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| Martin v. Howard University Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Judgment on her Retaliation Claim |
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.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____
)
Dawn V. Martin, )
)
v. )
) Case No. 1:99CV01175
Howard University, et. al. ) Judge: TFH
)
)
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITON TO PLAINTIFF’S MOTION FOR JUDGMENT ON HER
RETALIATION CLAIMS, OR IN THE ALTERNATIVE, FOR A NEW TRIAL,
I. Plaintiff Engaged in “Protected Activity”
The jury’s inquiry with respect to the retaliation claim for Prof. Martin’s rejection ended with its determination
that Harrison’s conduct was not based on sex. There is no general statute protecting an employee who asks
for protection from any type of stalking at work; accordingly, the hostile work environment fostered by Howard
University by allowing a homeless, delusional stalker to roam the hallways of its law school, and Howard’s
retaliatory termination of the professor who asked that the stalker be barred from campus, are not actionable
under any statute or the common law, unless the professor was targeted by the stalker due to her race, color,
sex, national origin, religion, disability or age. In this case, Harrison targeted only women to pursue as his
proclaimed “wife,” making it “clear” that Harrison’s harassment of Prof. Martin was based on sex, even if not
sexual in nature. Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516 (D.D.C. 1999).
Despite the evidence and 1999 holding to the contrary, the jury determined that Harrison’s conduct was not
sexual in nature or based on sex. The jury then concluded that Martin’s complaints about Harison therefore
did not constitute “protected activity.” The jury’s misunderstanding of the law on sexual harassment was
carried over into the retaliation claim. The jury never answered Questions 6 or 7, which asked; 1) whether
Howard had produced evidence to support its “articulated” reasons for selecting Cunningham over Martin;
and, if the jury answered “YES,” then 2) whether Howard’s asserted reasons for Martin’s rejection were false
or pre-textual.
Because the jury never reached questions # 6 or 7, Plaintiff is, at minimum, entitled to a new trial to allow the
jury to answer them; however, a new trial on Plaintiff’s retaliation claims is not necessary, since Plaintiff is
entitled to judgment, as a matter of law. Howard’s own APT Committee members, through their testimony and
their official May 11, 2001 APT Committee statement regarding Prof. Martin’s non-renewal, constitute
admissions that all of Howard’s articulated reasons for Prof. Martin’s non-renewal are unequivocally false.
In its Opposition, pages 2-5, Howard has improperly used five (5) of its twenty (20) pages, or one fourth of its
Opposition to Plaintiff’s Motion for Judgment on her Retaliation Claims to reargue its Motion for Judgment on
Plaintiff’s Sexual Harassment Claim and its Opposition to Plaintiff’s Motion for Judgment on her Sexual
Harassment Claim. Plaintiff incorporates, by reference, her Motion for Judgment on Plaintiff’s Sexual
Harassment Claim and Reply, as well as her Opposition to Defendant’s Motion for Judgment on her Sexual
Harassment Claim and will not repeat here all of the arguments made therein; however, a few points are
worth repeating and/or highlighting because Howard persists in making major misrepresentations of the
record and violating the the Rules of the Court.
A. In Violation of Rule 60(b)(3), Howard University Asks the Court to Issue a Judgment Based on a Verdict
Obtained through Former Dean Bullock’s Perjury and Howard’s Fraud upon the Court
Shockingly, Howard continues to argue that it is entitled to prevail based on former Dean Bullock’s perjured
testimony. Howard argues that it is entitled to benefit from Bullock’s perjured testimony and Howard’s
attorneys’ Rule 11 violations by prevailing in this case based on testimony that is a documented lie, made by
the Defendant’s corporate representative, on the stand. Howard essentially argues that it should be granted a
“get out of jail free card,” escaping any penalty for perpetrating a fraud upon the Court and the jury.
Howard’s former Law School Dean, Alice Gresham Bullock, perjured herself at trial when she testified that
she did not perceive Harrison’s stalking or Prof. Martin on campus as “harassment” or based on her gender
or status as a woman. In a July 1, 1999 memorandum to Howard’s General Counsel (Ex. A of Pl.’s Opp. to
Def.’s Mot. for Judgment re Retaliation; Plaintiff’s Trial Ex. 8b), at 1, Bullock admitted that she was specifically
aware, by no later than December 1, 1997, that Harrison posed the threat that he might “stalk” or “harass” Prof.
Martin and “other women” on campus. See also Pl.’s May 8, 2006 Motion for Judgment on her Sexual
Harassment Claim (Docket # 461), at 20-22, and Pl.’s May 23, 2006 Opposition to Defendant’s Motion for
Judgment on her Sexual Harassment Claim (Docket # 472), at 8-12, and Plaintiff’s Reply to Defendant’s
Motion for Judgment on her Sexual Harassment Claim, at 1-2,
Even after numerous opportunities to somehow defend its former Dean and corporate representative, whose
testimony is binding on Howard, Howard has made absolutely no apology, defense or excuse for Bullock’s
blatant perjury. Instead, on page 16 of its Opposition to Plaintiff’s Motion for Judgment on her Sexual
Harassment Claim, and again, on page 4 fn. 1, of its Reply to Opposition to Plaintiff’s Motion for Judgment on
her Retaliation Claims, Howard again falsely insists that Plaintiff’s Trial Ex. 8b was not admitted into the
record and demands that this Court ignore its perjury and fraud.
As discussed in the above referenced previous filings, Ex. 8b was admitted into the record; however, even
Howard’s assertion were true, the Court may not ignore Bullock’s perjury or a party’s fraud upon the Court. As
discussed in Plaintiff’s Motion for Judgment on her Sexual Harassment Claim, at 2-3, 18, 30, and Plaintiff’s
Opposition (# 472), at 2, 12, a party may obtain relief from a judgment pursuant to Fed. R. Civ. P. 60(b)(3),
based upon the adverse party’s commission of fraud, misrepresentation or other misconduct. There is
nothing in Rule 60(b)(3) limiting the evidence that can be considered by the Court in determining whether a
party committed fraud at trial. The Court may rely on the entire record in the case – including summary
judgment evidence -- and even new evidence to uncover fraud and/or to issue judgment, as a matter of law, on
any claim. Rule 60(b)(3) does not permit a party to commit a fraud upon the Court and benefit from it simply
because the fraud is not exposed during the trial itself. To the contrary, Rule 60(b)(3) applies only to post trial
motions, and therefore anticipates that the fraud requiring a judgment to be set aside would be exposed after
a verdict or judgment is issued. Parties are entitled to expect that witnesses, in court will tell the truth on the
stand or be held accountable for it later, even if the truth is exposed after trial. That is the very purpose of laws
prohibiting perjury.
B. Howard Repeatedly Misrepresents the Well Established Case Law -- including this Court’s 1999
Holding in this Case -- and that there are “No Magic Words” to Invoke the Protections of Title VII
On page 2-6 of its Opposition, Howard again argues – as it has argued throughout this litigation, that because
Prof. Martin entitled her written requests to Dean Bullock as a “Security Problem” rather than “sexual
harassment,” her complaints were not “protected activity” and that Deans Bullock and Newsom could not be
expected to perceive that she considered Harrison’s pursuit of her as his desired “wife” as sexual
harassment. Howard refuses to acknowledge that it lost this argument, in 1999, and that this issue has long
been settled, as a matter of res judicata. As discussed on pages 7-8 of Plaintiff’s Motion for Judgment on her
Retaliation Claims, Judge Hogan held there are no "magic words" which must be chanted in order to invoke
Title VII protection. 1999 U.S. Dist. LEXIS 19516 at *18, citing Howard U. v. Green, 652 A.2d 41, 46 (D.C. App.,
1994) (holding that there are no "magic words" which must be chanted in order to invoke Title VII protection),
citing EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-1013 (9th Cir. 1983).
Judge Hogan expressly held that the plaintiff does not need to use the words “sexual harassment” to be
deemed to have complained about sexual harassment. The plaintiff only needs to report conduct that
constitutes sexual harassment. Judge Hogan cited case law illustrating this point, including:
Brandau v. State of Kansas, 968 F. Supp. 1416, 1421-22 (D. Kansas 1997) (holding that it was undisputed that
plaintiff had engaged in protected opposition to discrimination because she spoke directly with the alleged
harasser and reported his conduct to her supervisors); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024,
1025 (D. Nev. 1992) (holding that where the harasser is a non-employee, protected opposition under Title VII
includes the statement to the employee, "I don't have to take this," or a simple request to the employer to "do
something.").
