyone advise her that
she should not sell her house or that she revoke her resignation at Cleveland-Marshall in favor of a leave of
absence. Plaintiff had made it plain that once out of Cleveland, she would not return and that she was only
accepting this “visitorship” in name with the understanding that the visitorship would be renewed until a tenure-
track position became available. Plaintiff understood that no one could guarantee when a tenure-track
position would become available because it required a faculty member to resign or the designation of
additional funds for faculty positions; accordingly, she knew that, while the parties were waiting for a tenure-
track position to become available, she might be in a position of “visitor” status for several years, as was Prof.
Patricia Worthy.
Howard has not produced evidence to establish a genuine dispute of facts to survive Plaintiff’s Motion for
Judgment, under Holcomb v. Powell, 433 F.3d 889. As discussed in Plaintiff’s Motion for Summary Judgment,
at 43-45, there are no genuine disputed material facts to be determined by a jury on Plaintiff’s breach of
contract claim. Taslitz testified that he did not recall his “exact” words, but he does recall Martin stating that
she did not want a vistorship, or to start her daughter and in high school, only to have to “rip her out” to move
again. Pl. MSJ at 45. Taslitz admitted that Martin told him that she needed assurances of job security, and that
he responded by conveying to her, in words that he “cannot recall,” the message that she would be well
placed for a tenure-track position when one opened up.
Martin recalls the precise words Taslitz used, and understandably so, since she sold her house in Cleveland,
resigned her tenure-track position at Cleveland-Marshall Law School, and started her daughter in high school
in Fairfax County, Virginia. Pl. MSJ at 45. With all that was at stake for Martin, the precise promise made was
important to her in making these decisions.
As discussed in Plaintiff’s June 2, 2006 Opposition to Defendant’s Motion for Judgment, as a Matter of Law, on
Plaintiff’s Breach of Contract Claim, Howard University’s own internal Grievance Committee Report (Ex. B
Plaintiff’s Trial Ex. 39) concluded as follows.
Professor Dawn V. Martin filed a grievance with the Faculty Grievance Committee on May 15, 1998. Her
appointment began on August 16, 1996, by the Howard University Law School, as a Visiting Associate
Professor, with a two year appointment. She has stated in her grievance request for a hearing that she would
not have made a commitment to take this position without some assurances that the nature of the position
would not be temporary, and prior to her expiration date, she would be offered a tenure-track position. The
record shows that Visiting Professor Martin left a tenure-track position to join the faculty at Howard.
It is clear that Professor Martin signed a contract for a two-year term. What is not clear is what she was told
about a tenure-track position. A study of the documents sent to the Faculty Commission raises several
questions which the primary reviewer considers relevant:
1. Who made the initial contract offer to Visiting Associate Professor Martin?
2. Who said what to Professor Martin to indicate hat the contract would lead to a tenure track position?
3. Did the person who made the offer have the authority to make the initial offer and to give her a verbal
commitment to a tenure track position?
Professor Martin stated in a telephone conversation on December 9, 1999, that Professor Andrew Tasltiz
negotiated with her on the position to which she was appointed and told her that the position would become a
tenure track position. Her position has merit because she left a tenure track position to come to Howard
University. It also appears that the Law School changed job descriptions several times in order to avoid
offering a slot to Professor Martin. Finally, the September 17, 1999 Association for Law Schools Placement
Bulletin (AALS Placement bulletin, September 17, 1999), has a position listed for Howard University Law
School that appears to be appropriate for Professor Dawn Martin, except that position announcement appears
to want a person without experience, etc.
The primary reviewer finds from the documents submitted to the Faculty Grievance Commission that
Professor Dawn V. Martin was not given due process and that her academic freedom, rights and privileges
may have been violated. The primary reviewer strongly recommends that Professor Martin’s grievance case
move forward as quickly as possible to the next level of mediation and that a Formal Hearing take place if
necessary to be resolved in the best interests of all concerned. (Emphasis added)
Ex. B, page 1.
Howard University professors, forming Howard University’s own Grievance Committee, understanding the
negotiation practices of the school, concluded that Plaintiff’s evidence supports her claims. Again, therefore,
the self-serving testimony of Bullock and Leggett on what is “highly unusual” or “unlikely” is not only irrelevant
and without foundation, but disputed by Howard’s own internal judicial body.
IX. Howard has not Addressed the Court’s Erroneous Evidentiary Rulings at Trial, Affecting the Jury’s
Perception of Plaintiff’s Credibility
As discussed in Plaintiff’s Motion, pages 9-32 and in her June 2, 2006 Opposition to Defendant’s Motion for
Judgment on Plaintiff’s Breach of Contract Claim, incorporated by reference herein, it was Taslitz who
negotiated with Plaintiff regarding leaving her tenure-track position at Cleveland State University and forfeiting
opportunities at other law schools to join Howard’s faculty. Plaintiff had the burden of proving that Taslitz
represented to her that Howard would “slide” her into a tenure-track position as soon as one became
available and would renew her as a visitor until one did. This could only be accomplished by the jury believing
that Plaintiff was telling the truth about the conversations with Taslitz and that Taslitz was lying. Faced with this
heavy burden, it was crucial that Plaintiff be permitted to present to the jury evidence that corroborated her
statements to establish that she is a truthful person.
Howard has not even attempted to address the errors of rulings of law that affected the jury’s perception of the
credibility of both Plaintiff and Prof. Taslitz. As discussed in Plaintiff’s motion, pages 9-32, the Court’s
exclusion of this evidence severely and unduly prejudiced Plaintiff with respect to establishing herself as a
credible witness – particularly in light of the attacks that she was subjected to by Mr. Shwalb, who verbally
assaulted her with false accusation after accusation, in violation of Rule 11, when he had in his hands
documentation that conflicted with the very accusations he was making. These very documents were
excluded from the jury and Mr. Shwalb was not forced to retract any of his false statements, even after they
were proven to be false and made in bad faith, outside of the presence of the jury. The Court never informed
the jury that, outside of its presence, documentation had established that Mr. Shwalb’s accusations were
blatantly false. The jury reasonably assumed that the Court would not allow Mr. Shwalb to make such
accusations with no good faith basis – and certainly not in the face of incontrovertible evidence to the contrary.
Since Howard raised some of the unusual circumstances that she had faced (even outside of her workplace,
such as the landlord-tenant dispute she had experienced and a tax problem that arose from a 1989-1991
investment), Plaintiff should have been permitted to present to the jury the actual published decision in
landlord tenant case, and to explain the basis of the tax problem, in addition to any other issues which Howard
used to attach her credibility. Instead, Plaintiff was portrayed as a liar and was not permitted to corroborate her
statements with documents at the fingertips of both parties, while in Court. Plaintiff’s hands were figuratively
“tied” in the face of these verbal attacks.
If the jury had had the excluded evidence before it, or been informed by the Court – or Mr. Shwalb – that Shwalb’
s accusations were false, as demonstrated by the undisputed documents, the jury would have realized that
Plaintiff was telling the truth. In addition, the jury would have understood Shwalb’s litigation tactics and been
suspect of his additional representations; however, because Shwalb had “thrown” so much “mud” at Martin,
as she warned would happen in Motion to Exclude Allegations of “Non-Collegiality” and “Bad Judgment”, and
since the Court tied her hands with respect to efforts to wash the mud away – of fling it back – both in terms of
evidentiary rulings and time, the jury could not focus on the relevant, undisputed evidence and did not have
before it evidence that demonstrated that Martin is a truthful person.
Howard’s trial strategy was, as Plaintiff warned, to throw as much mud as it could and see what stuck. So
many lies and so little time. Howard simply told so many lies that Plaintiff could not possibly have had the
time to rebut them all. If, however, Martin had been permitted to demonstrate the bad faith of Howard and
Shwalb, by presenting documents that directly disputed some of Shwalb’s false accusations – like the
Treatise forward, her EEOC performance evaluation, the EEOC Policy Guidance that she authored, totaling 12
printed pages, or 24 manuscript pages, rather than the 4 pages Shwalb claimed, the published decision in
her landlord-tenant case, and other permitting time to call witnesses to refute non-collegiality claims – such
as Profs. Boyer, Jones and Rogers, the jury would have been much more likely to find that Martin was telling
the truth about the content of the conversations between Taslitz and herself during the negotiation period.
X. Howard has Misrepresented and Misused Prof. Leggett’s Testimony
On page 4 of its Opposition, Howard claimed that the testimony of both Bullock and Leggett:
convinced the jury that Professor Taslitz did not make any oral promises to Plaintiff that Plaintiff’s vistorship
would continue after 1998. Dean Bullock testified that Professor Taslitz was an APT Committee member, and
that he did not have the authority to bind the University into contractual employment agreements. Accordingly,
she doubted that he would make any such promises to Plaintiff.” (Emphasis added)
Without the trial transcript, Plaintiff cannot identify the testimony that Howard now claims Bullock made with
respect to this issues; however, what she “doubts” or speculates is likely, is irrelevant and without foundation.