Prof. Martin certainly asked Howard Law School officials to “do something” to keep Harrison out of her
workplace. By entitling her memoranda “Security Problem,” Martin highlighted for her supervisors what
needed to be done and informed them of what she had already done, i.e., reported Harrison’s conduct to
campus security and D.C. police. Prof. Martin wrote the first memo about Harrison’s conduct on November
25, 1997, five days after the stalking had begun. On November 20, 1997, Prof. Martin immediately reported
Harrison’s conduct verbally, as “harassment” to Associate Dean Newsom, Campus Officer Sirleaf and the D.
C. Metropolitan Police Department. She provided them with copies of Harrison’s letters and played his
voicemail message for them.
As discussed on pages 14-15 of Plaintiff’s Motion for Judgment on her Sexual Harassment Claim, on
November 21, 1997, the responding D.C. police officers deemed Harrison’s harassment of Prof. Martin to be
so severe that they characterized it as criminal “stalking” and took a stalking complaint. The D.C. Criminal
Code specifically defines criminal stalking as severe “harassment,” whether in the form of letters, phone calls
or personal appearances. D.C. Code Ann. § 22-404 (b); see also Plaintiff’s Motion for Judgment on her
Sexual Harassment Claim, pages 14-15. Martin used the term “stalking” and referred to Harrison as a
“stalker” as he was characterized by D.C. police. Since criminal stalking is, by legal definition, a severe form of
harassment, and since Harrison was harassing Martin in pursuit of her as his “wife,” the conduct that she
described, both orally and in her memos, constituted harassment on the basis of sex, as everyone who heard
about it characterized it.
In 1999, Judge Hogan did not hold that the jury would determine whether Harrison’s pursuit of Prof. Martin was
based on her sex – he had already decided that, as a matter of law, based on the undisputed facts. Judge
Hogan identified the question as whether the conditions that Martin reported to Bullock rose to the level of a
“hostile work environment,” rather than a mere annoyance.
Moreover, whether or not Plaintiff's letter was sufficiently detailed to put Dean Bullock on notice that she
believed she had been the victim of a hostile work environment is a question of fact for the jury. (Emphasis
added)
1999 U.S. Dist. LEXIS 19516 at *14-18.
The jury found that Harrison’s harassment of Martin did rise to the level of creating a hostile work environment
for her and that Howard failed to take reasonable steps to eliminate the harassment. Plaintiff is therefore
entitled to judgment, as a matter of law, on her sexual harassment claim.
C. Howard Improperly Persists in Arguing that Plaintiff was Required to File an Internal Campus EEO
Complaint against Harrison
Howard persists in arguing that Prof. Martin was required to file an EEO complaint, on or about November 20,
1997, with Howard University’s EEO Officer, at main campus, miles away from the law school, reporting
Harrison’s sexual harassment of her, and that her failure to do so deprives her of Title VII protection from
retaliation by the University for her complaint. Judge Hogan has repeatedly and specifically rejected Howard’s
argument – most recently, during the trial, when Howard requested a jury instruction advising jurors to
consider the fact that Prof. Martin never filed a formal EEO complaint with Howard University’s EEO Officer.
First, Judge Hogan explained the obvious, as Plaintiff has repeatedly explained throughout this litigation: since
Harrison was not a Howard employee, it would have been pointless and impossible to file an internal charge
against him with Howard’s EEO Officer. The appropriate means of keeping Harrison away from her was the
use of security. Prof. Martin entitled her memos “Security Problem” in order to quickly alert the administration
to the action that needed to be taken to eliminate the hostile work environment that she was experiencing.
Second, Howard’s internal EEO Complaint procedures instruct the victim of sexual harassment to complain to
either the EEO Officer or his or her supervisor. There is no question that Prof. Martin immediately reported
Harrison’s conduct to her supervisors – Deans Bullock and Newsom.
Third, the only persons that could be identified as employees subjecting Prof. Martin to a hostile work
environment, based on sexual harassment, were Deans Bullock and Newsom. Certainly, Martin had some
obligation to allow Dean Bullock sufficient time to take reasonable steps to keep Harrison out of the workplace
– particularly since Dean Bullock wrote to Martin, memo dated December 1, 1997, but delivered on December
3, 1997, stating that she was discussing the matter with Director of Security, Lawrence Dawson. It was only
two weeks later, on December 18, 1997, that Howard retaliated against Martin by refusing to renew her
contract.
Fourth, between December 18, 1997 and May of 1998, Martin applied for additional vacant faculty positions
with the law school and attempted to reason with Dean Bullock to remedy the wrong committed without
litigation. Martin appealed to APT Committee members, other colleagues, and, in March and April of 1998,
even to President Swygart for assistance in addressing this injustice. Martin explained that Howard’s breach
of her contract was particularly inappropriate after she had performed all of her duties while being targeted by
a serial stalker, targeting “African-American women,” as she wrote in a March 6, 1998 memorandum to
Bullock and copied to all APT Committee members (Ex. B of Pl.’s Opp. to Def.’s Mot. for Judgment re
Retaliation) On April 28, 1997, Martin distributed to her colleagues in preparation for the “Emergency Faculty
Meeting addressing student protests, including the non-renewal of Prof. Martin.
Fifth, the EEOC allows a complainant 300 days from the date of prohibited activity to file an EEO charge. Even
in federal government employment, the victim of discrimination has 45 days to file an internal EEO charge.
Although she was not required to do so, Prof. Martin actually did file a timely internal grievance, including both
her breach of contract and sex discrimination grievances, on May 15, 1997 (Howard’s Grievance Committee
Report, Ex. C of Pl.’s Opp. to Def.’s Mot. for Judgment re Retaliation). There is no basis for arguing that Martin
was obligated to file a pointless formal internal EEO Complaint against Harrison, a non-employee who could
not be disciplined by Howard, but could only be kept off of the premises and held for police, by Campus
Security. In fact, such a complaint would likely have been rejected by the EEO Officer, as lacking jurisdiction.
D. Howard has Misrepresented Plaintiff’s Testimony regarding Prof. Derrick Bell
On page 5 of its Opposition, Howard claims that Plaintiff testified that :
she was in fear of Harrison because he had stalked and threatened Derrick Bell, a well known Black male law
professor, after Professor Bell informed Harrison, to Harrison’s disbelief, that one of the characters in Bell’s
book was a fictional character.
Prof. Martin’s fear of Harrison, while she was at Howard, was based on his letters (both to her and to Valerie
Edwards, a Toronto attorney), voicemail messages, visits, criminal record and reports of violent behavior from
the police and counselors in a homeless shelter where Harrison had stayed. Martin never spoke to Prof. Bell
while she was employed at Howard, but communicated with him for the first time after she left Howard. Since
there was nothing in any of Martin’s memos or verbal reports to Bullock about Harrison confronting Derrick
Bell, there is no basis for Howard’s arguments that Bullock might have understood Harrison “to stalk and
threaten Black law professors,” male and female. Moreover, as discussed above, Bullock’s own memo to
Howard’s General Counsel, as well as Associate Dean Newsom’s admissions, make it clear that they did not
perceive Harrison as a stalker of African-American men.
Harrison never identified Prof. Bell as his “wife,” or potential sexual partner (which “wife” infers). Harrison did
not describe Prof. Bell as “voluptuous” or claim to be infatuated with his “legs” – terms that Harrison used to
describe his observations of Prof. Martin (whom he referred to as “this Valerie Edwards look-alike”) and the
original “Valerie Edwards” whom Harrison claimed to know in New York. These are terms that he reserved for
women – in particular, those women whom he perceived as having the potential to be his “natural wife.” The
fact that Harrison had other, frightening, violent tendencies does not negate the fact that he targeted women for
pursuit of his love interests any more than learning that a serial rapist or women robbed and killed a man
indicates that he does not target women for rape. Just as learning of Harrison’s criminal record and history of
violence added to Martin’s fear that Harrison was an irrational, violent person, Prof. Bell’s reports added to that
fear, which continued long after her employment with Howard ended.