Bullock was not present during the negotiations. In fact, she was not even the Dean at the time of these
negotiations and there was no reason for her to have been privy to any of them. In addition, Howard does not
indicate what Leggett purportedly said to indicate anything about Taslitz’ authority. It is undisputed that Taslitz
– the purported “Vice Chair” did negotiate Martin’s contract with her – not Leggett – the purported “Chair.”
It is undisputed that it was Taslitz, not Leggett, who wrote the APT Committee memoranda generally and that it
was Taslitz, not Leggett, who normally negotiated contracts with candidates and extended offers. There is no
question that it was Taslitz – not Leggett -- who wrote to Martin, on May 9, 1998, with confirmation of her salary,
which she had requested to obtain housing in the D.C. area and that it was Taslitz – not Leggett – with whom
Martin spoke repeatedly regarding the terms of her offer, her moving arrangements, and other preparations for
joining Howard’s faculty. Leggett had no personal knowledge of the representations made with respect to the
terms of Martin’s hire.
Although Howard, for the first time, at trial, claimed that Prof. Leggett met with Prof. Martin during her January
1996 “call back” visit to Howard, not even Profs. Taslitz or Gavil make this claim. Prof. Martin has consistently
testified that she met with Taslitz and that Gavil was present for part of the meeting. She never met with
Leggett in January of 1996, nor did he ever communicate with her at all at any time after her November 1995
AALS interview in D.C. and the time that she joined Howard’s faculty in August of 1996.
Leggett has not offered reliable testimony and has expressed admitted and implied “confusion” over material
facts of this case.
First, Leggett testified, at trial, that candidates “sign up” on a “sign up sheet” for interviews at the AALS
conference in Washington, D.C. This testimony was contradicted by every person who testified about the
procedures, including Talitz, Nolan, Smith and Martin. All other witnesses testified that candidates are
selected in advance by the APT Committee members. Indeed, if candidates could just “sign up,” the
Committees would have to interview candidates that would not even qualify and would forfeit time for
candidates they wanted to see.
Second, Leggett testified that he was “confused” about the status of Martin’s scholarship (MSJ at 30-31;
Plaintiff’s Motion for Judgment on Retaliation Claims, at 26-27; yet, there was no reason for him to be
confused because her resume and application clearly stated the status of her scholarship. Had Leggett read
the materials for himself, instead of relying on Taslitz’ presentation, he would have known that Martin added 70
pages to her article 911: How Will Police and Fire Departments Respond to Public Safety Needs and the
Americans with Disabilities Act?, that she completed it and submitted it to Mrs. Bruner for distribution to law
journals in August of 1997, but that the document had been corrupted by a computer problem in Mrs. Bruner’s
office and was being retyped – at low priority, based on the direction provided to Mrs. Bruner by Dean Bullock,
her direct supervisor. Leggett also would have known that Martin had a draft of a second article, Lights,
Camera, Discrimination! ‘Playing’ the Victim under Title VII, which she had submitted to the Dean the previous
summer, and for which she was awarded a summer grant, for satisfactory scholarship. Leggett would also
have known that Martin had a title and a thesis for a third article, since joining Howard’s faculty, entitled, Still
Racist after all these Years – and Covered by the Americans with Disabilities Act?
In fact, with all due respect to Prof. Leggett, with whom it is undisputed Martin enjoyed a collegial and friendly
relationship, if Leggett had been listening during the November 7, 1997 interview, or remembered the
interview, that the Committee had with Plaintiff, he would have know about these articles because she
discussed them at this interview, highlighting her scholarship along with other information in her application.
Third, as Martin has maintained, unchallenged, Leggett, during the November 7, 1997 interview specifically
said that, in addition to the tenure-track positions, Howard would have one or more visitorships – but these
would be “real visitorships.” Complaint __; MSJ at __. This statement demonstrates that Leggett was well
aware of Howard’s practice of using “visitorship” slots for positions that were not conventional visitorships.
Leggett may also be confusing the timing of conversation with Martin’s original application process in 1996,
when his only contact with Martin before her hire was his brief, late appearance in the AALS interview in D.C.,
after most of the questions had been asked and answered by Taslitz and Gavil.
Fourth, as Bullock testified at trial, she conducted a fundraiser for Leggett, who is currently a candidate for
Montgomery County Executive. To the extent that he can “remember” events in the best light for Howard, it is in
his political interests to do so, rather than to alienate Howard University and its allies in this geographic area
where Howard has so much power and influence.
XI. Martin’s Memo to Gavil Expresses the Concern of Any New Professor – Visiting or Tenure-Track -- who
Could be Denied Permanent Status if Performance is Unsatisfactory
Howard references Martin’s October 1996 memorandum to Gavil regarding his reporting a trivial complaint of
a first year student who told him that Martin did not call on him fast enough. In her memorandum
memorializing this student’s behavior in class, requesting that Gavil clarify any misrepresentations of the
events that he may have conveyed to other colleagues, “[p]articularly since I am a new professor at Howard,
and more importantly, a visitor who seeks to become permanent ….”
This simple statement was not, as Howard alleged, an “admission” that she was not promised continued
renewal and a tenure-track position, as she alleged. Any professor, whether visiting or tenure track, who does
not perform satisfactory work, need not be retained. It is only once a professor is tenured that he or she can
only be dismissed for cause. Even Taslitz testified, at trial, that a tenure track professor is not guaranteed
renewal and may not be renewed if teaching needs change and eliminate the need for the professor. Martin
referred to herself as a visitor because that was her official title. She could not refer to herself as a tenure track
professor when that was not her title. The point was simply that no new professor wants her colleagues to
hear a story that unfairly portrays her in a negative light and could be exaggerated to create the impression that
performance was unsatisfactory.
As the memo indicates, it was Gavil who made a “mountain out of a molehill” by reporting an insignificant
complaint to the Dean of Students, Denise Purdy. Dean Purdy, after learning the facts, apologized to Prof.
Martin and abandoned even the idea of a meeting. The student in question later apologized to Prof. Martin,
took every course that Prof. Martin taught at Howard, signed an circulated a student petition protesting Prof.
Martin’s non-renewal, and, finally, submitted a declaration in this litigation, attributing the misunderstanding to
herself, as an “over zealous” first year student, praising Prof. Martin as a teacher, and portraying her
“complaint” to Prof. Gavil as something that she barely recalled and found to be trivial.
This entire incident is evidence of Gavil’s “non-collegial” nature, as also attested to by Profs. Boyer and Jones,
in their depositions. There was never a memorandum, meeting, counseling, or any other documentation of
any inappropriate behavior by Prof. Martin. To the contrary, Dean Purdy found that the student had “emotional
problems” at the time that she was working through and that she was taking them out on her two female
professors – Profs. Worthy and Martin.
XII. Howard has Unconscionably Misrepresented Prof. Martin’s March 31, 1998 Letter to Taslitz
On page 4 of its Opposition, Howard argues that Taslitz ceased speaking to Martin because “Plaintiff
threatened to sue and retaliate against him if he did not tell law school officials that he had made oral
promises to Plaintiff that he vistorship would continue after 1998 (JEX 89).” Although Howard’s personal
attacks have been ruthless and vicious throughout this litigation, this mischaracterization of Martin’s March 31,
1998 letter to Taslitz is a low blow even for Howard. Howard has taken a letter which Martin based on Matthew
18: 17-17, of the Bible, which directs God’s children to speak directly to each other to attempt to resolve their
differences and attempt to heal the discord before involving other people in the dispute and creating discord.
Martin, who is, even in Dean Bullock’s own words, “a God-fearing woman,” stated, in her letter (Ex. __), pages
5-6:
You know that I am religious and I have prayed bout this every day. I try to live by the following Bible passage,
Matthew 18: 15-17 (as parenthetically modified):
15 Moreover if thy brother shall trespass against the, go and tell him his fault between thee and him alone: if
he shall hear the, thou has gained thy brother.
16But if he will not hear thee, then take with thee one or two more, that in the mouth of two of three witnesses
every word may be established.
17 And if he shall neglect to hear them, tell it unto the church (or larger community): but if he neglected to hear
the church (larger community), let him be unto thee as a heathen and a publican (an outsider).
This is what I am doing here. I have gone to Alice; I have gone to you. The chainof “command her is
colleagues, main campus and court. I do not want to do any of these things. I just want to go to work and do
my job. I do it very well and could do it even better once my basic needs of housing and employment are
secure.
Another creed which I try to live by has been posted on the outside of my office door since I arrived at Howard.
Numerous students have asked me for copies of it. Little did I know that it would be prophetic of my
experience at Howard.
ANYWAY
People are unreasonable, illogical and self centered.
Love them anyway.
If you do good, people will accuse you of selfish ulterior motives.
Do good anyway.
If you are successful, you will win false friends and true enemies.
Succeed anyway.
Honesty and frankness make you vulnerable.
Be honest and frank anyway.
People favor underdogs but follow only top dogs.
Fight for some underdogs anyway.
What you spend years building may be destroyed overnight.
Build anyway.
People really need help but may attack you if you help them.
Help people anyway.
Give the world the best you’ve got and you’ll get kicked in the teeth.
Give the world the best you’ve got
ANYWAY.
I have given Howard the best I’ve got – and you know that I have done it under some tremendously adverse
circumstances. Please, Taz, don’t let it be my word against yours; don’t “kick me in the teeth.” Don’t let them
do it either.
At trial, Taslitz attempted to portray Martin’s reference to Matthew 18 as a threat of retaliation or Biblical
retribution “worse” than being sued – implying that Martin was threatening some physical or personal harm to
him. No rational person could so interpret that letter. Taslitz’ testimony was disgraceful enough, but Howard’s
adoption and elaboration on that testimony is morally unconscionable. There is absolutely nothing in that
letter that implies, in any way, “retaliation” against Taslitz, or physical harm to him. To the contrary, the letter
stresses the need for God’s children to express love, truth and fairness to each other.
The letter expresses surprise at Dean Bullock’s report to her that Taslitz denied making the promises he
made to her. The letter begs Tasliz to tell Dean Bullock “the truth” about the promises and the negotiations,
and how Taslitz was aware of what Martin was going through to relocate back to D.C. and to secure that the
move would be stable for her daughter, who was entering high school. The letter begged Taslitz to just ask
Bullock about the three vacant positions that Martin knew existed, but for which Bullock had plainly told Martin
she would not be considered. Martin begged Taslitz for the sake of her daughter, who had become so
distraught that she was suffering from debilitating headaches, keeping her out of school, that she was pulling
her hair out and had even been diagnosed as suicidal.
Martin begged Taslitz, her “friend,” to act as an advocate for her. Martin asked Taslitz because he knew the
circumstances under which she gave up her tenure-track position and other opportunities to relocate to
Howard. Taslitz knew how dedicated she had been to her students and how she had produced substantial
scholarship while at Howard, including expanding one article by 70 pages, producing a draft of another article
and developing a these, title and preliminary research for a third article, in addition to the four articles for which
she had been credited by Howard when she was hired. Taslitz knew that she had produced practice exams
and answers and spent substantial time outside of class providing students with exam taking workshops,
including some with input from a Maryland Bar examiner. Taslitz was aware that she had outstanding
academic and legal experience credentials and, before coming to Howard, had an excellent professional
reputation. Taslitz also knew that, more than all of this, Martin’s daughter was the most important part of her
life and that everything she did revolved first around her daughter’s well-being. Taslitz knew that the prospect
of not being able to properly care for her daughter. Martin conveyed to Taslitz, in that letter, how devastated she
was and how helpless she felt to see her daughter’s debilitation caused by the sudden instability in her life
and intense stress suddenly imposed on her mother, first, by being stalked at work and then being fired for it.
Martin begged Taslitz to take the simple step of speaking to Bullock and asking her whether there really were
additional positions left and whether she would authorize the Committee to consider Martin for one of them.
This would have been a simple question, and one which Nolan asked Bullock, without being asked to do so.
Taslitz admittedly took no such action. Taslitz did not ask because he knew that there were other vacancies
and that Bullock was determined to ensure that Martin did not fill any of them. Even if Taslitz did not want to
admit to the promises he made Martin, he could have acknowledged at least, as he acknowledged in his
deposition, that he did convey to Martin that she would be “well placed” for a tenure-track position if she
accepted a visitorship, and that, rather than leave her without a job for the following year, with a daughter to
support, and in light of the student protests requesting her renewal, at least she could be renewed for another
year. Taslitz admittedly did not do that either. Again, Taslitz knew that Bullock was determined to immediately
eliminate Martin from the faculty. Bullock would use any false pretext to do so and expected Taslitz to do the
same.
Taslitz made no attempt to change Bullock’s mind. Instead, he assisted Bullock in implementing her
retaliatory plan against Martin. He immediately turned the letter over to Bullock and asked for assurances that
the University would provide him with defense counsel if Martin sued him personally. Taslitz – Martin’s self-
professed “friend” clearly did not care that she was left without a career, a livelihood or a means to support her
child. He did not care that her daughter had become sick and clearly did not worry himself about whether or
not Martin’s daughter –age 14 -- killed herself. Taslitz concern was only for himself. His intense fear that he
might be sued is evidence of his guilty conscience for implementing Bullock’s retaliatory plan against his
“friend,” Dawn Martin.
Of course, at the time she wrote the letter, Martin had no idea that Taslitz was behind her non-renewal. As she
testified at trial, and set forth in her Motion for Summary Judgment, in January of 1998, Taslitz had come to her
office, at her request, and they discussed her non-renewal. Based on Taslitz representations to her at that
time, and his invitation to her to “ask my wife” about how he was agonizing over her non-renewal, Martin
actually believed that Taslitz had acted as an advocate for her at the December 18, 1997 meeting and that he
had been outvoted. She had absolutely no idea that it was her “friend” and mentor from the South Bronx that
had convinced the other APT Committee members to vote against her by falsely representing the status of her
scholarship and Cunningham’s scholarship.
Even as of the filing of the Complaint in this case, on May 14, 1999, Martin had no idea that it was Taslitz who
betrayed her and led the Committee to reject her. The Complaint, 208, specifically alleges that Taslitz voted
for her. This allegation was based on Taslitz representations to Martin that as her “friend,” he was agonizing
over her non-renewal and that he could do nothing about it because there was a “Dean change” since he had
made the promise of renewal to her in 1996. It was only during the depositions of Taslitz, Bullock and the
other APT Committee members, in September of 2002, that Martin learned that it was Taslitz who betrayed her
for whatever power Bullock gave him through Committee appointments and other benefits.
Taslitz’ cowardly, deceptive, callous and even vicious responses to Martin’s inquiry and request for his help
are only exceeded by Howard’s attempt to portray Martin as having written the letter to “threaten” Taslitz with
some bodily harm, either at her hand or through some implicit concept of “the wrath of God.” Such a portrayal
is not only a complete perversion of the letter and of who Prof. Martin is as a person, but it also perverts the
Christian message, purportedly out of the mouth of Jesus Christ, conveyed by his disciple, Matthew.
Martin quoted the Book of Matthew verbatim. She professed herself a follower of Christ and set as her goal to
adhere to his instruction; yet Howard characterized her words as “threats” and retaliation. Howard appears to
imply that Jesus Christ -- the man that Christians regard as the most non-violent man who ever walked the
planet – was some sort of a “thug” teaching “thuggery.” Howard has so devoted itself to winning this case
through “any means necessary” that it has now lowered itself to perverting the words of Jesus Christ, as
recorded by one of his disciples. Martin can only count herself in “good company” among the persons whose
reputations that Howard has set out to defame.
CONCLUSION
Plaintiff respectfully request that this Court grant Plaintiff judgment, as a matter of law, set the case for a new
trial on damages for her breach of contract claim and direct the jury to determine compensatory damages. In
the alternative, Plaintiff should be granted a new trial pursuant to Fed. R. Civ. P. 59(b) and of 60(b)(3).
Respectfully submitted,
Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
1090 Vermont Avenue, N.W, Suite 800
Washington, D.C. 20005
(202) 408-7040 telephone; (703) 642-0208 facsimile
DVMARTINLAW@yahoo.com
www.firms.findlaw.com/dvmartinlaw
FOR THE DISTRICT OF COLUMBIA
____
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH/AK
)
)
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON HER
BREACH OF CONTRACT CLAIM, OR IN THE ALTERNATIVE, FOR A NEW TRIAL, PURSUANT TO RULES 59
AND 60
I. Overview of Howard’s Opposition
It is no wonder that Howard University sought repeated extensions of time to oppose Plaintiff’s Motions for
Judgment, procrastinating for nearly a month to respond. Even after Howard was permitted 28 days to
respond to Plaintiff’s motion for judgment, or for a new trial, on her breach of contract claim, Howard has done
nothing more than repeated, without supporting evidence or law, the same misrepresentations of the record,
and added a few new ones, once again, in violation of Rule 11. Howard has not responded to Plaintiff’s
arguments or her evidence and has completely failed to offer any evidence to rebut the facts that she has
asserted in her motion. Howard has made misrepresentations that extend beyond its usual Rule 11
violations and branch out into the morally reprehensible (a place where Howard has previously frequented in
this case).