E. Howard Misrepresented Harrison’s Letter to Valerie Edwards, Esquire, in Toronto
On page 6 of its Opposition, Howard claims that “Harrison stated that he did not pursue Plaintiff for sexual
reasons.” Harrison’s letter to Valerie Edwards of Toronto (Ex. A) says no such thing. This is another Rule 11
violation, wherein Howard’s attorneys simply fabricate purported “facts” that they think might support a defense
in this case. Howard also claims that Harrison stated that he had “misidentified” Prof. Martin, apologized to
her and vowed that he would never bother her again. First, the letter was written to Valerie Edwards in Toronto
– not to Prof. Martin. The “apology” and statements about misidentification were to convince his next stalking
victim that he was not harmful. Second, Harrison is clearly a delusional, mentally unstable person, reportedly
with outbursts of violence. In his letter, he also states that he is involved in “warfare” with mythological
characters, including “Neptune,” and “Poseidon,” whom he believes was reincarnated in the form of the first
Valerie Edwards’ husband, Vladimir Edwards. He states that he is the “savior” of the world and that he is a
better writer than Langston Hughes and other famous writers. Finally, the entire letter is based on his
explanation that he believes that, somewhere, there is a physical incarnation of the fictional character in Prof.
Bell’s book, Geneva Crenshaw, who is his “natural wife” and will help him save the world.
On January 12, 1998, when Prof. Martin presented a copy of the Toronto letter to Dean Newsom, he
responded, “Oh, sh-t!” and then proceeded to state that Harrison could be back and posed a threat to other
female professors, such as Profs. Crooms and Cunningham, in addition to Martin. Even though Howard’s
own binding witness recognized that the Toronto letter indicated that Harrison was still a threat to Martin and
other women on campus, Howard argues that this letter explained Harrison’s actions as normal, reasonable
and indicating that he never targeted her or other women for stalking, but simply mistook her for someone
else – who does not exist!
Despite the complete lunacy expressed in Harrison’s letter to Valerie Edwards, Howard attempts to portray it
as the communication of a rational man who can be counted on to leave Martin alone. Who was to say that
Harrison would not return and surprise Prof. Martin after Valerie Edwards, or any other target, rejected him, as
surely they would? Any rational woman in Martin’s position would continue to ask Howard to ban Harrison
from campus and take reasonable precautions to ensure that he did not return unobstructed.
II. New Supreme Court Law, Burlington v. White, Redefines Retaliation under Title VII, Excluding Concept
of Actionable Conduct under the Retaliation Clause of Title VII
If the jury had proceeded to answer the verdict questions regarding whether Howard’s articulated reasons for
Howard’s selection of Prof. Cunningham, rather than Prof. Martin, to teach EEO law – which Prof. Martin had
been teaching for four years and which Prof. Cunningham had never taught -- it would have been compelled to
find that Howard presented no evidence to support its purported “reasons;” however, the comparison of Martin
and Cunningham’s credentials and the APT Committee’s basis for assessing them, though relevant, are not
determinative, under the facts of this case and the controlling Supreme Court and D.C. Circuit law.
Even if a jury could somehow determine that Howard’s selection of Cunningham was the Committee’s good
faith belief about the candidates’ qualifications, though misinformed, Howard could not possibly justify leaving
at least three tenure-track positions vacant, while students clamored and protested for additional classes and
professors. Bullock’s Answer to the Complaint admits that, while Prof. Martin was repeatedly applying for
vacant positions and being told that there were none, Bullock was actually withholding from the APT
Committee at least three tenure-track positions for which Prof. Martin was well qualified. Pl.’s Motion for
Judgment, at 20; Bullock’s Answer to the Complaint 326; Pl.’s MSJ at 21, 42. Under the controlling law on
retaliation under Title VII, particularly as recently defined by the U.S. Supreme Court, Bullock’s admission
compels judgment for Plaintiff on claim of retaliatory rejection for a tenure track position and/or a renewed
visitorship.
On June 22, 2006, the United States Supreme Court decided Burlington v. White, 548 U.S. _ (2006).
Burlington held that, in order to make out a case of retaliation under Title VII:
… a plaintiff must show that a reasonable employee would have found the challenged action materially
adverse, “which in this context, means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.
The Supreme Court expressly adopted the D.C. Circuit’s standard for proving actionable retaliation set forth in
Rochon v. Gonzales, 438 F.3d 1211(D.C. Cir. 2006). Id. As discussed in Plaintiff’s Motion, at 16, Rochon
expressly adopted, for Title VII, its own standard for proving actionable retaliation set forth in Passer v.
American Chemical Society, 935 F. 2d 322 (D.C. Cir. 1991), an Age Discrimination in Employment Act (ADEA)
case. Passer held that an employer illegally retaliated against the plaintiff, under the ADEA, when it cancelled
a symposium that was to be held in the plaintiff’s honor. Id. Although there was no loss of a material, tangible
job benefit, the symposium cancellation was prohibited because it was based on a retaliatory motive and it
might reasonably deter other employees from engaging in protected activity. Burlington, Slip. Op. at 14.
The Supreme Court offered guidance with respect to actionable retaliation and mere “petty slights, minor
annoyances, “snubbing by supervisors and co-workers” that take place at work and that “all employees
experience.” Burlington, Slip. Op. at 13.
The real social impact of workplace behavior often depends upon the constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words
used of the physical acts performed. Oncale, supra, at 81-82.
Burlington, Slip. Op. at 14.
This court limited Plaintiff’s retaliation claims to her December 18, 1997 rejection for the advertised EEO/Labor
position and Howard’s order that she prematurely vacate her office (Jury Verdict Form, #s 5-8. As discussed
on pages 9-11 of her motion, Prof. Martin alleged retaliatory non-renewal of her teaching contract, as a law
professor, at Howard University, for the 1998-1999 academic year and beyond. She never limited it to the
December 18, 1997 decision, nor to the EEO/Labor law position, since three positions were advertised. All
applications produced as exhibits demonstrated that Prof. Martin applied for “any” tenure-track position and
never restricted her application to the EEO/Labor position.
The Court refused to allow the jury to consider Dean Bullock’s acts, beyond the December 18, 1997 decision,
to prevent Prof. Martin from even being considered by the APT Committee for vacant faculty positions. First,
Bullock withheld and concealed vacant positions from the APT Committee to prevent Committee members
from considering Prof. Martin to fill any of them. Bullock even directly lied to at least APT Committee member,
Prof. Nolan, who specifically asked her whether there were any additional vacancies on the faculty for which
they could select Prof. Martin.
In March of 1998, Bullock “converted” (or pretended to convert) the advertised Constitutional Law/Civil Rights
position to a tax position in immediate and direct response to the plaintiff’s application for the advertised
Constitutional Law/Civil Rights. Certainly, if, as in Passer, the cancellation of an honorary symposium
constitutes actionable retaliation under Title VII, the cancellation, withholding and/or a conversation of a faculty
position to prevent the APT Committee from selecting Prof. Martin to fill any of the vacancies.
As discussed in Plaintiff’s November 30, 2002 Objection to MJ Facciola’s Report and Recommendation,
Bullock’s actions are analogous to a store owner who places a “Help Wanted” sign in the store window.
When an African-American applicant enters the store in response to the sign and applies for the job for it, the
store owner yanks down the sign and says that there are no openings. This conduct would constitute even a
classic “adverse employment action,” no longer required under the less stringent retaliation provision of Title
VII. Bullock’s retaliatory conversion/withholding of the Constitutional Law/Civil Rights position from the APT
Committee constitutes actionable retaliation.
Now that the Supreme Court has clarified any confusion with respect to this issue, it is clear that the jury was
not properly instructed on this issue. Under Burlington, Plaintiff’s proposed instruction should have been
adopted. As discussed on pages 15 -18 of Plaintiff’s motion, Chappelle-Johnson v. Powell, 440 F.3d 484 (D.
C. Cir. 2006), holding that an adverse action includes the denial of an opportunity to compete for a vacant
position. Dean Bullock denied Prof. Martin the opportunity to compete for a vacant position when she left
positions vacant and converted the Constitutional Law/Civil Rights position, rather than permit the APT
Committee to fill the needed positions, for fear that the Committee would fill one of the positions with Prof.