Howard has asserted legal theories with absolutely no authority. In blatant violation of Fed. R. 11, Howard has
blatantly misrepresented Taslitz’s testimony, recorded in his deposition transcript, as Plaintiff cited in her
Motion for Judgment. Other than Howard’s introductory section stating the standards of review for motions for
judgment, Howard has cited only one case and for a point not even in dispute. Howard’s Opposition is so
completely without merit or support in law or fact, that it would not have been prejudiced at all if this Court had
denied its repeated motions for large extensions of time to file these oppositions. Howard may have even
hoped that this Court would deny the extensions to avoid the risk to reputation and sanctions of filing
additional misrepresentations of the record and ignoring Howard’s own previous admissions. In fact, Howard
never filed Replies to Plaintiff’s Oppositions to Howard’s Motions for Judgment on her Retaliation (May 30,
2006) and Breach of Contract (June 2, 2006) Claims, nor did Howard ever request a motion for an
enlargement of time to respond to them; accordingly, Howard has long since waived its right to file any such
replies. Presumably, Howard’s attorneys decided not to file replies because every one of its filings subjects
Howard and/or its attorneys personally, to Rule 11 sanctions.
II. In Violation of Rule 11, Howard Continues to Ignore its own Binding Admissions that Prof. Taslitz had
the Authority to Bind Howard University in his Negotiations with Prof. Martin
On page 5 of her motion, Plaintiff clearly stated:
The issue of whether Prof. Taslitz had the authority, or the apparent authority, to bind the University should not
have even been litigated during this trial. Howard had already admitted that Taslitz had the authority to bind the
University. Def.’s July 11, 2001 Answers to Interrogatories, 18 (MSJ Ex. B; PLAINTIFF’S EXHIBIT 26B; see
also Taslitz deposition at 68-69, 75, 87. Howard wasted the Court’s, jury’s and Plaintiff’s time and energy on
this issue at trial and confused the jury by asserting this defense.
On pages 7-8, Howard continues to contradict its own admissions and argue that Taslitz did not have authority
– or even apparent authority – to bind the University. Howard failed to even acknowledge Plaintiff’s citations to
Howard’s admissions in the very motion to which Howard filed its “response.” Howard’s Opposition, then, is
essentially “a non-responsive response” that fails to address Plaintiff’s arguments or the evidence of record.
Plaintiff should not be required to make the same arguments, over and over again, and remind the Court and
Howard of Howard’s own admissions, combing the record to cite the documents in which she previously
addressed those arguments and./or where Howard made admissions negating its own arguments. These
issues should have long been deemed resolved. What is the point of Interrogatories if the answers provided
are not binding on the party asserting the answer? What is the point of a deposition of a binding witness of
the Defendant if his statements can be whimsically withdrawn or ignored?
The jury may well have determined that Prof. Taslitz did not have authority to bind the University, confused by
Defendant’s bad faith argument presentation, in violation of Rule 11. Again, Howard should not prevail based
on its misconduct and flagrant violation of the Court’s Rules.
It is precisely this type of re-hashing of the same arguments, over and over, that has caused this case to be
“over-litigated.” Plaintiff has to waste her limited time and limited financial resources – without compensation
-- identifying the evidence of record, over and over again, that disputes these blatant misrepresentations – and
still, Howard suffers no penalty. Plaintiff once again implores this Court to hold Howard accountable, hold it to
its own admissions and grant Plaintiff judgment, as a matter of law.
III. In Violation of Rule 11, Howard Misrepresents the Law with Respect to Oral Representations Made
during Contract Negotiations
On pages 4-5 of its Opposition, Howard argues that, since there was no written document that incorporated
the terms that Martin alleges Taslitz promised her, that Tazlitz did not promise any such terms; however, this is
simply a circular way of rearguing the argument that Howard lost on December 15, 1999, when Judge Hogan
specifically held, that oral representations during the contract negotiation are enforceable, relying on
controlling case law in this jurisdiction. Hodge v. Evans Financial Corporation, 823 F.2d 559, 561 (D.C. Cir.
1987).
IV. In Violation of Rule 11, Howard Ignores the Undisputed Evidence that the Contract Could have been
Fulfilled within one Year, in Accordance with the Statute of Frauds
Consistent with controlling case law, Judge Hogan held that oral representations made during the negotiation
process are enforceable, unless they violate the Statute of Frauds.
The District of Columbia Statute of Frauds reads as follows:
An action may not be brought. . . upon an agreement that is not to be performed within one year from the
making thereof, unless the agreement upon which the action is brought, or a memorandum or note thereof, is
in writing. . . and signed by the party to be charged therewith or a person authorized by him.
D.C. Code § 28-3502. However, the Statute of Frauds has been interpreted in this Circuit to apply only to those
contracts whose performance could not possibly or conceivably be completed within one year. Hodge v. Evans
Financial Corporation, 262 U.S. App. D.C. 151, 823 F.2d 559, 561 (D.C. Cir. 1987) (holding that "the
enforceability of a contract under the statute does not depend on the actual course of subsequent events or on
the expectations of the parties" but rather "applies only to those contracts whose performance could not
possibly be conceivably be completed within one year.")
The question in this case is whether the tenure-track position which Professor Taslitz allegedly promised
Plaintiff could have become available within one year of Plaintiff's acceptance of Defendant's offer of
employment.
1999 U.S. Dist. LEXIS 19516 at *22-21 (D.D.C. 1999).
As discussed in Plaintiff’s June 2, 2006 Opposition to Defendant’s Motion for Judgment on Plaintiff’s Breach of
Contract Claim, page 10, incorporated herein, Plaintiff has consistently asserted, unchallenged, that a tenure-
track could have become available at any moment, based on the resignation of a tenured or tenure-track
faculty member, or the allocation of additional funds for faculty hiring. At trial, Plaintiff testified that both Prof.
Taslitz and Dean Ramsey represented to her that if Prof. Argrett did not return from sabbatical, but
relinquished her tenure-track slot on the faculty, that this was an example of a “slot” that Plaintiff could fill.
Neither Taslitz nor Ramsey could “guarantee” if or when Prof. Argrett would resign, but agreed that she could
resign at any moment, freeing up a faculty slot that Plaintiff could fill.
No one disputed Plaintiff’s testimony on these facts. In fact, when Prof. Argrett ultimately did resign, in the
spring of 1998, after the “hiring season” had ended, Dean Bullock did immediately authorize filling the slot,
and, in fact, instructed the APT Committee to fill it with adjunct Prof. Angela Vallario – who, until that time, was
not even a candidate for a full time position. Prof. Argrett’s “slot” could have been filled with Martin, as Taslitz
and Ramsey represented to her could happen, at any time, when she was hired. Similarly, the resignation of
any other faculty member, or new funding, would have allowed Howard to offer the tenure-track slot to Prof.
Martin at any time. There was absolutely no reason that she or Howard would have to wait two years before
Howard could offer her a tenure-track position, nor is there any evidence of such a ridiculous contention.
Under these undisputed facts, there is no question that the contract could have been fulfilled in less than a
year. Prof. Argrett – or any other faculty member -- could have resigned, retired or even passed away at any
time after Plaintiff joined Howard’s faculty. Howard could have made an offer to Plaintiff immediately, based
upon that vacancy. The Statute of Frauds defense therefore does not apply to the facts of this case.
Howard has misrepresented the significance of the APT Committee’s September 19, 1996 memorandum.
On page 9 of its opposition, Howard argues that Prof. Martin had admitted that she could not have been
offered a tenure-track position during her first year at Howard by not applying for one in response to the
September 19, 1996 memorandum requesting that faculty members supply the Committee with a brief
memorandum stating any changes in status they sought for that year – including promotions, tenure, changes
in rank, and appointment to a tenure-track position; however, it is undisputed that there were no tenure-track
positions available at that time.
Prof. Martin had just been hired and just joined Howard, starting in August of 1996. Howard had clearly told
her that there were no tenure-track positions available, and had there been, it would have offered her one. No
tenure-track positions were advertised and none were filled that year. In fact, there were no new hires at all –
not even visitorships. The one year visitorships of Profs. Even if Prof. Martin did receive the September 19,
1996, it would have been completely illogical for her to apply for a change in status after being at Howard for
only one month, where there was no indication that any vacancies had arisen during that first month.
Again, Howard has wasted the Court’s, jury’s and Plaintiff’s time and energy on this issue and should not
waste further time by re-arguing its own admission in motions.
V. In Violation of Rule 11, Howard’s Argument that Plaintiff was Required to Prove her Salary, Benefits and
Teaching Terms after 1998
On pages 8-9 of its Opposition, Howard argues that, in order to prove a meeting of the minds, Martin was
required to prove what her salary, benefits, teaching responsibilities and any other terms of her contract would
be after 1998. Howard cites no case law or other authority for this proposition, nor can it do so. In fact, there
was no such question on the jury’s verdict form. Judge Hogan specifically rejected Howard’s argument in pre-
trial motions and at trial; yet, Howard continues to assert that this is the legal requirement, as if it had prevailed
on this issues.
Salaries are increased due to cost of living allowances, merit raises, administrative decisions, etc. Prof.
Martin’s salary increased from $83,000 per year to $86,000 (not including her $3,000 summer grant) from
1996-1997, during her two-year visitorship. There was nothing any of Howard’s written offers, or partial offers,
to Martin about this raise – yet, she received it. There was nothing in Plaintiff’s written two year contract that set
forth her health or life insurance options, yet she did receive such options and did select health and life
insurance plans.