Martin. The consequences for Prof. Martin were certainly “significant” and “material,” since they resulted in her
removal from the faculty and left her unemployed.
III. Howard Falsely States that the Jury Made Determinations Regarding the Falsity of Howard’s
Articulated Legitimate Non-Retaliatory Reasons for Prof. Martin’s Non-Renewal
On pages 13-14 of its Opposition, Howard falsely states:
the jury reasonably concluded that Plaintiff failed to prove by a preponderance of the evidence that the APT
Committee intentionally retaliated against Plaintiff because of her complaints about Harrison and that her
complaints about Harrison was a substantial factor in the Committee’s failure to recommend Plaintiff for the
EEO/Labor tenure track position. In fact, there were legitimate, non-discriminatory reasons why the APT
Committee did not vote for Plaintiff and the Committee was not influenced by the complaints that Plaintiff
lodged with the University about Harrison. See Verdict Form 5c.
In fact, the jury never made any determinations about whether the Committee rejected her because of her
complaints about Harrison or whether Howard’s articulated legitimate non-retaliatory reasons for Prof. Martin’
s non-renewal were false or pre-textual. Questions 5(a)-(c) simply incorporate and repeat the jury’s answer to
1(c), which determined the jury’s verdict on Plaintiff’s sexual harassment claim.
The verdict form (Ex. C), included the following questions and jury answers regarding retaliation:
5. Did the Plaintiff prove by a preponderance of the evidence that:
a) She was engaged in legally protected activity when she notified the Dean’s office of Mr. Harrison’s
conduct?
_____ YES _X__ NO
b) Howard University knew of her behavior that constituted legally protected activity?
_____ YES _X__ NO
c) After learning of the Plaintiff’s protected activity, the Appointments, Promotions and Tenure Committee of
Howard University Law School, (hereinafter, “APT Committee”) intentionally retaliated against Plaintiff because
of her protected activity and that the protected activity was a substantial factor in the APT Committee’s failure to
recommend Plaintiff for the EEO/Labor Law tenure track position?
______ YES _X__ NO
If you answered “NO” to any of these questions, you have found for Defendant Howard University on the first
retaliation claim and should to go Question 8.
If you answered “YES” to all of the above questions, go to Question 6.
The jury specifically left questions 6 and 7 unanswered once it determined that Martin’s complaints about
Harrison did not constitute “protected activity” within the meaning of Title VII, pursuant to its Answer to Question
# 1(c). See Plaintiff’s Motion for Judgment on her Sexual Harassment Claim.
IV. Had the Jury Proceeded to the Questions regarding the Falsity of Howard’s Articulated Legitimate Non-
Retaliatory Reasons for Prof. Martin’s Non-Renewal, it Would Have been Compelled to Conclude that Howard’
s Articulated Reasons were False, Pre-Textual and that Howard Failed to Produce Any Evidence of its
Articulated “Reasons”
A. The Undisputed Evidence of Record, and Howard’s Admissions, Irrefutably Prove that Howard’s
Articulated Reasons for Prof. Martin’s Non-Renewal are False
As stated above, Plaintiff is, at minimum, entitled to a new trial on her retaliation claims; however no new trial
on these claims is necessary. Plaintiff is entitled to judgment, as a matter of law, based on the undisputed
evidence of record, Howard’s own admissions and the controlling case law, including Burlington Holcomb,
Rochon, Chappelle-Johnson, and Passer.
I. Did Howard University produce evidence of legitimate, non-retaliatory reasons for the APT Committee’s
decision not to recommend Plaintiff for the EEO/Labor Law position but to instead recommend Professor
Cunningham?
If you answered “YES” to this question, you should go to Question 7.
If you answered “NO” to this question, you have found for Plaintiff Dawn Martin on the first retaliation claim and
should go to Question 8.
The evidence of record would have compelled the jury to answer # 6 with a “NO,” ruling in favor of Plaintiff,
Dawn Martin, as the jury verdict form states. As discussed in Plaintiff’s Motion, pages 22-31, Howard did not
produce evidence of legitimate, non-retaliatory reasons for the APT Committee’s decision not to recommend
Plaintiff for the EEO/Labor Law position but to instead recommend Professor Cunningham. Howard
articulated purported reasons, but Howard did not produce an iota of evidence to support any one of its ever
changing “laundry list” list of articulated “reasons.” To the contrary, Howard’s own APT Committee members
and Howard’s own admissions in its Answers to Interrogatories and other filings specifically contradict
Howard’s articulated “reasons” for Prof. Martin’s non-renewal.
Had the jury proceeded to answer Question # 6, it would have been compelled to find that Howard did not
produce evidence of legitimate, non-retaliatory reasons for the APT Committee’s decision not to recommend
Plaintiff for the EEO/Labor Law position but to instead recommend Professor Cunningham. As the verdict
form states, this conclusion would have resulted in a verdict for the Plaintiff, Dawn Martin, on her claim of
retaliatory rejection for the EEO/Labor Law position.
Once the jury answered # 6, it would have been obligated to skip # 7; however, even under number 7, the jury
would have been compelled to find for Plaintiff, Dawn Martin.
II. Did the Plaintiff prove by a preponderance of the evidence that the legitimate, non-retaliatory reasons
offered by Howard University were false and pre-textual or that the real reason for the APT Committee’s
recommendation of Professor Cunningham as opposed to Plaintiff was retaliation?
If you answered “YES” to this question, you have found for Plaintiff Dawn Martin on the first retaliation claim.
Go to Question 8.
As discussed in Plaintiff’s Motion, pages 22-29, Plaintiff did prove, through Howard’s own APT Committee
members, as well as the resumes and applications for the faculty positions, that Howard’s articulated
reasons for Prof. Martin’s non-renewal were blatantly false and pre-textual.
B. In Violation of Rule 11, Howard has Fraudulently Misrepresented the Record
Again, Howard has simply fabricated facts, without citing evidence to support it or citing purported evidence
that does not exist. Howard continues to employ the strategy of “so many lies, so little time,” in order to
exhaust Plaintiff and her limited resources. Plaintiff will briefly identify the major misrepresentations.
1. Howard Falsely Represents that “All Five APT Committee Members” Confirmed Howard’s Articulated
Reasons for her Rejection
On page 5 of its Opposition, Howard states that “all five APT committee members” supported “the multitude” of
legitimate, non-discriminatory articulated reasons” why the Committee selected Prof. Cunningham over Prof.
Martin. As discussed in Plaintiff’s Opposition to Defendant’s Motion for Judgment on her Retaliation Claims,
at 6-23, incorporated herein by reference, Howard’s ever-changing articulated “reasons” for Prof. Martin’s non-
renewal were specifically contradicted by all of Howard’s APT Committee members, except Taslitz. See also
Plaintiff’s Motion, pages 22-30. The only “reason” that the APT members testified was the reason for the
rejection, e.g., “failure to complete an article for publication,” as compared to Prof. Cunningham’s “published”
article, as of December 18, 1997, is proven to be false and pre-textual by simply reading the resumes (Exs. P
and Q of Pl.’s Opp. to Def.’s Motion for Judgment re Retaliation) and applications of Profs. Martin and
Cunningham, as of the fall of 1997. (Exs. R and S of Pl.’s Opp. to Def.’s Motion for Judgment re Retaliation).
Both the 141 page article (approximately 187 manuscript pages) of Prof. Martin, “911: How Will Police and Fire
Departments Respond to Public Safety Needs and the Americans with Disabilities Act?” (911:…”) and the 67
page article of Prof. Cunningham, The Rise of Identity Politics I: The Myth of the Protected Class in Title VII
Disparate Treatment Cases, had been accepted for publication as of December 18, 1997 and were expected
to be published, in print, during the spring of 1998. Pl.’s Opposition at 10-11, 15-19. Both Prof. Martin’s and
Cunningham’s articles were actually published in the Winter of 1998. Pl.’s Opposition at 13.
Howard also credited Cunningham with two more works in progress, claiming that she had presented
evidence that she was about to publish again soon. In fact, Cunningham did not publish anything again until
two years later, in 1999. (Ex. E, Howard’s current website for Cunningham, listing her scholarship) In 1999,
Cunningham published “The Racing”Cause of Action and the Identify Formerly Known as Race: The Road to
Tamazunchale,” 30 Rutgers Law Rev. 707 (1999) (a 22 page article included in a Symposium on law and
literature) and “Preserving Normal Heterosexual Male Fantasy: The ‘Severe and Pervasive’ Missed-
Interpretation of Sexual Harassment in the Absence of a Tangible Job Consequence,”1999 Chi. Legal Forum
199 (a 75 page article discussing concepts of sexual harassment and male power in the workplace).
Cunningham’s three articles, written from 1996 through 1999 (totaling 164 published pages), served as
fulfilling the scholarship requirement for Prof. Cunningham to obtain tenure. After her 1999 publications,
Cunningham did not publish again for three years, in 2002. (Ex. E) This fact does not demean Prof.
Cunningham; rather, it demonstrates that professors are not expected to publish every year and that it takes
time to write an article of substance.
In the fall of 1997, when Howard rejected Prof. Martin for a tenure track position, she had published, she had
already produced a 141 page article to be credited toward tenure, as well as a 23 manuscript page draft of a
second article and had a title, thesis and preliminary research for a third article. Even a year prior to her
eligibility for tenure, Martin met the requirements of completing two articles since entering academia, as stated
by Howard’s Handbook. The comparison of Martin and Cunningham’s scholarship -- not even including Prof.
Martin’s publications before joining Howard’s faculty -- demonstrates that Martin was well prepared to be
awarded tenure at Howard the following year. Clearly, Martin was not “resting on her laurels,” as Howard’s
counsel, Mr. Lattimore, stated in his opening statement.
III. Howard Falsely Claims that APT Members Decided to Reject Martin “Pre-Harrison”
On page 13 of its Opposition, Howard claims that:
several members of the APT Committee testified that they had already made up their minds before Mr.
Harrison ever appeared that they would not support the Plaintiff’s renewal because of her inexcusable failure
to publish.
Howard does not name any of the “several” APT Committee members because there is only Taslitz. Leggett
and Smith specifically testified that they did not make up their minds about the vote until December 18, 1997,
during the Committee’s deliberations. After the vote, Nolan hugged Martin and told her, “I wish I had a job for
you,” and “I’m praying for you.” Beyond those words of comfort, Nolan even asked Dean Bullock if there was
an additional vacancies for Prof. Martin to fill. Clearly, then, Prof. Nolan had not made up her mind not to select
Prof. Martin before she heard of Harrison, nor did Nolan want Martin removed from the faculty because of the
status of her article. To the contrary, Nolan lobbied for Martin to be named as a second choice for the
EEO/Labor position on December 18, 1997, and was still lobbying for Martin to remain on the faculty well into
the spring of 1998. LaRue said that he could not remember much about the deliberations, except that, from
the APT Committee presentation, he believed that Cunningham’s article was actually published, as of
December 18, 1997 (although it was not actually published until a full year later) and that he did know that Prof.
Martin’s article was accepted for publication, though not published, as of that date. In his deposition, LaRue
adopted his statement to the EEOC, “There was nothing negative about Dawn (Prof. Martin).” LaRue depo,
103, adopting EEOC statement as an exhibit (Ex. F, LaRue’s Statement to the EEOC). LaRue further testified
that he had only favorable views of Martin’s teaching, scholarship and collegiality. LaRue depo at 102-104, 10,
58-59, 85.
The only APT Committee member who indicated that he had decided not to support Prof. Martin’s candidacy
prior to her stalking by Harrison (beginning on November 20, 1997) was Taslitz. Even Taslitz completely
changed his story about when he made this determination – ranging from the beginning of Prof. Martin’s
second year at Howard, to nearly the time of her arrival, claiming that he was “disappointed” that she did not
have the article published when she arrived at Howard. Taslitz’ inconsistent time frames defy logic. Plaintiff
testified that Taslitz advised her to send out the article after she joined Howard’s faculty so that Howard could
join Cleveland-Marshall College of Law in obtaining credit for the article’s publication. Plaintiff’s testimony is
logical and credible, in light of the testimony of all of Howard’s APT Committee members, stressing the need
for Howard to be credited with scholarship in order to retain its accreditation.
Since Prof. Martin actually submitted a “completed” article to the APT Committee members when she visited
Howard in January of 1996, and gave her presentation to the faculty on the article, there was no reason for her
to hold back on sending it to journals other than to comply with Howard’s request, via Taslitz; thereafter,
however, the relevant public safety cases began to be decided and appealed under the ADA, creating a body of
law that Prof. Martin needed to include in her article so that it would not be obsolete, or moot, if the accepting
law journal took a year or more to publish it – as is common in the field, and is in fact, what occurred, both for
Prof. Martin and Prof. Cunningham. Although Taslitz claimed that adding these cases took away the
opportunity to give advise on the analysis to be used, Taslitz admitted that he did not read the final version of
the article after Prof. Martin added the cases; accordingly, he is either unaware, or pretends to be unaware,
that this area is still extremely controversial, with split circuits and inconsistent decisions, with no uniform,
cohesive analysis.
As is evidenced even from the table of contents of 911(Ex. G), Prof. Martin’s article explored and offered
cohesive and consistent legal analyses and policies to address all aspects of the issues, from the
perspective of each group affected by these analyses and polices – including the police officers/firefighters,
the public, persons with disabilities, the courts, and the law enforcement and firefighting agencies. It was
precisely because Prof. Martin offered these analyses, along with suggestions regarding possible legislation,
that the New York University Journal of Legislation and Policy published the article! Tazlitz admitted that he
has no special knowledge in Title VII or employment law, yet he purported to critique Prof. Martin’s article and
to demean it as less scholarly than was desirable; however, his purported opinion is contradicted by Profs.
Smith (former General Counsel of the EEOC and well known civil rights scholar), LaRue and Rogers, all of
whom do have experience in EEO law. In fact, Dean Bullock testified that Prof. Martin’s article received a
wonderful accreditation review.” Bullock deposition at 132; Plaintiff’s MSJ at 31-32. Again, Taslitz stands
alone in his criticism of Prof. Martin – his purported “friend” and mentee.
IV. Howard Falsely States that Plaintiff Failed to “Timely Complete” or “Ultimately Publish” any Scholarly
Article at the University.
On page 5 of its Opposition, Howard claims that Plaintiff failed to “timely complete” or “ultimately publish” any
scholarly article at the University. First and foremost, it is irrefutable that Prof. Martin’s did “ultimately publish”
her article, 911 and that this publication was credited to Howard Law School in the accreditation process. In
addition, the undisputed evidence of record is that: 1) there was never any date by which any article was to be
completed or publish; therefore, her article could not possibly have been “untimely;” 2) Prof. Martin submitted
to Mrs. Bruner her completed 911.. article for distribution to law journals on August 4, 1997; 3) a computer
error in Mrs. Bruner’s office corrupted the document, requiring that Mrs. Bruner’s staff completely retype the
unusually lengthy article and there was nothing that Prof. Martin could do to speed up this administrative
process; 4) that, in addition to her 911 article, Prof. Martin had written and submitted to Dean Bullock a draft of
a second article, “Lights, Camera, Discrimination! ‘Playing’ the Victim under Title VII,” during the spring
semester of 1997, upon which Dean Bullock awarded Prof. Martin a 1997 summer grant, specifically
acknowledging satisfactory progress with her scholarship; 5) no later than November 5, 1997, as Prof. Martin
informed the Committee in her application memo, she had a title, thesis and preliminary research conducted
for a third article, since joining Howard’s faculty, entitled “Still Racist after all these Years – and Covered by the
Americans with Disabilities Act?” (Pl.’s Opp. to Def.’s Motion for Judgment re Retaliation at 16-19); 6) on or
about November 27, 1997, Mrs. Bruner sent out Prof. Martin’s article to 30 journals -- based on Dean Newsom’
s order reducing the number to 30, from the original 180 that Mrs. Bruner had prepared; 7) on December 17,
1997, Prof. Martin received a telephone call from the Law Review Editor of Pepperdine Law School accepting
her article for publication; 8) on December 17, 1997, Prof. Martin immediately called Prof. Tazlitz and informed
him of Pepperdine’s acceptance of her article and he congratulated her, particularly on the quick acceptance,
only two weeks after it was submitted; 9) in January of 1998, the NYU Journal of Legislation and Policy also
accepted the 911… article for publication and Prof. Martin selected NYU, a top ten law school and her alma
mater, to publish the article during the spring, 1998 semester.