No document discusses “benefits,” even for the two year visitorship, yet Prof. Martin was eligible for, and did
receive, health, life insurance, retirement fund and other benefits offered to tenure-track professors –
consistent with Prof. Taslitz’ oral representations, though documented nowhere. No professor, whether
tenure track, tenured or visiting, is guaranteed the right to teach any particular course. Rank, such as
Assistant Professor, Associate Professor and Full Professor, cannot be determined or promised two years in
advance – nor can merit pay increases. Howard’s argument that Martin was required to prove that she
negotiated all of the terms of her projected contract with Howard in 1998 and thereafter, is therefore,
ludicrous.
The essential elements of the oral contract were that Martin would either be “slid” into a tenure-track position
at some time between her commencement with Howard in August of 1996 and the expiration of the two year
visitorship she was guaranteed in writing, or her two year visitorship would be renewed until a tenure-track
position became available. The Faculty Handbook and all personnel policies, mandated by main campus and
applied or modified by the law school, would control tenure-track positions, promotions, tenure, salary and
benefits. This was a simple concept. Martin had no burden to prove any terms of her projected employment
beyond 1998, any more than a tenure track professor would have to prove – or could ever prove --such
projections to establish an employment contract.
Again, Howard has wasted the Court’s, jury’s and Plaintiff’s time on a baseless argument.
VI. In Violation of Rule 11, Howard has Blatantly Misrepresented Taslitz’ Testimony
On page 2 of its Opposition, Howard states, with absolutely no reference to the record:
the evidence adduced at trial clearly revealed that no one at the University orally promised Plaintiff an extended
visitorship beyond 1998, or to slip her into a tenure track position at the University’s law school upon the
completion of her visitorship.
The “evidence of record” did not “clearly” so reveal. The only people who know what was said during these
negotiations are Plaintiff and Taslitz. Contrary to Howard’s assertions, and as discussed in Plaintiff’s Motion,
pages 6-8, Taslitz actually made numerous admissions that support Martin’s version of events and
description of her conversations with Taslitz.
On page 3 of its Opposition, Howard falsely claimed:
Professor Taslitz did not inform Plaintiff that she would be “well placed” to obtain a tenure track position at the
conclusion of any Vistorship. (Emphasis added)
In his 2002 deposition, page 84, lines 6-15, Taslitz testified:
What I recall is that either I or Professor Gavil in my presence or both
of us told you that you would have an opportunity -- because our visitors were given substantial
responsibilities, you would have the opportunity to show your best and if you were well liked and performed
well and if a tenure track position became available that you would be well placed to compete for that position
and that there were a number of people on the faculty for whom that had worked out in the past. (Emphasis
added)
Once again, Howard simply ignores the record and flagrantly violates Rule 11. In her instant Motion for
Judgment, pages 7 and 9, her Motion for Summary Judgment, at 45 and her accompanying Statement of
Undisputed Material Facts, 18, Plaintiff clearly referred the Court and the parties to the Taslitz’ deposition
testimony; yet Howard chose to ignore it and to simply “make up” a denial, in the face of Taslitz’ documented
deposition testimony. It is precisely this type of misrepresentation after misrepresentation that has caused
this case to be “over-litigated.” To the extent that Taslitz may have attempted to deny his own deposition
testimony at trial, Taslitz, like Dean Bullock, has committed perjury, making conflicting sworn statements in his
2002 and 2006 testimony.
Plaintiff has to waste her precious time and limited financial resources – without compensation -- identifying
the evidence of record, over and over again, that disputes these blatant misrepresentations – and still, Howard
suffers no penalty.
VII. Howard has Misrepresented Prof. Martin’s Correspondence to Former Dean Ramsey
Martin’s letter to Ramsey (Ex. A) expressly states her understanding that she will be joining Howard’s faculty
permanently. In violation of Rule 11, on page 8 of its Opposition, Howard falsely states that Prof. Martin:
recognized in that document that Professor Taslitz “could not” and “did not” guarantee her a tenure-track
position or an extended Visitorship. JEX 29, p. 2.
First of all, neither the phrases “could not” or “did not” appears anywhere on page 2 of the letter (Ex. A);
consequently, even the limited words that Howard placed in quotation marks are fictitious. The word
“guaranteeing” does appear on page 2, in following context:
I made it clear, both in November and January, that I was not interested in a visitor position …. Taz understood
and said the he would advocate a contract guaranteeing at least a two-year visitorship, expecting, though not
guaranteeing that, thereafter, permanent positions would “open up.”
At trial, Martin explained that she recognized that Howard “could not guarantee” a particular date by which a
tenure-track position would become available. Of course, it could make no such guarantee because it could
not predict when a faculty member would resign, retire or even pass away, nor could Howard predict when
funds would be increased to expand the faculty. Martin recognized that this could leave her in a position of
having to have a visitorship renewed for several years, without the security of an “official” tenure track position
or tenure and she had resigned herself to taking that risk; however, Taslitz had assured her that she was not
taking the risk of having no job at all in two years. That was not a risk that Martin was willing to take. The plain
language of the letter, as well as the context of the entire letter, clearly convey that Martin saw the offer from
Howard and her acceptance of it as meaning that she would permanently join Howard’s faculty.
In any case, numerous tenure-track positions did open up before Martin’s two year written guaranteed
visitorship expired; consequently, Howard was obligated to abide by its in 1997-1998, for the 1998-1999
academic year, as both Taslitz and Ramsey
Still on page 8, Howard again misrepresents the letter, by taking a word out of context, claiming:
Plaintiff wrote that she “hoped’ that her Visitorship would turn into a permanent position. JEX 29, p. 5.
That is absolutely not what the letter says. The letter, page 5, ends:
Let me stress again that I am extremely anxious to get to Howard and back to D.C. I look forward to working
with all of the Howard faculty members whom I met. I hope and expect that Howard will become my
permanent new professional “home.” I simply need to get there.
As Plaintiff explained, both in the letter and at trial, she “hoped” to make Howard her permanent home, but the
lack of moving expenses was the only impediment. The letter made clear that, without moving expenses, she
would not be able to join Howard’s faculty. She certainly did not say that she would be coming as a visitor and
hoped that it would last beyond two years. Indeed, she clearly stated that she had provided Cleveland State
University with notice of her resignation and that she had put her house on the market for sale. She clearly
stated that she had no intention of leaving D.C. once she moved to join Howard’s faculty.
Howard’s blatant misrepresentation of the contents of this letter, through taking only one of two words, out of
context and adding its own words around them to make sentences that Plaintiff never made, is a clear
violation of Rule 11. Plaintiff should not have had to waste her time properly quoting the letter to demonstrate
that Howard has, once again, misrepresented the evidence of record to the Court.
It is important to note that Howard never produced the Ramsey letter in discovery. Plaintiff found it in her
records, some years into this litigation, and produced it; however, Howard has officially known, through its
Dean, Alice Gresham Bullock, since at least January of 1998, that Prof. Martin alleged that Taslitz promised
her that she would be renewed until a tenure-track position opened up and then moved into it. Former Dean
Ramsey was still technically on Howard’s faculty at that time, and was receiving salary and benefits from
Howard, although he had relocated out of state. Dean Bullock could certainly have consulted with Dean
Ramsey – still a Howard employee -- on his recollection and understanding of the events surrounding Prof.
Martin’s hire. To date, Howard has never produced an affidavit from Dean Ramsey or presented him as a
potential witness.
The Ramsey letter was an exhibit to Plaintiff’s Motion for Summary Judgment and has been in the record, as
MSJ Ex. VVVV since October 9, 2002, offered as proof of Plaintiff’s understanding of her “visitorship” as not
being a conventional visitorship, but one being used as a temporary means to bring her onto the faculty on a
permanent basis. Martin wrote the letter as a request for moving expenses, but she states her intention to join
Howard’s faculty permanently, states that she resigned from her tenure-track position at Cleveland State to
accept Howard’s offer, states that she put her house up for sale in Cleveland, and that, due to her permanent
resignation from Cleveland, she was no longer entitled to a summer grant from Cleveland State and needed
some funds to move half way across the country, with her daughter. This letter, in the context of the
conversations and actions taken, does corroborate Martin’s testimony regarding Taslitz’ promises to her.
If Dean Ramsey had a contrary understanding of Martin’s letter, Howard had every opportunity, the last 8 years,
to obtain an affidavit or declaration from this former Dean and former Judge. The fact that Howard has
declined to do so leaves Martin’s testimony undisputed. In addition, Martin is entitled to an adverse inference
that former Dean Ramsey would support, rather than contradict, Martin’s version of events and the parties
understanding, in the spring of 1996, about Martin’s future at Howard and the representations about continued
employment that were made to her.