Far from “resting on her laurels,” Martin was busily working on her class preparation, student counseling,
exam preparation workshops for her students, her scholarship and innovative teaching methods, particularly
in the new class she was assigned, Evidence. She invented “The Evidence Game” and conducted a mock
trial. All of this information was contained in Martin’s November 5, 1997 application memorandum. (Ex. R of
Pl.’s Opp. to Def.’s Motion for Judgment re Retaliation, discussed on page 6 of Pl.’s Opp.)
V. Howard Falsely States that Prof. Leggett Characterized Prof. Martin as “Young in her Career,” when, in
Fact, she had a Seventeen Year Career as a Civil Rights Attorney
On page 7 of its Opposition, Howard claims that Prof. Leggett characterized Prof. Martin as “young in her
career,” but cites no evidence for this claim. From the context of the statement, Howard appears to be referring
to the hiring memo that the APT Committee wrote to Dean Ramsey, in 1996, recommending Prof. Martin’s
hire. (Ex. H) Howard has completely misrepresented the facts. First, Prof. Taslitz, not Leggett, actually wrote
the memo, as both testified that Taslitz normally wrote the APT Committee memos for Leggett’s signature.
Second, the memo describes Prof. Martin as a “young scholar,” as demonstrated by her publication and work
in progress. In 1996, Prof. Martin was 39 years old – which is considered “young” in age for a law professor.
No witness described Prof. Martin as “young in her career;” it would have been ludicrous to do so. In 1996,
Prof. Martin had been a civil rights lawyer for 15 years, having worked for this nation’s top civil rights agencies.
She was recognized as a national expert in EEO law. She had also been teaching for two years, was about to
be promoted from Assistant to Associate Professor. She had published four published articles prior to
teaching and a fifth one while a tenure track professor at Cleveland-Marshall College of Law.
Once again, Howard cannot make up its mind as to its defense. In its Opposition, Howard attempts to portray
Prof. Martin as a novice in law and/or teaching; yet, in Howard’s closing argument, Brian Shwalb used a
football analogy, comparing Martin to an aging “veteran” football player whose time it was to “step aside” for
the “rookie,” Cunningham, to give her “a chance.” First, Howard’s desperate closing argument amounts to an
admission of a per se violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Section 621-
634. Howard is apparently willing to admit to age discrimination in order avoid liability for maintaining an
environment of sexual harassment and retaliation. Second, Prof. Martin, at age 40, was neither “ready for
pasture” nor eligible for retirement. She was in her prime. Howard, through Alice Gresham Bullock, stole
those prime years from her. Howard should finally be required to restore whatever can be restored of the
“years that the locusts have eaten.” Prof. Martin asks this Court to restore her to her rightful place as a Full
Professor, with tenure, and permit her to complete the next 20 to 30 years of her teaching career flourishing,
providing for her family and passing educating new lawyers, as she was doing before Dean Bullock derailed
her career in 1998.
On page 7 of its Opposition, Howard claims that Leggett testified that Martin:
had not listed serious reasons (i.e. I had a headache) why she could not complete her 911 article by Fall,
1997…
First, Martin did “complete” her article by the Fall, 1997. Second, Leggett never testified that the obstacles that
Martin experienced while expanding the article were comparable to “a headache.” Although Howard persists
in using this one paragraph out of a six page memo as a “canon” to shoot fireballs at Prof. Martin, ignoring
everything else in the memo and all other evidence, this one paragraph is actually irrelevant to the overall
facts. It was not even part of Prof. Martin’s original application memo.
Taslitz even corroborates Martin’s testimony that the original memo that he reviewed did not contain this
paragraph and that he advised her to add a paragraph discussing hardships that she had had over the
previous year to impress upon the Committee how difficult it was to complete the 911 article, along with her
additional scholarship and teaching duties. Taslitz also confirmed that, after he read the revised version,
revised at his suggestion, he told her that the memo was “fine.” Again, Howard has turned everything in this
case on its head and back again, as convenient for it, with no regard for the truth and in blatant violation of it.
VI. Howard Falsely States that Martin’s Conversations with Taslitz were “Heated”
On pages 10-11 of its Opposition Howard falsely claimed Taslitz testified that “Plaintiff’s conversations with
him were always heated....” To the contrary, Taslitz actually testified that he found Prof. Martin to be a “warm”
person and that he considered himself her friend. Taslitz depo at 51, 54, 244, 245, 396, 305. Plaintiff and
Taslitz testified that they often went to lunch together and that Taslitz often stopped by her office to walk with her
to faculty and other meetings. Even Mrs. Bruner observed that Prof. Martin appeared to be well liked by her
colleagues, particularly Prof. Taslitz, and that they included her in social and other gatherings. Bruner depo at
87-89. In fact, Taslitz testified that, when they spoke about her non-renewal, in January or February of 1998,
Martin ended the meeting by giving him “a hug.” Even in the face of her devastation at losing her job and ability
to support and protect her daughter, Martin found compassion for her “friend,” Taslitz, who told her that he
“agonized” over her non-renewal. Taslitz told Martin that he did not know, before December 18, 1997, that she
would not be renewed, so he could not warn her. Taslitz told Martin that he did believe that she would be
retained permanently when he recruited her, but there had been a “Dean change” that he did not anticipate.
(Dean Ramsey was replaced by Dean Bullock.) In her March 31, 1998 letter to Taslitz, Martin repeated his
words to him. (Ex. L)
Surely, if Martin had known that it was Taslitz who recommended to the rest of the Committee that she be
rejected, and that he had misrepresented the status of her scholarship, she would not have hugged him; nor
would she have alleged, in her Complaint, that Taslitz did not vote to reject her. See Complaint 208. Martin
testified that Taslitz’ friend, Andrew Gavil, advised her to speak to their mutual “friend,” Taslitz, to try to mend
their relationship. Gavil acknowledged that this “sounds like something I would have done….” Gavil depo at
124.
Taslitz testified that Prof. Martin complained about various matters that Howard has conveniently taken from
Martin’s November 5, 1997 memo. (Little did she know how that life was about to get more complicated than it
had been during the unusual year she described.) Howard contradicts itself by pointing out that Prof. Nolan
testified that Prof. Martin never told her that any of these matters interfered with her ability to complete or
publish her article. Prof. Nolan also testified that she and Prof. Martin discussed many things, including their
classes, teaching methods, students and their scholarship projects and interests. Prof. Nolan saw Prof.
Martin nearly daily during her second year at Howard, since their offices were almost directly across the
corridor from each other. Prof. Martin was not described as a “complainer” by Prof. Nolan, or to any of the 13
members of Howard’s administration, faculty and/or clerical staff who testified, other than Taslitz. Plaintiff only
began “complaining” once Harrison began to stalk her, beginning on November 20, 1997, and the school
retaliated against her for reporting the stalking, taking away her career and livelihood. On page 10 of its
Opposition, Howard even admits that after the December 18, 1997 decision, Taslitz’ “relationship with Plaintiff,
a fellow New Yorker, changed.” Howard’s admission is consistent with everything that Martin has claimed.
On page 10 of its Opposition, Howard claims that Prof. Taslitz testified that Prof. Martin had “become angry
with another faculty member (Gavil) who informed him that Plaintiff had referred to one of her students as a
‘bitch.’” In fact, Taslitz did not testify that Plaintiff was “angry” at anyone faculty member or that anyone ever
reported to him that Prof. Martin referred to a student as a “bitch.” Taslitz testified that Gavil had told him that
Martin had not followed his advice on an incident with a student and handled the situation badly, although
Taslitz could not recall any details of the incident; however, Gavil contradicts Taslitz and does not even claim
that he gave Martin advice or that she did not take it.