VIII. Martin’s Version of Events was Corroborated by the Totality of the Circumstances
As in most employment contracts, many of the terms of the employment relationship are expressed orally
rather than in writing, and even when there is a written contract, signed by both parties – which is not the case
herein – many terms of the employment relationship will not be covered in the written contract. After the 1999
decision, both sides conducted discovery, including document production and depositions. It has long been
undisputed that there was no single, all inclusive document that met the definition of a “contract” between Prof.
Martin and Howard, and that there are no such “contracts” for any Howard Law School faculty member.
The parties both testified, and the documents confirm, that Howard extended to Prof. Martin a piecemeal offer,
both in various letters and in oral representations, while Howard continued to work on terms of her
employment such as a 1996 summer grant, possible moving expenses. There is no document from Howard
that addresses these issues, but Howard did provide Martin with a partial summer grant, specifically to be
used for moving expenses, in direct response to her April 27, 1996 letter to Dean Ramsey explaining that she
needed moving expenses to move back to D.C. and to make Howard her “permanent home.”
As discussed in Plaintiff’s June 2, 2006 Opposition to Defendant’s Motion for Judgment on her Breach of
Contract Claim, at 11, at no time did Dean Ramsey, Prof. Taslitz (whom Plaintiff sent a copy of the letter), or
anyone at Howard write to Plaintiff or call her to advise her that she was not guaranteed a permanent position,
or a renewed visitorship, after the two year written guarantee expired. At no time did anyone advise her that
she should not sell her house or that she revoke her resignation at Cleveland-Marshall in favor of a leave of
absence. Plaintiff had made it plain that once out of Cleveland, she would not return and that she was only
accepting this “visitorship” in name with the understanding that the visitorship would be renewed until a tenure-
track position became available. Plaintiff understood that no one could guarantee when a tenure-track
position would become available because it required a faculty member to resign or the designation of
additional funds for faculty positions; accordingly, she knew that, while the parties were waiting for a tenure-
track position to become available, she might be in a position of “visitor” status for several years, as was Prof.
Patricia Worthy.
Howard has not produced evidence to establish a genuine dispute of facts to survive Plaintiff’s Motion for
Judgment, under Holcomb v. Powell, 433 F.3d 889. As discussed in Plaintiff’s Motion for Summary Judgment,
at 43-45, there are no genuine disputed material facts to be determined by a jury on Plaintiff’s breach of
contract claim. Taslitz testified that he did not recall his “exact” words, but he does recall Martin stating that
she did not want a vistorship, or to start her daughter and in high school, only to have to “rip her out” to move
again. Pl. MSJ at 45. Taslitz admitted that Martin told him that she needed assurances of job security, and that
he responded by conveying to her, in words that he “cannot recall,” the message that she would be well
placed for a tenure-track position when one opened up.
Martin recalls the precise words Taslitz used, and understandably so, since she sold her house in Cleveland,
resigned her tenure-track position at Cleveland-Marshall Law School, and started her daughter in high school
in Fairfax County, Virginia. Pl. MSJ at 45. With all that was at stake for Martin, the precise promise made was
important to her in making these decisions.
As discussed in Plaintiff’s June 2, 2006 Opposition to Defendant’s Motion for Judgment, as a Matter of Law, on
Plaintiff’s Breach of Contract Claim, Howard University’s own internal Grievance Committee Report (Ex. B
Plaintiff’s Trial Ex. 39) concluded as follows.
Professor Dawn V. Martin filed a grievance with the Faculty Grievance Committee on May 15, 1998. Her
appointment began on August 16, 1996, by the Howard University Law School, as a Visiting Associate
Professor, with a two year appointment. She has stated in her grievance request for a hearing that she would
not have made a commitment to take this position without some assurances that the nature of the position
would not be temporary, and prior to her expiration date, she would be offered a tenure-track position. The
record shows that Visiting Professor Martin left a tenure-track position to join the faculty at Howard.
It is clear that Professor Martin signed a contract for a two-year term. What is not clear is what she was told
about a tenure-track position. A study of the documents sent to the Faculty Commission raises several
questions which the primary reviewer considers relevant:
1. Who made the initial contract offer to Visiting Associate Professor Martin?
2. Who said what to Professor Martin to indicate hat the contract would lead to a tenure track position?
3. Did the person who made the offer have the authority to make the initial offer and to give her a verbal
commitment to a tenure track position?
Professor Martin stated in a telephone conversation on December 9, 1999, that Professor Andrew Tasltiz
negotiated with her on the position to which she was appointed and told her that the position would become a
tenure track position. Her position has merit because she left a tenure track position to come to Howard
University. It also appears that the Law School changed job descriptions several times in order to avoid
offering a slot to Professor Martin. Finally, the September 17, 1999 Association for Law Schools Placement
Bulletin (AALS Placement bulletin, September 17, 1999), has a position listed for Howard University Law
School that appears to be appropriate for Professor Dawn Martin, except that position announcement appears
to want a person without experience, etc.
The primary reviewer finds from the documents submitted to the Faculty Grievance Commission that
Professor Dawn V. Martin was not given due process and that her academic freedom, rights and privileges
may have been violated. The primary reviewer strongly recommends that Professor Martin’s grievance case
move forward as quickly as possible to the next level of mediation and that a Formal Hearing take place if
necessary to be resolved in the best interests of all concerned. (Emphasis added)
Ex. B, page 1.
Howard University professors, forming Howard University’s own Grievance Committee, understanding the
negotiation practices of the school, concluded that Plaintiff’s evidence supports her claims. Again, therefore,
the self-serving testimony of Bullock and Leggett on what is “highly unusual” or “unlikely” is not only irrelevant
and without foundation, but disputed by Howard’s own internal judicial body.
IX. Howard has not Addressed the Court’s Erroneous Evidentiary Rulings at Trial, Affecting the Jury’s
Perception of Plaintiff’s Credibility
As discussed in Plaintiff’s Motion, pages 9-32 and in her June 2, 2006 Opposition to Defendant’s Motion for
Judgment on Plaintiff’s Breach of Contract Claim, incorporated by reference herein, it was Taslitz who
negotiated with Plaintiff regarding leaving her tenure-track position at Cleveland State University and forfeiting
opportunities at other law schools to join Howard’s faculty. Plaintiff had the burden of proving that Taslitz
represented to her that Howard would “slide” her into a tenure-track position as soon as one became
available and would renew her as a visitor until one did. This could only be accomplished by the jury believing
that Plaintiff was telling the truth about the conversations with Taslitz and that Taslitz was lying. Faced with this
heavy burden, it was crucial that Plaintiff be permitted to present to the jury evidence that corroborated her
statements to establish that she is a truthful person.
Howard has not even attempted to address the errors of rulings of law that affected the jury’s perception of the
credibility of both Plaintiff and Prof. Taslitz. As discussed in Plaintiff’s motion, pages 9-32, the Court’s
exclusion of this evidence severely and unduly prejudiced Plaintiff with respect to establishing herself as a
credible witness – particularly in light of the attacks that she was subjected to by Mr. Shwalb, who verbally
assaulted her with false accusation after accusation, in violation of Rule 11, when he had in his hands
documentation that conflicted with the very accusations he was making. These very documents were
excluded from the jury and Mr. Shwalb was not forced to retract any of his false statements, even after they
were proven to be false and made in bad faith, outside of the presence of the jury. The Court never informed
the jury that, outside of its presence, documentation had established that Mr. Shwalb’s accusations were
blatantly false. The jury reasonably assumed that the Court would not allow Mr. Shwalb to make such
accusations with no good faith basis – and certainly not in the face of incontrovertible evidence to the contrary.
Since Howard raised some of the unusual circumstances that she had faced (even outside of her workplace,
such as the landlord-tenant dispute she had experienced and a tax problem that arose from a 1989-1991
investment), Plaintiff should have been permitted to present to the jury the actual published decision in
landlord tenant case, and to explain the basis of the tax problem, in addition to any other issues which Howard
used to attach her credibility. Instead, Plaintiff was portrayed as a liar and was not permitted to corroborate her
statements with documents at the fingertips of both parties, while in Court. Plaintiff’s hands were figuratively
“tied” in the face of these verbal attacks.
If the jury had had the excluded evidence before it, or been informed by the Court – or Mr. Shwalb – that Shwalb’
s accusations were false, as demonstrated by the undisputed documents, the jury would have realized that
Plaintiff was telling the truth. In addition, the jury would have understood Shwalb’s litigation tactics and been
suspect of his additional representations; however, because Shwalb had “thrown” so much “mud” at Martin,
as she warned would happen in Motion to Exclude Allegations of “Non-Collegiality” and “Bad Judgment”, and
since the Court tied her hands with respect to efforts to wash the mud away – of fling it back – both in terms of
evidentiary rulings and time, the jury could not focus on the relevant, undisputed evidence and did not have
before it evidence that demonstrated that Martin is a truthful person.