As discussed in Plaintiff’s October, 2002 Motion to Strike, incorporated by reference herein, and repeatedly in
this litigation, Plaintiff vehemently denies Gavil’s accusation. Gavil simply changed the story to include the
word “bitch” to help his friend Taslitz justify his role in removing Martin from the faculty. Plaintiff renews her
Motion to Strike Gavil’s testimony regarding this conversation. By order dated September 24, 2002, MJ
Facciola precluded Howard from using this evidence; however, Howard blatantly violated the Order and has
based its case primarily on this precluded testimony. Howard did not make this allegation until three years
into this litigation, during Gavil’s deposition, in September of 2002, only days before discovery closed. Howard
refused to produce Dean Purdy for a deposition, so the Court precluded Gavil’s testimony. Plaintiff has
consistently maintained that the Court should enforce its own Order and strike all references to this “bitch”
story from the record, both because Plaintiff was denied discovery on the issue and because it is irrelevant to
the Committee’s decision since four of the five Committee members testified that they had only heard
favorable faculty comments about Martin and that they found her to be quite collegial. In its official July 1, 2001
APT Committee Statement, Howard admitted that “non-collegiality” was not a factor in Martin’s rejection. Gavil’
s testimony is completely irrelevant. Plaintiff should not have had to waste time refuting his story.
Plaintiff had a right to rely on the Court’s September 24, 2002 preclusion Order; however, MJ Facciola used the
precluded evidence as a major reason for denying Plaintiff’s motion for summary judgment. Plaintiff had good
reason to believe that she would be granted summary judgment on some or all of her claims, since Howard
failed to file a Local Rule 56.1 Statement of Disputed Facts, despite being given a specific additional
opportunity to file one. Where a party fails to file a Rule 56.1 Statement, the opposing party is entitled to have
his/her Statement of Material Undisputed Material Facts deemed true. Mintz v. District of Columbia, 2006 U.S.
Dist. LEXIS 34446 (D.D.C. 2006).
Taslitz admitted that he never asked Prof. Martin anything about this interaction with his best friend, Andrew
Gavil and that Prof. Martin never mentioned it to him. Moreover, if this incident is what caused Taslitz to decide
to oppose Prof. Martin’s candidacy for a permanent position – more than a year later -- why did he present
himself as his friend and mentor for the following thirteen months, with no warning of her inevitable non-
renewal, based on the word of non-APT Committee member Andrew Gavil, reporting a purported word
spoken by Prof. Martin only two months after she joined Howard’s faculty?
Taslitz’ testimony is not even consistent with his actions. If Taslitz had decided, by the beginning of the 1997
academic year, that he would not support Martin’s candidacy, why would he stop by her office and remind her
to timely apply? Why would he ask to see her application before she submitted it to the Committee and
suggest additions? (Ironically, the now notorious paragraph containing the 11 obstacles overcome in
completing the 911 article.) Why wouldn’t he have given her some warning and opportunity to apply to other
law schools in August of 1997 and participate in the AALS recruiting conference in November of 1997, as he
did warn Prof. Cunningham? Why would Taslitz set Prof. Martin up to be left without a job and a means to
support her daughter, in the spring of 1998? The answer is that he did not. Taslitz fully intended to
recommend to the Committee that Prof. Martin’s be selected for one of the tenure-track positions and continue
teaching the EEO and Torts classes that she had been teaching at Howard for the previous two years.
Taslitz’s plans changed only because Bullock informed him that she wanted Martin removed from the faculty
due to her complaints about the stalking. His inconsistent, deceptive and frightened behavior, immediately
asking Bullock to assure him of legal representation if he was sued, is evidence of his guilty conscience and
his knowledge that Martin had a good basis for a lawsuit against the University and him as well.
VII. “Confusion” of Prof. Leggett
On page 7 of its Opposition, Howard claims that Leggett was “confused” when he the list of professional and
personal challenges that Martin faced during first year at Howard while she was expanding her 911 article.
First, Prof. Leggett’s testimony was not that he was confused when he read the memo; he testified that he was
“confused” at the December 18, 1997 APT deliberations meeting, when “someone” was saying that Prof.
Martin had not completed or published an expected article. Had Leggett actually read the November 5, 1997
memorandum and referred to, or remembered its contents, he would not have been confused. The memo
clearly explains that she expanded the long completed article by approximately 70 pages to include new,
developing case law. This is not a “confusing” concept. LaRue understood it very well and praised the
resulting article, as did J. Clay Smith. Pl.’s MSJ at 33; LaRue depo at 43-44; Smith depo at 81-82.
It is true, however, that Leggett’s testimony has reflected a great deal of “confusion” overall. First, Leggett’s
own testimony directly conflicts with his May 11, 2001Statement, written on behalf of the APT Committee. As
discussed in Plaintiff’s motion, page 24, Leggett states that Martin did not “complete” an article for publication
as of December 18, 1997; yet, Leggett actually testified that he knew, as of December 18, 1997, that Martin had
not only completed her article, but it had been accepted for publication. On page 8 of its Opposition, Howard
claims puts the titles of Martin’s articles into Leggett’s mouth to express explain more why he was
“flabbergasted,” “shocked” and “stunned;” however, Leggett never testified about Martin’s articles by name and
did not even appear to know, even by the time of trial, that she had a draft of “Lights..” and a title, thesis and
preliminary research for a third article, “Still Racist…”
Second, 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 Taslitz, 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.
Third, 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 Martin’s 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, had a draft of a second article, Lights, and had a thesis for a third article, since joining
Howard’s faculty, entitled, Still Racist after all these Years…. 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 Martin, he would
have know about these articles because she discussed them at this interview, highlighting her scholarship
along with other information in her application.
Fourth, 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.” 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.
Fifth, Leggett claimed, for the first time, at trial, that he met with Martin in January of 1996 and that they
specifically discussed her visitorship as a limited two year visitorship. Martin has consistently testified that
she met with Taslitz, Gavil, Dean Ramsey, and a few other professors during her January 1996 visit to
Howard, but she has never mentioned Leggett. In fact, in her April 27, 1996 memorandum to Dean Ramsey
(Ex. J), Prof. Martin discussed at length her discussion with Prof. Taslitz regarding her “visitorship” and the
apparent lack of precedence at both Howard and Cleveland State University for the type of “visitorship” that she
was being offered by Howard, understanding that, despite the “visitorship” status, the parties intended for her
to become a permanent member of the faculty.
Prof. Martin mentioned a number of other professors with whom she spoke regarding terms and conditions of
the position offered to her, including issues of moving expenses, summer grants and other benefits. She
mentioned talking to Profs. Andrew Gavil, Reggie Robinson and Frank Wu, but not Ike Leggett. Surely, if
Martin had had any significant conversation with Leggett about the terms and conditions of the offer that
Howard expected to make with her, she would have mentioned Prof. Leggett along with these other
professors. In addition, during the negotiation period for her initial hire, there were numerous letters and
telephone calls between Martin and Howard APT members and/of administrators. These correspondence
included repeated conversations and at least one letter from Prof. Taslitz, at least one phone call and one
letter from Prof. LaRue, at least one telephone conversation with Associate Dean Johnson, and at least one
telephone call from Prof. Gavil.
Sixth, 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.
Leggett’s confusion is simply a reflection of the fact that it was Taslitz who performed most of the duties of the
Chair and Leggett who signed off on what Taslitz wrote. Leggett was a follower in the Committee – not the
leader. He did not know what was happening at the time that Bullock and Taslitz were secretly meeting and
discussing the fact that Bullock wanted Prof. Martin removed from the faculty because her reports of stalking
constituted “bad judgment,” caused her to have a “bad day,” and required her to “do a lot with respect to that” –
which, as it turned out, was to do a lot to remove Prof. Martin from the faculty.
V. Howard has Unconscionably Misrepresented Prof. Martin’s March 31, 1998 Letter to Taslitz
On page 11of its Opposition, Howard has misrepresented Martin’s letter to Taslitz, quoting the Bible, Matthew
18: 17-17, wherein Jesus Christ has directed 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. As discussed at length in her June 19, 2006 Reply to Defendant’s Opposition to Plaintiff’s
Motion for Judgment on her Breach of Contract Claim, pages 20-25, the letter stresses the need for God’s
children to express love, truth and fairness to each other. Martin quoted the words of Jesus Christ, as
recorded in the Book of Matthew, verbatim. She described her efforts to follow Christ’s example and
instruction; yet Howard has turned even this scripture “on its head.” Martin can only count herself in “good
company” among the persons whose reputations that Howard has set out to defame. There is another
appropriate Biblical passage.
Let the lying lips be put to silence, which would speak grievous things proudly and contemptuously against the
righteous.
Psalms 31:18.
VI. Premature Eviction from Office
As discussed in Section I, above, and in her motion, at 16, in Burlington, the U.S. Supreme Court expressly
adopted the ruling and analysis in Rochon. Rochon specifically adopted, for Title VII, the definition of adverse
action that it had set forth in Passer held that an employer had illegally retaliated against the plaintiff, under the
ADEA, when it cancelled a symposium that was to be held in the plaintiff’s honor. Id. Certainly, if the
cancellation of an honorary symposium constitutes actionable retaliation under Title VII, ordering Plaintiff to
vacate her office, while she is using it to grade exams, and while the similarly situated exiting Visiting
Professor who had not protested sexual harassment, was not required to vacate her office, is actionable
retaliation.
The Verdict Form adopted by the Court (Ex. C), Question, 8(c) asks the jury to determine whether Dean
Newsom’s order for Prof. Martin to vacate her office constitutes “an adverse employment action.” Under
Bulington, the inquiry should have been whether the action taken might dissuade the plaintiff or others from
making or supporting complaints of discrimination or retaliation.
As discussed in Plaintiff’s motion, Plaintiff had just filed her University Grievance, as well as her EEOC charge,
on May 14th and 15th, respectively. Howard had immediate notice of Prof. Martin’s Grievance, since it was
filed directly with the University. Both the internal Grievance and the EEOC charges alleged sex discrimination
and retaliation for Martin’s complaints about Harrison. Howard admits that its Office of General Counsel
received Notice of the EEOC charge, from the EEOC, on May 26, 1998. On the very same day, Associate Dean
Newsom called Plaintiff and ordered her to vacate her office, no later than May 29, 1998 – three days’ notice.
Dean Newsom also wrote a memo to Martin requiring that she vacate her office. Although the memo was
dated May 21, 1998, it was in Martin’s campus mailbox until May 26, 1998, ordering her out by May 29, 1998,
along with Newsom’s May 26, 1998 extending the date to vacate to June 1, 1998. Prof. Martin’s grades for her
EEO class were not due until June 16, 1998. Some students had not even turned in their research papers to
be graded yet. Martin was meeting with students about their papers and other matters.
Based on the “norm” or treatment afforded Prof. Martin’s similarly situated comparator, Prof. Betsy Levin, Prof.
Martin should have been permitted the use of her office for at least two more months, unfettered, to grade
papers not yet due or submitted, to meet with students about their exams or papers, to continue scholarship
work, to organize her papers and books for easy access, packing and unpacking, to interact with colleagues,
and for any other purpose that her colleagues were using their offices.
Even had the harm been compensated later, through the grievance process, under Burlington, the stress
caused by having to move all of her teaching materials, books and other belongings from her office, store
them elsewhere, set up her home with the materials necessary (computer, internet, other) unpack and
reorganize those materials while trying to grade exam papers, seek employment elsewhere and tend to the
emotional needs of her daughter who was experiencing debilitating headaches and depression as a result of
fear that her mother might be killed at work and then because her mother no longer had the means to support
her. Even if this hardship had lasted only for a month, as did the suspension in Burlington, Howard’s actions
would constitute actionable retaliation, under Burlington. In the present case, however, the hardship was
never remedied because Howard’s Law School Dean, Alice Gresham Bullock, defied the internal grievance
process and the University Grievance Committee and flatly refused to participate in the process, claiming that
the University Grievance Committee did not have jurisdiction over Prof. Martin’s claim.
Under the University Grievance procedures, the University is obligated to maintain the status quo at the time
that the Grievant files the grievance; in this case, however, Bullock defied the rules and refused to maintain the
status quo, i.e., maintain Prof. Martin on the faculty while the grievance was being resolved. Not only did the
law school refuse to maintain the status quo or to participate in the University’s own grievance process, but it
placed Prof. Martin in a position even below the status quo – it required her to leave her office while she was
still grading EEO papers, not due until June 16, 1998. There was no legitimate non-discriminatory reason to
require Prof. Martin to leave her office by the end of May while allowing Prof. Levin to stay in her office through
July, with no order, even then, to vacate. Pl.’s Statement of Material Undisputed Facts, 261; Ex. A of Pl.’s MSJ,
Martin Declaration 197-200; Newsom depo at 215-217, 267) Plaintiff was still grading exams and they were
not due until June 16, 1998. Howard claims that Dean Newsom’s memo was not initiated by him, but was in
response to a request for an extension of time on her Torts grades; however, all that Prof. Martin’s request
required was for Newsom to grant the extension – there was absolutely no legitimate reason for him to order
her to vacate her office, on three days’ notice.
By May of 1998, it was well known that Prof. Martin had complained about Harrison, stating clearly that
Harrison was pursuing African-American female professors. (Ex. B of Pl.’s Opp. to Def.’s Motion for Judgment
re Retaliation, March 6, 1998 memo to Bullock, fn. 1) Prof. Martin sent copies to all members of the APT
Committee of her March 6, 1998 memorandum to Dean Bullock, on March 6, 1998, as indicated by her “cc” on
the memo to all members of the APT Committee. In addition, on April 29, 1998, Dean Bullock called an
Emergency Faculty Meeting, to address the “Concerned Students” complaints (Ex. N, memorandum sent by
Dean Bullock to all faculty members on or about April 28, 1998, which included, among numerous other
issues, the students’ protest of Prof. Martin’s non-renewal and the lack of courses and professors necessary
to complete requirements for graduation and the Bar Exam).
On April 28, 1998, in response to Dean Bullock’s memo and in preparation for the entire faculty to address the
portion of the “Concerned Students” protests of Prof. Martin’s non-renewal, Prof. Martin distributed to the entire
faculty the packet of correspondence between Dean Bullock and herself regarding the stalking by Harrison
and her non-renewal. Prof. Martin’s colleagues were therefore well aware that she had repeatedly requested
protection from Harrison, that Howard failed to take reasonable steps to protect her and other women on
campus from Harrison and Dean Bullock was refusing to renew her contract, despite vacancies on the faculty
and the shortage of classes and professors to teach needed courses. In fact, as both Martin and Prof.
Sherman Rogers testified, at the April 29, 1998 meeting, Prof. Kurland spoke in favor of Prof. Martin’s renewal,
citing the shortage of courses and the immediate need for professors to cover courses for the following year.
MSJ at __.
Less than one month later, Prof. Martin’s colleagues saw her being forced to pack her boxes and vacate her
office, humiliated, disregarded and “discarded” before her peers and her students. This public humiliation
and rescission of tools and resources necessary to complete her work at the law school could well deter a
reasonable person from ever making an EEO complaint. Certainly, it was far more substantial than a “petty
slight,” “minor annoyance,” “simple lack of good manners,” or “snubbing by supervisors and co-workers” or
“petty slights” that “all employees experience,” that the Supreme Court enumerated as examples of non-
actionable conduct under Title VII. Burlington, Slip. Op. at 13-14. This was not a “petty slight” or something
that “all employees experience[d].” Martin was singled out for early removal, while her colleagues were still
there to watch it.
Howard was well aware that the EEOC and the Grievance Committee would conduct interviews with
witnesses, primarily law school employees. Numerous law school employees were potential witnesses in
any lawsuit that Martin might file, alleging sex discrimination and retaliation. Such witnesses included APT
Committee members, professors (tenured and non-tenured as well as professors or all ranks, some seeking
promotions, merit pay increases and summer grants), administrators, secretaries and campus security
officers.
Under the “constellation of surrounding circumstances, expectations, and relationships” in this case, Prof.
Martin’s premature removal, against the backdrop of her complaints regarding Harrison and her unjustified
non-renewal, sent a clear, deterrent message to “others” employed at Howard that complaining of sexual
harassment, or stalking, or discriminatory treatment, would result in being “kicked out” of the University and
removed from the premises, as soon as they can be replaced.
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 retaliation claims 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