Howard’s trial strategy was, as Plaintiff warned, to throw as much mud as it could and see what stuck. So
many lies and so little time. Howard simply told so many lies that Plaintiff could not possibly have had the
time to rebut them all. If, however, Martin had been permitted to demonstrate the bad faith of Howard and
Shwalb, by presenting documents that directly disputed some of Shwalb’s false accusations – like the
Treatise forward, her EEOC performance evaluation, the EEOC Policy Guidance that she authored, totaling 12
printed pages, or 24 manuscript pages, rather than the 4 pages Shwalb claimed, the published decision in
her landlord-tenant case, and other permitting time to call witnesses to refute non-collegiality claims – such
as Profs. Boyer, Jones and Rogers, the jury would have been much more likely to find that Martin was telling
the truth about the content of the conversations between Taslitz and herself during the negotiation period.
X. Howard has Misrepresented and Misused Prof. Leggett’s Testimony
On page 4 of its Opposition, Howard claimed that the testimony of both Bullock and Leggett:
convinced the jury that Professor Taslitz did not make any oral promises to Plaintiff that Plaintiff’s vistorship
would continue after 1998. Dean Bullock testified that Professor Taslitz was an APT Committee member, and
that he did not have the authority to bind the University into contractual employment agreements. Accordingly,
she doubted that he would make any such promises to Plaintiff.” (Emphasis added)
Without the trial transcript, Plaintiff cannot identify the testimony that Howard now claims Bullock made with
respect to this issues; however, what she “doubts” or speculates is likely, is irrelevant and without foundation.
Bullock was not present during the negotiations. In fact, she was not even the Dean at the time of these
negotiations and there was no reason for her to have been privy to any of them. In addition, Howard does not
indicate what Leggett purportedly said to indicate anything about Taslitz’ authority. It is undisputed that Taslitz
– the purported “Vice Chair” did negotiate Martin’s contract with her – not Leggett – the purported “Chair.”
It is undisputed that it was Taslitz, not Leggett, who wrote the APT Committee memoranda generally and that it
was Taslitz, not Leggett, who normally negotiated contracts with candidates and extended offers. There is no
question that it was Taslitz – not Leggett -- who wrote to Martin, on May 9, 1998, with confirmation of her salary,
which she had requested to obtain housing in the D.C. area and that it was Taslitz – not Leggett – with whom
Martin spoke repeatedly regarding the terms of her offer, her moving arrangements, and other preparations for
joining Howard’s faculty. Leggett had no personal knowledge of the representations made with respect to the
terms of Martin’s hire.
Although Howard, for the first time, at trial, claimed that Prof. Leggett met with Prof. Martin during her January
1996 “call back” visit to Howard, not even Profs. Taslitz or Gavil make this claim. Prof. Martin has consistently
testified that she met with Taslitz and that Gavil was present for part of the meeting. She never met with
Leggett in January of 1996, nor did he ever communicate with her at all at any time after her November 1995
AALS interview in D.C. and the time that she joined Howard’s faculty in August of 1996.
Leggett has not offered reliable testimony and has expressed admitted and implied “confusion” over material
facts of this case.
First, Leggett testified, at trial, that candidates “sign up” on a “sign up sheet” for interviews at the AALS
conference in Washington, D.C. This testimony was contradicted by every person who testified about the
procedures, including Talitz, Nolan, Smith and Martin. All other witnesses testified that candidates are
selected in advance by the APT Committee members. Indeed, if candidates could just “sign up,” the
Committees would have to interview candidates that would not even qualify and would forfeit time for
candidates they wanted to see.
Second, Leggett testified that he was “confused” about the status of Martin’s scholarship (MSJ at 30-31;
Plaintiff’s Motion for Judgment on Retaliation Claims, at 26-27; yet, there was no reason for him to be
confused because her resume and application clearly stated the status of her scholarship. Had Leggett read
the materials for himself, instead of relying on Taslitz’ presentation, he would have known that Martin added 70
pages to her article 911: How Will Police and Fire Departments Respond to Public Safety Needs and the
Americans with Disabilities Act?, that she completed it and submitted it to Mrs. Bruner for distribution to law
journals in August of 1997, but that the document had been corrupted by a computer problem in Mrs. Bruner’s
office and was being retyped – at low priority, based on the direction provided to Mrs. Bruner by Dean Bullock,
her direct supervisor. Leggett also would have known that Martin had a draft of a second article, Lights,
Camera, Discrimination! ‘Playing’ the Victim under Title VII, which she had submitted to the Dean the previous
summer, and for which she was awarded a summer grant, for satisfactory scholarship. Leggett would also
have known that Martin had a title and a thesis for a third article, since joining Howard’s faculty, entitled, Still
Racist after all these Years – and Covered by the Americans with Disabilities Act?
In fact, with all due respect to Prof. Leggett, with whom it is undisputed Martin enjoyed a collegial and friendly
relationship, if Leggett had been listening during the November 7, 1997 interview, or remembered the
interview, that the Committee had with Plaintiff, he would have know about these articles because she
discussed them at this interview, highlighting her scholarship along with other information in her application.
Third, as Martin has maintained, unchallenged, Leggett, during the November 7, 1997 interview specifically
said that, in addition to the tenure-track positions, Howard would have one or more visitorships – but these
would be “real visitorships.” Complaint __; MSJ at __. This statement demonstrates that Leggett was well
aware of Howard’s practice of using “visitorship” slots for positions that were not conventional visitorships.
Leggett may also be confusing the timing of conversation with Martin’s original application process in 1996,
when his only contact with Martin before her hire was his brief, late appearance in the AALS interview in D.C.,
after most of the questions had been asked and answered by Taslitz and Gavil.
Fourth, as Bullock testified at trial, she conducted a fundraiser for Leggett, who is currently a candidate for
Montgomery County Executive. To the extent that he can “remember” events in the best light for Howard, it is in
his political interests to do so, rather than to alienate Howard University and its allies in this geographic area
where Howard has so much power and influence.
XI. Martin’s Memo to Gavil Expresses the Concern of Any New Professor – Visiting or Tenure-Track -- who
Could be Denied Permanent Status if Performance is Unsatisfactory
Howard references Martin’s October 1996 memorandum to Gavil regarding his reporting a trivial complaint of
a first year student who told him that Martin did not call on him fast enough. In her memorandum
memorializing this student’s behavior in class, requesting that Gavil clarify any misrepresentations of the
events that he may have conveyed to other colleagues, “[p]articularly since I am a new professor at Howard,
and more importantly, a visitor who seeks to become permanent ….”
This simple statement was not, as Howard alleged, an “admission” that she was not promised continued
renewal and a tenure-track position, as she alleged. Any professor, whether visiting or tenure track, who does
not perform satisfactory work, need not be retained. It is only once a professor is tenured that he or she can
only be dismissed for cause. Even Taslitz testified, at trial, that a tenure track professor is not guaranteed
renewal and may not be renewed if teaching needs change and eliminate the need for the professor. Martin
referred to herself as a visitor because that was her official title. She could not refer to herself as a tenure track
professor when that was not her title. The point was simply that no new professor wants her colleagues to
hear a story that unfairly portrays her in a negative light and could be exaggerated to create the impression that
performance was unsatisfactory.
As the memo indicates, it was Gavil who made a “mountain out of a molehill” by reporting an insignificant
complaint to the Dean of Students, Denise Purdy. Dean Purdy, after learning the facts, apologized to Prof.
Martin and abandoned even the idea of a meeting. The student in question later apologized to Prof. Martin,
took every course that Prof. Martin taught at Howard, signed an circulated a student petition protesting Prof.
Martin’s non-renewal, and, finally, submitted a declaration in this litigation, attributing the misunderstanding to
herself, as an “over zealous” first year student, praising Prof. Martin as a teacher, and portraying her
“complaint” to Prof. Gavil as something that she barely recalled and found to be trivial.
This entire incident is evidence of Gavil’s “non-collegial” nature, as also attested to by Profs. Boyer and Jones,
in their depositions. There was never a memorandum, meeting, counseling, or any other documentation of
any inappropriate behavior by Prof. Martin. To the contrary, Dean Purdy found that the student had “emotional
problems” at the time that she was working through and that she was taking them out on her two female
professors – Profs. Worthy and Martin.
XII. Howard has Unconscionably Misrepresented Prof. Martin’s March 31, 1998 Letter to Taslitz
On page 4 of its Opposition, Howard argues that Taslitz ceased speaking to Martin because “Plaintiff
threatened to sue and retaliate against him if he did not tell law school officials that he had made oral
promises to Plaintiff that he vistorship would continue after 1998 (JEX 89).” Although Howard’s personal
attacks have been ruthless and vicious throughout this litigation, this mischaracterization of Martin’s March 31,
1998 letter to Taslitz is a low blow even for Howard. Howard has taken a letter which Martin based on Matthew
18: 17-17, of the Bible, which directs God’s children to speak directly to each other to attempt to resolve their
differences and attempt to heal the discord before involving other people in the dispute and creating discord.
Martin, who is, even in Dean Bullock’s own words, “a God-fearing woman,” stated, in her letter (Ex. __), pages
5-6:
You know that I am religious and I have prayed bout this every day. I try to live by the following Bible passage,
Matthew 18: 15-17 (as parenthetically modified):
15 Moreover if thy brother shall trespass against the, go and tell him his fault between thee and him alone: if
he shall hear the, thou has gained thy brother.
16But if he will not hear thee, then take with thee one or two more, that in the mouth of two of three witnesses
every word may be established.
17 And if he shall neglect to hear them, tell it unto the church (or larger community): but if he neglected to hear
the church (larger community), let him be unto thee as a heathen and a publican (an outsider).
This is what I am doing here. I have gone to Alice; I have gone to you. The chainof “command her is
colleagues, main campus and court. I do not want to do any of these things. I just want to go to work and do
my job. I do it very well and could do it even better once my basic needs of housing and employment are
secure.
Another creed which I try to live by has been posted on the outside of my office door since I arrived at Howard.
Numerous students have asked me for copies of it. Little did I know that it would be prophetic of my
experience at Howard.
ANYWAY
People are unreasonable, illogical and self centered.
Love them anyway.
If you do good, people will accuse you of selfish ulterior motives.
Do good anyway.
If you are successful, you will win false friends and true enemies.
Succeed anyway.
Honesty and frankness make you vulnerable.
Be honest and frank anyway.
People favor underdogs but follow only top dogs.
Fight for some underdogs anyway.
What you spend years building may be destroyed overnight.
Build anyway.
People really need help but may attack you if you help them.
Help people anyway.
Give the world the best you’ve got and you’ll get kicked in the teeth.
Give the world the best you’ve got
ANYWAY.
I have given Howard the best I’ve got – and you know that I have done it under some tremendously adverse
circumstances. Please, Taz, don’t let it be my word against yours; don’t “kick me in the teeth.” Don’t let them
do it either.
At trial, Taslitz attempted to portray Martin’s reference to Matthew 18 as a threat of retaliation or Biblical
retribution “worse” than being sued – implying that Martin was threatening some physical or personal harm to
him. No rational person could so interpret that letter. Taslitz’ testimony was disgraceful enough, but Howard’s
adoption and elaboration on that testimony is morally unconscionable. There is absolutely nothing in that
letter that implies, in any way, “retaliation” against Taslitz, or physical harm to him. To the contrary, the letter
stresses the need for God’s children to express love, truth and fairness to each other.
The letter expresses surprise at Dean Bullock’s report to her that Taslitz denied making the promises he
made to her. The letter begs Tasliz to tell Dean Bullock “the truth” about the promises and the negotiations,
and how Taslitz was aware of what Martin was going through to relocate back to D.C. and to secure that the
move would be stable for her daughter, who was entering high school. The letter begged Taslitz to just ask
Bullock about the three vacant positions that Martin knew existed, but for which Bullock had plainly told Martin
she would not be considered. Martin begged Taslitz for the sake of her daughter, who had become so
distraught that she was suffering from debilitating headaches, keeping her out of school, that she was pulling
her hair out and had even been diagnosed as suicidal.
Martin begged Taslitz, her “friend,” to act as an advocate for her. Martin asked Taslitz because he knew the
circumstances under which she gave up her tenure-track position and other opportunities to relocate to
Howard. Taslitz knew how dedicated she had been to her students and how she had produced substantial
scholarship while at Howard, including expanding one article by 70 pages, producing a draft of another article
and developing a these, title and preliminary research for a third article, in addition to the four articles for which
she had been credited by Howard when she was hired. Taslitz knew that she had produced practice exams
and answers and spent substantial time outside of class providing students with exam taking workshops,
including some with input from a Maryland Bar examiner. Taslitz was aware that she had outstanding
academic and legal experience credentials and, before coming to Howard, had an excellent professional
reputation. Taslitz also knew that, more than all of this, Martin’s daughter was the most important part of her
life and that everything she did revolved first around her daughter’s well-being. Taslitz knew that the prospect
of not being able to properly care for her daughter. Martin conveyed to Taslitz, in that letter, how devastated she
was and how helpless she felt to see her daughter’s debilitation caused by the sudden instability in her life
and intense stress suddenly imposed on her mother, first, by being stalked at work and then being fired for it.
Martin begged Taslitz to take the simple step of speaking to Bullock and asking her whether there really were
additional positions left and whether she would authorize the Committee to consider Martin for one of them.
This would have been a simple question, and one which Nolan asked Bullock, without being asked to do so.
Taslitz admittedly took no such action. Taslitz did not ask because he knew that there were other vacancies
and that Bullock was determined to ensure that Martin did not fill any of them. Even if Taslitz did not want to
admit to the promises he made Martin, he could have acknowledged at least, as he acknowledged in his
deposition, that he did convey to Martin that she would be “well placed” for a tenure-track position if she
accepted a visitorship, and that, rather than leave her without a job for the following year, with a daughter to
support, and in light of the student protests requesting her renewal, at least she could be renewed for another
year. Taslitz admittedly did not do that either. Again, Taslitz knew that Bullock was determined to immediately
eliminate Martin from the faculty. Bullock would use any false pretext to do so and expected Taslitz to do the
same.
Taslitz made no attempt to change Bullock’s mind. Instead, he assisted Bullock in implementing her
retaliatory plan against Martin. He immediately turned the letter over to Bullock and asked for assurances that
the University would provide him with defense counsel if Martin sued him personally. Taslitz – Martin’s self-
professed “friend” clearly did not care that she was left without a career, a livelihood or a means to support her
child. He did not care that her daughter had become sick and clearly did not worry himself about whether or
not Martin’s daughter –age 14 -- killed herself. Taslitz concern was only for himself. His intense fear that he
might be sued is evidence of his guilty conscience for implementing Bullock’s retaliatory plan against his
“friend,” Dawn Martin.
Of course, at the time she wrote the letter, Martin had no idea that Taslitz was behind her non-renewal. As she
testified at trial, and set forth in her Motion for Summary Judgment, in January of 1998, Taslitz had come to her
office, at her request, and they discussed her non-renewal. Based on Taslitz representations to her at that
time, and his invitation to her to “ask my wife” about how he was agonizing over her non-renewal, Martin
actually believed that Taslitz had acted as an advocate for her at the December 18, 1997 meeting and that he
had been outvoted. She had absolutely no idea that it was her “friend” and mentor from the South Bronx that
had convinced the other APT Committee members to vote against her by falsely representing the status of her
scholarship and Cunningham’s scholarship.
Even as of the filing of the Complaint in this case, on May 14, 1999, Martin had no idea that it was Taslitz who
betrayed her and led the Committee to reject her. The Complaint, 208, specifically alleges that Taslitz voted
for her. This allegation was based on Taslitz representations to Martin that as her “friend,” he was agonizing
over her non-renewal and that he could do nothing about it because there was a “Dean change” since he had
made the promise of renewal to her in 1996. It was only during the depositions of Taslitz, Bullock and the
other APT Committee members, in September of 2002, that Martin learned that it was Taslitz who betrayed her
for whatever power Bullock gave him through Committee appointments and other benefits.
Taslitz’ cowardly, deceptive, callous and even vicious responses to Martin’s inquiry and request for his help
are only exceeded by Howard’s attempt to portray Martin as having written the letter to “threaten” Taslitz with
some bodily harm, either at her hand or through some implicit concept of “the wrath of God.” Such a portrayal
is not only a complete perversion of the letter and of who Prof. Martin is as a person, but it also perverts the
Christian message, purportedly out of the mouth of Jesus Christ, conveyed by his disciple, Matthew.
Martin quoted the Book of Matthew verbatim. She professed herself a follower of Christ and set as her goal to
adhere to his instruction; yet Howard characterized her words as “threats” and retaliation. Howard appears to
imply that Jesus Christ -- the man that Christians regard as the most non-violent man who ever walked the
planet – was some sort of a “thug” teaching “thuggery.” Howard has so devoted itself to winning this case
through “any means necessary” that it has now lowered itself to perverting the words of Jesus Christ, as
recorded by one of his disciples. Martin can only count herself in “good company” among the persons whose
reputations that Howard has set out to defame.
CONCLUSION
Plaintiff respectfully request that this Court grant Plaintiff judgment, as a matter of law, set the case for a new
trial on damages for her breach of contract claim and direct the jury to determine compensatory damages. In
the alternative, Plaintiff should be granted a new trial pursuant to Fed. R. Civ. P. 59(b) and of 60(b)(3).
Respectfully submitted,
Dawn V. Martin, Esquire
Law Offices of Dawn V. Martin
1090 Vermont Avenue, N.W, Suite 800
Washington, D.C. 20005
(202) 408-7040 telephone; (703) 642-0208 facsimile
DVMARTINLAW@yahoo.com
www.firms.findlaw.com/dvmartinlaw
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| Martin v. Howard University Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Judgment on her Breach of Contract Claim |
